Health; Certificate of Need Application Process

Subject:

Health; Certificate of Need Application Process.

Requested By:

Senator Joe B. Raynor North Carolina General Assembly

Questions:

(1)

May the same entity submit a second certificate of need application involving the same subject matter while the state agency’s final decision on the first application is under appeal?

(2)

If so, does the second application prejudice the appeal on the first application in any manner?

(3)

If the second application is accepted, when may the appropriate agencies begin their review of the second application?

Conclusions:

(1)

Yes.

(2)

The simple fact that a second certificate of need application has been filed would not prejudice an appeal from a decision on the first application; but the contents of the second application could have a prejudicial effect.

(3)

The second application should be reviewed at the appropriate time for reviewing that category of service in the particular health systems agency in which it is proposed to be located.

In addressing the questions presented here, it was necessary to review both the Certificate of Need Statute, G.S. 131-175 et seq., and the Certificate of Need Rules, found at 10 NCAC 3R, as they were in effect before October 1, 1981. In addition, amendments to the statute and rules, which became effective on October 1, 1981, were reviewed. Finally, the administrative rules of the Department of Human Resources governing administrative hearings, found at 10 NCAC 1B .0200, were also reviewed, as well as the Administrative Procedures Act, Chapter 150A of the General Statutes.

After reviewing those statutes and regulations, it is apparent that there is no provision which would prevent the submission of a second application while an appeal of a decision on an earlier application for the same project is pending. Of course, there are numerous provisions which govern the application and appeals processes; but none preclude the two occurring simultaneously. therefore, we conclude that the second application may be submitted and must be accepted by the state agency even though its decision on the first application is under appeal.

For the same reason, the simple fact that a second application has been submitted would not prejudice the appeal of the state agency’s decision on the first application. However, the material contained in the second application, to the extent that it contradicted or differed from the first application and was admissible at the hearing on the appeal of the first application, might be prejudicial to the resolution of the appeal. This is a question involving a judgment on the facts of each case and one appropriately addressed by counsel retained by the applicant.

If accepted after October 1, 1981, the second application should be reviewed at the appropriate time for reviewing the category of service involved in the particular health systems area in which it is proposed to be located. This review schedule would be defined by the provisions of 10 NCAC 3R .0307.

Rufus L. Edmisten Attorney General

William R. Shenton Assistant Attorney General