IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-78
Filed: 21 November 2017
Wake County, No. 16-CVS-600
SURGICAL CARE AFFILIATES, LLC, Petitioner,
v.
NORTH CAROLINA INDUSTRIAL COMMISSION, Respondent.
Appeal by respondent from decision entered 9 August 2016 by Judge Paul C.
Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 22 August
2017.
Parker Poe Adams & Bernstein LLP, by Renee J. Montgomery and Matthew W.
Wolfe, for petitioner-appellee.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Amar
Majmundar and Assistant Attorney General Bethany A. Burgon, for
respondent-appellant.
Wyrick Robbins Yates & Ponton LLP, by Frank Kirschbaum, Charles George,
and Tobias Hampson, for Greensboro Orthopaedics, P.A., OrthoCarolina, P.A.,
Raleigh Orthopaedic Clinic, P.A., Surgical Center of Greensboro, LLC,
Southeastern Orthopaedic Specialists, P.A., Orthopaedic & Hand Specialists,
P.A. (Hand Center of Greensboro), Cary Orthopaedic and Sports Medicine
Specialists, P.A., and Stephen D. Lucey, M.D., as amici curiae in support of
petitioner-appellee.
Troutman Sanders LLP, by Christopher G. Browning, Jr. and Gavin B.
Parsons, for North Carolina Retail Merchants Association, North Carolina
Home Builders Association, North Carolina Chamber, North Carolina Farm
Bureau, North Carolina Association of Self-Insurers, American Insurance
Association, Property Casualty Insurers Association of America, Employers
Coalition of North Carolina, North Carolina Forestry Association, North
Carolina Automobile Dealers Association, North Carolina Association of
County Commissioners, Builders Mutual Insurance Company, Dealers Choice
SURGICAL CARE AFFILIATES, LLC V. N.C. INDUS. COMM’N
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Mutual Insurance Company, First Benefits Insurance Mutual, Inc., Forestry
Mutual Insurance Company and the North Carolina Interlocal Risk
Management Agency, and P. Andrew Ellen for North Carolina Retail
Merchants Association, J. Michael Carpenter for North Carolina Home
Builders Association, Amy Y. Bason for the North Carolina Association of
County Commissioners, Kimberly S. Hibbard and Gregg F. Schwitzgebel, III,
for North Carolina Interlocal Risk Management Agency, T. John Policastro for
North Carolina Auto Dealers Association, and H. Julian Philpott, Jr., for North
Carolina Farm Bureau, as amici curiae in support of respondent-appellant.
BRYANT, Judge.
Because we hold the Superior Court erred in defining the term “hospital,” as
used in the context of 2013 N.C. Sess. Laws ch. 410, § 33.(a) and concluding that
“hospitals are separate and legally distinct entities from ambulatory surgical
centers,” we reverse the court’s decision that our General Assembly did not authorize
the Industrial Commission to adopt new maximum fees for ambulatory surgical
centers pursuant to 2013 N.C. Sess. Laws ch. 410, § 33.(a) and remand the matter for
entry of an order affirming the Commission’s declaratory ruling.
On 1 October 2015, petitioner Surgical Care Affiliates, LLC, (“petitioner”) filed
a request for a declaratory ruling with respondent, the North Carolina Industrial
Commission (“the Commission”).
[Petitioner] has requested a declaratory ruling regarding
the validity of certain of the Commission’s rules affecting
the fee schedule for services performed at ambulatory
surgery centers. Specifically, [petitioner] has requested
that the Commission declare invalid its adoption of a new
fee schedule for ambulatory surgery center services set
forth in 04 NCAC 10J .0103(g) and (h) (also referenced in
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04 NCAC 10J .0103(i)), and its amendment of 04 NCAC 10J
.0101(d)(3) and (5) to remove the former fee schedule.
On 25 July 2013, our General Assembly ratified 2013 N.C. Sess. Laws ch. 410,
§ 33.(a), which set out mandates for the Commission regarding its medical fee
schedule. The Commission noted in its 14 December 2015 Declaratory Ruling that
“[w]ith respect to the schedule of maximum fees for physician and hospital
compensation adopted by [the Commission] pursuant to G.S. 97-26, those fee
schedules shall be based on the applicable Medicare payment methodologies.”
(Emphasis added). Furthermore, the Commission noted that in developing the new
fee schedules, 2013 N.C. Sess. Laws ch. 410, § 33.(a) provided that “[the Commission
was] exempt from the certification requirement of G.S. 150B-19.1(h) and the fiscal
note requirement of G.S. 150B-21.4.”
Addressing the new mandate, the Commission adopted rules 04 NCAC 10J
.0102 and .0103 and amended rules 04 NCAC 10J .0101 and .0102. Under Rule 04
NCAC 10J .0101, the Commission set out its “Hospital Fee Schedule,” which included
reimbursement for services provided by ambulatory surgery centers. Further, the
Commission reasoned that by following the procedures for rulemaking, as set out in
General Statutes, Chapter 150B, a rebuttable presumption was created that the rules
were adopted in accordance with the Administrative Procedure Act.
Petitioner challenged the Commission’s determination that the mandates set
out in 2013 N.C. Sess. Laws ch. 410, § 33.(a), “[w]ith respect to the schedule . . . for
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physician and hospital compensation” (emphasis added), directed the Commission to
change the fee schedule for medical treatment provided at ambulatory surgery
centers.1 Furthermore, petitioner challenged the assertion that the session law’s
exemption from the fiscal note requirement of N.C. Gen. Stat. § 150B-21.4 was
applicable to the Commission. Thus, petitioner argued that the adopted new rules
(04 NCAC 10J .0102 and .0103) and the amended existing rules (04 NCAC 10J .0101
and .0102) were also invalid due to the Commission’s failure to meet the fiscal note
requirements of section 150B-21.4. Petitioner asserts that “as a result of
substantially reduced maximum reimbursement rates for surgical procedures
provided pursuant to Chapter 97, and the Commission’s failure to promulgate a fee
schedule that includes all surgical procedures performed at ambulatory surgery
centers, [petitioner] will lose a significant amount of revenue.”
However, as reflected in its declaratory ruling, the Commission reasoned that
petitioner failed to rebut the presumption of validity regarding the Commission’s
adopted and amended rules and denied petitioner’s requested relief.
On 13 January 2016, petitioner filed a petition for judicial review of the
Commission’s declaratory ruling in Wake County Superior Court. Prior to the
1 In its declaratory ruling, the Commission found that “[t]he Hospital Fee Schedule set out in
04 NCAC 10J .0101 at the time 2013 N.C. Sess. Laws ch. 410, § 33.(a) was ratified applied to
reimbursement of inpatient hospital fees, outpatient hospital fees, and ambulatory surgery fees, and
S.L. 2013-410, s. 33.(a) contains no indication that the General Assembly intended for that to change
in the Hospital Fee Schedule adopted pursuant to its law.”
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hearing, the following parties, Greensboro Orthopedics, P.A.; OrthoCarolina, P.A.;
Raleigh Orthopaedic Clinic, P.A.; Surgical Center of Greensboro, LLC; Southeastern
Orthopaedic Specialists, P.A.; Orthopaedic & Hand Specialists, P.A.; Cary
Orthopaedic and Sports Medicine Specialists, P.A.; and Stephen D. Lucey, filed a
motion to intervene as amicus curiae: which was allowed. The matter was heard
before the Honorable Paul C. Ridgeway, Superior Court Judge presiding.
On 9 August 2016, Judge Ridgeway entered his decision concluding that
hospitals were separate and legally distinct entities from ambulatory surgical centers
and that 2013 N.C. Sess. Laws ch. 410, § 33.(a) authorized the Commission to use an
expedited rulemaking process only in adopting new maximum fees for physicians and
hospitals, not ambulatory surgical centers. The trial court determined that “the
Commission was required to comply with the fiscal note requirements [of N.C. Gen.
Stat. §§ 150B-21.2(a) and 150B-21.4] in adopting a new fee schedule for ambulatory
surgical centers and failed to do so, [and thus,] the Commission exceeded its statutory
authority and employed an unlawful procedure.” Therefore, the trial court granted
petitioner’s request for relief and reversed the Commission’s declaratory ruling. The
Commission appeals.
___________________________________________
On appeal, the Commission raises four questions: whether the superior court
erred by (I) defining hospitals and surgical centers pursuant to General Statutes,
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Chapter 131E (governing “Health care facilities and services”) and (II) failing to
properly defer to the Commission in the interpretation of 2013 N.C. Sess. Laws ch.
410, § 33.(a). Further, the Commission argues that (III) petitioner is estopped from
arguing the hospital fee schedule does not apply to ambulatory surgical centers and
(IV) the filed-rate doctrine bars Surgical Care Affiliates’ collateral attack on 04 NCAC
10J .0103(g) and (h). However, because we hold the trial court erred as to the
dispositive question—whether ambulatory surgical centers are “hospitals” within the
meaning of the hospital fee schedule—we need not address petitioner’s additional
arguments on appeal.
Standard of Review
[W]hen an appellate court reviews
a superior court order regarding an
agency decision, the appellate court
examines the [superior] court’s order
for error of law. The process has been
described as a twofold task: (1)
determining whether the [superior]
court exercised the appropriate scope of
review and, if appropriate, (2) deciding
whether the court did so properly.
Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 18
(2002) (quoting ACT–UP Triangle v. Commission for Health Servs., 345 N.C. 699,
706, 483 S.E.2d 388, 392 (1997)).
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The statutes governing a superior court’s review of a final agency decision are
provided in the Administrative Procedure Act, codified within Chapter 150B of our
General Statutes. Article 4, governing “Judicial review,” sets out the scope and
standard of review.
(b) The court reviewing a final decision may affirm the
decision or remand the case for further proceedings. It may
also reverse or modify the decision if the substantial rights
of the petitioners may have been prejudiced because the
findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction
of the agency or administrative law judge;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible
under G.S. 150B-29(a), 150B-30, or 150B-31 in view
of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
(c) In reviewing a final decision in a contested case, the
court shall determine whether the petitioner is entitled to
the relief sought in the petition based upon its review of the
final decision and the official record. With regard to
asserted errors pursuant to subdivisions (1) through (4) of
subsection (b) of this section, the court shall conduct its
review of the final decision using the de novo standard of
review. With regard to asserted errors pursuant to
subdivisions (5) and (6) of subsection (b) of this section, the
court shall conduct its review of the final decision using the
whole record standard of review.
N.C. Gen. Stat. § 150B-51(b), (c) (2015).
In its 9 August 2016 decision, the Superior Court stated that
[petitioner] contends that the Commission’s Declaratory
Ruling is in excess of its statutory authority, made upon
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unlawful procedure, and affected by other error of law.
Because of these errors asserted by [petitioner], this [c]ourt
has applied de novo standard of review to review the
Commission’s decision as required under N.C. Gen. Stat. §
150B-51(c).
We agree that the appropriate standard is de novo review. “Under the de novo
standard of review, the trial court consider[s] the matter anew[] and freely
substitutes its own judgment for the agency’s.” N.C. Dep't of Envtl. & Nat. Res. v.
Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004) (alteration in original) (citation
omitted). We review the record in light of the Commission’s arguments to determine
if the standard was properly applied. See Mann Media, 356 N.C. at 14, 565 S.E.2d at
18.
As noted infra, the dispositive question, as set forth by the Commission, is
whether the trial court erred when it relied on an inapplicable definition to determine
that ambulatory surgical centers are not “hospitals” within the meaning of the
hospital fee schedule. The Commission argues that the Superior Court erroneously
used the definition of “hospital” that is exclusive to the Hospital Licensure Act and
further erred by adopting an overly narrow definition of “hospital,” thereby failing to
acknowledge the intent of our General Assembly. We agree.
At issue is the Superior Court’s interpretation of “hospital” as the term is used
in 2013 N.C. Sess. Laws ch. 410, § 33.(a) (“Industrial Commission Hospital Fee
Schedule”), and whether that term encompasses ambulatory surgical centers.
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Section 33.(a)(1) under 2013 N.C. Sess. Laws ch. 410, is entitled “Medicare
methodology for physician and hospital fee schedules.” 2013 S.L. 410, sec. 33.(a)(1)
(emphasis added).2
“In the interpretation and construction of statutes, the task of the judiciary is
to seek the legislative intent.” Housing Auth. v. Farabee, 284 N.C. 242, 245, 200
S.E.2d 12, 14 (1973) (citations omitted). “The intent of the General Assembly may be
found first from the plain language of the statute, then from the legislative history,
the spirit of the act and what the act seeks to accomplish.” Lenox, Inc. v. Tolson, 353
N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citation omitted). Here, the parties do not
direct our attention to any provision in General Statutes, Chapter 97 (“Workers’
Compensation Act”), which defines “hospital.”
[U]ndefined words are accorded their plain meaning
so long as it is reasonable to do so. In determining the plain
meaning of undefined terms, this Court has used
“standard, nonlegal dictionaries” as a guide. Finally,
statutes should be construed so that the resulting
construction harmonizes with the underlying reason and
purpose of the statute.
Midrex Techs., Inc. v. N.C. Dep't of Revenue, ___ N.C. ___, ___, 794 S.E.2d 785, 792
(2016) (alteration in original) (citations omitted); see id. (referring to the New Oxford
American Dictionary for a definition of the word “building”).
2 We note that N.C. Gen. Stat. § 97-26 (“Fees allowed for medical treatment; malpractice of
physician”), codified within Chapter 97, Article 1 (“Workers’ Compensation Act”), does not define
“hospital” or “ambulatory surgical center.”
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When a statute employs a term without redefining it, the accepted method of
determining the word’s plain meaning is not to look at how other statutes or
regulations have used or defined the term—but to simply consult a dictionary. See
Clark v. Sanger Clinic, P.A., 142 N.C. App. 350, 356, 542 S.E.2d 668, 673 (2001)
(“Absent a contextual definition, the courts may infer the ordinary meaning of a word
from its dictionary definition.” (citation omitted)). Turning to a nonlegal dictionary,
“hospital” is defined as “[a]n institution that provides care and treatment for the sick
or the injured.” Hospital, American Heritage College Dictionary (3d ed. 1993); see
also hospital, https://www.merriam-webster.com/dictionary/hospital (last visited Oct.
25, 2017) (defining “hospital” in part as “1 :a charitable institution for the needy,
aged, infirm, or young” and “2 :an institution where the sick or injured are given
medical or surgical care . . . .”). Cf. In re Appeal of Found. Health Sys. Corp., 96 N.C.
App. 571, 577, 386 S.E.2d 588, 591 (1989) (addressing whether an ambulatory
surgery center was a hospital for purposes of taxation under the Revenue Act, the
Court reasoned that the definition set forth in North Carolina’s Hospital Licensure
Act, codified under General Statutes, Chapter 131E, “ha[d] no applicability to the
construction of the term under the Revenue Act,” and referring to the definition of
“hospital” as stated in Black’s Law Dictionary (rev. 5th ed. 1979) as a generally
accepted definition that encompassed the ambulatory surgery center at issue).
We also look to the purpose of 2013 N.C. Sess. Laws ch. 410, § 33.(a).
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(1) Medicare methodology for physician and hospital fee
schedules.—With respect to the schedule of maximum fees
for physician and hospital compensation adopted by the
Industrial Commission pursuant to G.S. 97-26, those fee
schedules shall be based on the applicable Medicare
payment methodologies, with such adjustments and
exceptions as are necessary and appropriate to ensure that
(i) injured workers are provided the standard of services
and care intended by Chapter 97 of the General Statutes,
(ii) providers are reimbursed reasonable fees for providing
these services, and (iii) medical costs are adequately
contained.
2013 N.C. Sess. Laws ch. 410, § 33.(a)(1). The focus of this session law is to contain
medical care costs attributable to injured workers, while reasonably reimbursing
medical care providers for services. The inclusion of ambulatory surgical centers in
the definition of hospital, subjecting petitioner to the “Medicare methodology for . . .
hospital fee schedules” does not appear to frustrate this objective and may be
construed as in harmony with the reason for 2013 N.C. Sess. Laws ch. 410, § 33.(a).
See Midrex Techs., ___ N.C. at ___, 794 S.E.2d at 792 (“[S]tatutes should be construed
so that the resulting construction harmonizes with the underlying reason and
purpose of the statute.”).
In the order appealed from, the Superior Court referred to General Statutes,
section 131E-76 (providing definitions applicable to Article 5, codifying the “Hospital
Licensure Act,” within Chapter 131E, governing “Health Care Facilities and
Services”) to define the term “hospital” as it was used in 2013 N.C. Sess. Laws ch.
410, § 33.(a), which regards a fee schedule adopted by the Commission pursuant to
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G.S. section 97-26 (codified within the “Workers’ Compensation Act”). On this basis,
the court concluded “that hospitals are separate and legally distinct entities from
ambulatory surgical centers.” We hold the court erred. As that definition of
“hospital” was essential to the lower court’s determination that the session law did
not authorize the Commission to adopt new maximum fees for ambulatory surgical
centers, we reverse the court’s 9 August 2015 decision and remand for entry of an
order affirming the Commission’s 14 December 2015 declaratory ruling.
REVERSED AND REMANDED.
Judges DAVIS and INMAN concur.
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