South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
NMC Dialysis Services Division, BMA Marshlands, Jasper County vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
NMC Dialysis Services Division, BMA Marshlands, Jasper County

Respondent:
South Carolina Department of Health and Environmental Control and Dialysis Specialists of Jasper County
 
DOCKET NUMBER:
96-ALJ-07-0393-CC

APPEARANCES:
W. Thomas Lavender, Jr.
Susan A. Lake
NEXSEN PRUET JACOBS & POLLARD
P.O. Drawer 2426
Columbia, SC 29202
Attorneys for Petitioner

Nancy S. Layman
Staff Counsel
S.C. Department of Health & Environmental Control
Office of General Counsel
2600 Bull Street
Columbia, SC 29201
Attorney for South Carolina Department of Health and Environmental Control

Leon B. Frishman, Director
Bureau of Health Facilities
and Service Development
South Carolina Department of Health &
Environmental Control
1777 St. Julian Place, Suite 201
Columbia, SC 29206
 

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


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