ORDERS:
CONSENT ORDER OF DISMISSAL
Petitioner, Bio-Medical Applications of South Carolina, Inc., NMC Dialysis Services Division,
d/b/a BMA Marshlands ("Marshlands") and Respondent Dialysis Specialists of Jasper County
("Dialysis Specialists") filed applications for a Certificate of Need ("CON") to establish an eight (8)
station dialysis unit in Jasper County. The South Carolina Department of Health and Environmental
Control ("Department") deemed the applications competing and, upon review of information
submitted by the applicants, granted the CON to Dialysis Specialists. By letter dated September 4,
1996, Marshlands filed a Request for Reconsideration/Appeal of the Department's decision. By letter
dated September 10, 1996, the Department informed Marshlands that its Request for Reconsideration
had been denied, and the Appeal would be forwarded to the Administrative Law Judge Division
("ALJD") for contested case hearing.
On September 16, 1996, the ALJD issued an Order for Prehearing Statements. On October
1, 1996, Marshlands filed its Prehearing Statement and a motion asking the ALJD to request
pleadings. The Department filed a Prehearing Statement on September 27, 1996. Dialysis Specialists
never filed a Prehearing Statement. On October 22, 1996, the ALJD issued an Order requesting
pleadings. On November 21, 1996, Marshlands filed its Petition. On December 20, 1996, the
Department filed an Answer to the Petition. Dialysis Specialists never filed an Answer to the Petition.
On January 15, 1997, Marshlands filed a Motion for Judgment by Default and sought issuance
of the CON to Marshlands. On January 16, 1997, the ALJD issued an Order limiting Dialysis
Specialists' role in the contested case to cross examination of witnesses introduced by Marshlands and
the Department. The contested case was not dismissed by the ALJ at that time.
Since its original decision, the Department had learned that information contained in Dialysis
Specialists' CON application had changed, and had so informed the ALJD during a telephone status
conference with all parties. Furthermore, on February 8, 1997, counsel for the Department and
Marshlands were informed by Ms. Nancy Nutting, Esquire, that Dialysis Specialists wished to
withdraw its CON application in this matter. The Department confirmed this fact by letter, dated
February 7, 1997, to Mr. Robert S. Ennis, Jr., CEO, Dialysis Specialists. On February 13, Dialysis
Specialists filed a formal Notice of Withdrawal, thereby withdrawing its CON application in this
matter. Based upon Dialysis Specialists' failure to file a Prehearing Statement and Answer and its
formal withdrawal of its CON application, it is the finding of the Department staff and the ALJD that
the CON should be issued to Marshlands.
CONCLUSIONS OF LAW
Unless it is modified in accordance with Department regulations, an approved CON is valid
only for the project described in the application. Dialysis Specialists changed the information
originally included in its application without providing further documentation or explanation to the
Department. Thereafter, and most significant, Dialysis Specialists has formally withdrawn its CON
application in this matter. S.C. Code Ann. § 44-7-230 and §44-7-210(C) and (D) (Cum. Supp.
1996).
The Department's decision approving Dialysis Specialists' CON application was not a final
agency decision because a contested case hearing was requested. S.C. Code Ann. §44-7-210(E)
(Cum. Supp. 1996); S.C. Regs. 61-15 §401 (Cum. Supp. 1996). Therefore, the Department's
decision continues to be subject to review, and based upon Dialysis Specialists' failure to file a
Prehearing Statement and an Answer to the Petition and its withdrawal of its CON application, the
parties agree and the ALJD finds that the CON should be issued to Marshlands.
THEREFORE, IT IS AGREED AND ORDERED that this contested case be dismissed and
that the CON for an eight (8) station dialysis facility be issued to Marshlands immediately.
AND IT IS SO AGREED AND ORDERED.
_________________________________
John D. Geathers
Administrative Law Judge
P.O. Box 11667
Columbia, SC 29211-1667
Columbia, South Carolina
March 18, 1997 |
