{ "id": 4175855, "name": "HOPE-A WOMEN'S CANCER CENTER, P.A., Plaintiff-Petitioner v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF HEALTH SERVICE REGULATION, Defendant-Respondent, and ASHEVILLE RADIOLOGY ASSOCIATES, P.A., THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY D/B/A/ CAROLINAS HEALTHCARE SYSTEM, AMI SUB OF NORTH CAROLINA, INC. D/B/A CENTRAL CAROLINA HOSPITAL, CUMBERLAND COUNTY HOSPITAL SYSTEM, INC. D/B/A CAPE FEAR VALLEY HEALTH SYSTEM, DUKE UNIVERSITY HEALTH SYSTEM, INC., FRYE REGIONAL MEDICAL CENTER, INC., HIGH POINT REGIONAL HEALTH SYSTEM, HUGH CHATHAM MEMORIAL HOSPITAL, INC., NORTH CAROLINA HOSPITAL ASSOCIATION, HENDERSON COUNTY HOSPITAL CORPORATION D/B/A MARGARET R. PARDEE MEMORIAL HOSPITAL, MISSION HOSPITALS, INC., REX HOSPITAL, INC., and WAKEMED, Respondent-Intervenors", "name_abbreviation": "Hope-A Women's Cancer Center, P.A. v. North Carolina Department of Health & Human Services", "decision_date": "2010-04-06", "docket_number": "No. COA08-1548", "first_page": "276", "last_page": "289", "citations": [ { "type": "official", "cite": "203 N.C. App. 276" } ], "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": "658 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640621 ], "year": 2008, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/se2d/658/0277-01" ] }, { "cite": "634 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636657 ], "year": 2006, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/se2d/634/0572-01" ] }, { "cite": "189 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157245 ], "year": 2008, "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0263-01" ] }, { "cite": "412 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "896" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521963 ], "year": 1992, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0191-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "179 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8237378 ], "year": 2006, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0483-01" ] }, { "cite": "338 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523388 ], "year": 1986, "pin_cites": [ { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0637-01" ] }, { "cite": "510 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "163", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132016 ], "year": 1999, "pin_cites": [ { "page": "45", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0039-01" ] }, { "cite": "231 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "291 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558835 ], "year": 1977, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0608-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136-37", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 131-176", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(16)(fl)" } ], "opinion_index": 0 }, { "cite": "345 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "237" }, { "page": "237" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524768 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "632" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0628-01" ] }, { "cite": "517 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "134 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11142767 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/134/0022-01" ] }, { "cite": "531 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "221", "parenthetical": "citing In re Declaratory Ruling by North Carolina Com'r of Ins., 134 N.C. App. 22, 517 S.E.2d 134 (1999)" }, { "page": "221" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 309", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079584 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "311-12", "parenthetical": "citing In re Declaratory Ruling by North Carolina Com'r of Ins., 134 N.C. App. 22, 517 S.E.2d 134 (1999)" }, { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0309-01" ] } ], "analysis": { "cardinality": 1034, "char_count": 30731, "ocr_confidence": 0.738, "pagerank": { "raw": 9.050042922922503e-08, "percentile": 0.5046603103115278 }, "sha256": "ca121364307957971fb738b783c6329ff047929a5a86a52d16a481d32b54d7b5", "simhash": "1:bfbcfec2f62b05d1", "word_count": 4801 }, "last_updated": "2023-07-14T21:32:21.116750+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STROUD concur." ], "parties": [ "HOPE-A WOMEN\u2019S CANCER CENTER, P.A., Plaintiff-Petitioner v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF HEALTH SERVICE REGULATION, Defendant-Respondent, and ASHEVILLE RADIOLOGY ASSOCIATES, P.A., THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY D/B/A/ CAROLINAS HEALTHCARE SYSTEM, AMI SUB OF NORTH CAROLINA, INC. D/B/A CENTRAL CAROLINA HOSPITAL, CUMBERLAND COUNTY HOSPITAL SYSTEM, INC. D/B/A CAPE FEAR VALLEY HEALTH SYSTEM, DUKE UNIVERSITY HEALTH SYSTEM, INC., FRYE REGIONAL MEDICAL CENTER, INC., HIGH POINT REGIONAL HEALTH SYSTEM, HUGH CHATHAM MEMORIAL HOSPITAL, INC., NORTH CAROLINA HOSPITAL ASSOCIATION, HENDERSON COUNTY HOSPITAL CORPORATION D/B/A MARGARET R. PARDEE MEMORIAL HOSPITAL, MISSION HOSPITALS, INC., REX HOSPITAL, INC., and WAKEMED, Respondent-Intervenors" ], "opinions": [ { "text": "BEASLEY, Judge.\nHope-A Women\u2019s Cancer Center, PA. (Hope) appeals from a judgment, affirming a declaratory ruling by the North Carolina Department of Health and Human Services, Division of Health Service Regulation (DHHS). DHHS denied Hope\u2019s request for a declaratory ruling that its \u201centry into the Services Agreement described in [its] request and its provision of diagnostic and radiation oncology services to its patients by means of that Services Agreement (the \u2018project\u2019)\u201d would not constitute a \u201cnew institutional health service\u201d as defined in N.C. Gen. Stat. \u00a7 131E-176(16),\u201d but instead ruled that Hope would be required to obtain a certificate of need (CON) for the project. For the reasons stated below, we affirm.\nHope is a health service facility, located in Asheville, North Carolina, dedicated to the diagnosis and treatment of cancer and related diseases in women. In its request for declaratory ruling, Hope proposed to enter into a Services Agreement with an unidentified \u201cout-of-state business corporation\u201d (Provider). By the terms of the Services Agreement, the Provider would furnish Hope with diagnostic and radiation oncology services to provide for its patients. These services would be provided using the following equipment: a linear accelerator with a multi-leaf collimator, a dual use positron emission tomography (PET) scanner with computerized tomography (CT) capability (which would be used for both diagnostic and treatment simulation purposes), and a magnetic resonance imaging (MRI) scanner (collectively, Equipment). The Provider would also furnish personnel, ancillary equipment, disposable supplies, maintenance services, and technical support necessary to the functioning of the Equipment. The terms of the Services Agreement would also provide for the following, in pertinent part:\n[T]he Provider will retain the risk of any loss or damage to the Equipment, and will be responsible for its insurance. The Provider will be liable for any property or other taxes on the Equipment. No specifically identified unit of the Equipment will be required to be furnished under the Services Agreement. So long as the Equipment meets the specifications set forth in the Services Agreement, the Provider will have the option to select the particular units of the Equipment to be used, and substitute units of the Equipment as may become necessary. Hope will not purchase, lease or otherwise acquire any ownership or property interest in the Equipment.\nIn November 2007, Hope submitted a request for a declaratory ruling pursuant to N.C. Gen. Stat. \u00a7 150B-4 and N.C. Admin. Code tit. 10A, r. 14A-0103 (June 2008). Hope requested a determination that its proposed project, including entry into the Services Agreement, did not constitute a \u201cnew institutional health service\u201d as defined in N.C. Gen. Stat. \u00a7 131E-176(16) and therefore, did not require it to obtain a CON. Hope\u2019s request for declaratory ruling was opposed by Asheville Radiology Associates, P.A., North Carolina Hospital Association, The Charlotte Mecklenburg Hospital Authority d/b/a Carolinas HealthCare System (CHS), Cumberland County Hospital System, Inc. d/b/a Cape Fear Valley Health System (Cape Fear), High Point Regional Health System (High Point), Rex Hospital, Inc. (Rex), Onslow Memorial Hospital, Inc., Southeast Radiation Oncology Group, P.A., Wake Med, Central Carolina Hospital, Hugh Chatham Memorial Hospital, Inc., Mission Hospitals, Inc., and Margaret R. Pardee Memorial Hospital (collectively, Commentators); all filed comments with DHHS opposing Hope\u2019s request for declaratory judgment. The North Carolina Medical Society submitted written comments in support of Hope\u2019s declaratory ruling request.\nOn 16 January 2008, DHHS filed a declaratory ruling denying Hope\u2019s request for a ruling that its proposed project would not require a CON. In February 2008, Hope petitioned for judicial review of DHHS\u2019s ruling in Wake County Superior Court, pursuant to N.C. Gen. Stat. \u00a7\u00a7 150B-4, 150B-43, 150B-45, and 150B-46. RespondentIntervenors-Appellees AMI SUB of North Carolina, Inc. d/b/a Central Carolina Hospital, Frye Regional Medical Center, Inc., Hugh Chatham Memorial Hospital, Inc., NCHA, Inc. d/b/a The North Carolina Hospital Association, Asheville Radiology Associates, P.A., Duke University Health System, Inc., Henderson , County Hospital Corporation d/b/a Margaret R. Pardee Memorial Hospital, Mission Hospitals, Inc., Rex Hospital, Inc., Cumberland County Hospital System, Inc. d/b/a Cape Fear Valley Health System, High Point Regional Health System, The Charlotte-Mecklenburg Hospital Authority d/b/a Carolinas Healthcare System and WakeMed (collectively, Intervenors) filed motions to intervene on 4 April 2008, and these motions were granted by an order entered on 26 June 2008. The order allowing intervention permitted each Intervenor to have the same rights as a party and to participate fully in all aspects of the proceeding. In June 2008, the Wake County Superior Court affirmed DHHS\u2019s ruling. From this order, Hope appeals.\nHope first argues that the trial court erred in affirming DHHS\u2019s declaratory ruling that Hope\u2019s project was a \u201cnew institutional health service\u201d requiring a CON. Hope contends that its proposed project is not a \u201cnew institutional health service\u201d under any subsection of N.C. Gen. Stat. \u00a7 131E-176(16). We disagree.\nThe standard of review\nregarding an administrative decision consists of examining the superior court order for errors of law; i.e. determining first whether the superior court utilized the appropriate scope of review and, second, whether it did so correctly. The nature of the error asserted by the party seeking review of the agency decision dictates the proper scope of review.\nChristenbury Surgery Ctr. v. N.C. Dep\u2019t of Health & Human Servs., 138 N.C. App. 309, 311-12, 531 S.E.2d 219, 221 (2000) (citing In re Declaratory Ruling by North Carolina Com\u2019r of Ins., 134 N.C. App. 22, 517 S.E.2d 134 (1999)). If the appellant claims that the agency decision was based upon an error of law, review is de novo. Christenbury, 138 N.C. App. at 312, 531 S.E.2d at 221. If the alleged error is \u201cone of statutory interpretation, the reviewing court is not bound by the agency\u2019s interpretation of the statute, although some deference is traditionally afforded the agency interpretation.\u201d Id. (citation omitted).\nThe trial court\u2019s order states that it reviewed DHHS\u2019s declaratory ruling de novo. Thus, the trial court applied the proper standard of review. We must now consider whether the trial court correctly applied de novo review to the legal issues raised by this appeal.\nThe General Assembly has set forth the activities requiring a CON in N.C. Gen. Stat. \u00a7 131E-178 as follows, in pertinent part:\n(a) No person shall offer or develop a new institutional health service without first obtaining a certificate of need from the Department....\n(b) No person shall make an acquisition by donation, lease, transfer, or comparable arrangement without first obtaining a certificate of need from the Department, if the acquisition would have been a new institutional health service if it had been made by purchase. In determining whether an acquisition would have been a new institutional health service, the capital expenditure for the asset shall be deemed to be the fair market value of the asset or the cost of the asset, whichever is greater.\nN.C. Gen. Stat. \u00a7\u00a7 131E-178(a)-(b) (2009) (emphasis added). \u201cThe fundamental purpose of the certificate of need law is to limit the construction of health care facilities in this state to those that the public needs and that can be operated efficiently and economically for their benefit.\u201d In Re Humana Hosp. Corp. v. N.C. Dept. of Human Resources, 81 N.C. App. 628, 632, 345 S.E.2d 235, 237 (1986).\nN.C. Gen. Stat. \u00a7 131E-176(16) defines the term \u201c[n]ew institutional health services\u201d as used in 131E-178(a). Hope contends that four subsections of N.C. Gen. Stat. \u00a7 131E-176(16) are potentially applicable to the project but argues that none of these subsections applies because of the features of the Services Agreement. The subsections which Hope argues are potentially applicable are:\nb. Except as otherwise provided in G.S. 131E-184(e), the obligation by any person of a capital expenditure exceeding two million dollars ($2,000,000) to develop or expand a health service or a health service facility, or which relates to the provision of a health service. The cost of any studies, surveys, designs, plans, working drawings, specifications, and other activities, including staff effort and consulting and other services, essential to the acquisition, improvement, expansion, or replacement of any plant or equipment with respect to which an expenditure is made shall be included in determining if the expenditure exceeds two million dollars ($2,000,000).\nfl. The acquisition by purchase, donation, lease, transfer, or comparable arrangement of any of the following equipment by or on behalf of any person:\n5a. Linear accelerator.\n7. Magnetic resonance imaging scanner.\n8. Positron emission tomography scanner.\n9. Simulator.\np. The acquisition by purchase, donation, lease, transfer, or comparable arrangement by any person of major medical equipment.\ns. The furnishing of mobile medical equipment to any person to provide health services in North Carolina, which was not in use in North Carolina prior to the adoption of this provision, if such equipment would otherwise be subject to review in accordance with G.S. 131E-176(16)(fl.) or G.S. 131E-176(16)(p) if it had been acquired in North Carolina.\nN.C. Gen. Stat. \u00a7 131E-176(16) (2009).\nWe first note that if Hope\u2019s proposed project would fit within the definition of a \u201cnew institutional health service\u201d under any subsection of N.C. Gen. Stat. \u00a7 131E-176(16), a CON would be required for the project. The fact that the project would not be covered under any of the approximately seventeen other potential definitions of \u201cnew institutional health service\u201d is irrelevant. Therefore, if any one of the potential definitions as noted above were applicable to Hope\u2019s proposed project, it would constitute a \u201cnew institutional health service\u201d and would thus require a CON under N.C. Gen. Stat. \u00a7 131E-178(a).\nWe also note that the proposed Services Agreement was not provided by Hope in its request for declaratory ruling; Hope gave only a general description of the major terms of the proposed agreement. In fact, the Respondent-Intervenors have argued that the request for declaratory ruling lacked sufficient information in several respects for DHHS to make a ruling and that for DHHS to do so, it would have to make findings of fact, which would be inappropriate in this proceeding for declaratory ruling. In this regard, the ruling found that \u201cthe Request lacks sufficient information and specificity to issue the ruling that Hope seeks.\u201d However, DHHS found that Hope did describe the \u201cproposed transaction in enough detail to demonstrate that it would be a violation of the CON law if consummated in the manner described.\u201d\nBased upon the information provided in Hope\u2019s request for declaratory ruling, the definition of N.C. Gen. Stat. \u00a7 131-176(16)(fl) is the most applicable to Hope\u2019s proposed project, and we will therefore address the application of this subsection.\nSection 131E-176(16)(fl) states the following, in pertinent part:\n(16) \u201cNew institutional health services\u201d means any of the following:\nfl. The acquisition by purchase, donation, lease, transfer, or comparable arrangement of any of the following equipment by or on behalf of any person:\n5a. Linear accelerator.\n7. Magnetic resonance imaging scanner.\n8. Positron emission tomography scanner.\n9. Simulator.\nN.C. Gen. Stat. \u00a7 131E-176(16)(fl) (2009).\nDHHS found that in Hope\u2019s request for a declaratory judgment, \u201c[t]he acquisition of any of the[] pieces of [Equipment to be offered or developed in North Carolina by either Hope or the Provider . . . is subject to the requirement for a CON.\u201d DHHS ruled that \u201c[acquiring the ability to provide services using the Equipment in the State of North Carolina pursuant to some arrangement with an out-of-state Provider, regardless of how it is labeled or packaged, is a comparable arrangement under N.C. Gen. Stat. \u00a7\u00a7 131E-176(16)(fl) and 131E-178(b).\u201d Hope contends that it was not proposing to acquire the Equipment by purchase, donation, lease, transfer, or comparable arrangement and that DHHS ignored rules of statutory construction.\nFirst, the type of equipment that is to be furnished to Hope by the Provider is specifically enumerated under N.C. Gen. Stat. \u00a7 131E-176(16)(fl). Pursuant to the Services Agreement, Hope would receive a linear accelerator, magnetic resonance imaging scanner, positron emission tomography scanner, and a simulator. Secondly, DHHS correctly ruled that Hope was acquiring the Equipment through an arrangement which is \u201ccomparable\u201d to a purchase, donation, lease, or transfer. Hope argues that because it would not have any ownership or property interest in the Equipment and because the Equipment would continue to be owned by the Provider, that it would not \u201cacquire\u201d the Equipment and that the Services Agreement is not a \u201ccomparable arrangement.\u201d We disagree.\n\u201cWhere the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning. But where a statute is ambiguous, judicial construction must be used to ascertain the legislative will.\u201d Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990) (citations omitted). Therefore, the rules of statutory construction \u201care relevant. . . only in those instances in which the interpretation of the statute is ambiguous or in doubt.\u201d Realty Corp. v. Coble, Sec. of Revenue, 291 N.C. 608, 612, 231 S.E.2d 656, 659 (1977). However, \u201c[t]he interpretation of a statute given by the agency charged with carrying it out is entitled to great weight.\u201d Frye Reg\u2019l Med. Ctr. v. Hunt, 350 N.C. 39, 45, 510 S.E.2d 159, 163 (1999) (citation omitted).\nWe must determine the meaning of the word \u201cacquisition\u201d as it is used in N.C. Gen. Stat. \u00a7 131E-176(16)(fl). The statute states that an acquisition may occur by a purchase, donation, lease, transfer or a \u201ccomparable arrangement.\u201d An \u201cacquisition\u201d is defined by Black\u2019s Law Dictionary as \u201c[t]he gaining of possession or control over something.\u201d Black\u2019s Law Dictionary 24 (7th ed. 1999). Hope\u2019s Services Agreement falls within this definition, as it would give Hope possession of the Equipment and would permit Hope to use the Equipment to provide services to its patients. Hope\u2019s request for a declaratory ruling even stated that \u201cthe Provider [would] furnish to Hope [the Equipment] for the benefit of Hope\u2019s patients.\u201d Although Hope\u2019s possession of the Equipment may not be permanent and the Equipment\u2019s title may not be in Hope\u2019s name, the fact that the Equipment would be in Hope\u2019s possession and control to the extent that it were used to provide services to Hope\u2019s patients constitutes an \u201cacquisition\u201d in the plain meaning of the term.\nThe ruling that the Services Agreement is a \u201ccomparable arrangement\u201d by which Hope would \u201cacquire\u201d the Equipment is also in keeping with the CON law\u2019s stated purpose. The purpose of the certificate of need law is \u201cto control the cost, utilization, and distribution of health services[.]\u201d In re Denial of Request by Humana Hospital Corp., 78 N.C. App. 637, 646, 338 S.E.2d 139, 145 (1986). By requiring health care facilities to obtain a CON before providing new institutional health services, the General Assembly intended to \u201climit the construction of health care facilities [and the growth of new institutional health services] in this state to those that the public needs and that can be operated efficiently and economically for their benefit.\u201d Humana, 81 N.C. App. at 632, 345 S.E.2d at 237; see also N.C. Gen. Stat. \u00a7 131E-175 (2009). One objective of the CON law is to limit and control what new institutional health services are offered in the state, and the Equipment to be used under the proposed Services Agreement is specifically identified in N.C. Gen. Stat. \u00a7 131E-176 (16)(fl). We see no reason not to give deference to DHHS\u2019s interpretation of the statute and its conclusion that \u201cacquiring the ability to provide services using the Equipment in the State of North Carolina pursuant to some arrangement with an out-of-state provider, regardless of how it is labeled or packaged, is a comparable arrangement under N.C. Gen. Stat. \u00a7 131E-176(16)(fl) and 131E-178(b).\u201d This interpretation is both logical and consistent with the purposes of the CON law. Accordingly, we conclude that the trial court did not err in affirming DHHS\u2019s ruling that Hope\u2019s proposal was an \u201cacquisition\u201d of equipment, and thus was governed by the CON law.\nBecause the trial court properly affirmed DHHS\u2019s ruling based upon N.C. Gen. Stat. \u00a7 131E-176(16)(fl), it is not necessary for us to address Hope\u2019s arguments as to why the Services Agreement does not constitute a \u201cnew institutional health service\u201d under other subsections of N.C. Gen. Stat. \u00a7 131E-176(16), which Hope contends could potentially apply. Even if the Services Agreement did not fall under any of the other subsections, Hope would still be required to obtain a CON for the project based upon N.C. Gen. Stat. \u00a7 131E-176(16)(fl).\nIn Hope\u2019s second argument, Hope contends that the trial court erred in affirming DHHS\u2019s ruling because DHHS\u2019s declaratory ruling denied Hope\u2019s request \u201cnot only for the reasons stated in the ruling, but also for \u2018additional bases\u2019 not discussed in the ruling.\u201d Hope argues that \u201c[t]he Department\u2019s attempt to adopt these additional bases for its ruling was made upon unlawful procedure and was in substantial violation of Hope\u2019s right to meaningful appellate review.\u201d Accordingly, Hope argues that DHHS\u2019s ruling should be limited to the grounds set forth in the ruling itself. We disagree.\nIn its declaratory ruling, DHHS noted that the parties which opposed the request for a declaratory ruling, collectively known as the \u201cCommentators,\u201d had provided \u201ca number of useful analyses of the Request.\u201d The declaratory ruling stated that:\n[a]ll of the Commentators have put forth theories and cited authority suggesting that I should deny the Request. I have considered all of the Comments as well as the arguments of Hope. To the extent the Commentators\u2019 theories and authority are not encompassed in the discussion above, it is not because they lack merit, but rather because they constitute additional bases for denial of the Request.\nN.C. Admin. Code tit. 10A, r. 14A.0103 provides that DHHS may request and consider comments from those who may be affected by the ruling in its consideration of a request for a declaratory ruling.\n(f) A declaratory ruling procedure may consist of written submissions, oral hearings, or such other procedure as may be appropriate in a particular case.\n(g) The Director may issue notice to persons who might be affected by the ruling that written comments may be submitted or oral presentations received at a scheduled hearing.\nN.C. Admin. Code tit. 10A, r. 14A.0103(f)-(g) (June 2008). In accordance with Rule 14A.0103, DHHS received and considered comments from many Commentators, as noted above. The Commentators presented the legal arguments and authorities, some of which were similar and some of which differed from the arguments presented by others. As this was a declaratory ruling proceeding, there was necessarily no factual information provided by the Commentators. Hope did not object to the participation of the Commentators, to any of the particular comments provided by any Commentators, or to DHHS\u2019s consideration of those comments. Nor did Hope\u2019s petition for judicial review before the trial court take any exception to DHHS\u2019s consideration of any particular comments submitted. Hope\u2019s only exception related to the comments was:\nIt appears that DHHS, through the North Carolina Hospital Association, solicited the comments from the Commentators, knowing that the Commentators, the majority of which are hospitals, would be opposed to this request from Hope, a physician group. The Commentators, via the North Carolina Hospital Association, agreed that the Declaratory Ruling Request should be denied, and communicated their desire to DHHS that the Declaratory Ruling Request should be denied.\nThus, Hope appears to claim that DHHS was biased against it, as it objected only to DHHS\u2019s alleged selective \u201csolicitation\u201d of comments opposed to its request. Therefore, under N.C.R. App. P Rule 10(a), this is the only issue regarding the comments which Hope has preserved for appeal before this Court. \u201cTo properly preserve a question for appellate review a party must request, and receive, a ruling on the question from the trial court. N.C.R. App. P. 10(b)(1) (2006).\u201d Bio- Medical Applications of N.C., Inc. v. N.C. Dep\u2019t of Health & Human Servs., 179 N.C. App. 483, 487, 634 S.E.2d 572, 576 (2006).\nRule 14A.0103(g) provides that DHHS may \u201cissue notice to persons who might be affected by the ruling\u201d so that they may comment upon the requested declaratory ruling. Hope does not contend or argue that the Commentators were not \u201cpersons who might be affected by the ruling.\u201d Hope has not demonstrated that DHHS made its ruling \u201cupon unlawful procedure\u201d by its consideration of the comments. N.C. Gen. Stat. \u00a7 150B-51(3) (2009). Indeed, Hope acknowledges that \u201cthe record fails to disclose how the Commentators learned of Hope\u2019s request\u201d but argues that \u201ca reasonable inference from the circumstances is that DHHS notified them and solicited their views. Unfortunately, such off-the-record communications between Director Fitzgerald and incumbent providers, if they occurred here, would not be unprecedented.\u201d Certainly, the trial court did not err by failing to make an \u201cinference\u201d of impropriety in DHHS\u2019s procedure where the record admittedly contains no indication of such impropriety.\nHope also argues that the bases for the ruling were unlawful because the ruling referenced the arguments of the Intervenors as \u201cadditional bases\u201d for its determination, without specifying the exact argument upon which it relied. Hope argues:\nThe Department purported to deny Hope\u2019s request not only for the reasons stated in the ruling, but also for \u201cadditional bases\u201d not discussed in the ruling. By referring to all of the Intervenors\u2019 otherwise-unnamed \u201ctheories and authority\u201d as \u201cadditional bases for denial,\u201d Department Director Fitzgerald attempted to incorporate 416 additional pages of argument against Hope into his ruling. DHHS was so intent on denying Hope\u2019s request that every Intervenor\u2019s argument was deemed meritorious and every argument raised by Hope was deemed worthless.\u201d\nWe disagree with Hope\u2019s contention of the ruling as \u201cincorporating\u201d all 416 pages of the comments opposing its request. The ruling properly stated the legal bases for its denial of Hope\u2019s request, addressing each of Hope\u2019s arguments as to the four potential definitions of \u201cnew institutional health services,\u201d which could apply to its proposed project. Read in the context of the entire ruling, the disputed provision does not adopt any particular legal argument put forth by any Commentator other than those already addressed by the ruling; the disputed provision simply states that DHHS did fully consider the comments and that they support DHHS\u2019s ruling. This argument is also without merit.\nLastly, Hope argues that the trial court erred in denying Hope\u2019s request for attorney\u2019s fees because an award of attorneys\u2019 fees would have been just and because DHHS acted without substantial justification. Hope contends that DHHS\u2019s \u201crefusal to apply the law as it exists to the facts . . . are \u2018special circumstances\u2019 that support an award of attorney\u2019s fees.\u201d We disagree.\nHope argues that pursuant to N.C. Gen. Stat. \u00a7 6-19.1, because DHHS acted without substantial justification in pressing its claim against Hope, this supports an award of attorney\u2019s fees. N.C. Gen. Stat. \u00a7 6-19.1 (2009) provides:\n[i]n any civil action, other than an adjudication for the purpose of establishing or fixing a rate, or a disciplinary action by a licensing board, brought by the State or brought by a party who is contesting State action pursuant to G.S. 150B-43 or any other appropriate provisions of law, unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney\u2019s fees, including attorney\u2019s fees applicable to the administrative review portion of the case, in contested cases arising under Article 3 of Chapter 150B, to be taxed as court costs against the appropriate agency if:\n(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and\n(2) The court finds that there are no special circumstances that would make the award of attorney\u2019s fees unjust.\n(emphasis added). \u201c[I]t is imperative to note that G.S. \u00a7 6-19.1 is not applicable, and cannot be used by [a party] to recover attorney\u2019s fees unless [the party is] found to be the prevailing party.\u201d House v. Hillhaven, Inc., 105 N.C. App. 191, 195, 412 S.E.2d 893, 896 (1992). Necessarily, because Hope was not the prevailing party, we reject its argument. This assignment of error is overruled.\nFor the foregoing reasons, we affirm.\nAffirmed.\nJudges WYNN and STROUD concur.\n. By use of the term \u201cproject\u201d to describe Hope\u2019s proposed undertaking, we are not using it as defined by N.C. Gen. Stat. \u00a7 131E-176(20), which defines \u201cProject\u201d to mean \u201ca proposal to undertake a capital expenditure that results in the offering of a new institutional health service as defined by this Article.\u201d N.C. Gen. Stat. \u00a7 131E-176(20) (2009) (emphasis added). As the issue presented by Hope\u2019s request for declaratory ruling was whether Hope\u2019s proposed undertaking would constitute a \u201cnew institutional health service,\u201d to use the term in that manner would presume the answer to that issue. We use the term \u201cproject\u201d only for convenience and because that is the term used in Hope\u2019s petition for judicial review.\n. Hope is referring to Mission Hosps., Inc. v. N.C. Dept. of Health & Human Services, 189 N.C. App. 263, 272, 658 S.E.2d 277, 282 (2008), in which this Court held \u201cthat the Director\u2019s ex parte communication with petitioner\u2019s counsel in the preparation of the Final Agency Decision violated the plain language of N.C. Gen. Stat. \u00a7 150B-135 and that this violation constitutes an error of law under N.C. Gen. Stat. \u00a7 150B-51(b). . . .\u201d However, in Mission Hospitals, the ex parte communications were clearly demonstrated in the record.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Nelson Mullins Riley & Scarborough LLP, by Noah H. Huffstetler, III, Denise M. Gunter, Wallace G. Hollowell, III, and, Franklin Scott Templeton, for Petitioner-Appellant.", "Attorney General Roy A. Cooper, by Assistant Attorney General June S. Ferrell, for Respondent-Appellee.", "Bode, Call & Stroupe, LLP, by Robert V. Bode, Diana Evans Ricketts, and S. Todd Hemphill, for Respondent-Intervehor-Appellees AMI SUB of North Carolina Inc. d/b/a Central Carolina Hospital, Frye Regional Medical Center, Inc., Hugh Chatham Memorial Hospital, Inc., NCHA, Inc., d/b/a North Carolina Hospital Association.", "K&L Gates LLP, by Gary S. Qualls, Colleen M. Crowley, and William W. Stewart, Jr., for Respondent-Intervenors-Appellees The Charlotte-Mecklenburg Hospital Authority d/b/a Carolinas Healthcare System, Cumberland County Hospital System, Inc. d/b/a Cape Fear Valley Health System, High Point Regional Health System, and Rex Hospital, Inc.", "Smith Moore Leatherwood LLP, by Maureen Demarest Murray, Terrill Johnson Harris, and Allyson Jones Labban, for Respondent-Intervenor-Appellees WakeMed, Mission Hospitals, Inc., and Henderson County Hospital Corporation d/b/a Margaret R. Pardee Memorial Hospital.", "Kirschbaum, Nanney, Keenan & Griffin, PA, by Frank S. Kirschbaum, for Respondent-Intervenor-Appellee Asheville Radiology Associates, PA.", "Catharine W. Cummer, for Respondent-Intervenor Appellee Duke University Health System, Inc." ], "corrections": "", "head_matter": "HOPE-A WOMEN\u2019S CANCER CENTER, P.A., Plaintiff-Petitioner v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF HEALTH SERVICE REGULATION, Defendant-Respondent, and ASHEVILLE RADIOLOGY ASSOCIATES, P.A., THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY D/B/A/ CAROLINAS HEALTHCARE SYSTEM, AMI SUB OF NORTH CAROLINA, INC. D/B/A CENTRAL CAROLINA HOSPITAL, CUMBERLAND COUNTY HOSPITAL SYSTEM, INC. D/B/A CAPE FEAR VALLEY HEALTH SYSTEM, DUKE UNIVERSITY HEALTH SYSTEM, INC., FRYE REGIONAL MEDICAL CENTER, INC., HIGH POINT REGIONAL HEALTH SYSTEM, HUGH CHATHAM MEMORIAL HOSPITAL, INC., NORTH CAROLINA HOSPITAL ASSOCIATION, HENDERSON COUNTY HOSPITAL CORPORATION D/B/A MARGARET R. PARDEE MEMORIAL HOSPITAL, MISSION HOSPITALS, INC., REX HOSPITAL, INC., and WAKEMED, Respondent-Intervenors\nNo. COA08-1548\n(Filed 6 April 2010)\n1. Declaratory Judgments\u2014 certificate of need \u2014 new institutional health service\nThe trial court did not err in affirming the Department of Health and Human Service\u2019s (DHHS) declaratory ruling that plaintiff Hope\u2019s project was a \u201cnew institutional health service\u201d requiring a certificate of need (CON). The trial court applied the proper standard of review to DHHS\u2019s ruling and Hope\u2019s project fit within the definition of a \u201cnew institutional service\u201d under N.C.G.S. \u00a7 131E-176(16)(fl). A Services Agreement pursuant to which Hope would gain possession of equipment identified in (fl) was a \u201ccomparable agreement\u201d by which Hope would acquire the equipment within the meaning of the CON law.\n2. Declaratory Judgment\u2014 certificate of need \u2014 bases of DHHS ruling\nThe trial court did not err in affirming the Department of Health and Human Service\u2019s (DHHS) declaratory ruling that plaintiff Hope\u2019s project required a certificate of need where the ruling denied Hope\u2019s request \u201cnot only for the reasons stated in the ruling, but also for \u2018additional bases\u2019 not discussed in the ruling.\u201d Contrary to Hope\u2019s contention, this did not \u201cincorporate 416 additional pages of argument against Hope\u201d into the ruling but simply stated that DHHS considered the comments of the Intervenors and that the comments supported the ruling.\n3. Attorney Fees\u2014 declaratory judgment \u2014 certificate of need\nThe trial court did not err in denying plaintiff Hope\u2019s request for attorney fees in a certificate of need declaratory judgment action because Hope was not the prevailing party.\nAppeal by Petitioner from judgment entered 26 June 2008 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 18 August 2009.\nNelson Mullins Riley & Scarborough LLP, by Noah H. Huffstetler, III, Denise M. Gunter, Wallace G. Hollowell, III, and, Franklin Scott Templeton, for Petitioner-Appellant.\nAttorney General Roy A. Cooper, by Assistant Attorney General June S. Ferrell, for Respondent-Appellee.\nBode, Call & Stroupe, LLP, by Robert V. Bode, Diana Evans Ricketts, and S. Todd Hemphill, for Respondent-Intervehor-Appellees AMI SUB of North Carolina Inc. d/b/a Central Carolina Hospital, Frye Regional Medical Center, Inc., Hugh Chatham Memorial Hospital, Inc., NCHA, Inc., d/b/a North Carolina Hospital Association.\nK&L Gates LLP, by Gary S. Qualls, Colleen M. Crowley, and William W. Stewart, Jr., for Respondent-Intervenors-Appellees The Charlotte-Mecklenburg Hospital Authority d/b/a Carolinas Healthcare System, Cumberland County Hospital System, Inc. d/b/a Cape Fear Valley Health System, High Point Regional Health System, and Rex Hospital, Inc.\nSmith Moore Leatherwood LLP, by Maureen Demarest Murray, Terrill Johnson Harris, and Allyson Jones Labban, for Respondent-Intervenor-Appellees WakeMed, Mission Hospitals, Inc., and Henderson County Hospital Corporation d/b/a Margaret R. Pardee Memorial Hospital.\nKirschbaum, Nanney, Keenan & Griffin, PA, by Frank S. Kirschbaum, for Respondent-Intervenor-Appellee Asheville Radiology Associates, PA.\nCatharine W. Cummer, for Respondent-Intervenor Appellee Duke University Health System, Inc." }, "file_name": "0276-01", "first_page_order": 304, "last_page_order": 317 }