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In re Construction of A Health Care Facility

Filed: January 5, 1982.

IN THE MATTER OF THE CONSTRUCTION OF A HEALTH CARE FACILITY BY WILKESBORO, LIMITED, A PARTNERSHIP


Appeal by petitioner from Rousseau, Judge. Order entered 13 February 1981, in Superior Court, Wilkes County. Heard in the Court of Appeals 11 November 1981.

Morris, Chief Judge. Judges Arnold and Becton concur.

Morris

The North Carolina Certificate of Need Law, G.S. 131-175 et seq., effective 1 January 1979, recognized, among other things, the "trend of proliferation of unnecessary health care facilities and equipment" and the resulting "costly duplication and underuse of facilities," G.S. 131-175(4). The General Assembly, in enacting the Law, found further:

That the general welfare and protection of lives, health and property of the people of this State require that new institutional health services to be offered within this State be subject to review and evaluation as to type, level, quality of care, feasibility, and other criteria as determined by provisions of this Article or by the North Carolina Department of Human Resources pursuant to provisions of this Article prior to such services being offered or developed in order that only appropriate and needed institutional health services are made available in the area to be served.

G.S. 131-175(7). Under the law, no person can undertake new institutional health services or health care facilities without first applying for (G.S. 131-180) and obtaining a certificate of need. G.S. 131-178(a).

North Carolina Session Laws 1977, 2d Sess., c. 1184, s. 4 provided that the act would not apply to any project which had received approval under the program of 42 U.S.C. § 1320a-1 (Section 1122 of the federal Social Security Act, as amended by § 221, P.L. 92-603,*fn3) prior to 1 January 1979, so long as construction of

the project commenced before 1 January 1980. The amended Section 1122 provided a procedure by which the federal government, in cooperation with the various states, reviewed proposed capital expenditures for health care facilities in order to eliminate expenditures for unnecessary facilities. It is logical, therefore, that North Carolina's exemption from the Certificate of Need Law of projects approved under the federal program before 1 January 1979, and on which construction had commenced prior to 1 January 1980, was designed to avoid two review processes, one by the federal government and one by the State. On the other hand, by requiring commencement of construction prior to 1 January 1980, the legislature recognized that a delay in construction of a federally-approved project could be extensive enough to warrant a new State review.

Judicial review of actions taken under the Certificate of Need Law is governed by the North Carolina Administrative Procedure Act (hereinafter NCAPA), Chapter 150A of the General Statutes:

Any proponent of a new institutional health service or capital expenditure project or any person who qualifies as a "party" or "person aggrieved" under G.S. 150A-2 shall have all the rights of appeal and judicial review available under Articles 3 and 4 of Chapter 150A.

G.S. 131-185(b). Article 4 of Chapter 150A governs the right to judicial review:

Any person who is aggrieved by a final agency decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of such decision under this Article, unless adequate procedure for judicial review is provided by some other statute, in which case the review shall be under such other statute. Nothing in this Chapter shall prevent any person from invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article.

G.S. 150A-43. In order, therefore, for a person to be entitled to judicial review under the NCAPA, (1) he must be a person aggrieved; (2) the agency decision must be a final one; and (3) the case in ...


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