ORDERS:
PREHEARING ORDER
A Motion to Dismiss was filed by Respondent Tuomey Regional Medical Center ("Tuomey"). A
motion hearing/prehearing conference was conducted at 2:30 p.m., October 11, 1995, with
counsel for each party participating. The Motion to Dismiss is denied, and a discovery and
hearing schedule for this case is ordered.
MOTION TO DISMISS
This case involves DHEC's proposed decision to grant a CON to one of two applicants seeking to
provide home health services in Sumter County. DHEC has preliminarily granted Tuomey's CON
application and denied the application of Home Health of South Carolina, Inc. ("Home Health").
Home Health filed a Petition for Administrative Review and Request for Contested Case Hearing
with DHEC on July 7, 1995. On July 12, 1995, DHEC served Tuomey with a copy of the
Petition and Agency Transmittal Form which was filed with the Administrative Law Judge
Division. Tuomey served its Answer to the Petition on August 14, 1995.
Tuomey moves for dismissal of this action on the ground that Home Health failed to serve
Tuomey with a copy of its Petition, citing 25 S.C. Code Ann. Regs. 61-72, §§ 204 and 302
(Supp. 1994); and ALJD Rules 4(a) and 5.
S.C. Code Ann. Regs. 61-72, § 302, and ALJD Rule 5 require that a party serve all other parties
with a copy of any document filed in a contested case matter. Under S.C. Code Ann. Regs.
61-72, § 402, the applicant whose license is the subject of a Petition is deemed a party upon
receipt of a copy of the Petition. ALJD Rule 4 defines a party as "... each person or agency
named or admitted as a party or properly seeking and entitled to be admitted as a party, including
a license or permit applicant."
Home Health did not name Tuomey as a party in its Petition. While Tuomey was entitled to be a
party upon commencement of the action, not until DHEC designated Tuomey as a party in the
Agency Transmittal Form and served a copy of the Transmittal Form and Petition upon Tuomey,
was Tuomey a formal party is this case. Home Health was not, therefore, technically required to
serve Tuomey with its initial pleading.
Even if Home Health were required to serve the Petition on Tuomey contemporaneously with
filing with DHEC, Tuomey failed to show any prejudicial effect from the four-day delay in
receiving a copy of the Petition. Tuomey timely filed an Answer and has been served all
subsequently filed documents, and has fully participated in the proceedings to date.
Furthermore, S.C. Code Ann. Regs. 61-72, § 204, which states the grounds for dismissal of a
petition, does not specifically include non-service of a petition as a ground. It is therefore within
the Administrative Law Judge's discretion whether to dismiss for such an omission. There being
some legitimate confusion among litigants as to certain pleading and procedural requirements for
CON cases before the Administrative Law Judge Division and there being no prejudice
established to Tuomey because of lack of service by Home Health, dismissal is not warranted.
For the foregoing reasons, the Motion to Dismiss is denied.
SCHEDULING
Pursuant to agreement of the parties and direction of this Court, the following provisions are
hereby ordered:
(1) In addition to discovery specifically allowed under ALJD Rule 21, discovery may be
expanded pursuant to agreement and consent of the parties, but not to exceed the parameters of
SCRCP 26-37, and subject to possible future restriction as may be ordered by this Court upon its
own motion or motion of a party.
(2) For all discovery requests served on or after October 11, 1995, responses must be served
within fifteen (15) days of service of the request.
(3) Parties shall complete all discovery no later than Monday, February 26, 1996.
(4) The contested case hearing on the merits shall commence at 9:30 a.m., March 25, 1996, at
the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina:
(a) Counsel shall meet in the hearing room at 9:00 a.m. March 25, 1996, to finalize
stipulations, exchange exhibits, and have all exhibits pre-marked for identification by the
court reporter prior to commencement of the hearing;
(b) The parties shall submit to the Court, no later than the commencement of the contested
case hearing, written stipulations as to resolved issues, contested issues, relevant facts,
admissibility of exhibits, and any other matters which would expedite the hearing process;
AND IT IS SO ORDERED.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 16, 1995
Columbia, South Carolina |
