HEALTH SYSTEMS AGENCY v. Stroube

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Bumgardner
Argued at Richmond, Virginia

HEALTH SYSTEMS AGENCY OF
NORTHERN VIRGINIA, INC.
OPINION BY
v. Record No. 2669-04-4 JUDGE JAMES W. BENTON, JR.
DECEMBER 28, 2005
ROBERT B. STROUBE, M.D., M.P.H.,
STATE HEALTH COMMISSIONER,
NORTHERN VIRGINIA COMMUNITY
HOSPITAL, L.L.C., LOUDOUN HOSPITAL
CENTER, AND INOVA HEALTH CARE
SERVICES d/b/a INOVA FAIR OAKS
HOSPITAL

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Theodore J. Markow, Judge Designate

K. Stewart Evans, Jr. (Pepper Hamilton LLP, on brief), for appellant.

Matthew M. Cobb, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General; David E. Johnson, Deputy Attorney
General; Jane D. Hickey, Senior Assistant Attorney General, on
brief), for appellee Robert B. Stroube, M.D., M.P.H., State Health
Commissioner.

Jeannie A. Adams (Thomas F. Hancock, III; Hancock, Daniel,
Johnson & Nagle, P.C., on brief), for appellee Northern Virginia
Community Hospital, L.L.C.

(Virginia H. Hackney; Mark S. Hedberg; W. Taylor Reveley, IV;
Woodrow W. Turner, Jr.; Hunton & Williams, LLP, on brief), for
appellee Loudoun Hospital Center. Appellee Loudoun Hospital
Center submitting on brief.

No brief or argument for appellee Inova Health Care Services, d/b/a
Inova Fair Oaks Hospital.

The trial judge ruled that Health Systems Agency of Northern Virginia, a regional health

planning agency that was a party to an administrative proceeding under Article 1.1 of Title 32.1,
did not have standing to appeal the State Health Commissioner’s decision approving a hospital’s

application for a certificate of public need. Health Systems Agency contends the trial judge

erred in dismissing its petition for appeal. We affirm the trial judge’s standing decision and the

order dismissing Health Systems’ petition.

I.

As a prelude to considering the circumstances of this case, we review the statutory

administrative structure that governs applications for certificates of public need for medical care

facilities. These statutes also illuminate the relationship between the State Department of Health

and regional health planning agencies, which is germane to the standing issue we must consider.

As a part of the comprehensive scheme for health care planning in Virginia, the General

Assembly provided for health planning and resource development. See Code §§ 32.1-122.01 to

32.1-122.08. The General Assembly authorized the State Board of Health to develop a State

Health Plan with the assistance of regional health planning agencies. Code §§ 32.1-122.03 to

32.1-122.05. These health planning agencies were created “[f]or the purpose of representing the

interests of health planning regions and performing health planning activities at the regional

level.” Code § 32.1-122.05(A). Among the statutorily required functions of health planning

agencies is reviewing applications for certificates of public need for medical care facilities.

Code § 32.1-102.6(B).1

1
Health planning agencies also perform functions outside of the administrative review of
certificate of public need applications. See Code §§ 32.1-122.04, 32.1-122.05, 32.1-122.07. In
developing a rural health plan, the Commissioner may seek assistance from the health planning
agency. Code § 32.1-122.07(D). Buyers of certain medical equipment must register such
purchases with the Commissioner and the relevant health planning agency. Code § 32.1-102.1:1.
Health planning agencies aid the Board of Health by:

(i) conducting data collection, research and analyses as required by
the Board; (ii) preparing reports and studies in consultation and
cooperation with the Board; (iii) reviewing and commenting on the
components of the State Health Plan; (iv) conducting needs
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 As a medical care facility, a hospital must obtain a certificate of public need before

undertaking a project enumerated in Code § 32.1-102.1. For example, a hospital must obtain a

certificate of public need to establish a medical facility, increase the number of beds or operating

rooms in an existing facility, relocate beds (unless for nursing home care), add a new nursing

home service to an existing facility, add certain clinical services such as psychiatric service or

open heart surgery, convert existing beds to rehabilitation or psychiatric beds, newly acquire

certain medical equipment, or spend $5 million or more. Code §§ 32.1-102.1, 32.1-102.3.

To apply for a certificate of public need, a hospital must file a completed application with

both the Department and the appropriate regional health planning agency. Code

§ 32.1-102.6(A). The hospital must send the application by certified mail or delivery service

with a return receipt requested, or deliver it “by hand” to obtain a signed receipt. Id. Within ten

days of the application’s receipt, the Department and the health planning agency shall notify the

hospital whether the application is complete or more information is needed. Id.

The health planning agency reviews the hospital’s application within sixty days of the

start of the review cycle established by the Department. Code § 32.1-102.6(B). The health

planning agency must hold a public hearing on each application and publish notice for that

hearing. Id. The health planning agency is also required to notify local governments in the

health care planning region of the impending hearing and to consider the comments of those

governing bodies. Id. The health planning agency must consider all public comments it receives

and give the applying hospital an opportunity to respond to any comments that its staff has made

assessments as appropriate and serving as a technical resource to
the Board; (v) identifying gaps in services, inappropriate use of
services or resources and assessing the accessibility of critical
services; . . . and . . . conducting such other functions as directed
by the regional health planning board.

Code § 32.1-122.05(D).
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about the proposal. Id. Within ten days of finishing its review, the health planning agency must

submit its recommendations concerning the application to the Department. Id. If it has not

finished its review within the statutorily designated period, the Department must deem the health

planning agency’s lack of response to be a recommended approval of the project. Id.

The Department must begin its application review simultaneously with the health

planning agency’s review. Code § 32.1-102.6(D). Although the Department has a Division of

Certificate of Public Need that analyzes and issues reports on applications, the statute does not

reference the Division or its function. Id. Instead, the statute provides generally that the

Commissioner “shall make determinations in accordance with the Administrative Process Act.”

Id.

To facilitate the Commissioner’s determination, the Department shall convene an

informal fact-finding conference if “necessary.” Id. The Department’s guidelines provide that

the Department will conduct an informal fact-finding conference if the Division of Certificate of

Public Need has recommended denial of the application, if a regional health planning agency has

recommended denial of the application, or if a person has challenged the application by seeking

to show good cause as provided in Code § 32.1-102.6(G). The General Assembly designated

that the parties to the case before the Commissioner “shall include only the applicant, any person

showing good cause, any third-party payor providing health care insurance or prepaid coverage

. . . or the health planning agency if its recommendation was to deny the application.” Code

§ 32.1-102.6(D).2

2
The statute was amended in 2005 to read as follows:

Further, if an informal fact-finding conference is determined to be
necessary by the Department or is requested by a person seeking
good cause standing, the parties to the case shall include only the
applicant, any person showing good cause, any third-party payor
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 Following this procedure, the Commissioner reviews the application and may only issue

a certificate if the applicant has demonstrated a public need for the project. Code

§ 32.1-102.3(A). The Commissioner has the discretion to approve all or part of an application,

but the Commissioner’s decision to approve the issuance of a certificate of need must be

consistent with the State Medical Facilities Plan, with limited statutory exceptions. Id. In

considering an application, the Commissioner is required to evaluate twenty factors, including

“[t]he recommendation and the reasons therefor of the appropriate health planning agency.”

Code § 32.1-102.3(B)(1).

During the administrative proceeding, only the applicant has the authority to extend any

of the time periods. Code § 32.1-102.6(I). If the Commissioner does not make a determination

within forty-five days of the close of the record, the Commissioner must notify the applicants

and anyone seeking to show good cause that the application “shall be deemed approved 25

calendar days after expiration of such 45-calendar-day period,” unless the hearing officer

conducting the fact-finding conference permits the Commissioner to rule within the

twenty-five-day grace period. Code § 32.1-102.6(E)(6). If the Commissioner does not act after

forty-five days, any competing applicant may petition for immediate injunctive relief, naming

“as respondents the Commissioner and all parties to the case.” Code § 32.1-102.6(E)(8).

Otherwise, after seventy days of the closing of the record, if the Commissioner has not made a

determination whether a public need exists, the application will be deemed approved and the

“certificate shall be granted.” Code § 32.1-102.6(E)(7). A “deemed approval” is to be construed

providing health care insurance . . . and the relevant health
planning agency.

Thus, the regional health planning agency now has standing as a party to the administrative
proceeding regardless of its recommendation.
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as a case decision and “subject to judicial review on appeal as the Commissioner’s case

decision.” Code § 32.1-102.6(F).

II.

In 2002, in accordance with these statutory provisions, Northern Virginia Community

Hospital, L.L.C. filed with the State Department of Health and the Health Systems Agency of

Northern Virginia, the regional health planning agency, an application for a certificate of public

need. See Code §§ 32.1-102.3 and 32.1-102.6. The application proposed to replace two of its

existing hospitals (one in Arlington County and one in Fairfax County) with a new one hundred

and eighty bed hospital (Broadlands Medical Center) in Loudoun County. At the same time,

three other hospitals in the northern Virginia regional area filed applications for certificates of

public need for hospital projects. Loudoun Hospital Center proposed to add space for thirty-two

beds in its hospital in Loudoun County. Inova Health Care Services sought to add forty beds at

Inova Fair Oaks Hospital in Fairfax County. Potomoc Hospital proposed to rebuild the

medical-surgical area at its hospital and to add thirty beds.

During the administrative review, Health Systems Agency recommended to the

Department that it deny the application from Community Hospital and approve the applications

from the three other hospitals. See Code § 32.1-102.6(B). The Division of Certificate of Public

Need recommended approval of only the Potomoc Hospital application. At the conclusion of

these reviews, the Commissioner approved only the application from Potomoc Hospital, ruling

that a public need did not exist for the projects proposed by Community Hospital, Loudoun

Hospital, and Inova Hospital. Community Hospital appealed the Commissioner’s denial of its

application to the circuit court. Neither Inova Hospital nor Loudoun Hospital appealed.

While its appeal was pending in the circuit court, Community Hospital filed another

certificate of public need application with the Department and Health Systems Agency,

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proposing a modified Broadlands Medical Center (Broadlands II). In response to Community

Hospital’s modified application, both Inova Hospital and Loudoun Hospital filed modified

applications proposing competing projects at their hospitals. The appeal currently before us

arises from this second round of administrative proceedings.

Upon receipt of the modified applications, the Department and Health Systems Agency

began their statutory administrative functions. The Division of Certificate of Public Need and

Health Systems Agency reviewed all three applications. As required by statute, Health Systems

Agency held public hearings on the proposed projects. At least one local governing body, the

board of supervisors of Arlington County, informed Health Systems Agency of its objections to

the Broadlands II project. Health Systems Agency’s staff issued a report noting that current bed

capacity already met the needs of the region and concluding that none of the three proposals

were in the regional public’s interest. The report also indicated that the same conditions that

resulted in denial of the applications in the first administrative proceedings still existed.

Following the public hearing and the staff report, the board of directors of Health Systems

Agency recommended that the Commissioner deny all three projects.

Two weeks later the Division of Certificate of Public Need issued its report, noting that

the Broadlands II “project is not consistent with many of the applicable provisions of the State

Medical Facilities Plan.” Its staff report also recommended denial of all three competing

applications.

Following these reports, the Department convened an informal fact-finding conference.

The entities designated by Code § 32.1-102.6(D) as parties to the case participated in the

informal fact-finding conference: the applicants (Community Hospital, Loudoun Hospital, and

Inova Hospital) and the regional health planning agency (Health Systems Agency). The director

of the Division of Certificate of Public Need also participated in the conference. Based upon the

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informal conference and his review of the extensive administrative record, the hearing officer

issued his reports recommending approval of Community Hospital’s application subject to

conditions, approval of Inova Hospital’s application subject to conditions, and denial of Loudoun

Hospital’s applications. The Commissioner accepted the recommendations of the hearing

officer, denying the Loudoun Hospital application and conditionally approving the Inova

Hospital and Community Hospital applications.

Health Systems Agency filed a petition for appeal in the circuit court, naming the

Commissioner, Loudoun Hospital, Community Hospital, and Inova Hospital as respondents. It

contended that the Commissioner’s decision approving Community Hospital’s application for a

certificate of public need for Broadlands II was “unlawful.” Loudoun Hospital filed a separate

appeal of the Commissioner’s decision on all three applications. The Commissioner and

Community Hospital filed demurrers and motions to dismiss Health Systems Agency’s appeal,

arguing that it did not have the statutory authority to appeal the Commissioner’s decision. The

trial judge sustained the demurrers and granted the motions to dismiss the petition for appeal.

Relying upon Virginia Beach Beautification Commission v. Board of Zoning Appeals, 231 Va.

415, 344 S.E.2d 899 (1986), the judge ruled that Health Systems Agency “is not a party

aggrieved and therefore lacks standing to appeal the Commissioner’s decision.”

Health Systems Agency appeals this ruling.

III.

Health Systems Agency contends it has standing to appeal the Commissioner’s grant of a

certificate of public need because it has a “statutorily mandated interest in preventing the

Commissioner from arbitrarily exercising his powers” and because its appeal is necessary to

fulfill its legislatively mandated duties. Loudoun Hospital supports the position advanced by

Health Systems Agency. The Commissioner and Community Hospital contend, however, that

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Health Systems Agency is not “aggrieved” by the grant of the certificate of public need and

argue that Health Systems Agency acts only in a representative capacity during the

administrative process to assist the Board of Health. The Commissioner further contends that,

because Health Systems Agency was a respondent in Loudoun Hospital’s appeal to the circuit

court, any decision favorable to Health Systems Agency in this appeal would be an advisory

opinion.

As a general proposition, the Administrative Process Act governs the appeals process for

administrative decisions, unless the agency’s basic law provides otherwise. Kenley v. Newport

News Gen. & Non-Sectarian Hosp. Ass’n, 227 Va. 39, 46, 314 S.E.2d 52, 56 (1984); Va. Bd. of

Med. v. Va. Physical Therapy Ass’n, 13 Va. App. 458, 465, 413 S.E.2d 59, 63-64 (1991).

Because the statutes governing certificates of public need generally are silent regarding

procedures for judicial review of the Commissioner’s case decisions, we look to the

Administrative Process Act. Under the Act, “[a]ny person affected by and claiming the

unlawfulness of any regulation, or party aggrieved by and claiming unlawfulness of a case

decision . . . shall have a right to the direct review thereof by . . . court action.” Code § 2.2-4026;

see also Kenley, 227 Va. at 46, 314 S.E.2d at 56. Thus, Health Systems Agency can appeal the

Commissioner’s grant of a certificate of public need if (1) that action was a case decision,

(2) Health Systems Agency was a named party in the administrative proceeding, and (3) the

decision aggrieved Health Systems Agency. See Strawbridge v. County of Chesterfield, 23

Va. App. 493, 498, 477 S.E.2d 789, 792 (1996).

All the parties to this appeal agree that the Commissioner’s decision was a case decision,

that Health Systems Agency was a named party in the administrative proceedings, and that the

determinative issue in this case is whether Health Systems Agency is “aggrieved.” The parties

also agree that the Supreme Court’s decisions in Virginia Beach Beautification Commission, 231

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Va. 415, 344 S.E.2d 899, and Board of Supervisors of Fairfax County v. Board of Zoning

Appeals, 268 Va. 441, 604 S.E.2d 7 (2004), provide guidance in determining who is

“aggrieved.”

In Virginia Beach Beautification Commission, a non-stock corporation of individuals and

organizations that had the goal of maintaining Virginia Beach as “one of the most beautiful cities

in the state” sought to challenge the board of zoning appeals grant of a zoning variance to a

hotel. 231 Va. at 418, 344 S.E.2d at 902. The Supreme Court noted that the civic entity owned

no property, paid no city taxes, and sought “to advance some perceived public right or to redress

some anticipated public injury when the only wrong . . . suffered [was] in common with other

persons similarly situated.” Id. at 419, 344 S.E.2d at 902. Upholding the trial judge’s denial of

standing, the Supreme Court held that “[t]he word ‘aggrieved’ in a statute contemplates a

substantial grievance and means a denial of some personal or property right, legal or equitable,

or imposition of a burden or obligation upon the petitioner different from that suffered by the

public generally.” Id. at 419-20, 344 S.E.2d at 902-03. Thus, this voluntary civic organization,

which had a mere intangible connection to the zoning decision, did not have an interest damaged

by the decision to allow a variance from the height and setback requirements the city’s zoning

ordinance imposed for freestanding signs. Id. at 420, 344 S.E.2d at 903.

By contrast, in Board of Supervisors of Fairfax County, the Supreme Court held that the

board of supervisors had standing to appeal a decision by the board of zoning appeals granting a

residential property owner a variance from a county zoning ordinance. 268 Va. at 446, 604

S.E.2d at 9. The Court held that the board of supervisors had a statutorily recognized “interest in

the proper and uniform application of its zoning ordinances” and a governmental need to “ensure

compliance with its legislative enactments, including its zoning ordinance[s].” Id. These

governmental functions sufficiently established “an immediate and substantial interest in this

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litigation.” Id. at 450, 604 S.E.2d at 11. Thus, the General Assembly’s statutory grant of

authority to governing bodies informed, in part, the Supreme Court’s standing decision. See id.

In both cases, the Supreme Court referred to an established meaning of “aggrieved” as

the guiding principle for its decision.

“The term ‘aggrieved’ has a settled meaning in Virginia when it
becomes necessary to determine who is a proper party to seek
court relief from an adverse decision. In order for a petitioner to
be ‘aggrieved,’ it must affirmatively appear that such person had
some direct interest in the subject matter of the proceeding that he
seeks to attack. [Nicholas v. Lawrence, 161 Va. 589, 592, 171 S.E.
673, 674 (1933)]. The petitioner ‘must show that he has an
immediate, pecuniary and substantial interest in the litigation, and
not a remote or indirect interest.’ [Id. at 593, 171 S.E. at 674].
Thus, it is not sufficient that the sole interest of the petitioner is to
advance some perceived public right or to redress some anticipated
public injury when the only wrong he has suffered is in common
with other persons similarly situated. The word ‘aggrieved’ in a
statute contemplates a substantial grievance and means a denial of
some personal or property right, legal or equitable, or imposition of
a burden or obligation upon the petitioner different from that
suffered by the public generally. [Insurance Ass’n v.
Commonwealth, 201 Va. 249, 253, 110 S.E.2d 223, 226 (1959)].”

Board of Supervisors of Fairfax County, 268 Va. at 449-50, 604 S.E.2d at 11 (quoting Va. Beach

Beautification Comm’n, 231 Va. at 419-20, 344 S.E.2d at 902-03). Therefore, we too apply

these principles as a guide to analyzing the issue of standing in this case.3

Without any reference to Board of Supervisors of Fairfax County, the trial judge found

that Health Systems Agency’s sole interest in the proceeding was “representational, [which] is

only an indirect interest.” Based on this finding, he ruled that Health Systems Agency’s interest

did not meet the standards for an aggrieved party. Health Systems Agency contends the trial

3
We recognize that the Court in Board of Supervisors of Fairfax County did not apply
each factor encompassed by the meaning of “aggrieved.” See 268 Va. at 454-60, 604 S.E.2d at
13-17 (Kinser, J., dissenting) (noting that the majority fails to apply each factor of the definition
when holding that the board of supervisors was “aggrieved”). The Court held, however, that at a
minimum a necessary factor was a showing of “an immediate and substantial interest in the
litigation.” Id. at 450, 604 S.E.2d at 11.
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judge erred because it has a statutorily recognized “interest that arises out of legislated purposes

and/or duties” that constitutes a direct and substantial interest in the litigation. Thus, it argues

Board of Supervisors of Fairfax County controls the decision on its standing.

The Commissioner contends that the trial judge ruled correctly because the Board of

Health and the Commissioner are the entities mandated by statute to protect the public health.

See Code § 32.1-2 (providing that “the State Board of Health and the State Health

Commissioner, assisted by the State Department of Health, shall administer and provide a

comprehensive program of preventive, curative, restorative, and environment health services”).

Consequently, the Commissioner argues, regional health planning agencies act solely in a

representative capacity similar to the non-stock corporation in Virginia Beach Beautification

Commission.

We recognize that the General Assembly created health planning agencies to serve as a

significant aid to the development of health programs and planning for Virginia. This is an

important distinction between Health Systems Agency and voluntary civic organizations such as

the one discussed in Virginia Beach Beautification Commission. The duties of “representing the

interests of health planning regions and performing health planning activities at the regional

level” are significant in Virginia’s comprehensive health care planning. Code § 32.1-122.05(A).

Yet, health planning agencies’ primary responsibilities arise out of “assist[ing] the Board of

Health.” Code § 32.1-122.05(D). They do so by:

(i) conducting data collection, research and analyses as required by
the Board; (ii) preparing reports and studies in consultation and
cooperation with the Board; (iii) reviewing and commenting on the
components of the State Health Plan; (iv) conducting needs
assessments as appropriate and serving as a technical resource to
the Board; (v) identifying gaps in services, inappropriate use of
services or resources and assessing accessibility of critical
services; (vi) reviewing applications for certificates of public need
and making recommendations to the Department thereon as

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 provided in § 32.1-102.6; and (vii) conducting such other functions
as directed by the regional health planning board.

Id.

These responsibilities and other duties of regional health planning agencies are of an

advisory nature. The statutes create a scheme in which the Board of Health, Department of

Health, Commissioner, and health planning agencies work together to accomplish the same end

of promoting the public’s health care interest. The statutory scheme does not suggest that health

planning agencies need to be able to appeal the Commissioner’s decisions with which they

disagree in order to fulfill their legislated purposes and functions.

At the administrative proceedings in this case, Health Systems Agency recommended that

the Commissioner deny all the applications. This recommendation was made after a thorough

review of the documents and following consideration of the comments received from the public

and the local governing bodies. Accepting as true Health Systems Agency’s claim in its petition

for appeal that the Commissioner’s approval of Community Hospital’s application violated the

State Medical Facilities Plan and was “unlawful,” we cannot conclude, as the Supreme Court did

in Board of Supervisors of Fairfax County, that Health Systems Agency has an immediate and

substantial interest in the litigation. The Commissioner did not vitiate any governmental or

statutory authority of Health Systems Agency by not following its recommendation. Health

Systems Agency performed its statutory role and made its recommendations.

Unlike the appellant in Board of Supervisors of Fairfax County, Health Systems Agency

does not point to any statute granting the “broad power to institute actions in its own name.” 268

Va. at 446, 604 S.E.2d at 9. In Pearsall v. The Virginia Racing Commission, 26 Va. App. 376,

494 S.E.2d 879 (1998), we noted that the Supreme Court has held that “‘[a]n individual or entity

does not acquire standing to sue in a representative capacity by asserting the rights of another,

unless authorized by statute to do so.’” Id. at 382, 494 S.E.2d at 882 (quoting W.S. Carnes, Inc.
- 13 -
v. Bd. of Supervisors, 252 Va. 377, 383, 478 S.E.2d 295, 300 (1996)). As we further noted in

Pearsall, the absence of statutory authorization has added significance when the suit is brought

against a state agency because we are required to “construe the Commonwealth’s waiver of its

sovereign immunity narrowly.” 26 Va. App. at 383, 494 S.E.2d at 883.

The statutes concerning certificates of public need do not define the class of persons who

may appeal the Commissioner’s decision. The statutes only address litigation in two

circumstances. One statute provides that, if the Commissioner issues a certificate for only a

portion of a project, “any appeal may be limited to the part of the decision with which the

appellant disagrees without affecting the remainder of the decision.” Code § 32.1-102.3(A)

(emphasis added). The statute does not otherwise describe who may appeal. In another section,

the statute provides for health planning agency involvement in a certificate of public need case at

the circuit court level: when the Commissioner has overly delayed on making a decision, a

competing applicant can petition for injunctive relief and name “as respondents the

Commissioner and all parties to the case.” Code § 32.1-102.6(E)(8). In that circumstance, the

health planning agency is a party to the case only “if its recommendation was to deny the

application.” Code § 32.1-102.6(D).4

The legislature could have expanded health planning agencies’ powers to sue or be sued

but did not do so.5 The legislature chose not to delineate further health planning agency

participation outside of the Commissioner’s review process. We believe this omission is

4
In accordance with the statute as now written, the health planning agency must be
named as a respondent in all cases where an applicant seeks injunctive relief after delay.
5
At least one other jurisdiction authorizes its comparable entity to appeal the Department
of Health’s decision concerning a certificate of need. See, e.g., D.C. Code § 44-413 (providing
that the final decision of the Department of Health concerning certificates of public need may be
appealed by the Statewide Health Coordinating Council to the Office of Administrative
Hearings).
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significant and persuasive as to health planning agencies’ legislated purpose and functions.

Simply put, the legislature created regional health planning agencies to give assistance and

advice to the Department, but gave it no authorization to appeal from the Commissioner’s

decision.

We conclude, therefore, that Health Systems Agency has not demonstrated “a substantial

grievance” or “an immediate and substantial interest in this litigation” as required by Board of

Supervisors of Fairfax County. 268 Va. at 450, 450, 604 S.E.2d at 11, 11. Consequently, Health

Systems Agency is not “aggrieved” and does not have standing to appeal the Commissioner’s

decision rejecting its recommendation to deny a certificate of public need application. For these

reasons, we affirm the decision of the circuit court.

Affirmed.

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