{ "id": 8372473, "name": "HOSPICE & PALLIATIVE CARE CHARLOTTE REGION, Petitioner v. N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION and N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, LICENSURE AND CERTIFICATION SECTION, Respondents, and LIBERTY HOME CARE II, LLC, Respondent-Intervenor", "name_abbreviation": "Hospice & Palliative Care Charlotte Region v. N.C. Department of Health & Human Services", "decision_date": "2007-11-06", "docket_number": "No. COA07-302", "first_page": "148", "last_page": "155", "citations": [ { "type": "official", "cite": "187 N.C. App. 148" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "647 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638971 ], "weight": 9, "year": 2007, "pin_cites": [ { "page": "655" }, { "page": "655-56" }, { "page": "657" }, { "page": "658" }, { "page": "659", "parenthetical": "quotation omitted" }, { "page": "661" }, { "page": "661-62" }, { "page": "655" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0651-01" ] }, { "cite": "623 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634719 ], "year": 2006, "pin_cites": [ { "page": "633", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0629-01" ] }, { "cite": "349 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "556" }, { "page": "556" } ], "opinion_index": 0 }, { "cite": "318 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736107 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "428" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0421-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "185 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8208355 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "7" }, { "page": "7" }, { "page": "10" }, { "page": "17-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0001-01" ] }, { "cite": "175 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351815 ], "year": 2006, "pin_cites": [ { "page": "269-70", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0265-01" ] } ], "analysis": { "cardinality": 580, "char_count": 16909, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20317439356503023 }, "sha256": "b4c0db19b58408b06f55cb099f55ec408612182cd6717ca5e701e34895770f5c", "simhash": "1:217cfda671282a78", "word_count": 2725 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and STROUD concur." ], "parties": [ "HOSPICE & PALLIATIVE CARE CHARLOTTE REGION, Petitioner v. N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION and N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, LICENSURE AND CERTIFICATION SECTION, Respondents, and LIBERTY HOME CARE II, LLC, Respondent-Intervenor" ], "opinions": [ { "text": "TYSON, Judge.\nLiberty Home Care II, LLC (\u201cLiberty\u201d) appeals from the final agency decision entered granting summary judgment in favor of Hospice & Palliative Care Charlotte Region (\u201cCharlotte Hospice\u201d). We affirm.\nI. Background\nLiberty is a hospice agency with its principal office located in Hoke County, North Carolina. Liberty was issued a Certificate of Need (\u201cCON\u201d) in 2002 to develop its Hoke County Hospice Program. On 20 May 2005, Liberty requested a \u201cNo Review\u201d determination from the North Carolina Department of Health and Human Services (\u201cDHHS\u201d), Certificate of Need Section (\u201cCON Section\u201d) for a proposed hospice branch office in Mecklenburg County. Liberty stated that a Mecklenburg County resident was being served by its Hoke County Hospice and it desired to open a hospice branch office in Mecklenburg County.\nOn 26 May 2005, the CON Section issued a \u201cNo Review\u201d determination, stating no CON approval was required for Liberty\u2019s proposal. On or about 2 June 2005, Liberty applied for a license for the Mecklenburg Hospice Branch Office. The DHHS Acute and Home Care Licensure and Certification Section (\u201cLicensure Section\u201d) issued a license to Liberty to open the Mecklenburg County branch office effective 6 June 2005.\nOn 19 July 2005, Charlotte Hospice filed a petition for a contested case hearing. Liberty was permitted to intervene. Liberty continued to develop its Mecklenburg County hospice by recruiting and hiring new staff while Charlotte Hospice\u2019s petition for hearing was pending. On 2 December 2005, Liberty requested another \u201cNo Review\u201d determination for a hospice branch office to be located in Mecklenburg County, based upon \u201cnew facts and a new admission of a hospice patient.\u201d\nOn 6 December 2005, the CON Section issued a \u201cNo Review\u201d letter, stating that Liberty\u2019s proposal did not require a CON based upon current law. Liberty applied for a license for the Mecklenburg hospice branch office, requesting that upon issuance of the license, the Licensure Section cancel its 6 June 2005 license. The Licensure Section issued a license to Liberty, effective 7 December 2005, for the Mecklenburg branch office and terminated the previously issued license. Charlotte Hospice\u2019s pending petition for a contested case hearing was dismissed as moot.\nOn 5 January 2006, Charlotte Hospice filed another petition for a contested case hearing and Liberty was again permitted to intervene. On 28 September 2006, an Administrative Law Judge (\u201cALJ\u201d) granted Charlotte Hospice\u2019s summary judgment motion, and denied Liberty\u2019s cross-motion for summary judgment, motion to dismiss, and motion for judgment on pleadings.\nOn 8 December 2006, a Final Agency Decision was issued which: (1) upheld summary judgment in favor, of Charlotte Hospice; (2) denied Liberty\u2019s cross-motion for summary judgment; (3) denied Liberty\u2019s motion to dismiss and motion for judgment on pleadings; (4) directed Liberty to apply for and obtain a CON before developing or opening a hospice office in Mecklenburg County; (5) directed that after Liberty obtains any CON, Liberty must submit a complete licen-sure application to the Licensure Section before it may operate a hospice in Mecklenburg County; (6) directed the CON Section to withdraw the 6 December 2005, \u201cNo Review\u201d determination; (7) directed the Licensure Section to declare the 7 December 2005 license issued to Liberty invalid; and (8) directed the CON Section to inform Liberty to cease and desist from operating a hospice in Mecklenburg County until it obtains a CON and License. Liberty-appeals.\nII. Issues\nLiberty argues DHHS erred by: (1) finding that N.C. Gen. Stat. \u00a7 131E-188 governs this case; (2) denying its motion to dismiss and for judgment on the pleadings; and (3) denying its motion for summary judgment.\nCharlotte Hospice cross-assigns error to DHHS\u2019s failure to adopt the ALJ\u2019s definition of \u201cservice area,\u201d as a single county pursuant to the 2005 State Medical Facilities Plan.\nIII. Standard of Review\nThe appropriate standard of review in.this case depends upon the issue being reviewed. This Court has stated:\nThe proper standard of review by the trial court depends upon the particular issues presented by the appeal. If appellant argues the agency\u2019s decision was based on an error of law, then de novo review is required. If appellant questions whether the agency\u2019s decision was supported by the evidence or whether it was arbitrary or capricious, then the reviewing court must apply the whole record test.\nThe reviewing court must determine whether the evidence is substantial to justify the agency\u2019s decision. A reviewing court may not substitute its judgment for the agency\u2019s, even if a different conclusion may result under a whole record review.\nAs to appellate review of a superior court order regarding an agency decision, the appellate court examines the trial court\u2019s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. As distinguished from the any competent evidence test and a de novo review, the whole record test gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence.\nCarillon Assisted Living, LLC v. N.C. Dep\u2019t of Health & Human Servs., 175 N.C. App. 265, 269-70, 623 S.E.2d 629, 633 (2006) (internal citations and quotations omitted).\nIV. N.C. Gen. Stat. $ 131E-188\nLiberty argues DHHS erred when it concluded this case is \u201cgoverned by N.C. Gen. Stat. \u00a7 131E-188 because the C[ON] Section\u2019s December 6, 2005 [\u2018N]o [Rjeviewf] determination is an \u2018exemption\u2019 as that term is used in the C[ON] Law.\u201d We disagree.\nThis Court has recently held that \u201cthe CON [S]ection\u2019s issuance of a \u2018No Review\u2019 letter is the issuance of an \u2018exemption\u2019 for purposes of section 131E-188(a).\u201d Hospice at Greensboro, Inc. v. N.C. Dep\u2019t of Health & Human Servs., 185 N.C. App. 1, 7, 647 S.E.2d 651, 655 (2007). \u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).\nN.C. Gen. Stat. \u00a7 131E-188(b) confers jurisdiction on this Court to hear Liberty\u2019s appeal pursuant to this Court\u2019s prior holding in Hospice at Greensboro, Inc. 185 N.C. App. at 7, 647 S.E.2d at 655-56. This assignment of error is overruled.\nV. Motion t,o Dismiss and for Judgment on the Pleadings\nLiberty argues that: (1) \u201c[t]he issues in this case were previously decided in the first contested case and are therefore barred by the doctrine of collateral estoppel;\u201d and (2) \u201c[DHHS] erred by not granting [its] Motion to Dismiss pursuant to Rule 12(b)(6) and for Judgment on the Pleadings under Rule 12(c).\u201d We disagree.\n\u201cUnder collateral estoppel as traditionally applied, a final judgment on the merits prevents relitigation of issues actually litigated and necessary to the outcome of the prior action in a later suit involving a different cause of action between the parties or their privies.\u201d Thomas M. McInnis & Associates, Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986).\nIn a Final Decision Order of Dismissal dated 14 December 2005, the AU dismissed as moot Charlotte Hospice\u2019s petition for a contested case hearing regarding the CON Section\u2019s 26 May 2005 \u201cNo Review\u201d determination. The ALJ found that \u201cLiberty is no longer relying on the [26 May 2005] [\u2018N]o [Rjeviewf] letter . . . and the . .. license issued ... in connection with that [\u2018N]o [R]eview[\u2019] letter.\u201d The AU held that \u201c[a]ny determination made . . . regarding the validity of the [26 May 2005] \u2018[N]o [R]eview\u2019 letter at issue in this case is moot.. . .\u201d\nThe AU specifically found \u201cLiberty is permitted to operate a branch office of the Hoke Hospice in Mecklenburg County pursuant to the new [*N]o [R]eview[\u2019] letter and new license Liberty received on December 6 and 7, 2005[]\u201d in its order dismissing as moot Charlotte Hospice\u2019s original petition for a contested case hearing on the 26 May 2005 \u201cNo Review\u201d letter and 6 June 2005 license. Liberty asserts that Charlotte Hospice\u2019s failure to appeal the AU\u2019s dismissal estops it from relitigating the issues before us. We disagree.\nThe statement relied upon by Liberty in the 14 December 2005 final decision is not a decision regarding the ultimate legal validity of the CON Section\u2019s 6 December 2005 \u201cNo Review\u201d letter or the Licensure Section\u2019s 7 December 2005 license issuance. This statement is merely an acknowledgment of the fact that Liberty received a wholly new hospice license based on a new 6 December 2005 \u201cNo Review\u201d determination. The issues of the validity of the 26 May 2005 \u201cNo Review\u201d letter and the 6 June 2005 issuance of the license were not \u201cactually litigated\u201d and were rendered moot by the December 2005 \u201cNo Review\u201d letter and license under review here. Id. DHHS did not err by denying Liberty\u2019s motion to dismiss and for judgment on the pleadings. This assignment of error is overruled.\nVI. Summary Judgment\nLiberty argues DHHS erred by \u201cden[ying] [its] motion for Summary Judgment because the CON law [in effect] at the relevant time did not require that Liberty obtain a CON for its hospice branch office in Mecklenburg County\u201d and that \u201cCharlotte Hospice failed to allege, establish or forecast any evidence that agency action substantially prejudiced Charlotte Hospice\u2019s rights.\u201d We disagree.\n\u201c[A]ny person seeking to construct, develop, or otherwise establish a. hospice must first obtain a CON from DHHS.\u201d Hospice at Greensboro, Inc., 185 N.C. App. at 10, 647 S.E.2d at 657. \u201c[T]he opening of branch offices by an established hospice within its current service area is not the construction, development, or other establishment of a new institutional health service for which a CON is required.\u201d Id. at 10, 647 S.E.2d at 658. \u201cService area means the hospice planning area in which the hospice is located.\u201d Id. at 12-13, 647 S.E.2d at 659 (quotation omitted). Liberty holds a CON for its hospice located in Hoke County. Liberty\u2019s planning and service area as defined by the State Medical Facilities Plan is Hoke County.\nLiberty\u2019s proposed hospice branch office in Mecklenburg County is not located within its current Hoke County service area. Liberty\u2019s proposed Mecklenburg County office is a \u201cnew institutional health service\u201d for which it is required to obtain a CON.\n\u201c[T]he issuance of a \u2018[n]o [r]eview\u2019 letter, which results in the establishment of \u2018a new institutional health service\u2019 without a prior determination of need, substantially prejudices a licensed, preexisting competing health service provider as a matter of law.\u201d Id. at 16, 647 S.E.2d at 661.\n[T]he CON Section\u2019s issuance of a \u201cNo Review\u201d letter to Liberty effectively prevented any existing health service provider or other prospective applicant from challenging Liberty\u2019s proposal at the agency level, except by filing a petition for a contested case. We hold that the issuance of a \u201cNo Review\u201d letter, which resulted in the establishment of a \u201cnew institutional health service\u201d in [Charlotte Hospice\u2019s] service area without a prior determination of need was prejudicial as a matter of law.\nId. at 16-17, 647 S.E.2d at 661-62. We hold DHHS did not err by denying Liberty\u2019s motion for summary judgment. This assignment of error is overruled. In light of the above holdings, it is unnecessary for us and we do not reach Charlotte Hospice\u2019s cross-assignment of error.\nVIL Conclusion\nThe CON Section\u2019s issuance of a \u201cNo Review\u201d letter is the issuance of an \u201cexemption\u201d under N.C. Gen. Stat. \u00a7 131E-188(a). This Court has jurisdiction to hear Liberty\u2019s appeal pursuant to N.C. Gen. Stat. \u00a7 131E-188(b). Id. at 7, 647 S.E.2d at 655. DHHS did not err by denying Liberty\u2019s motion to dismiss and for judgment on the pleadings. The issues in Charlotte Hospice\u2019s 5 January 2006 petition for contested case hearing were not previously litigated on the merits. Thomas M. McInnis & Associates, 318 N.C. at 428, 349 S.E.2d at 556.\nLiberty\u2019s proposed Mecklenburg County office is not located within its current Hoke County planning and service area. The agency correctly found that Liberty must obtain a CON and license for its Mecklenburg County office. Charlotte Hospice was substantially prejudiced based on the issuance of a \u201cNo Review\u201d letter to Liberty, which resulted in the establishment and licensure of \u201ca new institutional health service\u201d without a prior determination of need. Hospice at Greensboro, Inc., 185 N.C. App. at 17-18, 647 S.E.2d at 661. DHHS\u2019s final agency decision is affirmed.\nAffirmed.\nJudges MCCULLOUGH and STROUD concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Nelson Mullins Riley & Scarborough LLP, by Wallace C. Hollowell, III, and Noah H. Huffstetler, III, for petitioner-appellee.", "Attorney General Roy Cooper, by Assistant Attorney General June S. Ferrell, for respondents-appellees.", "Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene, Lee M. Whitman, and Sarah M. Johnson, for respondent-intervenor-appellant.", "Bode, Gall & Stroupe, L.L.P., by S. Todd Hemphill, Diana Evans Ricketts, and Matthew A. Fisher, for amicus curiae Community CarePartners, Inc.", "Johnston, Allison & Hord, P.A., by Patrick E. Kelly and Jennifer McKay Patterson, for amicus curiae The Carolinas Center for Hospice and End of Life Care." ], "corrections": "", "head_matter": "HOSPICE & PALLIATIVE CARE CHARLOTTE REGION, Petitioner v. N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION and N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, LICENSURE AND CERTIFICATION SECTION, Respondents, and LIBERTY HOME CARE II, LLC, Respondent-Intervenor\nNo. COA07-302\n(Filed 6 November 2007)\n1. Hospitals and Other Medical Facilities\u2014 hospice \u2014 certificate of need \u2014 \u201cNo Review\u201d letter an issuance of an exemption\nRespondent DHHS did not err in a case regarding a request to open a hospice branch office in Mecklenburg County by concluding this case was governed by N.C.G.S. \u00a7 131E-188 based on the fact that the Certificate of Need (CON) Section\u2019s December 6, 2005 \u201cNo Review\u201d determination was an exemption, because: (1) the Court of Appeals has recently held that the CON Section\u2019s issuance of a \u201cNo Review\u201d letter was the issuance of an exemption for purposes of N.C.G.S. \u00a7 131E-188; and (2) a subsequent panel of the same court is bound by that precedent unless it has been overturned by a higher court.\n2. Collateral Estoppel and Res Judicata\u2014 motion to dismiss \u2014 motion for judgment on pleadings\nRespondent DHHS did not err by denying intervenor Liberty\u2019s motions to dismiss and for judgment on the pleadings based on collateral estoppel in a case requesting the opening of a hospice branch office in Mecklenburg County, because: (1) although intervenor asserts petitioner\u2019s failure to appeal the AU\u2019s dismissal estops it from relitigating the issues before the Court of Appeals, the statement relied upon by intervenor in the 14 December 2005 final decision is not a decision regarding the ultimate legal validity of the CON Section\u2019s 6 December 2005 \u201cNo Review\u201d letter or the Licensure Section\u2019s 7 December 2005 license issuance; and (2) the issues of the validity of the 26 May 2005 \u201cNo Review\u201d letter and the 6 June 2005 issuance of the license were not actually litigated and were rendered moot by the December 2005 \u201cNo Review\u201d letter and license under review in the instant case.\n3. Hospitals and Other Medical Facilities\u2014 hospice \u2014 certificate of need required\nRespondent DHHS did not err by denying intervenor Liberty\u2019s motion for summary judgment even though intervenor contends the Certificate of Need (CON) law in effect at the relevant time did not require intervenor to obtain a CON for its hospice branch office in Mecklenburg County and that petitioner failed to allege, establish, or forecast any evidence that agency action substantially prejudiced petitioner\u2019s rights, because: (1) any person seeking to construct, develop, or otherwise establish a hospice must first obtain a CON from DHHS; (2) although intervenor. holds a CON for its hospice located in Hoke County, its proposed hospice branch office was not located within its current service area and was a new institutional health service for which a CON is required; and (3) the issuance of a \u201cNo Review\u201d letter, which results in the establishment of a new institutional health service without a prior determination of need, substantially prejudices a licensed preexisting competing health service provider as a matter of law.\nAppeal by respondent-intervenor from final agency decision entered 8 December 2006 by Director Robert J. Fitzgerald for the North Carolina Department of Health and Human Services, Division of Facility Services. Heard in the Court of Appeals 18 October 2007.\nNelson Mullins Riley & Scarborough LLP, by Wallace C. Hollowell, III, and Noah H. Huffstetler, III, for petitioner-appellee.\nAttorney General Roy Cooper, by Assistant Attorney General June S. Ferrell, for respondents-appellees.\nWyrick Robbins Yates & Ponton, LLP, by K. Edward Greene, Lee M. Whitman, and Sarah M. Johnson, for respondent-intervenor-appellant.\nBode, Gall & Stroupe, L.L.P., by S. Todd Hemphill, Diana Evans Ricketts, and Matthew A. Fisher, for amicus curiae Community CarePartners, Inc.\nJohnston, Allison & Hord, P.A., by Patrick E. Kelly and Jennifer McKay Patterson, for amicus curiae The Carolinas Center for Hospice and End of Life Care." }, "file_name": "0148-01", "first_page_order": 178, "last_page_order": 185 }