Ex parte STV One Nineteen Senior Living, LLC, d/b/a Somerby at St. Vincent's One Nineteen.

REL: 02/28/2014
REL: 08/29/2014 (as modified on denial of rehearing)
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1110588
_________________________
Ex parte STV One Nineteen Senior Living, LLC, d/b/a Somerby
at St. Vincent's One Nineteen
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Daniel Senior Living of Inverness I, LLC, d/b/a
Danberry at Inverness
v.
STV One Nineteen Senior Living, LLC, d/b/a Somerby at St.
Vincent's One Nineteen; State Health Planning and
Development Agency; and Certificate of Need Review Board)
(Montgomery Circuit Court, CV-10-901242;
Court of Civil Appeals, 2100476)
1110588
MURDOCK, Justice.
Daniel Senior Living of Inverness I, LLC, d/b/a Danberry
at Inverness ("Danberry") successfully appealed to the Court
of Civil Appeals from a decision of the Montgomery Circuit
Court affirming the issuance by the State Health Planning and
Development Agency ("SHPDA") of a certificate of need to STV
One Nineteen Senior Living, LLC, d/b/a Somerby at
St. Vincent's One Nineteen ("Somerby") on an "emergency"
basis. Daniel Sr. Living of Inverness I, LLC v. STV One
Nineteen Sr. Living, LLC, [Ms. 2100476, Feb. 3, 2012] ___
So. 3d ___ (Ala. Civ. App. 2012). This Court granted
Somerby's petition for certiorari review of the decision of
the Court of Civil Appeals. We now affirm that decision.
I. Legal and Factual Background
A. The CON-Review Process Generally
The Alabama Legislature has enacted a statutory scheme to
provide for "health care services and facilities found to be
in the public interest." Section 22-21-261, Ala. Code 1975,
states:
"The Legislature of the State of Alabama
declares that it is the public policy of the State
of Alabama that a certificate of need program be
administered in the state to assure that only those
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health care services and facilities found to be in
the public interest shall be offered or developed in
the state. It is the purpose of the Legislature in
enacting this article to prevent the construction of
unnecessary and inappropriate health care facilities
through a system of mandatory reviews of new
institutional health services, as the same are
defined in this article."
To effectuate the aforesaid purpose, the legislature
enacted Article 9, "Control and Regulation of Development of
Certain Health Care Facilities," of Title 22, Chapter 21, of
the Alabama Code, codified at §§ 22-21-260 to 22-21-278, Ala.
Code 1975. Article 9 gives the Statewide Health Coordinating
Council ("SHCC") (see § 22-4-7 and -8, creating the SHCC)
responsibility for preparing and periodically revising the
State Health Plan ("SHP"), a comprehensive catalogue of the
health-care needs of the State. The SHP "provide[s] for the
development of health programs and resources to assure that
quality health services will be available and accessible in a
manner which assures continuity of care, at reasonable costs,
for all residents of the state." Ala. Code 1975,
§ 22-21-260(13). See Ala. Code 1975, § 22-21-260(13) and
(15); Ala. Admin. Code (SHPDA) Rule 410-2-1-.02.
To aid in the administration of the State's health-
planning law, the legislature also created SHPDA, a body
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composed of three consumers, three health-care providers, and
three representatives appointed by the governor. Ala. Code
1975, § 22-21-260(14). Under the state-health-planning laws
adopted by our legislature, health-care providers must apply
to SHPDA for a certificate of need (sometimes referred to
herein as a "CON") before offering a new institutional health
service, and that service must be consistent with the SHP.
Ala. Code 1975, §§ 22-21-263(a), -265(a), and -267; Health
Care Auth. of Athens & Limestone Cnty. v. SHCC, 988 So. 2d
574, 578 n.1 (Ala. Civ. App. 2008). Institutional health
services subject to the CON-application process include, among
many other things, converting long-term-care beds from one
category to another. Ala. Code 1975, § 22-21-263(a)(3); Ala.
Admin. Code (SHPDA) Rule 410-1-4-.01(1)(c)(3)(v).1
In the standard CON-application process, the applicant
must file a letter of intent ("LOI") with SHPDA at least 30
days prior to submitting the CON application. Ala. Admin.
Code (SHPDA) Rule 410-1-7-.05(1). Upon determining that an
application is complete, SHPDA notifies the applicant and
1
The legislature also has tasked SHPDA with promulgating
rules and regulations governing regular and emergency
CON-application procedures. See, e.g., Ala. Code 1975, §§ 22-
21-267, -268, -274, and -275.
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"other affected persons," such as competing health-care
providers, of the application and the review schedule. Ala.
Admin. Code (SHPDA) Rule 410-1-7-.08. A mandatory 90-day
"review period" or "review cycle" then begins. Ala. Admin.
Code (SHPDA) Rule 410-1-7-.09. The other affected persons
then have 45 days to submit opposition, if any, to the
application, Ala. Admin. Code (SHPDA) Rule 410-1-7-.13, and 55
days to request a contested-case hearing on the application.
Ala. Admin. Code (SHPDA) Rule 410-1-7-.15.
The Certificate of Need Review Board ("the CONRB")2 is
required to hold monthly public hearings to review pending
applications. Ala. Admin. Code (SHPDA) Rule 410-1-7-.17. As
was done in this case, the CONRB can "batch" applications
together into the same review cycle for comparative,
competitive consideration; the batched-review cycle takes 180
days. Ala. Admin. Code (SHPDA) Rule 410-1-7-.19.
2
In the health-care-services regulatory scheme, the terms
"SHPDA" and "CONRB" are deemed synonymous and are used
interchangeably. Ala. Admin. Code (SHPDA) Rule 410-1-2-.01.
For ease of understanding, we generally refer to the panel of
individuals that holds hearings on CON applications as the
CONRB, while using the term SHPDA to refer to the agency in
its more general regulatory capacity.
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The CONRB is required to issue a final order granting or
denying a CON application within 15 days of the public hearing
at which the application was considered. Ala. Admin. Code
(SHPDA) Rule 410-1-8-.07(1)(a). A party "aggrieved" by a
SHPDA decision may submit a request for reconsideration by the
CONRB of its decision within 15 days of that decision, but it
is not required to request reconsideration before seeking
judicial review. See Ala. Code 1975, § 22-21-275(12); Ala.
Admin. Code (SHPDA) Rule 410-1-8-.09(1) and (3). The
aggrieved party also may, but is not required to, request a
fair hearing within 15 days of what would otherwise become the
CONRB's final decision, with or without first submitting a
motion for reconsideration. Ala. Admin. Code (SHPDA) Rule
410-1-8-.16.
The fair hearing is a de novo review. Ala. Code 1975,
§ 22-21-275(14); Ala. Admin. Code (SHPDA) Rule 410-1-8-.22(1).
The record of the hearing before the CONRB is part of the
record before the administrative law judge presiding at the
fair hearing and is entitled only to "due consideration" by
the administrative law judge, who is alternately referred to
in the regulations and in SHPDA communications as a fair
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hearing officer ("FHO"). Id. The FHO is required to enter a
final order containing findings of fact and conclusions of
law, Ala. Admin. Code (SHPDA) Rule 410-1-8-.24, and that order
"shall be considered the final decision" of SHPDA, § 22-21-
275(14), Ala. Code 1975; Ala. Admin. Code (SHPDA) Rule 410-1-
8-25. The FHO's decision can be appealed to, among other
circuit courts, the Montgomery Circuit Court. Ala. Admin.
Code (SHPDA) Rule 410-1-8-.24.
The process for filing an emergency CON application is
authorized by § 22-21-268, Ala. Code 1975, which provides:
"Any person may apply, either independently and
without notice under Section 22-21-267[3] or as a
part of an application filed under Section
22-21-267, for an emergency certificate of need for
the authorization of capital expenditures made
necessary by unforeseen events which endanger the
health and safety of the patients. Emergency
capital expenditures include, but are not
necessarily limited to, emergency expenditures to
maintain quality care, to overcome failure of fixed
equipment, including heating and air conditioning
equipment, elevators, electrical transformers and
switch gear, sterilization equipment, emergency
generators, water supply and other utility
connections. Applications for emergency certificates
of need shall include a description of the work to
be done and/or equipment to be purchased, the cost
thereof, justification for considering the capital
expenditure as being of an emergency nature and such
3
Section 22-21-267, Ala. Code 1975, concerns the
CON-application process.
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other information as the SHPDA may require.
Emergency certificates of need issued hereunder
shall be subject to such special limitations and
restrictions as the duration and right of extension
or renewal as may be prescribed in the rules and
regulations adopted by the SHPDA."
Rule 410-1-10-.01, Ala. Admin. Code (SHPDA), governs the
emergency procedure and provides, in pertinent part:
"(1) Any person may apply independently and
without notice for an emergency certificate of need
for the authorization of capital expenditures made
necessary by unforeseen events which endanger the
health and safety of the patients. Emergency
capital expenditures include, but are not
necessarily limited to, emergency expenditures to
maintain quality care, overcome failure of fixed
equipment, including heating and air conditioning
equipment, elevators, electrical transformers, and
switch gear, sterilization equipment, emergency
generators, water supply and other utility
connections and damage caused by natural or manmade
disaster.
"(a) The applicant must notify the
state agency in writing, describing the
nature of the emergency, the probable
amount of the emergency expenditure and the
anticipated date that the emergency
expenditure would be obligated. The
applicant must clearly demonstrate that an
emergency exists. "
The emergency CON-application procedure avoids the notice
requirements and competitive review involved in a standard CON
application. As the parties here (and SHPDA in the Court of
Civil Appeals) state in their briefs, and as is consistent
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with the type of emergency expenditures described above,
emergency applications are usually uncontested. Corroborative
of this fact is the fact that, prior to this case being
appealed to the Court of Civil Appeals, Alabama's appellate
courts had never had occasion to discuss either § 22-21-268 or
Rule 410-1-10-.01.
B. Facts and Procedural History
On March 25, 2010, the SHCC, in response to Somerby's
request, voted to adjust the SHP to indicate the need for 164
specialty-care assisted-living-facility ("SCALF") beds in
Shelby County.4 SCALF beds are dedicated to housing memory-
impaired patients, such as those suffering from dementia. The
parties agree that such beds require more specialized
personnel and security measures than do assisted-living-
facility ("ALF") beds. On March 31, 2010, then Governor Bob
Riley approved the adjustment to the SHP.
4
Before the SHCC adjusted it, the SHP had indicated a need
for 96 SCALF beds in Shelby County. Evidence submitted to the
SHCC revealed, however, that there were actually 128 SCALF
beds in service in that county when the adjustment was made.
Therefore, the adjustment to the SHP to indicate the need for
164 SCALF beds in Shelby County essentially reflected a need
for an additional 36 SCALF beds above the 128 SCALF beds
already in service.
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After the adjustment to the SHP, both Somerby and
Danberry applied for a CON to convert 24 of their existing ALF
beds in Shelby County to SCALF beds. However, on May 28,
2010, the same day that Somerby filed its standard CON
application, Somerby also applied for an emergency CON to
convert 24 of its existing ALF beds in Shelby County to SCALF
beds.5 Thus, Somerby applied for both a standard CON and an
emergency CON in an attempt to convert 24 of its ALF beds to
SCALF beds.
Danberry opposed Somerby's emergency CON application. On
June 16, 2010, the CONRB met to consider Somerby's emergency
CON application. The meeting featured live testimony and
other evidence and argument supporting and opposing Somerby's
emergency application. That same day, the CONRB approved
Somerby's application for an emergency CON by a vote of four
to one. The CONRB issued a final, written decision granting
Somerby the emergency CON on July 1, 2010, slightly more than
a month after Somerby had filed its application.
5
Somerby had filed a LOI on March 25, 2010, to submit a
standard CON.
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On July 8, 2010, Danberry filed a motion for
reconsideration, which, because it had been filed only 13 days
in advance of the hearing, was not heard at the July 21 CONRB
meeting.6 See Ala. Admin. Code (SHPDA) Rule 410-1-8-10; Rule
410-1-9-.05. At the next meeting on August 18, 2010, Danberry
stipulated that discussion of the motion was moot because the
motion had been denied by operation of law 30 days after it
was filed. See Ala. Code 1975, § 41-22-17(e). On August 20,
2010, Danberry filed a request for a fair hearing.
The fair hearing was held on September 3, 2010, after
which the FHO entered his order. The FHO concluded that
Somerby's emergency CON application was due to be granted, and
he provided two alternative grounds for his decision. First,
he concluded that Somerby's rights under its emergency CON had
already vested, and that Danberry therefore had lost its right
to a fair hearing. Alternatively, he concluded that Somerby
had provided substantial evidence that its emergency CON
6
Somerby in its brief and the FHO in its final order state
that Danberry filed its motion for reconsideration on July 8,
13 days before the July 21 hearing. Danberry states in its
appellate brief that it filed the motion on July 7. Danberry
does not contest that its motion, though timely as it related
to the CONRB's final decision, was filed too late to be heard
at the July 21 meeting.
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application presented an actual emergency within the meaning
of § 22-21-268 and Rule 410-1-10-.01.7
Danberry appealed the FHO's order to the Montgomery
Circuit Court, pursuant to § 41-22-20, Ala. Code 1975. The
circuit court entered a judgment affirming SHPDA's decision to
issue Somerby an emergency CON for the 24 SCALF beds.
Danberry then appealed to the Court of Civil Appeals. The
Court of Civil Appeals reversed the circuit court's decision
on the ground that Somerby's application did not present an
emergency within the contemplation of the statute and
regulation. As noted, Somerby petitioned this Court for
certiorari review of the decision of the Court of Civil
Appeals.
II. Standard of Review
Section 41-22-20(k), Ala. Code 1975, states that
"[SHPDA's] order shall be taken as prima facie just and
reasonable and the [reviewing] court shall not substitute its
7
The FHO addressed the issue whether Somerby's request
qualified as an "emergency" under the law because, as his
order explained, "this Fair Hearing Officer feels that the
prudent action is for him to proceed with a ruling in regard
to the Fair Hearing to assist in any way a reviewing Court in
the event a reviewing Court determines that the Fair Hearing
Officer's Granting of the Motion to Strike and Dismiss was due
to be reversed."
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judgment for that of [SHPDA] as to the weight of the evidence
on questions of fact." Our review of SHPDA's conclusions of
law and its application of the law to the facts, however, are
de novo. See Ex parte Wilbanks Health Care Servs., Inc., 986
So. 2d 422, 425 (Ala. 2007) (stating, among other things, that
the Alabama Medicaid Agency did not have "unfettered
discretion" to define the term "maintenance").
III. Discussion
A.
At the outset, we note that Somerby has contended that
its CON was fully "vested" prior to Danberry's request for a
fair hearing. Somerby asserts that that vesting prevented
Danberry from challenging the CON issued by the CONRB.
Because Danberry could not challenge the issuance of the CON,
Somerby argues, the Court of Civil Appeals could not, in
effect, revoke the CON based on a determination that there was
not an "emergency."
As a preliminary matter, we note that Somerby contends
that Danberry waived any right to challenge the issuance of
the CON because it failed to make a substantive argument on
the vesting issue to the Court of Civil Appeals. A careful
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reading of the circuit court's opinion, however, reveals that,
although the circuit court apparently believed that the
vesting of Somerby's CON had occurred in a manner that
truncated the administrative-review process, the circuit court
saw nothing in this vesting that affected Danberry's right to
judicial review of the issuance of the CON. Clearly, the
circuit court conducted that judicial review, noting in the
process that Danberry had complied with § 41-22-21(k).
Moreover, the circuit court's judgment leaves no doubt that
that court did decide the issue of the propriety of the
issuance of the CON on its merits.
Appropriately, therefore, Danberry challenged the circuit
court's judgment in its brief to the Court of Civil Appeals by
challenging the circuit court's decision as to the merits of
the CONRB's issuance of an emergency CON. Similarly, the
Court of Civil Appeals addressed the circuit court's judgment
on that basis. Clearly, the Court of Civil Appeals declined
Somerby's invitation to affirm the circuit court's decision on
the alternative legal ground that further administrative and,
in turn, judicial challenges to the issuance of its CON had
been foreclosed by the alleged "vesting" of the CON. Like
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SHPDA in its brief to the Court of Civil Appeals, the majority
of that court found no reason to discuss the issue. Not even
the dissenting opinion seized upon it as a ground for its
position. Nonetheless, as it is entitled to do, Somerby tries
again in this Court to achieve a discussion of the issue
whether "vesting" should serve as an alternative ground for
upholding the circuit court's judgment. Unlike the Court of
Civil Appeals, we will discuss the issue. We see no waiver of
the issue by Danberry.
As to its merits, Somerby's argument regarding the
alleged "vesting" of its CON is based on a fundamental
misunderstanding of the intent of the applicable statutes and
regulations. This misunderstanding is best reviewed within
the framework of the procedural history of this case.
On July 1, 2010, the CONRB granted the emergency CON to
Somerby. Pursuant to § 22-21-275(12), Danberry then had 15
days to file a request that the CONRB reconsider its decision.
The effect of such a request within the time allowed by the
statute is made clear by the statute:
"Request for reconsideration shall be made in
writing not more than 15 days subsequent to the date
the agency (SHPDA) decision is deemed final and
shall have the effect of holding in abeyance the
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final decision and suspending any certificate of
need issued pursuant thereto, subject to the outcome
of the public hearing."
§ 22-21-275(12)(emphasis added). Danberry timely filed its
request for reconsideration within the time allowed by the
statute, specifically, on July 8, 2010. Therefore, pursuant
to the plain language of § 22-21-275(12), the decision of the
CONRB, which would otherwise have been final and upon which
Somerby otherwise could have acted, was "suspended" subject to
the outcome of Danberry's request.
The next meeting of the CONRB following Danberry's filing
of its request for reconsideration was on July 21. Under the
applicable regulation, the CONRB will not consider a request
for reconsideration filed less than 15 days before any given
meeting. As a result, the CONRB did not consider Danberry's
request for reconsideration at its July 21 meeting and, as a
consequence, that request was denied by operation of law on
August 7, 30 days after its filing, pursuant to § 41-22-17(e),
Ala. Code 1975. With the denial on August 7 by operation of
law of Danberry's request for reconsideration, Danberry had
the right under the law to request a "fair hearing."
Specifically, as was the case following the initial decision
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by the CONRB, Danberry had 15 days from the denial of its
request for reconsideration to request a fair hearing. In
language identical to that prescribing the effect of a request
for reconsideration to the CONRB, the effect of a timely
request for a fair hearing is made clear by the statute:
"The appeal shall be commenced by a request for a
fair hearing by the applicant or any competing
applicant, which request shall be made within 15
days of the date that the decision by the state
agency became final, or in the event of a request
for reconsideration, within 15 days of the date that
the decision of the state agency on reconsideration
became final and shall have the effect of holding in
abeyance the decision and suspending any certificate
of need issued pursuant thereto subject to the
outcome of the fair hearing."
Ala. Code 1975, § 22-21-275(14) (emphasis added). See also
Ala. Admin. Code (SHPDA) Rule 410-1-8-.17 ("The request for
fair hearing shall have the effect of holding in abeyance the
issuance of the Certificate of Need and suspending any
Certificate of Need issued pursuant to SHPDA's decision
subject to the outcome of the fair hearing.").
Danberry timely filed its request for a fair hearing
within the time allowed by the statute, specifically, on
August 20, 2010. Therefore, under the plain language of
§ 22-21-275(14), the denial by operation of law on August 7 of
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Danberry's motion for reconsideration, which otherwise would
have made the CONRB's decision final and upon which Somerby
otherwise could have proceeded to act as of August 22, 2010,
was "suspended" on August 20 as a result of Danberry's timely
request for a fair hearing.
Notwithstanding the timely filings by Danberry for
reconsideration and a fair hearing within each of the 15-day
windows described above, Somerby argues that it, Somerby, took
unilateral action during the second of those 15-day windows
that deprived Danberry of the right to the completion of the
administrative review that Danberry was in the midst of
pursuing. Specifically, Somerby contends that,
notwithstanding the apparent intent of § 22-21-275(12) and
(14), § 22-21-270(d), Ala. Code 1975,8 contemplates that,
8
Section 22-21-270(d) provides:
"(d) Upon completion of the construction and
issuance of a certificate of completion or the
receipt of proof of purchase of equipment or
inauguration of a new health service, the
certificate of need shall be vested in and continued
in force and effect as a part of the health care
facility and shall survive changes of control and
changes of ownership of the health care facility
without further certificate of need approval by this
agency."
(Emphasis added.)
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simply by acting quickly enough following a CONRB decision in
its favor, a prevailing CON applicant can unilaterally "cut
off" the aggrieved party's rights under those statutes. It is
in this regard that Somerby evinces a fundamental
misunderstanding of the statutory provisions at issue.
The purpose of § 22-21-270 is to address the duration --
i.e., the "shelf life" -- of a CON. See generally, e.g.,
Roberts Health Care, Inc. v. SHPDA, 698 So. 2d 106, 107 (Ala.
1997) (citing § 22-21-270 and Ala. Admin. Code (SHPDA) Rule
410–1–11–.01., which largely tracks § 22-21-270(a), for the
proposition that a CON generally has a 12–month "duration" and
that SHPDA may extend the life of a CON for an additional
12 months based on certain criteria).9 It is necessary to
establish such a "shelf life" for a number of reasons. Most
fundamentally, the very purpose for issuing "certificates of
need" is to meet "needs" –- existing needs. It was never the
intent of the statutory scheme, therefore, for an applicant to
be able to obtain a CON on the basis of some purportedly
existing need, but then fail to act reasonably promptly on the
9
Accordingly, § 22-21-270 is aptly titled: "Certificates
of need –- Period for which valid; extension of time;
termination; transferability."
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issuance of the CON and thereby leave unmet the need for which
the CON was issued. Beyond that, the circumstances that
justify the issuance of a CON so as to allow an applicant to
offer some new service (e.g., population growths and shifts,
available technology, the management and ownership of the
applicant) are subject to change in the years following the
issuance of a CON.
Accordingly, the first sentence of § 22-21-270 states
simply that "[a] certificate of need ... shall be valid for a
period not to exceed 12 months and may be subject to one
extension not to exceed 12 months, provided the criteria for
extension as set forth in the rules and regulations of the
SHPDA are met." (Emphasis added.) Subsection (a) of § 22-21-
270 then goes on to explain that applications for an extension
filed under § 22-21-270 shall be accompanied by a new "filing
fee." Moreover, it goes on to explain how the 12-month life
of a CON is intended to work: "If no obligation has occurred
within such [12-month] period, the certificate of need shall
be considered terminated and shall be null and void." That
is, if the recipient of the CON has not acted upon it within
the 12-month period, the CON simply expires of its own accord.
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Without such a provision, nothing would prevent a prevailing
applicant from "sitting on" a CON for years after its
issuance, then attempting to act upon it.
The point of § 22-21-270 is to provide for a natural
expiration of a certificate of need if it is not acted upon
within some defined period after the administrative decision
to issue that certificate has become final, not to override or
truncate the process by which that decision becomes final, a
process clearly prescribed in other portions of the SHPDA
statutes and regulations. All the various provisions of § 22-
21-270 bear this out. We have already noted the language of
the first sentence of § 22-21-270 describing simply the period
during which a CON shall remain "valid." The last sentence of
§ 22-21-270(a) provides that "[s]hould the obligation
[contemplated by the CON] be incurred within [the 12-month
period or an extension thereof], the certificate of need shall
be continued in effect for a period not to exceed one year or
the completion of the construction project, whichever shall be
later, or the inauguration of the service or the actual
purchase of equipment." Subsection (b) explains that
"[f]ailure to commence [a] construction project within the
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time period stated in [an applicable] construction contract or
to complete the construction project within the time period
specified in the construction contract, which may be extended
by mutual agreement of the parties ..., shall render the
certificate of need null and void, unless tolled or extended"
pursuant to statute or SHPDA rule or regulation. Moreover,
subsection (c) explains that "[a]pplicants who held valid
certificates of need which were terminated under this section
may file a new application for a certificate pursuant to and
subject to the provisions of this article."
It is in the same vein as these other provisions of § 22-
21-270 that subsection (d) explains what happens to the "life"
of a CON if the provider acts reasonably promptly to begin
meeting the needs for which the CON was issued:
"Upon completion of the construction and issuance of
a certificate of completion or the receipt of proof
of purchase of equipment or inauguration of a new
health service, the certificate of need shall be
vested in and continued in force and effect as a part
of the health care facility and shall survive changes
of control and changes of ownership of the health
care facility without further certificate of need
approval by this agency."
In other words, while the other subsections of § 22-21-270
largely concern themselves with the consequences of persuading
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SHPDA to issue a certificate of need and then not acting upon
it, subsection (d) conversely describes the expected and
desired course of events: a certificate of need is issued,
and, within a reasonably prompt time, the holder of the
certificate fulfills its implied promise to provide the new
service, acquire the new equipment, or begin construction of
the new facility, thereby preventing the certificate from
simply expiring from nonuse.10
The foregoing finds yet further corroboration in
provisions of the law that establish the point at which the
"shelf life" of a CON begins to run. Specifically, SHPDA
itself (which, again, has not embraced the vesting argument
crafted by Somerby), measures that shelf life from the point
10
As noted, one of the factors assessed by SHPDA in
deciding whether a CON should be issued to an applicant is the
ownership of that applicant. Accordingly, what it means for
a CON to "vest" is further explained by subsection (e), which
states that "[p]rior to becoming vested under subsection (d),
a certificate of need shall not be transferable, assignable,
or convertible other than to an entity under common ownership
and control."
We also note that, before March 2013, the applicable
wording of § 22-21-270(d) provided merely that "[u]pon
completion of the construction and issuance of a certificate
of completion or the receipt of proof of purchase of
equipment, the certificate of need shall be continued in force
and effect." See Act No. 2012-294, Ala. Acts 2012.
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at which all properly requested administrative reviews are
concluded, the administrative decision to issue the CON is
final, and the CON is, in turn, "issued." As noted, § 22-21-
270 starts with the basic premise that, unless the CON is
acted upon, the life of a CON will be 12 months from the date
the CON is "issued." Rule 410-1-8-.08 of the Alabama
Administrative Code adopted by SHPDA specifically explains
when it is that the "issuance" of a CON occurs for purposes of
§ 22-21-270 and, in so doing, confirms what § 22-21-275(12)
and (14) mean by their provisions for the "suspension" of a
CON:
"(1) The executive director of the state agency
shall issue a certificate of need to the applicant
thirty (30) days after the decision of the
Certificate of Need Review Board is deemed final,
unless the issuance of the certificate of need is
suspended by the filing of a request for
reconsideration pursuant to Sections 410-1-8-.14 and
410-1-8-.15, or request for fair hearing under
Section 410-1-8-.17. The 30 day period may be waived
or extended with the consent of all parties."
(Emphasis added.) In other words, SHPDA itself understands
the provisions of § 22-21-270 to provide for a 12-month (or
longer if extended) life of a CON that will begin at the point
at which any properly requested reconsideration and/or fair
hearing is concluded and the CON is actually "issued"
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thereafter.11 Compare, e.g., Bradbury Mem'l Nursing Home v.
Tall Pines Manor Assocs., 485 A.2d 634, 638 (Me. 1984) ("The
Certificate of Need Act, 22 M.R.S.A. § 311, gives 'any person
aggrieved by a final decision of the department' the right to
review in accordance with the Administrative Procedure Act, 5
M.R.S.A. §§ 11001-11008. The Department's decision to issue a
CON is not 'considered final until the Department has taken
final action on a request for reconsideration under section
310.'").
11
See Ala. Admin. Code (SHPDA) Rule 410-1-11-.01,
explaining that a CON is "valid for a period" that runs "from
the date of issuance," and also that that period is tolled
during the pendency of any judicial review of the decision to
issue the CON:
"A Certificate of Need issued under these rules
shall be valid for a period not to exceed twelve
(12) months from the date of issuance, and may be
subject to one extension not to exceed twelve (12)
months, provided the holder of the Certificate of
Need applies in writing for the extension and meets
the extension criteria set out in Chapter 410-1-11
of these rules and regulations. The running of the
duration of the initial twelve (12) month period, or
an extension thereof, shall be tolled from the date
of the filing of a civil action arising under any of
the provisions of Title 22, Chapter 21, Article 9,
Code of Ala. 1975, being §§ 22-21-260 through -278,
or other judicial proceeding until such action is
dismissed from the judicial process."
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Not only does the language of the § 22-21-270 itself fail
to support Somerby's position, the understanding of § 22-21-
270 urged upon this Court by Somerby is in direct conflict
with the administrative- and judicial-review processes clearly
prescribed in §§ 22-21-275(12) and (14). We cannot conclude
that it was the legislature's intent to speak out of "one side
of its mouth" in establishing certain rights to administrative
and judicial review within clearly prescribed time limits in
§ 22-21-275 (with no reference to any exceptions created by §
22-21-270), while simultaneously intending to "speak out of
the other side of its mouth" in § 22-21-270(d) (without any
reference to § 22-21-275) so as to allow one side to a dispute
to "rush out" and purchase equipment or sign a construction
contract and thereby unilaterally thwart the clearly
prescribed administrative procedures and deadlines for due
consideration of the merits of an application for a
certificate of need.12
12
In addition to, and corroborative of, the foregoing, an
interpretation of § 22-21-270(d) of the nature urged by
Somerby would raise due-process concerns. Somerby insists
that, despite Danberry's timely filings, somehow the law
prevented Danberry from challenging Somerby's CON. Such a
possibility, especially the foreclosure of any judicial
review, raises a fundamental due-process problem. Danberry
should not be put in the position of having followed the
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As noted, Danberry responded at each step of the
administrative-review process (and the subsequent judicial-
review process) in a timely manner. Somerby does not contend
otherwise. Instead, it takes the position that,
notwithstanding Danberry's timely compliance with every
requirement of the administrative-review process, Somerby's
CON "vested" in the midst of that review process in a manner
that should be understood to "cut off" the continuation and
fulfillment of that process and, as a result, also "cut off"
the right to judicial review. In effect, Somerby takes the
position that its CON vested before Danberry had an
opportunity to challenge it. We reject this position.
B.
We turn now to the primary issue before us, whether the
Court of Civil Appeals correctly concluded that Somerby's
application was not properly considered as an application for
review processes prescribed to it by law and yet for reasons
beyond its control be foreclosed from receiving that review.
See generally Alabama Republican Party v. McGinley, 893 So. 2d
337, 344 (Ala. 2004) (observing that "[t]he hallmarks of
procedural due process are notice and 'the opportunity to be
heard "at a meaningful time and in a meaningful manner"'"
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976),
quoting in turn Armstrong v. Manzo, 380 U.S. 545, 552
(1965))).
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a "emergency" CON. We answer this question in the
affirmative, as did the Court of Civil Appeals.
An "emergency" CON is issued as an exception to the
general requirements imposed by the legislature for the
issuance of a standard CON. The statutory provision by which
this exception is created is § 22-21-268, Ala. Code 1975,
which reads as follows:
"Any person may apply, either independently and
without notice under Section 22-21-267 or as a part
of an application filed under Section 22-21-267, for
an emergency certificate of need for the
authorization of capital expenditures made necessary
by unforeseen events which endanger the health and
safety of the patients. Emergency capital
expenditures include, but are not necessarily limited
to, emergency expenditures to maintain quality care,
to overcome failure of fixed equipment, including
heating and air conditioning equipment, elevators,
electrical transformers and switch gear,
sterilization equipment, emergency generators, water
supply and other utility connections. Applications
for emergency certificates of need shall include a
description of the work to be done and/or equipment
to be purchased, the cost thereof, justification for
considering the capital expenditure as being of an
emergency nature and such other information as the
SHPDA may require. Emergency certificates of need
issued hereunder shall be subject to such special
limitations and restrictions as the duration and
right of extension or renewal as may be prescribed in
the rules and regulations adopted by the SHPDA."
(Emphasis added.) Ala. Admin. Code (SHPDA) Rule 41.-1-
10.01(1), reads in all material respects identically to the
28
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statutory language quoted above, except for the addition of
one additional example following the reference to "failure of
fixed equipment," namely, "damage caused by natural or manmade
disaster." (Emphasis added.) Thus, the "emergency" CON has
been made available by statute only for the purpose of
addressing "unforeseen events" that "endanger the health and
safety" of "the patients."
As noted at the outset, the legislature has provided an
extensive statutory scheme for assessing and planning for
circumstances that bear upon the health-care needs of the
public, including, for example, the growth and shifting of
populations and advances in technology. In providing for
"emergency" CONs, however, the legislature makes reference to
"unforeseen events," clearly meaning some event that does not
fall within the ambit of the normal assessment and planning
process. Moreover, it is not all unforseen events that can
justify the issuance of an emergency certificate, but only
those unforseen events that, if left uncorrected, actually
pose a danger to -– "endanger" -– health and safety. Further
still, the danger to be alleviated within the contemplation of
emergency-CON statute is not one to the public generally, but
29
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to what the statute refers to as "the patients," implying a
danger to the applicant's existing patients. This
implication, as well as the general nature of the emergency
circumstances suggested by all the above-emphasized terms, is
borne out by the examples provided by the legislature, which
deal generally with equipment failures, such as failures of
heating and air-conditioning equipment, elevators,
sterilization equipment, etc. A rule or regulation adopted by
SHPDA further corroborates this understanding by adding to the
list of examples "damage" to an applicant's facilities caused
by a "natural or manmade disaster." Clearly, therefore, the
legislature (as well as SHPDA) contemplated a true "emergency"
as some "event" that by its very nature could not be planned
for and that actually endangers the health or safety of an
applicant's existing patients, rather than some change or
addition to existing plant or services by which a provider
could serve new patients or provide new services.
The statutory language makes clear the legislature's
intent, and that legislative intent makes sense. If fixed
medical equipment suddenly fails, that is an "unforseen event"
that could easily "endanger the health and safety of the
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patients." The same is true of "heating and air conditioning
equipment" -- if an air-conditioning unit suddenly fails in
August, the temperatures inside a building could easily rise
to unbearable and clearly dangerous levels. If the "water
supply" of a medical facility is suddenly interrupted or
tainted in some way, or if its "emergency generators" or
"sterilization equipment" suddenly fails, those are clearly
unforeseen events that immediately place at risk the health
and safety of patients at the facility. The addition in the
regulation is of the same ilk: if a tornado tears the roof off
a surgical facility or frozen pipes burst and destroy patient
rooms in a hospital, the health and safety of patients has
been endangered immediately.
In contrast, standard CON-approval procedures are
consistent with the normal assessment, planning, and approval
responsibilities prescribed to SHCC and SHPDA, including the
advanced assessments and planning that inform the SHP.
Assessing, planning for, and meeting such needs are not within
the contemplation of the "emergency" provisions at issue here.
Every CON is a certificate that meets a "need." When
unexpected events suddenly put the health or safety of an
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applicant's patients at risk, a very different and time-
sensitive circumstance is presented.
The circumstances under which Somerby was granted its CON
do not meet the specific requirements necessary to qualify for
an "emergency" CON. Somerby's application stated that "urgent
CON approval is necessary in order to provide proper care for
dementia related conditions in the northeastern part of Shelby
County." Somerby repeatedly emphasized in its application the
pace of population growth in Shelby County and asserted that
the county's medical-service providers would not be able to
meet the needs of the increasing elderly population with
respect to SCALF services unless the emergency CON was
approved.
The fact that the aging population in a given county is
increasing at a faster pace than in other counties or that the
SHCC votes to adjust the SHP as it relates to a given county
does not reflect an "unforeseen event" or one that gives rise
to an "emergency" within the meaning of the statutes at issue.
The changing medical needs of a given community are exactly
the type of circumstance that the standard CON-approval
process (in conjunction with petitions to modify the SHP) is
[substituted p. 32]
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designed to address. Approving an "emergency" CON simply
because the change will allow a medical provider to be
prepared for a projected increase in demand for a particular
medical-service need obliterates any distinction between
standard and emergency CONs.
Even leaving aside the failure of the extant circumstances
to satisfy the "unforeseen" and "emergency" criteria, there is
no "endangerment" here. Somerby did not allege in its
application that it had existing patients who would be denied
immediate and proper medical care without approval of the
emergency CON. Instead, at the CONRB hearing, Somerby offered
testimony only that it was unable to offer SCALF services to
two potential residents.13 The record establishes that other
facilities exist in the area to serve elderly patients with
dementia; the Somerby SCALF beds would merely make such
services more convenient.14
13
The president of Somerby, Michael Mays, testified at the
fair hearing that, since the approval of the emergency CON,
Somerby had moved four residents into the SCALF beds and that
it had contracts to fill two more beds. Thus, in the midst of
the purported "emergency," 18 of the 24 new SCALF beds were
not receiving immediate use.
14
Somerby asserts in a footnote in its brief that
"[e]vidence at the Fair Hearing showed that Mrs. Day, a former
resident of Somerby who had to move to another facility that
[substituted p. 33]
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In short, we agree with the following observation made in
the main opinion of the Court of Civil Appeals:
"In seeking an emergency CON, Somerby
essentially relied on the same evidence that it
relied on in its application for a standard,
nonemergency CON. Somerby's application for an
emergency CON was based on evidence indicating that
there is a general need for SCALF beds in Shelby
County, that Somerby could provide services that
would meet this need, and that those services would
be valuable and convenient. However, that
application does not demonstrate an emergency as
contemplated by § 22-21-268 and Rule 410-1-10-.01(1).
Somerby's emergency CON application is essentially a
standard CON application disguised as an emergency
CON application."
Daniel Sr. Living of Inverness I, LLC, ___ So. 3d at ___.
provided SCALF services, died while waiting for SCALF services
at Somerby." Somerby's brief, p. 44 n.19. The testimony at
the fair hearing from Stephen Day, Mrs. Day's husband,
presents a different picture. Mr. Day testified that he was
a resident of Somerby and that he "chose Somerby because of
its location and the fact that it was designed with different
levels of care including independent living, assisted living,
and proposed memory care unit." He stated that Mrs. Day
originally also was a resident at Somerby, but that she had
Alzheimer's disease, and, because of that, he had moved her
"into the closest memory care facility which is about six
miles away." Mr. Day testified that he visited his wife once
or twice every day at that facility, "[b]ut that much driving
is troubling to me and I would welcome the convenience of just
being able to walk a short distance several times a day" to
see her. (Emphasis added.) Mr. Day added that Mrs. Day had
"recently suffered complications which required her to move to
a skilled nursing facility 20 miles away." It appears to be
undisputed that sometime after Mr. Day's testimony Mrs. Day
died while in the skilled-nursing facility.
[substituted p. 34]
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Somerby contends that the Court of Civil Appeals failed
to give due deference to the governing agency's interpretation
of the applicable statute and promulgated regulation. In
support of this argument, Somerby cites an exhibit it
submitted that listed the CONRB's decisions issuing 28
emergency CONs. A review of those decisions reveals that,
although a few of the decisions were substantially analogous
to the examples listed in § 22-21-268, it is undeniable that
the CONRB has granted emergency CONs in several instances that
were not so analogous.
Analogous decisions included the approval of four
additional hemodialysis stations needed to accommodate 27
patients who had been displaced from Talladega Dialysis
because of damage to the roof, HVAC unit, and interior of that
facility caused by a tornado on June 21, 2010; approval for 10
additional hemodialysis stations needed to accommodate
patients who would transfer from Dialysis Clinic, Inc.-Dothan
to Wiregrass Kidney Center because a facility of Dialysis
Clinic, Inc.-Dothan had been destroyed by severe flooding; and
approval of the relocation by Dialysis Clinic, Inc., of 19
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hemodialysis stations needed to accommodate 106 patients who
were displaced due to severe flooding in Dothan.
Decisions that were not analogous included, among others:
approval of the acquisition and operation of a linear
accelerator for the University of South Alabama Mitchell
Cancer Institute because it had "demonstrated a substantially
unmet community need for the proposal"; approval of the
relocation of the facility for Tuscaloosa University Dialysis
because of a projected increase in Tuscaloosa County's elderly
population in coming years; and the approval of 10
applications for the relocation of administrative offices for
health-care businesses based on projected increases in the
elderly populations of the counties in which the businesses
were located despite the fact that the decisions acknowledged
that no patient care was being provided at the administrative
offices.
"'The fundamental principle of statutory
construction is that words in a statute must be given
their plain meaning.' Mobile Infirmary Med. Ctr. v.
Hodgen, 884 So. 2d 801, 814 (Ala. 2003). 'When a
court construes a statute, "[w]ords used in [the]
statute must be given their natural, plain, ordinary,
and commonly understood meaning, and where plain
language is used a court is bound to interpret that
language to mean exactly what it says."' Ex parte
Berryhill, 801 So. 2d 7, 10 (Ala. 2001) (quoting IMED
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Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344,
346 (Ala. 1992))."
Trott v. Brinks, Inc., 972 So. 2d 81, 85 (Ala. 2007).
In this instance, the applicable statute dictates that an
"emergency" CON is authorized when "unforeseen events which
endanger the health and safety of the patients" require
capital expenditures by a health-care facility. It is true
that our precedents provide for weight to be given an
administrative interpretation of the statute by the agency
charged with its administration; however, this is true only
"if the interpretation is reasonable." Ex parte State Dep't
of Revenue, 683 So. 2d 980, 983 (Ala. 1996). The majority of
the CONRB's decisions cited by Somerby do not represent
reasonable interpretations of § 22-21-268. Instead, they
simply redefine the nature of what constitutes an "emergency"
under the statute. Those CONRB decisions cannot amend by
practice what the law itself does not permit.
The decision by the CONRB in this case, like previous
decisions approving "emergency" CONs for changes in medical
services that clearly are not of an emergency nature,
contradicts the law. Unlike most of those other decisions,
however, using the emergency-CON process in a situation like
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the one presented here also gives an unfair competitive
advantage to the service provider that receives the CON. We
observed above that emergency-CON applications are usually
uncontested. This is not surprising for a true emergency
situation, because the condition to be remedied endangers the
health and life of existing patients at a medical facility,
and the applicant is the only party in a position to address
the emergency and to protect the affected patients -- there
are no competing applicants. In that circumstance, the notice
requirements that apply to standard-CON applications
understandably can be bypassed.
In situations like the present case, however, there is no
"emergency" that must be addressed in order to alleviate some
immediate unexpected danger to the health and safety of
Somerby's patients; rather the "emergency" is based on meeting
the health-care needs of a county whose aging population is
growing. It is often the case, as here, that there is more
than one medical facility that would compete for the
opportunity to meet such needs, if given notice and an
opportunity to do so. Granting an emergency CON to one
facility to meet such a broad medical need undermines the
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integrity of the review process. Returning to the clear
distinction provided by the law between emergency and standard
CONs prevents applicants from "gaming the system."
The emergency CON issued in the present case, if allowed
to stand, would allow the aforesaid "gaming" to rise to a new
level. As Judge Moore noted in his special concurrence below,
in the oral argument before the Court of Civil Appeals
"counsel for the parties acknowledged that the CONRB had never
in its history issued an emergency CON on the basis that the
State Health Plan had underestimated a need for certain beds
in a particular area." Daniel Sr. Living of Inverness I, LLC,
___ So. 3d at ___ n.5 (Moore, J., concurring specially).
The chairman of the CONRB as much as admitted the need for
today's decision. During the CONRB's hearing on an emergency-
CON application filed by Danberry (after the CONRB's approval
of Somerby's emergency CON) to host the remaining 12 SCALF
beds of the original 36 SCALF beds approved in the SHP, the
chairman stated: "If you wanted to be very technical about
the definition of an emergency, and I admit we have gone
outside that definition a few times, we have, but at what
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point do we go back to the purity of what the law says about
what an emergency is?" (Emphasis added.)
The CONRB denied Danberry's application for an emergency
CON on the ground that it did not fit within the definition of
an "emergency" under § 22-21-268. By the same token, it
should have denied Somerby's application for an "emergency"
CON. By upholding the Court of Civil Appeals' decision to
this effect, we hopefully have reached "the point" about which
the chairman inquired.
IV. Conclusion
The Court of Civil Appeals correctly ruled that the CONRB
erred by granting Somerby an emergency CON. We affirm that
court's decision reversing the judgment of the circuit court.
AFFIRMED.
Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur.
Moore, C.J., concurs in part and dissents in part.
Bryan, J., recuses himself.*
*Justice Bryan was a member of the Court of Civil Appeals
when that court considered this case.
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MOORE, Chief Justice (concurring in part and dissenting in
part).
I agree with the statement in the main opinion that the
vesting of a certificate of need ("CON") does not "cut off"
the right of an opponent to the CON to judicial review;
otherwise, I dissent.
41