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Certificate of Need Debate Had Its Day in Court

Sept. 17, 2005 – The questions being debated in front of Judge Maria Cabret in Superior Court Friday concerning the Roy L. Schneider Hospital's appeal of V.I. Health commissioner Darlene Carty's granting of a Certificate of Need to a proposed ambulatory surgical center for St. Thomas appeared simple enough.
Was the hospital a legitimate "aggrieved party" that could file an appeal? Did the hospital file the appeal in a timely manner? And did the department have legitimate regulations in place when determining if the ambulatory center fulfilled the criteria for a Certificate of Need?
However, Attorney Henry Feuerzeig, representing the hospital, and Joseph Arellano, representing the doctors who want to build the ambulatory center, reached as far back as Oregon law of 1884 to convince that their respective clients were right. Arellano said that the 1921 V.I. codes were adopted from the Alaska codes of 1913, which in turn had been adopted from the 1884 Oregon codes. He said therefore he would pursue his argument from that direction.
Neither complication nor controversy is new to the case.
Ever since being announced in December 2003, the proposed facility has been heatedly debated. In 2004 both sides –– Rodney Miller, Roy L. Schneider Hospital chief executive officer, and the group of local doctors proposing the center –– took out full-page ads in the print newspapers, vigorously defending their views. Both factions also appeared on radio talk shows. (See "Carty Approves Ambulatory Surgical Center").
Arellano Friday argued that the hospital was not an "aggrieved party." He cited law specifically related to the Certificate of Need process. That law appeared to be written with the priority being to give the party who is applying for a Certificate of Need the right to appeal a ruling by a health department. Arellano argued that the only real party in this case was the surgical center. He said it was not an adversarial proceeding that involved the hospital
Feuerzeig argued that through a writ of review, the hospital had a right of appeal, because it was an "aggrieved party" with no other avenue of appeal. He said the hospital was party to the proceedings because it had been invited by the Health Department to testify in the proceedings.
Arellano argued that there was an avenue of appeal built in the Certificate of Need process; it was just not an avenue open to the hospital.
Judge Cabret asked Arellano what remedy was available to the hospital. He answered, "I don't think they have any remedy at all. The government has spoken."
In the argument about whether the hospital filed its appeal in the time period allotted for appeals there is no argument about the dates.
Carty reached her decision on Nov. 24, 2004 and notified Miller by telephone that day. The hospital did not file its appeal until Jan. 11 of this year. The law allows 30 days for appeals.
Arellano noted the day of the decision and the day of the appeal and said, "By my calculation there were 48 days in between."
Feuerzeig argued that the clock did not begin ticking on the day of the decision because neither Miller, nor legal representatives of the hospital were given a copy of the decision. In fact, he said no true copy of the decision was delivered to hospital officials until late April of this year.
In most legal proceedings strict rules apply to cover situations such as this. Parties in a legal proceeding are required to certify that all parties have been served notices concerning motions. Judges serve official notices to parties of decisions.
In this case, the question again revolves around whether the hospital was an actual party in the proceeding.
Douglas Jergens, assistant attorney general representing the Department of Health, said, "The hospital was no more entitled to receive a copy of this decision than you, your honor, were entitled to receive one."
In the debate about whether the Health Department had rules properly in place to work through the process of granting a Certificate of Need, Cabret told Arellano, "I am smiling so I won't cry."
It appears that the only reason this question is being debated is because the rules established by the Health Department to cover the procedure languished on the governor's desk for 15 months.
The rules, which, according to Arellano, had been submitted to the governor in 2004, were finally approved in July of this year.
Arellano argued that, if it was ruled that this Certificate of Need was granted improperly, because the rules were not legally in place, then 41 renewals and four other new Certificate of Needs that have been granted by the Department of Health would have to be questioned. Cabret did not seem to buy the logic. She asked Arellano if this meant that if four things were done illegally, a fifth thing should also be allowed.
Arellano also argued that the law governing the procedure for granting a Certificate of Need used the term "establish" rules instead of the more strictly defined word "promulgate" the rules. His interpretation seemed to indicate the rules, though not approved by the governor, were "established."
An attorney for the hospital argued that this was about power. He said that if rules were not in place governing the procedure of granting a certificate than the Commissioner of Health had "unbridled power" and unlimited discretion in granting the certificates and this should not be the case.
Cabret took the arguments under advisement and did not state when she would make a ruling on the merits of the appeal.

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