dhec certificate of need lawsuit

7/28/2019 DHEC Certificate of Need lawsuit

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THE STATE OF SOUTH CAROLINAIN THE Supreme COURTIn the Original Jurisdiction

) , . .South Carolina Department of Health &Environm ent Control, Peti| jqne| ;V .

South Carolina Hospital Association andSouth Carolina Health Care Association,each of these individually and as representativeof their member applicants under the State Certificationof Need and Health Facility Licensure Act, . . . . . . . . Respondents.

NOTICE TO RESPONDTO: THE RESPONDENTSABOVE-NAMED:PLEASE TAKENOTICEthat as provided by Rule 245 of the South Carolina Rules

of Appellate Procedure you have twenty (20) days after the service of this notice to file areturn to the petition in this matter, a copy of which is herewith served upon you, and toserve a copy of your return upon the subscribers or any of them at either of their offices,namely, 2600 Bull Street, Columbia, SC 29201, or 1229 Lincoln Street, Columbia, SC29201.

W. Marshall Taylor, Jr.SC Bar No. 16646SC Dept. of Health & Environmental Control2600 Bull StreetColumbia, SC29201(803)898-3350Ashley C BggersSC Bar No. 17225SC Dept. of Health & Environmental Control2600 Bull StreetColumbia, SC29201(803)898-3350James B. Rchardson, Jr.SC Bar No. 47181229 Lncoln StreetColumbia, SC29201(803)799-9412

July 1 , 2013.


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THE STATE OF SOUTH CAROLINAIN THE Supreme COURT

In the Original Jurisdiction

South Carolina Department of Health &Environment Control, Petitioner,

v.South Carolina Hospital Association andSouth Carolina Health Care Association,each of these individually and as representativeof their member applicants under the State Certificationof Need and Health Facility Licensure Act Respondents.

PETITION TO FILE ACTIONIN THE ORIGINAL JURISDICTIONTO: THE HONORABLECHIEFJUSTICEAND ASSOCIATEJUSTICESOF THE SUPREMECOURTOF SOUTHCAROLINA:Your petitioner, the South Carolina Department of Health & Environmental Control,

respectfully petitions the Court to entertain this action in its original jurisdiction. Asgrounds, petitioner would show as follows:

1 . Petitioner is the sole agency charged with administering the SateCertification of Need and Health Facility Lcensure Act, SC Code Ann. 44-7-110,-230(hereafter, "the Act"), and more particularly Section 44 - 7 - 140 .

2. Respondents South Carolina Hospital Association ("SCHA") and SouthCarolina Health Care Association ("SCHCA") are associations whose membership includesmany parties affected by the Act, inasmuch as these members are often subject to therequirements of theAct when they seek to engage in activity regulated by the Act. SCHAand SCHCA are joined in this action because, upon information and belief, their

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memberships are too numerous to include as respondents herein, many of whom will notbe directly affected by the subject matter of the complaint in any case; and because theseassociations will wish to be heard in regard to the subject of this action inasmuch as thesubject matter will or could affect a substantial number of their members.3. Petitioner's administration of the Act involves the activity of numerousemployees and requires petitioner to expend substantial sums of money each fiscal year.These expenditures are funded by the General Assembly by annual appropriationspecifically identified for the purpose of administering the Act.

4 . Forthe purpose of funding petitioner'sadministration of the Act during FiscalYear 2013-14, which begins July 1,2013, the General Assembly passed Bill No. 3710 onJune 19, 2013. In Section 34, Item F2, of Bill No. 3710, the General Assemblyappropriated the sum of $1.4 million of State general funds for petitioner's administrationof the Act.

5. On June 25, 2013, Section 34, Item F2, of Bill No. 3710 was vetoed by theHonorable Nikki Haley, Governor of the State of South Carolina.

6. On June 26, 2013, Governor Haley'sveto of Section 34, Item F2, of Bill No.3710 was sustained by the South Carolina House of Representatives.

7. The General Assembly has adjourned sine die.8. Beginning July 1,2013, the petitioner will have no funds appropriated by the

General Assembly for the purpose of administering the Act, thereby rendering the Act anunfunded mandate during Fiscal Year 2013-14.

9. With stated exceptions, the Act provides as follows:A person or health care facility as defined in thisarticle is required to obtain a Certificate of Needfrom the department before undertaking any ofthe following: * * *

The Act then identifies a number of actions requiring a Certificate of Need, such as "theconstruction or other establishment of a new health care facility * * * ." s.C. Code Ann.

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4 4 - 7 - 1 6 0 . See, e .g., Am isub of South Carol ina , Inc. v. S.C. Dep't of Healt h &Environmental Control, Op. No. 27257 (S.C. Sup. Ct. filed May 29 , 2013).

10. Petitioner is informed and believes that the failure of the General Assemblyto fund the administration of the Act during Fiscal Year 2013-14 effects a suspension ofpetitioner's duty to administer the Act during that period of time. Jack son v. Sanford,398 S.C. 580, 731 S.E.2d 72 2 (201 1) ("If a line in the appropriations bill is vetoed in aconstitutional manner and the veto is sustained, then the line is stricken .. ..."); State exre l . M cLeod v. M i l ls , 256 S.C. 21 , 180 S.E.2d 638 (197 1) ("[T]he permanent statute wassuspended only during the tim e that the Appropriations Act was in force . . . . " ) ; Plowdenv. Beat t ie , 185 S.C. 229 ,193 S.E. 651 (1937);Broo k s v. Jone s, 80 SC. 443, 61 S.E. 946(1908); State ex rel . Bucha nan v. Jennings, 68 SC. 411 , 47 S.E. 683 (19 04 ).

11. The effect of failure to fund is unclear in regard to those provisions of the Actwhich are related to, but independent of,petitioner's duty to administer the Act, such as theprovision quoted in paragraph 9, above.

12. The administration of the Act is a matter of public interest throughout theState, as are the effects of the General Assembly's failure to fund petitioner'sadministration of the Act.

12. Upon information and belief, a multitude of circuit court actions are likely tofollow the General Assembly's failure to fund, as individual applicants seek relief inseparate actions. This undesirable result can best be prevented by resolution of thequestions identified in the complaint tendered herewith in this Court'soriginal jurisdiction.

WHEREFORE, petitioner moves the Court to accept the complaint tenderedherewith in the Court's original jurisdiction so as to resolve the questions presentedexpeditiously and authoritatively.

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Respectfully submitted,W. Marshall Taylor, Jr.S.C. Bar No. 16646General Counsel, S.C. Dept. of Health &Environmental Control2600 Bull StreetColumbia, SC 29201(803) 8 98 -335 0Ashley C. BiggersS.C. Bar No. 17225Associate General Counsel, S.C. Dept. ofHealth & Environmental Control2600 Bull StreetColumbia, SC 29201(803) 898-3350James B. Richardson, Jr.S.C. Bar No. 47181229 Lincoln StreetColumbia, SC 29201(803)799-9412

July 1,2013.

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South Carolina Department of Health &Environment Control, Petitioner,

v.South Carolina Hospital Association andSouth Carolina Health Care Association,each of these individually and as representativeof applicants under the State Certification of Needand Health Facility Licensure Act, Respondents.

COMPLAINTPetitioner, the South Carolina Department of Health & Environmental Control,

alleges as follows:1 . Petitioner is the sole agency charged with administering the State

Certification of Need and Health Facility Licensure Act, S.C. CodeAnn. 44-7-110,-230(hereafter, "the Act"), and more particularly Section 44 -7 - 140 .

2. Respondents South Carolina Hospital Association ("SCHA") and SouthCarolina Health Care Association ("SCHCA") are associations whose membership includesmany parties affected by the Act, inasmuch as these members are often subject to therequirements of theAct when they seek to engage in activity regulated by theAct. SCHAand SCHCA are joined in this action because, upon information and belief, theirmemberships are too numerous to include as respondents herein, many of whom will notbe directly affected by thesubject matter of thecomplaint in any case; and because theseassociations will wish to be heard in regard to the subject of this action inasmuch as the

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subject matter will or could af fect a substantial number of their members.3. Petitioner's administration of the Act involves the activity of numerous

employees and requires petitioner to expend substantial sums of money each fiscal year.These expenditures are funded by the General Assembly by annual appropriationspecifically identified for the purpose of administering the Act.

4. Forthe purpose of funding petitioner's adm inistration of the Actduring FiscalYear 2013-14, which begins July 1 , 2013, the General Assembly passed Bill No. 3710 onJune 19, 20 13 . In Section 34 , Item F2, of Bill No. 371 0, the General Assemblyappropriated the sum of $1.4 million of State general funds for petitioner's administrationof the Act.

5. On June 25, 2013, Section 34, Item F2, of Bill No. 3710 was vetoed by theHonorable Nikki Haley, Governor of the State of South Carolina.

6. On June 26, 2013, Governor Haley's veto of Section 34, Item F2, of Bill No.3710 was sustained by the South Carolina House of Representatives.

7. The General Assembly has adjourned s ine die.8. Beginning July 1 , 2013, the petitioner will have no funds appropriated by the

General Assembly for the purpose of administering the Act, thereby rendering the Act anunfunded mandate during Fiscal Year 2013-14.

9. With stated exceptions, the Act provides as follows:A person or health care facility as defined in thisarticle is required to obtain a Certificate of Needfrom the department before undertaking any ofthe following: * * *

The Act then identifies a number of actions requiring a Certificate of Need, such as "theconstruction or other establishment of a new health care facility * * * ." S.C. Code Ann.44 -7 -160 .

10. Petitioner is informed and believes that the failure of the General Assemblyto fund the adm inistration of the Act during Fiscal Year 2013-14 effects a suspension of

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petitioner's duty to administer the Act during that period of t ime. However, the effect offailure to fund is unclear in regard to those provisions of the Act which are related to, butindependent of, petitioner's administration, such as the provision quoted in paragraph 9,above.

1 1 . Upon information and belief, members of the respondent associations intendto andwill engage during Fiscal Year 2013-14 in activities regulated by the Act. Membersso engaging will be affected by the suspension of funding for petitioner's administration ofthe Act.

1 2. The Uniform Declaratory Judgments Act, S.C. CodeAnn. 15 -53 -10 , etseq. , authorizes the Court to declare the rights and relations of the parties under thecircumstances alleged above.

1 3. Petitioner is in need of a declaration that its duty to administer the Act duringFiscal Year 2013-14 was suspended when the General Assembly failed to appropriate thefunds needed to administer the Act.

1 4. Petitioner, as well as members of the respondent associations, are in needof a declaration of the effect of suspension of administration of the Act upon the regulatedactivities of the respondents' members.

WHEREFORE, petitioner prays for the following relief:(1) A declaration that the petitioner's duty to administer the Act during FiscalYear 2013-14 was suspended by the General Assembly's failure toappropriate funds for that purpose;(2) A declaration of the effect upon members of the respondent associationswho intend to engage in activity regulated by the Act during Fiscal Year2013-14; and(3) Such other and further relief as may be just and proper.

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Respectfully submitted,W. Marshall Taylor, Jr.S.C. Bar No. 16646General Counsel, SC. Dept. of Health &

Environmental Control2600 Bull StreetColumbia, SC 29201(803) 8 98 -335 0Ashley C. BiggersS.C. Bar No. 17225Associate General Counsel, S.C. Dept. ofHealth & Environmental Control2600 Bull StreetColumbia, SC 29201(803) 898-3350James B. Richardson, Jr.S.C. Bar No. 47181229 Lincoln StreetColumbia, SC 29201(803)799-9412

July 1,2013.

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South Carolina Department of Health &Environment Control Petitioner,

v.South Carolina Hospital Association andSouth Carolina Health Care Association,each of these individually and as representativeof their member applicants under the State Certificationof Need and Health Facility Licensure Act Respondents.

AFFIDAVIT OF SERVICE

PERSONALLYappeared before me Carol L. Wingard, Jr., who, being duly sworn,deposes and says:

1 . I served a copy of the following documents upon the respondent SouthCarolina Health Care Association by personal delivery to its Kathryn Roland, director ofeducation and events, at its offices at 176 Laurel Hurst, Columbia, South Carolina at 8:49a.m. on July 1 , 2013.

1 . Notice to Respond.2. Petition.3. Complaint.

Copiesof the first page of each of these three documents areattached to and incorporated

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in this affidavit of service.2. I am more than eighteen yearsof age and am not related to any party nor to

counsel for the petitioner.FURTHER DEPONENT SAYETH NAUGHT.

SWORN to before me on this1st day of July, 2013.

1(L.S.)ROLINAOTARYPUBLICOF SOUTH'My commission expires: 4/6/14.

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South Carolina Department of Health &Environment Control, Petitioner,v.

South Carolina Hospital Association andSouth Carolina Health CareAssociation,each of these individually and as representativeof their member applicants under the State Certificationof Need and Health Facility Licensure Act Respondents.

AFFIDAVIT OF SERVICE

PERSONALLYappeared before me Carol L. Wingard, Jr., who, being duly sworn,deposes and says:

1 . I served a copy of the following documents upon the respondent SouthCarolina Hospital Association by personal delivery to Allan Stalvey, its executive vice-president, at its offices at 1000 Center Point Columbia, South Carolina at 9:17 a.m. onJuly 1 , 2013.

1 . Notice to Respond.2. Petition.3. Complaint.

Copiesof the first page of each of these three documents are attached to and incorporated

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in this affidavit of service.2. I am more than eighteen years of age and am not related to any party nor to

counsel for the petitioner.FURTHER DEPONENT SAYETH NAUGHT

ARD, rSWORNto before me on this1st day of July, 2013.

ffi- (ihJ J^K A(L.S.)NOTARY PUBLIC OF SOUTH CAROLINAMy commission expires: 4/6/14.

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dhec certificate of need lawsuit

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