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
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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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). 3 CL-2022-0538; CL-2022-0539
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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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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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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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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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
8 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
9 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
10 CL-2022-0538; CL-2022-0539
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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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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(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.