In Re Central Vermont Medical Center

816 A.2d 531, 174 Vt. 607, 2002 Vt. LEXIS 349

• Court: Supreme Court of Vermont
• Decided: December 16, 2002
• Docket: 01-461
• Status: Published

Opinions

¶ 1. Central Vermont Medical Center (CVMC) appeals the denial of its application for a Certificate of Need (CON) by the Commissioner of the Department of Banking, Insurance, Securities, and Health Care Administration (BISHCA). CVMC applied for a CON in order to proceed with a renovation and expansion project for the Central Vermont Hospital (“the Hospital”). CVMC argues that the Commissioner erred (1) by not providing the required explanation for her decision; (2) by implementing a new standard without notice as required by Vermont law; (3) by violating CVMC’s due process rights in not providing CVMC an opportunity to present information necessary to receive CON approval; and (4) by incorrectly concluding that a CON was not warranted given evidence to the contrary. We affirm.

¶ 2. In December 2000, CVMC filed a CON application related to its proposed project with BISHCA’s Division of Health Care Administration (“the Division”). See 18 V.S.A § 9434(a) (“No new institutional health service shall be . . . developed within this state . . . without a determination of need and issuance of a certificate of need by the commissioner . , . .”). CVMC’s proposal called for an approximately $12.5 million modernization project, which included upgrading hospital infrastructure, providing additional space for ambulatory patient care (i.e., outpatient care), and improving the birthing center with integrated labor, delivery, recovery and post-partum care rooms. The project also included relocating the Hospital’s laboratory and administrative functions to provide space for revisions to the ambulatory patient processing area.

¶ 3. In May, after several supplemental filings, the Division ruled the application complete and scheduled a public hearing with the Public Oversight Commission (POC), which took place in June. In July, the POC recommended approval of the application.

¶ 4. Following this recommendation, in accordance with the CON statute and regulations, the Commissioner'reviewed the application, considering numerous general and mandatory criteria. See 18 V.S.A § 9440(c)(4). In September, the Commissioner denied CVMC’s CON application. The Commissioner analyzed three of the “general criteria” listed in 18 V.S.A § 9436(a): the need for the proposed project on the part of the population served, § 9436(a)(4); the availability of less costly or more effective alternatives, § 9436(a)(5); and the project’s probable- impact on the costs of and charges for providing health services, § 9436(a)(6). The Commissioner also found that four of the five “mandatory criteria” under 18 V.S.A. § 9437 were relevant to CVMC’s CON application. In order for a CON to issue, the Commissioner was required to find that superior alternatives to the project in terms of cost, efficiency and appropriateness did not exist, § 9437(1); that alternatives to new construction involved in the project, such as modernization or sharing arrangements, had been considered and implemented to the maximum extent possible, § 9437(2); that patients would experience serious problems in terms of costs, availability, or accessibility without the proposed project, § 9437(3); and the proposed project is consistent with the CON and within the portion of the unified health care budget applicable to the Hospital, § 9437(5).

¶ 5. The Commissioner found that CVMC’s application did not demonstrate the requisite need for the project, did not adequately explore less costly alternatives and understated the. costliness of the project, and therefore, the application failed to meet the general and mandatory criteria set out by statute. Specifically, the Commissioner found that while the infrastructure improvements were the primary goal of the overall project, CVMC had failed to provide adequate information about these improvements. The Commissioner found that the proposed infrastructure improvements related only to the areas affected by the other project goals, such as the enhancements to ambulatory care and the improvements to the birthing center, and not to the vast portion of the hospital facility left untouched by the project, stating: “[t]hat the infrastructure appears to be worn out only in areas that CVMC wants to reconfigure is, perhaps, a coincidence.” The Commissioner also found that CVMC did not adequately assess how costly infrastructure improvements would be without the other goals of the project. The Commissioner cited several recommendations by CVMC’s engineering consultants that contradicted the need expressed in the application for some of the infrastructure improvements included in the proposal. Finally, the Commissioner found that CVMC failed to account for the loss in investment income that would be incurred from spending its reserve fund on the project. Following the Commissioner’s decision, CVMC filed this appeal.

¶ 6. Our standard of review on appeals from orders by the Commissioner is based on 8 V.S.A. § 16, which provides that we may disturb an order by the Commissioner if it: “(1) was issued pursuant to unconstitutional statutory provisions; (2) was in excess of statutory authority; (3) was issued on unlawful procedure; or (4) is not supported by substantial evidence in the record.” In general, we have granted administrative bodies a great deal of deference, both in regard to their findings of fact and to their interpretations of their governing statutes and regulations. “[W]e will not set aside an administrative agency’s findings unless clearly erroneous. We view the evidence in the light most favorable to the prevailing party and exclude any modifying evidence. So long as the findings are supported by credible evidence, we will not disturb them.” Bigelow v. Dep’t of Taxes, 163 Vt. 33, 35, 652 A.2d 985, 986-87 (1994) (citations omitted); see also In re AssureCare of Vt. Inc., 165 Vt. 535, 538, 686 A.2d 959, 961 (1996) (holding that our standard of review for decisions of the Health Care Authority Board — predecessor to the Division — is “very narrow” and that “we will not disturb the Board’s statutory interpretations absent a compelling indication of error.” (internal quotation marks and citations omitted)). Decisions of the Commissioner are therefore presumed to be correct, valid and reasonable, absent a clear and convincing showing to the contrary. In re Prof'l Nurses Serv., Inc., 164 Vt. 529, 532, 671 A.2d 1289, 1291 (1996).

¶ 7. CVMC first argues that by not providing a detailed statement explaining why the CON application denial was contrary to the recommendation of the POC, the Commissioner violated both Vermont law and CON regulations. See 18 V.S.A. § 9436(a)(1); BISHCA Reg. H-99-3 § 5(M). The statutory procedures for CON applications call for the Commissioner to consider the POC’s recommendation among numerous other general criteria. See 18 V.S.A. §§ 9436(a)(1), 9440(c)(4). The Commissioner has met this minimal statutory obligation, as the decision denying CVMC’s CON application refers to the POC recommendation and examines the public hearing proceedings before the POC. The CON regulations, however, require that the decision, if inconsistent with the POC’s recommendation, “provide a detailed statement explaining why” the decision differs from the recommendation. BISHCA Reg. H-99-3 § 5(M).

¶ 8. We presume an agency’s interpretation of its regulations is correct, and the challenging party must show a compelling indication of error to overcome this presumption. In re Prof'l Nurses Serv., Inc., 168 Vt. 611, 613, 719 A.2d 894, 896 (1998) (mem.). Here, the Commissioner’s twenty-two page decision provides substantial justification for her decision, and the Commissioner’s response to the POC’s recommendation is detailed in the very nature of her decision — specifically noting why CVMC has not established the requisite need for undergoing the project.

¶ 9. CVMC next argues that the Commissioner’s decision rests on a new, heightened standard that was improperly created by the Commissioner. CVMC argues that while the CON statute and regulations call for the Commissioner to consider the “need” for the proposed project, the Commissioner’s decision stated that CVMC failed to demonstrate that the project was “absolutely necessary,” thereby raising the bar without notice to CVMC and violating 18 V.S.A. § 9436(a), which requires that the Commissioner consider “only the criteria which have been duly adopted and published 90 days prior to the submission of the original application for certificate of need.”

* CVMC relies on previous CON application decisions where “need” did not require absolute need to justify issuance of a CON.

¶ 10. The statutory provision at issue regarding “need” calls for the Commissioner to consider the “need for the proposed new institutional health service on the part of the population served.” 18 V.S.A. § 9436(a)(4). The CON regulations expand on this provision:

The applicant must demonstrate that the proposed service is needed to maintain the availability and accessibility of health services, or meets specific unmet needs of the area to be served, or that the proposed service will improve the health of the population to be served, or that the service represents a less costly alternative to existing similar services.

BISHCA Reg. H-99-3 § 6(A)(4).

¶ 11. CVMC’s argument that the Commissioner has improperly applied an “absolute need” standard relies on a single sentence of a twenty-two page decision. Much of the Commissioner's decision offers extensive reasoning as to why CVMC’s CON application does not demonstrate that the proposed service is needed within the meaning of Reg. H-99-3 § 6(A)(4). For instance, immediately following the “absolutely necessary” language, the decision lists nine examples that demonstrate the Hospital’s infrastructure is operating well. Taken in its entirety, the Commissioner’s decision highlights significant evidence that many of the project’s infrastructure enhancements are not needed, despite the age of the facility. It is within the Commissioner’s discretion to determine how she should interpret “need,” absent any express direction by the Legislature or any compelling indication of error. Cf. In re AssureCare of Vt., Inc., 165 Vt. at 539, 686 A.2d at 962 (holding that agency did not create new criterion but, within its statutory authority, merely explained existing criterion where agency rejected CON based on applicant’s lack of demonstrated ability to operate statewide HMO).

¶ 12. CVMC’s use of prior CON application decisions to demonstrate that the Commissioner created a new standard is also not persuasive. Indeed, the CON statute suggests that a degree of flexibility should be allowed from one CON application to another: “[ejriteria applied to a particular review may vary according to the purpose for which that particular review is being conducted or the type of health facility or service which is being reviewed.” 18 V.S.A § 9436(b). So long as the Commissioner’s interpretation is not arbitrary or capricious, we will allow it to stand. See Lilly v. Vt. Headmasters Ass’n, 160 Vt. 603, 605, 648 A.2d 810, 812 (1993) (mem.) (holding that even where rule in question admits of two interpretations, agency is entitled to interpret its rule as it sees fit).

¶ 13. Moreover, the previous CON application decisions cited by CVMC can be sufficiently distinguished from the instant case. For instance, the CON application decision in the Fletcher Allen Health Care Ambulatory Care Facility and Redevelopment Project, BISHCA Docket No. 00-033-H (March 2, 2001), states that part of the facility proposed for renovation — the birthing center — was constructed fifty years ago and that “there are a number of life safety, electrical, and heating-ventilation deficiencies.” In contrast, the CVMC CON application decision cites numerous instances where CVMC failed to provide necessary information on the need for the proposed project and states that “CVMC has not provided any specific information indicating life safety violations.” The CON application decision in the North Country Hospital Expansion/Renovation Project, BISHCA Docket No. 99-038-H (July 10, 2001), cited the hospital’s likely loss of accreditation should parts of the project not go forward.

¶ 14. CVMC next argues that because the Commissioner did not offer CVMC the opportunity to supplement the record with information needed to receive a CON, the Commissioner’s decision-making process was procedurally unfair and violated CVMC’s due process rights. Reasonable notice is required in administrative actions, pursuant to the Administrative Procedure Act. See 3 V.S.A. § 809. “Notice is adequate in an administrative proceeding if the parties are sufficiently apprised of the nature of the proceeding so that there is no unfair surprise.” In re Whitney, 168 Vt. 209, 213, 719 A.2d 875, 878 (1998). Our standard of review for claims regarding improper notice is well-settled:

The question on review is not the adequacy of the original notice or pleading but is the fairness of the whole procedure. Critical to a determination of whether the procedure was fair is whether or not the parties were given an adequate opportunity to prepare and respond to the issues raised in the proceeding.

In re Green Mountain Power Corp., 131 Vt. 284, 293, 305 A.2d 571, 577 (1973).

¶ 15. Here, CVMC claims it did not have an opportunity to respond to the Commissioner’s heightened standard of absolute need for the proposed project. As we have explained above, however, there is sufficient evidence in the Commissioner’s decision that there was no such heightened standard. There is no question that CVMC was provided adequate notice that it would have to show a need for the proposed project, both through the CON statute and the regulations. See 18 V.S.A. § 9434(a) (“[n]o new institutional health service shall be offered or developed . . . without a determination of need”) (emphasis added); id. § 9436(a)(4) (general criteria include the “need for the proposed new institutional health service”) (emphasis added); BISHCA Reg. H-99-3 § 6(A)(4) (same). With this substantial notice, the burden of proof was on CVMC to show that the proposal met the “need” requirements for CON application approval, not on the Commissioner to ensure that CVMC had demonstrated need for the proposed project such that she would approve of the CON application. See In re AssureCare of Vt., Inc., 165 Vt. at 541, 686 A.2d at 963 (burden of proof is on applicant to provide evidence on permissive criteria).

¶ 16. Moreover, despite the fact that it had no burden to do so, the Division attempted to solicit additional information on the need for the proposed project throughout the CON application process. Even though CVMC submitted additional information on seven occasions, CVMC still failed to respond adequately to these requests, as the Commissioner pointed out in her decision: “CVMC offers little or nothing to support its assertions and there is no evidence that the infrastructure is, indeed, ‘worn-out.’ ”

¶ 17. CVMC suggests that because the Division ruled the application complete, the requisite showing of need should have been present in the application. But pursuant to the CON statute and the Department’s regulations, a CON application is complete when it “contains all necessary information required.” 18 V.S.A § 9440(b)(4); see also BISHCA Reg. H-99-3 § 4(A) (“[t]he Division shall determine whether the information and data furnished by the applicant meets the requirements of the standard application” to rule upon completeness), A party may, and frequently does, meet the standard for completeness of the CON application (“all necessary information”) without being able to establish the need for the proposed project on the part of the population served, § 9436(a)(4), or whether patients would experience serious problems in terms of costs, availability, or accessibility without the proposed project, § 9437(3). In CVMC’s case, however, the Commissioner found that the evidence presented was conclusory and inadequate in establishing whether the population served had a need for the proposed project, § 9436(a)(4), or whether patients would experience serious problems in terms of costs, availability, or accessibility without the proposed project, § 9437(3).

¶ 18. CVMC also argues that the Commissioner’s decision should be overturned on the grounds that it is clearly erroneous. We disagree. We presume the Commissioner’s decisions are correct, valid and reasonable, absent a clear and convincing showing to the contrary. See In re Prof'l Nurses Serv., Inc., 164 Vt. at 532, 671 A.2d at 1291. With regard to factual findings, so long as the Commissioner’s findings are supported by credible evidence, viewed in the light most favorable to the prevailing party, we will not disturb them. See Bigelow, 163 Vt. at 35, 652 A.2d at 986-87.

¶ 19. CVMC argues that the Commissioner erred in various portions of the decision by failing to consider overwhelming evidence of need for the proposed project. CVMC cites several portions of the record to show that substantial evidence of need existed to justify infrastructure improvements. These citations, however, only support general assertions that infrastructure tends to wear out after thirty years or so. As the Commissioner’s decision noted, CVMC failed to provide any substantial evidence in the record that states specific problems in the instant infrastructure. The Commissioner also stated that many of the specific goals in the infrastructure improvements were contradicted by consultants who analyzed the Hospital and its proposal. CVMC also contends that with respect to the ambulatory care and birthing center enhancements the Commissioner disregarded substantial evidence that demonstrated need. CVMC fails to cite any portion of the record that clearly and convincingly demonstrates that the Commissioner’s decision was erroneous.

¶ 20. Lastly, CVMC argues that the Commissioner’s analysis of the project’s long-term financial feasibility, which the Commissioner provided pursuant to 18 V.S.A § 9436(a)(6), was clearly erroneous. CVMC submits that the Commissioner failed to substantiate her ruling that the projected staff savings are “uncertain.” The Commissioner’s regulations regarding the financial feasibility criterion provide that an applicant must “demonstrate financial feasibility of the proposal and capacity, including resources sufficient to implement the project and sustain its operation over time.” BISHCA Reg. H-99-3 § 6(A)(6). We presume the Commissioner’s interpretation of her own regulations is correct, absent a compelling indication of error. See In re Prof'l Nurses Serv., Inc., 168 Vt. at 613, 719 A.2d at 896. The minutes from the POC meeting reflect that when asked how the savings would be realized, CVMC responded merely that “once the work has been completed they could show the savings in the cost of the ‘old staffing’ versus the ‘new efficiencies.’” We find no compelling indication of error in the Commissioner’s decision that CVMC had not adequately demonstrated the financial feasibility of the proposed project.

¶21. CVMC also notes that the Commissioner’s financial feasibility analysis accounts for future interest that would be lost from CVMC’s reserve fund because CVMC would expend the fund on the project. CVMC argues that because these interest gains would have to be kept within the fund, they are not actually lost from CVMC’s operating budget. Nevertheless, the Commissioner was within her discretion in accounting for depletions from the reserve fund, as these depletions could have an impact on the Hospital’s ability to fund what, in the Commissioner’s opinion, may be more reasonable capital improvements. This decision was within the Commissioner’s statutory role, as defined by 18 V.S.A. § 9431: “the general welfare and protection of the lives, health and property of the people of this state require that all new institutional health services be offered or developed in a manner which . . . promotes rational allocation of health care resources in the state.” (emphasis added).

¶ 22. We do not quarrel with the dissent’s characterization of the significance of CVMC to the community of central Vermont. The issue before us is not how we would have decided the merits of CVMC’s CON application but whether — given the standard of review we are bound to apply to appeals of the Commissioner’s decisions —we can conclude that the Commissioner erred as a matter of law. On the record before us we cannot. The Commissioner adequately provided justification for her decision, interpreted her governing statute and regulations in a reasonable manner, and based her findings on credible evidence in the record.

Affirmed.

CVMC’s reply brief asserts for the first time that the Commissioner’s denial of its CON application was not based solely upon criteria set forth in 18 V.S.A. § 9436(a) but rather upon “unstated political grounds.” In support of its assertion, CVMC relies upon a transcript of a January 2002 radio talk show on which Governor Dean responded to an interviewer’s questions about the Commissioner’s denial of CVMC’s CON application. The transcript is not part of the record in this case nor do we agree with the dissent’s contention that statements made on a radio talle show may be judicially noticed as facts “not subject to reasonable dispute.” A judicially noticed adjudicative fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, see, e.g., Ruppert v. Comm’r of Taxes, 117 Vt. 83, 86, 85 A.2d 584, 586 (1952) (place of publication of certain newspapers), or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. See, e.g., Towne v. Rizzico, 113 Vt. 205, 207, 32 A.2d 129, 130 (1943) (time of sunset); V.R.E. '201. Nor does the attachment of the transcript to the reply brief alter these tests. See, e.g., Thompson v. Tel. & Data Sys., Inc., 888 P.2d 16, 18 (Or. Ct. App. 1994) (“[Tjhere is a distinction between judicially noticing the existence of a court record and noticing the truth of the contents of that record, much less the truth of the contents of a document that happens to be appended to the court record.”). While it may be undisputed that Governor Dean made the statements contained in the transcript, the significance of those statements for this proceeding is uncertain.

Our inability to consider the reply brief does not leave CVMC without a remedy, if it can show that the Commissioner did not comply with the statute, 18 V.S.A. § 9436(a), in rendering her decision. It may petition the superior court for extraordinary relief in the nature of certiorari, pursuant to V.R.A.P. 21. See In re Mallary, 127 Vt. 412, 414, 250 A.2d 837, 838 (1969) (writ of certiorari is appropriate to review “the judicial action of inferior courts, special tribunals, public officers, and bodies exercising judicial functions”; writ granted to review action of board of tax appraisers); see also Franklin v. Hous. Auth. of Milwaukee, 455 N.W.2d 668, 671 (Wis. Ct. App. 1990) (“[Cjertiorari is available to review legal questions involved in an administrative agency’s decision where statutory appeal is either inadequate to address the issue or is not available.”); Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (“[I]n the absence of an adequate method of review or legal remedy, judicial review of the quasi-judicial decisions of administrative bodies, if available, must be invoked by writ of certiorari.”). As part of its petition, CVMC will need to demonstrate that it has no other adequate remedy at law and that no other means of review is available. In re Mallory, 127 Vt. at 414-15, 250 A.2d at 838. Further, since “certiorari review is ordinarily restricted to the record,” Hunt v. Village of Bristol, 159 Vt. 439, 442, 620 A.2d 1266, 1268 (1992), CVMC will need to demonstrate the necessity of supplementing the trial record with “an appropriate evidentiary foundation,” State v. Forte, 154 Vt. 46, 50, 572 A.2d 941, 943 (1990), concerning the alleged “unstated political grounds” of the Commissioner’s decision.