Amisub of South Carolina v. SC DHEC

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Amisub of South
Carolina, Inc., d/b/a Piedmont Medical Center, Appellant,

v.

South Carolina
Department of Health and Environmental Control, Charlotte- Mecklenburg
Hospital Authority, d/b/a Carolinas Healthcare System, and Carolinas
Physicians Network, Inc., Respondents.

Appeal From the Administrative Law Court

John D. McLeod, Administrative Law Judge

Opinion No. 2010-UP-523

Submitted December 1, 2010 – Filed
December 10, 2010

Withdrawn February 7, 2011

Heard March 23, 2011

Substituted and Refiled April 25, 2011   

REVERSED AND REMANDED

Travis Dayhuff and Holly G. Gillespie, both
of Columbia, for Appellant.

Ashley Caroline Biggers, Nancy S. Layman,
Carlisle  Roberts, Jr., James G. Long, III, and Edward H. Bender; all of
Columbia, for Respondents.

PER CURIAM:  Amisub of South Carolina, Inc., d/b/a Piedmont Medical
Center (Piedmont) appeals the grant of summary judgment by the Administrative
Law Court (ALC) in a contested case arising from a decision made by Respondent
South Carolina Department of Health and Environmental Control (the Department)
in favor of Respondents Charlotte-Mecklenburg Hospital Authority, d/b/a
Carolinas Healthcare System and Carolinas Physicians Network, Inc.  On appeal,
Piedmont argues the ALC erred when it determined Carolinas Healthcare Urgent
Care - Fort Mill (the Center) is "the office of a licensed private
practitioner" and is, therefore, exempt from certificate of need (CON)
review under S.C. Code Ann. Regs. 61-15 § 104(2)(e) (Supp. 2010).  We withdrew our initial decision and
scheduled oral arguments. 

Piedmont asserts
the ALC erred in granting summary judgment to CHS and CPN without allowing Piedmont
the opportunity to conduct discovery.[1] 
We agree and conclude that the ALC erred in finding that it could resolve the
case as a matter of law by granting summary judgment without affording Piedmont
the opportunity to conduct discovery. See Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003) ("Summary
judgment is a drastic remedy and must not be granted until the opposing party
has had a full and fair opportunity to complete discovery."); Lanham v.
Blue Cross & Blue Shield of S.C., Inc., 349 S.C. 356, 363, 563
S.E.2d 331, 334 (2002) (finding the court of appeals correctly reversed the
trial court's decision to rule on the summary judgment motion when Lanham was
not able to conduct further discovery to respond to Blue Cross's claim). 

Additionally, we disagree
with the Department's subject matter jurisdiction argument.  The Department
sought reconsideration of our initial opinion because it alleged there was no
decision rendered by the Department in this matter.  The record indicates that
there was a decision by the Department to exempt the Center from review.  For
example, in a letter from CHS to the Department dated December 19, 2007, CHS stated that the Department
provided notification that the Center was exempt from CON review.  Also, in a
letter dated February 13, 2009, from the Department, written to CHS and
Piedmont, the Department stated, "[t]he S.C. Board of Health and
Environment Control decided on February 12, 2009, not to conduct a Final Review
Conference on the above-referenced matter."  Additionally, the subject
line of the letter states: "Docket No. 09-RFR-06 – Staff decision dated October 26, 2007 (mailed 1/7/2009) to approve an exemption (E-07-125) for
an expenditure by health care facility for a non-medical project."
(emphasis added).  Furthermore, included in the same letter is the following
reference to section 44-1-60(F) of the South Carolina Code (Supp. 2010): 
"[I]f a final review conference is not conducted within sixty days, the
department decision becomes the final agency decision, and an applicant,
permittee, licensee, or affected person requests . . . a contested case hearing
before the Administrative Law Court." (emphasis added).  

Therefore, we
reverse the judgment and remand to the ALC pursuant to Rule 220(b), SCACR, and the
following authorities to allow discovery to be conducted and completed: S.C.
Code Ann. § 1-23-610(B)(d) (Supp. 2010) ("The court of appeals may . . .
remand the case for further proceedings; or, it may reverse or modify the
decision if the substantive rights of the petitioner have been prejudiced
because the finding, conclusion, or decision is . . . affected by other error
of law . . . ."); S.C. Dep't of Consumer Affairs v. Foreclosure
Specialists, Inc., 390 S.C. 182, 184, 700 S.E.2d 468, 469 (Ct. App. 2010)
(stating an appellate court reviews questions of law in ALC cases de novo). 
After completion of discovery, the ALC may proceed as deemed appropriate to
reach a final disposition.[2]

REVERSED AND REMANDED.

THOMAS,
PIEPER, and GEATHERS, JJ., concur.

[1] While we initially questioned preservation of the
discovery issue, our reading of the final order indicates the ALC determined
that discovery was not necessary to making a decision
on the motion for summary judgment. 

[2] Although not preserved for
our review, in light of our remand we note the ALC's statement that the
Center's status as a "physician office" exempts it from CON review as
a matter of law, is an error of law.  See S.C. Code Ann.
Regs. 61-15 § 104(2)(e) (Supp. 2010) (indicating a
physician office is not exempt from CON review if the total cost expended on
acquiring medical equipment to be used for diagnosis or treatment is greater
than $600,000);  see alsoMRI at Belfair, LLC v. S.C. Dep't of
Health & Envtl. Control, Op. No. 26962 (S.C. Sup. Ct. filed April 25,
2011) (Shearouse Adv. Sh. No. 14 at 15) (discussing S.C. Code Ann. Regs. 61-15
§ 102(1)(f) (Supp. 2010) regarding whether the total cost for the acquisition
exceeds $600,000 and noting the Department "must not allow a potential CON
applicant to avoid the CON process based on an arbitrary factor").