Encompass Health Home Health of Alabama, LLC Kindred at Home, LLC Amedisys Home Health and LHC Group, Inc. v. State Health Planning and Development Agency, Madison Home Health Services, LLC, and ProHealth Home Health, LLC

Rel: February 10, 2023

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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________

CL-2022-0538
_________________________

Encompass Health Home Health of Alabama, LLC; Kindred at
Home, LLC; Amedisys Home Health; and LHC Group, Inc.

v.

State Health Planning and Development Agency, Madison
Home Health Services, LLC, and ProHealth Home Health, LLC

Appeal from the Certificate of Need Review Board of the State
Health Planning and Development Agency
(AL2021-21)

_________________________

CL-2022-0539
_________________________

Encompass Health Home Health of Alabama, LLC; Kindred at
Home, LLC; Amedisys Home Health; and LHC Group, Inc.
CL-2022-0538; CL-2022-0539

v.

State Health Planning and Development Agency, Madison Home
Health Services, LLC, and ProHealth Home Health, LLC

Appeal from the Certificate of Need Review Board of the State
Health Planning and Development Agency
(AL2021-24)

FRIDY, Judge.

In these consolidated appeals, Encompass Health Home Health of

Alabama, LLC; Kindred at Home, LLC; Amedisys Home Health; and

LHC Group, Inc. (collectively "the Intervenors"), appeal from a decision

of the Certificate of Need Review Board ("the CONRB") of the State

Health Planning and Development Agency ("SHPDA") issued in

proceedings it had designated as Project No. AL2021-21 ("the Madison

Project") and Project No. AL2021-24 ("the ProHealth Project"). The

CONRB's decision in the Madison project granted the application of

Madison Home Health Services, LLC ("Madison"), for a certificate of need

("CON") authorizing it to establish a home-health agency to provide

home-health services in Madison County. The CONRB's decision in the

ProHealth project granted the application of ProHealth Home Health,

LLC ("ProHealth"), for a CON authorizing it to establish a home-health

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CL-2022-0538; CL-2022-0539

agency to provide home-health services in Madison County.1 For the

reasons discussed herein, we affirm the CONRB's decisions to grant both

the CON application of Madison and the CON application of ProHealth.

Background

In 2021, Madison and ProHealth each filed an application with

SHPDA for a CON authorizing it to establish a home-health agency to

provide home-health services in Madison County. 2 SHPDA "batched"

Madison's and ProHealth's applications. 3 Thereafter, the Intervenors, all

of which were already providing home-health services in Madison

County, intervened in the SHPDA proceedings regarding Madison's and

ProHealth's applications to oppose those applications and requested a

contested-case hearing. SHPDA appointed attorney Mark Waggoner as

1Section 22-21-275(6), Ala. Code 1975, authorizes direct appeals to
this court from final decisions of SHPDA.

2Caring Hearts Home Care, LLC ("Caring Hearts"), also filed an
application for a CON authorizing it to establish a home-health agency
to provide home-health services in Madison County in 2021; however,
Caring Hearts subsequently withdrew its application.

3"Batching is the formal review in the same 90-day review cycle and
comparative consideration of all completed applications pertaining to
similar types of services, facilities, or equipment affecting the same
health service area." Ala. Admin. Code (SHPDA), r. 410-1-7-.19(1).
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the administrative-law judge ("ALJ") to conduct the contested-case

hearing. The ALJ held a four-day contested-case hearing regarding both

applications in September 2021.

On January 24, 2022, the ALJ issued a seventy-two-page

recommended order in which he made proposed findings of fact and

proposed conclusions of law; he also recommended that the CONRB grant

the CON applications of both Madison and ProHealth. In pertinent part,

the ALJ's recommended order stated:

"31. The undersigned ALJ has determined that,
provided the CON review criteria are satisfied by both parties,
there is adequate legal authority to approve both the Madison
Project and the ProHealth Project, without any legal
limitations requiring the grant of only one CON home health
application in any given batching cycle.

"32. As an initial matter, the 2020-2023 Alabama State
Health Plan, Ala. Admin Code § 410-2-1 et. seq. ('SHP')
governs the Projects. The SHP is drafted by the State Health
Coordinating Council ('SHCC') based on population and
utilization data provided by the SHPDA Division of Data
Management. Based on information provided by the SHPDA
Division of Data Management, the SHP shows a need for an
additional 964 patients to be served in Madison County -- the
largest need shown in the entire state. (Madison Ex. 67). The
Madison Project aims to treat 131 patients in year one and
364 patients in year two. (Madison Ex. 1). The ProHealth
Project aims to treat 200 patients in year one and 450 patients
in year two. (ProHealth Ex 1). Adding these two projections
together, the projection of patients to be served by both
applicants is still well below the 964 additional patients to be

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CL-2022-0538; CL-2022-0539

served indicated by the SHP. Thus, under the need
methodology set forth in the SHP, both Projects can be
approved without exceeding the established need
demonstrated under the SHP.

"33. Like the home health methodology, there are a
number of other healthcare services that show a finite need
under the SHP. For example, the nursing home methodology
sets forth the additional number of nursing home beds
necessary to satisfy the projected need. Ala. Admin. Code §
410-2-4-.03. The same is true of the methodology for hospital
beds and [Specialty Care Assisted Living Facility] beds. Ala.
Admin. Code § 410-2-4-.02 and 410-2-4-.04. Even though this
finite need results in a batching cycle, there have been a
number of batching cycles over the years where SHPDA has
approved multiple CON applications and awarded beds under
these finite need methodologies to multiple facilities. As long
as the total number of beds awarded to the multiple applicant
facilities does not exceed the bed need indicated in the SHP,
SHPDA precedent has shown that awarding multiple CONs
is consistent with the SHP, compliant with the Agency's
interpretation of the CON Rules, and is not legally prohibited.
The case at hand is no different. The need methodology for
home health sets forth a finite number of additional patients
to be served, and, as long as the total patient projections set
forth in the multiple applications do not exceed the patient
need, just like when the total number of beds set forth in the
multiple applications do not exceed the bed need, more than
one home health agency can similarly be approved.

"34. Further, there is nothing in the CON Rules or the
SHP that limits the grant of only one CON application for
home health services. In fact, the SHP directly acknowledges
that approving more than one applicant is permissible when
setting forth the purpose behind the need methodology. 'The
purpose of this home health need methodology is to identify,
by county, the number of home health agencies needed to
assure the continued availability, accessibility, and

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CL-2022-0538; CL-2022-0539

affordability of quality home health care for residents of
Alabama.' Ala. Admin. Code § 410-2-4-.07 (emphasis added).
The use of the word 'agencies' leaves the door open for more
than one agency to be approved if the need is high enough to
support the approval of multiple projects.

"35. Had SHPDA or the SHCC desired to limit the
approval to only one home health project, they could have
included such prohibiting language in the CON Rules or the
SHP. In fact, under the need methodology for methadone
treatment facilities, the SHCC explicitly states that only one
facility can be awarded a CON during an application cycle.
'Only one methadone treatment facility may be approved in
any region showing a need under this methodology during any
application cycle, defined here as the period of time between
the date of publication of one statistical update and the date
of publication of a successive update.' Ala. Admin. Code § 410-
2-4-.11(4). Similar language appears in the in-home hospice
section of the SHP. 'Only one (1) application may be approved
in each county during any approval cycle as defined by the
Statewide Health Coordinating Council, or as implemented by
SHPDA.' Ala. Admin. Code § 410-2-3-.10.

"36. Thus, in both of those instances, when the SHCC
desired for only one CON to be granted in a given cycle, the
SHCC explicitly stated such limitation in the SHP. As it
relates to home health, the SHCC did not include similar
language or in any way limit the number of projects that can
be approved, though it certainly could have done so. Thus,
presumably such a limitation was not the intent of the SHCC
with regard to home health. In Alabama, 'the fundamental
rule of statutory construction is to ascertain and give effect to
the intent of the legislature in enacting the statute. Words
used in a 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.' IMED Corp. v. Sys. Eng'g
Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992). A court should

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CL-2022-0538; CL-2022-0539

not 'read into the statute something which the legislature did
not include although it could have easily done so.' Noonan v.
E. W. Beltline, Inc., 487 So. 2d 237, 239 (Ala. 1986).

"37. In addition, Mrs. Jessica Bailey-Wheaton, a JD with
a concentration in health law and a health planning expert,
testified that, in her expert opinion, the SHP would allow for
the approval of more than one agency based, in part, on the
fact that the purpose language of the SHP utilized the word
'agencies' in the plural form.

"[']Q.--home health providers. Do you have any
idea--any opinion as to whether this would allow
more than one provider to be appropriate [or
approved]?

"[']A. Sure. It indicates from the -- plain language
that the purpose is to identify the number of home
health agencies, as in the plural form of agencies.

"[']Q. Okay. And given the need that SHPDA found
of 964, do you think that supports the approval of
one or more than one agency?

"[']A. I certainly believe it -- it allows for more than
one healthy -- home health agency.[']"

"(Tr. 252-253).

"38. Subsequently in the home health section of the
SHP, it states 'if the number is equal to or greater than 100,
there is a need for a new Home Health Care provider in a
county.' Ala. Admin. Code § 410-2-4-.07. When asked about
the subsequent language in the SHP that utilized the singular
form of 'a' new home health agency, Mrs. Bailey-Wheaton
stated that, since this language is after the purpose section of
the SHP, her interpretation is that it would be a minimum,
meaning if a need exceeds 100, at least one home health

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CL-2022-0538; CL-2022-0539

provider may be approved. (Tr. 290). However, she does not
believe, when the provisions in the SHP are read in
conjunction, that this language limits the approval to only one
home health agency in any given batching cycle. (Tr. 252-253,
290). This interpretation by Mrs. Bailey-Wheaton is
consistent with Ala. Code § 1-1-2 that states with regard to
statutory construction that 'the singular includes the plural,
and the plural the singular.'

"39. Dan Sullivan, a nationally recognized health
planning expert with over 30 years' experience, also testified
regarding whether or not the SHP allows for more than one
home health agency to be approved in any given batching
cycle. According to Mr. Sullivan:

"[']Q. Do you have an opinion, Mr. Sullivan, based
on your background, training, and experience in
health care, as to whether or not, specifically as to
Madison County, more than one CON application
could be granted?

"[']A. Yeah. I -- my opinion is that I believe more
than one could be granted because of the fact that
there's a need for 964 additional patients to be
served, and the threshold for approving another
agency is there need be at least 100 patients ....

"[']Q. Okay. Based on you review -- and just to
clarify, based on your review of everything, is it
your opinion that two agencies could be approved
in this situation based on the need?

"[']A. Yes. And you know -- and I think not only
based on the need, but I think, you know, given the
significant differential between the historical use
rate in Madison County and the statewide rate, I
think having two agencies come in, they could
capture additional patients without necessarily

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CL-2022-0538; CL-2022-0539

having any material impact on the existing
system.[']"

"(Tr. 337, 365)

"40. Thus, the legal framework and evidence support the
approval of both the Madison Project and the ProHealth
Project."

The Intervenors timely filed exceptions to the ALJ's recommended

order on January 31, 2022, and Madison and ProHealth filed a joint

written response to the Intervenors’ exceptions. The CONRB considered

the record of the contested-case hearing, the ALJ's recommended order,

the Intervenors’ exceptions, Madison and ProHealth's joint response, and

oral arguments regarding whether the applications should be granted at

its meeting on February 16, 2022. The CONRB then voted to adopt the

ALJ's recommended order and to grant both CON applications. On March

3, 2022, the CONRB issued a written order adopting the ALJ's

recommended order in both the Madison project and the ProHealth

project and granting the CON applications of both Madison and

ProHealth. Among other things, the CONRB's written order stated:

"The Intervenors also contend that the CON Rules and the
State Health Plan ('SHP') allow for only one CON application
to be granted per application cycle. In support, the
Intervenors note the use of the singular article 'a' and 'an' in
the home health methodology, [CONRB's] decision in a 2014

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CL-2022-0538; CL-2022-0539

proceeding involving multiple Baldwin County home health
applications, and the SHCC's failure to amend the SHP to
explicitly permit the grant of multiple applications.

"6. The Intervenors correctly note that in 2014 [the
CONRB], in a split vote, found that the SHP permitted the
grant of only one home health CON application per
application cycle. [The CONRB] has revisited that issue in the
current case and finds that the language of the SHP permits
the grant of more than one application in extraordinary
circumstances where, as here, the demonstrated need in the
SHP exceeds the reasonable visitation projections of both
applicants. See Ex parte Shelby Med. Ctr., 564 So. 2d 63, 68
(Ala. 1990) ('Because there is a need for flexibility in
administrative decision-making, the doctrine of stare decisis
generally does not bind administrative agencies to their prior
decisions.')."

(Emphasis added.) The Intervenors timely filed their notices of appeal on

February 24, 2022.

Discussion

On appeal, the Intervenors first argue that § 22-21-264(5), Ala.

Code 1975, prohibits SHPDA from granting more than one application

for a CON to establish a home-health agency to provide home-health

services in the same batch. Specifically, the Intervenors cite the language

of § 22-21-264(5), Ala. Code 1975, which provides in part that SHPDA

shall prescribe by rules and regulations the criteria for determining "that

the person applying [for a CON] is an appropriate applicant, or the most

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appropriate applicant in the event of duplicative applications."

(Emphasis added.) The Intervenors contend that the language of § 22-21-

264(5) prohibits SHPDA from granting more than one CON application

whenever there is more than one application in a single batch. In effect,

the Intervenors argue that the term "duplicative applications" in that

Code section is synonymous with "multiple applications." Thus, according

to the Intervenors, whenever there are multiple applications to establish

a home-health agency in a single batch, § 22-21-264(5) allows the CONRB

to grant only one of them, i.e., the one that it determines is the most

appropriate one, regardless of the number of new patients who need

home-health services and regardless of the number of new patients that

the most appropriate applicant projects that it can serve.

In its order granting the CON applications of both Madison and

ProHealth, the CONRB stated that it found "that the language of the

[State Health Plan] permits the grant of more than one application in

extraordinary circumstances where, as here, the demonstrated need in

the [State Health Plan] exceeds the reasonable visitation projections of

both applicants." We infer from that language that the CONRB

determines that applications are "duplicative" only if there is some

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CL-2022-0538; CL-2022-0539

overlap in the number of patients the applicants seek to serve such that,

when combined, the number of patients that the applicants seek to serve

exceeds the total number of patients who are projected to need the

applicants' services. In the present case, because the State Health Plan

("the SHP"), See Ala Admin. Code (SHPDA), r. 410-2-1 et seq. projects

that 964 new patients will need home-health services and because that

number exceeds the combined maximum number of patients that

Madison and ProHealth project that they can serve, each of them can

provide home-health services to the maximum number of patients that it

projects that it can serve without any overlap in the patients. Thus, under

the CONRB's interpretation of the law, because these two applicants can

each serve the maximum number of patients that they seek to serve

without any overlap in the patients that they serve, their applications

are not "duplicative" under the CONRB's interpretation of § 22-21-264(5).

In interpreting a statute, a court accepts an administrative

interpretation of the statute by the agency charged with its

administration, if that interpretation is reasonable. See Alabama Dep't

of Revenue v. Bryant Bank, 278 So. 3d 1268, 1271 (Ala. Civ. App. 2018).

We conclude that the CONRB's interpretation of § 22-21-264(5) is

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reasonable. See, e.g., Black's Law Dictionary 635 (11th ed. 2019)

(defining "duplicative" as "[h]aving or characterized by having

overlapping content, intentions, or effect"). Therefore, we accept it as a

correct interpretation of that Code section. Thus, we conclude that that

Code section did not prohibit the CONRB from granting both the CON

application of Madison and the CON application of ProHealth in this

case.

The Intervenors also argue that Ala. Admin. Code (SHPDA) r. 410-

1-6-.09(1), which states that the CONRB shall determine who is "the

most appropriate applicant in the event of competing applications,"

prohibited the CONRB from granting more than one CON application.

(Emphasis added.) We infer from the language of the CONRB's order that

it interpreted the term "competing applications" to mean applications

seeking to serve some of the same patients. Here, as discussed above,

Madison and ProHealth could both serve the maximum number of

patients that they sought to serve without any overlap in patients

because the total number of new patients in Madison County that the

SHP projects will need home-health services (964) exceeded the combined

maximum number of patients that they, projected that they could serve

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CL-2022-0538; CL-2022-0539

(814). " '[A]n agency's interpretation of its own rule or regulation must

stand if it is reasonable, even though it may not appear as reasonable as

some other interpretation.' " Select Specialty Hosps., Inc. v. Alabama

State Health Plan. & Dev. Agency, 112 So. 3d 475, 485 (Ala. Civ. App.

2012) (quoting Sylacauga Health Care Ctr., Inc. v. Alabama State Health

Plan. Agency, 662 So. 2d 265, 268 (Ala. Civ. App. 1994)). We conclude

that the CONRB's interpretation of r. 410-1-6-.09(1) is reasonable. See,

e.g., Black's Law Dictionary 355 (11th ed. 2019) (defining "competition"

as "The struggle for commercial advantage; the effort or action of two or

more commercial interests to obtain the same business from third

parties"). Therefore, we must accept it as a correct interpretation of that

rule. Thus, we conclude that r. 410-1-6-.09(1) did not prohibit the CONRB

from granting both the CON application of Madison and the CON

application of ProHealth.

The Intervenors also argue that Ala. Admin. Code (SHPDA), r. 410-

2-4-.07(6)(c)5.(ii)(Step 2)11. prohibited the CONRB from granting more

than one CON application in this case. In pertinent part, that rule states

that "[a] threshold level of 100 new patients needed to be served is

required for a determination of need in a county" and that "[i]f the

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number is equal to or greater than 100, there is a need for a new Home

Health Care provider in a county." (Emphasis added). The Intervenors

argue that that rule means that, if the number of new patients who need

home-health services is equal to or greater than 100, the CONRB can

grant only one CON application regardless of how many new patients

need home-health services and regardless of whether any one applicant

seeks to treat all of them. The undisputed facts of the present case

indicate that the projected the number of new patients who will need

home-health services in Madison County is 864 more than 100 and that

neither applicant seeks to serve more than half of the 964 new patients.

The Intervenors' interpretation would mean that the CONRB would be

limited to granting only one application even though Madison projects

that it could serve a maximum of only 364 of the 964 new patients and

ProHealth projects that it could serve a maximum of only 450 of the 964

new patients. The Intervenors' interpretation of r. 410-2-4-

.07(6)(c)5.(ii)(Step 2)11. would leave either 600 new patients without

home-health services, if the CONRB granted only Madison's CON

application, or 514, if the CONRB granted only ProHealth's CON

application.

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Conversely, we infer from the language of its order that the CONRB

interprets r. 410-2-4-.07(6)(c)5.(ii)(Step 2)11. to establish the minimum

number of new patients that would justify granting a CON to a new

home-health agency as 100 but that it does not purport to establish the

maximum number of CON applications that could be granted once that

minimum number of 100 patients has been met. This interpretation is

consistent with the rule's describing 100 new patients needing home-

health services as a "threshold level" of new patients required to establish

a need for a new home-health agency. The rule does not purport to

address a situation in which the projected number of new patients

exceeds nine-fold the threshold level for granting a CON. As noted above,

an agency's interpretation of its own rule or regulation must stand if it is

reasonable, even though it may not appear as reasonable as some other

interpretation. See Select Specialty Hosps., Inc., supra. We conclude that

the CONRB's interpretation of r. 410-2-4-.07(6)(c)5.(ii)(Step 2)11. is

reasonable, and, therefore, we accept it as a correct interpretation of that

rule. Thus, we conclude that that rule did not prohibit the CONRB from

granting both the CON application of Madison and the CON application

of ProHealth in this case.

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The Intervenors also argue that the language of Ala. Admin. Code

(SHPDA), r. 410-2-4-.07(6)(c)2. prohibited the CONRB from granting

more than one CON application in the present case. In pertinent part

that rule states: "When a new provider is approved for a county, that

provider will have eighteen (18) months from the date the Certificate of

Need is issued to meet the identified need in the county before a new

provider may apply for a Certificate of Need to serve a county."

(Emphasis added.) The language of that rule presupposes that the

applicants for a CON seek to satisfy all the identified need in the county.

In the present case, neither Madison nor ProHealth sought to satisfy all

964 new patients in Madison County, which was the need the SHP

identified in that county. Consequently, it is obvious that neither

Madison nor ProHealth could satisfy the need identified in Madison

County within eighteen months. We infer from the language of the

CONRB's order that it concluded that r. 410-2-4-.07(6)(c)2. did not

prohibit the granting of both Madison's CON application and ProHealth's

CON application because the presupposition of that rule, i.e., that each

of the applicants was seeking to satisfy the entire need, did not apply in

this case. That interpretation is reasonable and, therefore, we accept it

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as a correct interpretation. See Select Specialty Hosps., Inc., supra.

Therefore, we conclude that r. 410-2-4-.07(6)(c)2. did not prohibit the

CONRB from granting the CON applications of both Madison and

ProHealth in this case.

The Intervenors next argue that the CONRB's approval of the

applications of both Madison and ProHealth constituted a

reinterpretation of its regulations that rose to the level of a "rule" and,

therefore, required notice and comment under the Alabama

Administrative Procedure Act ("the AAPA") before it could be

implemented. The term "rule" is defined by § 41-22-3(9), Ala. Code 1975,

which is part of the AAPA. In pertinent part, that Code section provides

that the term "rule" does not include "[d]eterminations, decisions, orders,

statements of policy, and interpretations that are made in contested

cases." § 41-22-3(9)d., Ala. Code 1975. It is undisputed that the CONRB's

decision was issued in a contested case. Thus, by its express terms, that

Code section excludes the CONRB's decision in this case from the

definition of "rule."

The Intervenors next argue that the CONRB's decision to approve

both applications in this case is arbitrary and capricious because, they

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say, it conflicts with the CONRB's decisions in two 2014 contested cases,

one involving multiple applications for a CON to establish a home-health

agency in Shelby County and the other involving multiple applications

for a CON to establish a home-health agency in Baldwin County. In both

of those cases the ALJ had recommended that the CONRB approve more

than one of the CON applications, but the CONRB approved only one

CON application for Shelby County and approved only one CON

application for Baldwin County. Following those decisions, in July 2014,

the CONRB requested that the Statewide Health Coordinating Council

("the SHCC") amend the former SHP to expressly state that the CONRB

had the discretion to approve more than one CON application to establish

a home-health agency in a county where the SHP showed a need for more

than one new home-health agency. The SHCC declined that request.

"Because there is need for flexibility in administrative

decisionmaking, the doctrine of stare decisis generally does not bind

administrative agencies to their prior decisions. Thus, when inconsistent

determinations are made by an administrative agency, the issue is

whether the agency has acted in an arbitrary and capricious manner."

Ex parte Shelby Med. Ctr., Inc., 564 So. 2d 63, 68 (Ala. 1990). " 'As long

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as the agency action is rational and reasonably justified, it cannot be

classified as arbitrary or capricious.' " Select Specialty Hosps., Inc., supra

(quoting Sylacauga Health Care Ctr., Inc. v. Alabama State Health Plan.

Agency, 662 So. 2d 265, 268 (Ala. Civ. App. 1994)). " 'Furthermore, an

agency's interpretation of its own rule or regulation must stand if it is

reasonable, even though it may not appear as reasonable as some other

interpretation." ' Id. (Citation omitted.)

The Intervenors do not dispute any of the proposed factual findings

in the ALJ's recommended order, which the CONRB adopted.

Specifically, they do not dispute that both Madison and ProHealth

satisfied all the criteria and prerequisites necessary for the CONRB's

approval of their CON applications. The Intervenors do not dispute that

both Madison and ProHealth are appropriate for purposes of the

CONRB's approval of their CON applications. Moreover, they do not

dispute that the 964 new patients that will need home-health care

according to the projections in the SHP exceed the aggregate projected

number of patients that both Madison and ProHealth can serve in their

first two years of operation. The Intervenors' sole ground for contending

that the CONRB's decision is arbitrary and capricious is its alleged

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violation of § 22-21-264(5), r. 410-1-6-.09(1), r. 410-2-4-.07(6)(c)5.(ii)(Step

2)11., and r. 410-2-4-.07(6)(c)2. However, as demonstrated above, the

CONRB's decision does not violate that Code section or those SHPDA

rules. Moreover, neither the applicable Code sections nor SHPDA's

regulations expressly prohibit the CONRB from approving two CON

applications in a single batch under the facts of this case. Therefore, we

conclude that the CONRB's decision to approve the CON applications of

both Madison and ProHealth is not arbitrary and capricious.

Although the SHCC in 2014 declined to amend the SHP to expressly

grant the CONRB discretion to approve more than one CON application

in a county where the SHP showed a need for more than one new home-

health agency, such an amendment was not necessary to confer that

discretion on the CONRB because nothing in the SHP, the applicable law,

or the applicable SHPDA rules prohibits the CONRB from approving

more than one CON application to establish a home-health agency in a

county under those circumstances. It is noteworthy that the SHCC also

did not amend the SHP to expressly prohibit the CONRB from approving

more than one CON application under those circumstances as it did in

the case of CON applications to provide methadone treatment.

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Because the SHP, the applicable law, and the applicable SHPDA

rules allow the CONRB to approve more than one CON application in a

single batch under the facts of this case, the CONRB's decision to approve

both Madison's and ProHealth's CON applications was not arbitrary and

capricious. Therefore, we affirm the CONRB's decisions.

CL-2022-0538 -- AFFIRMED.

CL-2022-0539 -- AFFIRMED.

Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur.

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