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    "judges": [
      "Judges ELMORE and STEELMAN concur."
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      "HOSPICE & PALLIATIVE CARE CHARLOTTE REGION d/b/a HOSPICE AT CHARLOTTE, Petitioners v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION, Respondent-Appellee, and COMMUNITY HOME CARE OF JOHNSTON COUNTY, INC. d/b/a/ COMMUNITY HOME CARE AND HOSPICE, Respondent-Intervenor-Appellant"
    ],
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      {
        "text": "STROUD, Judge.\nRespondent-intervenor Community Home Care of Johnston County, Inc. [Community] appeals from the final agency decision entered by North Carolina Department of Health and Human Services [DHHS], Division of Facility Services [DFS] in a contested case. Petitioner Hospice & Palliative Care Charlotte Region [HPC] contested the DHHS, DFS Certificate of Need Section\u2019s [CON Section] issuance of a \u201cNo Review\u201d letter to Community, which authorized Community to open a hospice office in Mecklenburg County, North Carolina without first obtaining a Certificate of Need [CON] from the department. Community contends that its Mecklenburg County office is a \u201cbranch office\u201d of its existing licensed and certified Johnston County hospice. The final DHHS agency decision granted summary judgment in favor of HPC based upon the agency\u2019s conclusion that Community\u2019s Mecklenburg County hospice office was a \u201cnew institutional health service\u201d for which Community was required to obtain a CON. Community obtained a license for its Mecklenburg County hospice office from the DHHS DFS License and Certification Section four days before HPC filed this contested case.\nThis Court must resolve two issues on appeal: (1) whether the License and Certification Section\u2019s issuance of a license for Community\u2019s Mecklenburg County hospice office, which then became \u201cfully operational,\u201d mooted the contested case filed by HPC, and (2) whether Community established a \u201cnew institutional health service\u201d in Mecklenburg County for which it was required to obtain a CON. We affirm.\nI. Factual Background\nCommunity is a health service provider that has previously obtained a CON for the establishment of a hospice in Johnston County, North Carolina. On 29 June 2005, Community opened a hospice office in Mecklenburg County, North Carolina and began serving its first patient, who was named M.D. That same day, Community sent correspondence to the CON Section, describing the hospice services it was providing to M.D. in Mecklenburg County and requesting a \u201cNo Review\u201d letter for the development of a \u201cbranch office\u201d in that location. A \u201cNo Review\u201d letter documents the CON Section\u2019s determination that a proposed project is not a \u201cnew institutional health service\u201d for which the health service provider is required to obtain a CON. The CON Section privately issued Community a \u201cNo Review\u201d letter dated 20 July 2005 for its Mecklenburg County hospice office.\nBased on the 20 July 2005 \u201cNo Review\u201d letter, Community submitted a licensure application to the DHHS DFS Licensure and Certification Section. The Section issued Community a license for its Mecklenburg County hospice office on 25 July 2005. According to Community, its Mecklenburg County hospice office \u201chas been properly licensed and fully operational since that time.\u201d\nOn 29 July 2005, nine days after the CON Section\u2019s private issuance of the \u201cNo Review\u201d letter to Community and four days after the Licensure and Certification Section\u2019s public issuance of a license for Community\u2019s Mecklenburg County hospice office, HPC filed a contested case pursuant to N.C. Gen. Stat. \u00a7 131E-188 (2005). In its written and oral argument to the trial tribunal, HPC argued that Community\u2019s Mecklenburg County hospice office is a \u201cnew institutional health service\u201d for which Community is required to obtain a CON and that the CON Section erred by issuing Community a \u201cNo Review\u201d letter for that location. Community responded that the contested case filed by HPC was moot because the CON Section has \u201cno continuing oversight of a project once the project is licensed and operational.\u201d Alternatively, Community argued that its Mecklenburg County hospice office was a \u201cbranch office\u201d of its licensed and certified existing Johnston County hospice, not a \u201cnew institutional health service.\u201d\nOn 9 August 2006, DFS Director Robert J. Fitzgerald issued a final agency decision ordering the CON Section to withdraw the \u201cNo Review\u201d letter and deciding that \u201cCommunity must obtain a CON before developing or offering a hospice office in Mecklenburg County because Mecklenburg County was not in Community\u2019s Johnston County office\u2019s service area.\u201d Community appealed, and on 31 August 2006 Community also filed petition in this Court for writ of super-sedeas and a motion for temporary stay of the final agency decision (COAP06-724). This Court granted Community\u2019s petition on 19 September 2006 and motion on 1 September 2006.\nII. Mootness\nCommunity argues that DFS erred by concluding that the contested case is not moot. In support of its argument Community states that \u201cthe CON Section has no continuing oversight of the project after the issuance of a no-review letter.\u201d Citing, Mooresville v. Hosp. Mgmt Assocs. Inc. v. N.C. Dep\u2019t of Health & Human Servs., 360 N.C. 156, 622 S.E.2d 621 (2005) (per curiam), Community reasons that \u201cthis case is rendered moot by the subsequent licensure of the [Mecklenburg County hospice] office and its becoming operational and serving patients.\u201d We disagree.\nThe Supreme Court of North Carolina has explained that a case should be considered moot when \u201ca determination is sought on a matter which,' when rendered, cannot have any practical effect on the existing controversy.\u201d Roberts v. Madison Cty Realtors Ass\u2019n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996); Lange v. Lange, 357 N.C. 645, 588 S.E.2d 877 (2003). If a case becomes moot \u201cat any time during the course of the proceedings, the usual response should be to dismiss the action.\u201d In re Peoples, 296 N.C. 109, 148, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979). Community argues that the final agency decision entered by DFS \u201ccannot have any practical effect\u201d on the case sub judice because its Mecklenburg County hospice office \u201chas been properly licensed and fully operational since\u201d 25 July 2005.\nInitially, we note that Community\u2019s \u201cmootness\u201d claim is based on the premise that its Mecklenburg County hospice office is no longer subject to CON Section \u201coversight\u201d because the office is \u201clicensed and fully operational.\u201d This is not true.\nN.C. Gen. Stat. \u00a7 131E-190 (2005) confers authority on DHHS to-impose multiple penalties on any health service provider that \u201cproceeds to offer or develop a new institutional health service without having first obtained a certificate of need for such services.\u201d Such penalties include \u201cthe withholding of federal and State funds under Titles V, XVII, and XIX of the Social Security Act for reimbursement of capital and operating expenses related to the provision of the new institutional health service.\u201d N.C. Gen. Stat. \u00a7 131E-190(d) (2005). Most importantly, DHHS is empowered to \u201crevoke or suspend the license of any person who proceeds to offer or develop a new institutional health service without having first obtained a certificate of need for such services.\u201d N.C. Gen. Stat. \u00a7 131E-190(e) (2005).\nWhether Community has offered a \u201cnew institutional health service\u201d for which a CON is required is precisely the substantive issue raised by HPC in its contested case. In light of N.C. Gen. Stat. \u00a7 131E-190, the trial tribunal\u2019s resolution of this issue has a significant \u201cpractical effect on the existing controversy,\u201d as DHHS may revoke the license for Community\u2019s Mecklenburg County hospice office, at which time the office would cease to be \u201cfully operational.\u201d In fact, the Licensure and Certification Section letter accompanying this license expressly stated: \u201cIt should be noted that this decision is based only on the facts represented by you in your July 22, 2005 correspondence [requesting licensure] and the July 20, 2005 \u201cNo Review\u201d letter [issued by the CON Section.]\u201d\nCommunity cites the North Carolina Supreme Court\u2019s per curiam decision in Mooresville Hosp. Mgmt Assocs Inc. v. N.C. Dep\u2019t of Health & Human Servs., 360 N.C. 156, 622 S.E.2d 621 (2005) in support of its position. In Mooresville, the Court described the procedural posture of that case as follows:\nWhile the appeal was \u25a0 pending, respondent-intervenor Presbyterian Hospital obtained an operating license from DHHS. On 19 November 2004, before the Court of Appeals issued its decision, respondent-intervenors filed in that court a motion to dismiss petitioner\u2019s appeal as moot because construction of Presbyterian Hospital had been completed and the hospital was fully operational.\n360 N.C. 156, 157-58, 622 S.E.2d 621, 622. Later, the Court announced, \u201c[w]e conclude that the Court of Appeals erred in denying respondent-intervenors\u2019 motion to dismiss as moot,\u201d Id.\nBased on the above-quoted statements, Community urges this Court to conclude Mooresv\u00fcle established the rule that a contested case is always moot when the challenged health service becomes \u201cfully operational.\u201d We do not believe that the per curiam opinion in Mooresv\u00fcle stands for this broad proposition. Such an interpretation would accelerate the unlawful development of new institutional health services, encouraging health service providers to make questionable projects \u201cfully operational\u201d before an \u201caffected party\u201d has time to challenge the action. For example, in the case sub judice, Community alleges that HPC could not file a contested case on 29 July 2005 because its Mecklenburg County hospice office became \u201cproperly licensed and fully operational\u201d on 25 July 2005, just five days after the CON Section privately issued the \u201cNo Review\u201d letter.\nThe facts of Mooresville are dispositively different from the facts of the contested case sub judice. In Mooresville, a respondent-inter-venor obtained a CON before constructing the replacement hospital, but the petitioner contested an alleged procedural defect in the CON review process. Id. Here, Community did not obtain a CON before developing its Mecklenburg County hospice office. The substantive question on appeal is whether Community\u2019s Mecklenburg County hospice office is a \u201cnew institutional health service\u201d for which it was required to obtain a CON and this Court\u2019s resolution of Community\u2019s appeal may subject Community to sanctions pursuant to N.C. Gen. Stat. \u00a7 131E-190.\nFor the reasons stated above, we hold that DFS did not err by concluding that the Licensure and Certification Section\u2019s issuance of a license for Community\u2019s Mecklenburg County hospice office, which then became \u201cfully operational,\" did not moot the contested case filed by HPC. This assignment of error is overruled.\nIII. \u201cNew Institutional Health Service\u201d\nCommunity argues that DFS erred by deciding that its Mecklenburg County hospice office is a \u201cnew institutional health service\u201d for which it must obtain a CON. Citing In re Total Care, 99 N.C. App. 517, 393 S.E.2d 338, disc. rev. denied, 327 N.C. 635, 399 S.E.2d 122 (1990), Community contends that it was not required to obtain a CON before opening its Mecklenburg County hospice office because the office is a \u201cbranch office\u201d of its Johnston County hospice. Community reasons that before 31 December 2005, a CON was not required to open a branch hospice office, even if the branch office was located outside the parent hospice\u2019s service area. We disagree.\nIn Hospice at Greensboro, which is filed concurrently with this opinion, this Court held that \u201can existing institutional health service must obtain a new CON to open a \u2018branch office\u2019 outside its service area.\u201d Hospice at Greensboro, Inc. v. N.C. Dep\u2019t of Health & Human Servs., 185 N.C. App.-,-,-S.E.2d-,-(2007). \u201cSuch an office, regardless of the label affixed by its developer, is a \u2018new institutional health service\u2019 for which a CON is required.\u201d Id. Our holding in Hospice at Greensboro applied to the definition of \u201cnew institutional health service\u201d as set forth in N.C. Gen. Stat. \u00a7 131E-176 prior to 31 December 2005, Hospice at Greensboro, 185 N.C. App. at-n.7,-S.E.2d at \u2014 n.7, and is applicable to the instant case, in which Community obtained a \u201cNo Review\u201d letter from the CON Section on 20 July 2005.\nAccordingly, we hold that Community\u2019s Mecklenburg County hospice office is a \u201cnew institutional health service\u201d for which it must obtain a CON. This assignment of error is overruled.\nIV. Conclusion\nFor the reasons stated above, the final agency decision entered by DHHS, DFS Director Robert J. Fitzgerald on 9 August 2006 awarding summary judgment to HPC is affirmed.\nAFFIRMED.\nJudges ELMORE and STEELMAN concur.\n. Although the letter accompanying the license was dated 25 July 2005, the license itself was effective 22 July 2005, which is the date on which Community filed its licensure application.\n. \u201cIn federal courts the mootness doctrine is grounded primarily in the \u2018case or controversy\u2019 requirement of Article III, Section 2 of the United States Constitution and has been labeled \u2018jurisdictional\u2019 by the United States Supreme Court.\u201d In re Peoples, 296 N.C. at 147, 250 S.E.2d at 912 (1978). \u201cIn state courts the exclusion of moot questions from determination is not based on a lack of jurisdiction but rather represents a form of judicial restraint.\u201d Id. at 147, 250 S.E.2d at 912-13.\n. N.C. Gen. Stat. \u00a7 131E-188(a) provides that \u201cany affected person\u201d may contest the CON Section\u2019s decision to \u201cissue, deny, or withdraw a certificate of need or exemption.\u201d See also Hospice at Greensboro, Inc. v. N.C. Dep\u2019t of Health & Human Servs., -N.C. App.-,-,-S.E.2d-,-(2007) (COA06-1204) (holding that the CON Section\u2019s issuance of a \u201cNo Review\u201d letter is an \u201cexemption\u201d for purposes of N.C. Gen. Stat. \u00a7 131E-188). \u201c[A]ny person who provides services, similar to the services under review, to individuals residing within the service area or the geographic area proposed to he served by the applicant,\u201d is an \u201caffected party.\u201d N.C. Gen. Stat. \u00a7 131E-188(c) (2005). HP'C is an existing hospice care provider in Mecklenburg County and is, therefore, an \u201caffected party\u201d pursuant to N.C. Gen. Stat. \u00a7 131E-188(c).\n. Recently, the General Assembly further amended the statutory definition of \u201cnew institutional health service\u201d to include \u201cthe opening of an additional office by an existing . . . hospice within its service area ... or outside its service area.\u201d 2005 N.C. Sess. Laws 1179. Although this session law was ratified by the General Assembly on 16 August 2005 and signed by the Governor on 26 August 2005, it did not \u201cbecome[] effective for hospices and hospice offices\u201d until 31 December 2005. 2005 N.C. Sess. Laws 1184.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Parker Poe Adams & Bernstein, LLP, by Renee J. Montgomery and Robert A. Leandro for Petitioner-Appellee.",
      "Williams Mullen Maupin Taylor, P C. by Marcus C. Hewitt and Kevin Benedict for Respondent-Intervenor-Appellant.",
      "Attorney General Roy A. Cooper, III, by Assistant Attorney General June S. Ferrell for Respondent-Appellee."
    ],
    "corrections": "",
    "head_matter": "HOSPICE & PALLIATIVE CARE CHARLOTTE REGION d/b/a HOSPICE AT CHARLOTTE, Petitioners v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION, Respondent-Appellee, and COMMUNITY HOME CARE OF JOHNSTON COUNTY, INC. d/b/a/ COMMUNITY HOME CARE AND HOSPICE, Respondent-Intervenor-Appellant\nNo. COA06-1484\n(Filed 7 August 2007)\n1. Hospitals and Other Medical Facilities \u2014 hospice\u2014licensed and operational \u2014 certificate of need oversight\nAn agency correctly concluded that a contested case was not moot where the mootness claim was based on the erroneous premise that a new hospice office was no longer subject to certificate of need oversight because the office was licensed and fully operational.\n2. Hospitals and Other Medical Facilities\u2014 hospice \u2014 opening office in another county \u2014 certificate of need required\nA Johnson County hospice was required to obtain a certificate of need before opening a hospice office in Mecklenburg County even though it had obtained a \u201cno review\u201d letter.\nAppeal by respondent-intervenor from final agency decision entered 9 August 2006 by North Carolina Department of Health and Human Services, Division of Facility Services Director Robert J. Fitzgerald. Heard in the Court of Appeals 7 June 2007.\nParker Poe Adams & Bernstein, LLP, by Renee J. Montgomery and Robert A. Leandro for Petitioner-Appellee.\nWilliams Mullen Maupin Taylor, P C. by Marcus C. Hewitt and Kevin Benedict for Respondent-Intervenor-Appellant.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General June S. Ferrell for Respondent-Appellee."
  },
  "file_name": "0109-01",
  "first_page_order": 141,
  "last_page_order": 147
}
