Filed Date: 3/5/1979
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Dear Senator Cullan:
You have asked who is making the decision if the decision of a health service agency (HSA) can be overturned by the Department of Health only if it is arbitrary and capricious or not supported by the evidence. The HSA is. The department is being limited to judicial review of the decision of the HSA. See Scott v. State of Nebraska ex rel.Board of Nursing,
You have asked whether the Legislature can authorize a private nonprofit corporation such as the HSA to make such decisions. We have concluded that it cannot.
A certificate of need program is an exercise of the police power. The power is an attribute of sovereignty. It may be exercised by the Legislature directly or it may be exercised indirectly by conferring the power upon agencies created by the Legislature. See Chicago v. O'Connell,
The health service agencies in Nebraska are not agencies created by the Legislature or by the Constitution. They are private nonprofit corporations under the direction of their boards of directors. See sec.
This autonomy would not be violated if the Department of Health were authorized to contract with HSAs. The HSAs could then decide whether to enter the contract tendered.
The department could be authorized to contract with the HSAs to make preliminary findings of fact and advisory recommendations as they do now under the federal program. This fact plus the expertise of any agency limited by 42 U.S.C. § 3001-1. (b)(1)(A) to health planning and development functions should save such authorization from unconstitutionality as special legislation favoring HSAs over other nonprofit corporations. See City of Scottsbluff v. Tiemann,
The department could not be authorized to delegate the making of the final decision to HSAs. The Legislature would then be doing indirectly what it could not do directly. Also courts in other jurisdictions have held that the duty of finding facts cannot be delegated (Burk Bros. v. National Labor Relations Board, 686 (3rd Cir. 1941)), that the duty to determine a case on all the evidence cannot be delegated (Dillon v. Schapp Beef Co.,
In Thiles v. County Board of Sarpy County,
". . . [C]ounty boards may not hire a person to perform (1) unauthorized acts, (2) official discretionary duties of the board, or (3) statutory official duties of the board or another county or state official. . ." Supra at 6.
The court would probably reach a similar decision in regard to administrative agencies such as the Department of Health.