HealthSouth of Alabama, LLC v. Shelby Ridge Acquisition Corp.

THOMPSON, Presiding Judge,

concurring in appeal no. 2130515; concurring in part and dissenting in part in appeal nos. 2120872 and 2120907; and dissenting in appeal no. 2130628.

I respectfully dissent to that portion of the main opinion affirming the judgment of the Montgomery Circuit Court (“the circuit court”) that reversed the decision of the State Health Planning and Development Agency (“SHPDA”) granting Health-South of Alabama, LLC (“HealthSouth”), a certificate of need (“CON”) for 17 “adjustment beds” (appeal nos. 2120872 and 2120907). I also respectfully dissent to that portion of the main opinion reversing the circuit court’s judgment affirming SHPDA’s decision to grant HealthSouth a CON for 17 “relocation beds” (appeal no. 2130628). I concur with the remainder of the main opinion.

As the main opinion points out, SHPDA is tasked with determining the appropriateness of new health-care facilities throughout the state. Through the proper process, the State Health Plan (“SHP”) was revised to allow the region that in-eludes Jefferson and Shelby Counties an additional 17 inpatient physical-rehabilitation beds (“the adjustment beds”). HealthSouth sought to acquire the new adjustment beds for a facility it proposed to build in Shelby County and to add those to the 17 additional beds it had already acquired from a hospital in Jefferson County that had ceased operations in October 2008. To accomplish its plan of operating a new 34-bed facility in Shelby County, HealthSouth had to obtain CONs both to relocate the beds it had already acquired and to obtain the adjustment beds. In 2009, as part of its application for a CON to move the relocation beds, HealthSouth explained to SHPDA its overall plan and mentioned the need for a separate CON filing if the CON for the relocation beds was approved.

The main opinion concludes that the decision to grant HealthSouth the 17 adjustment beds in light of evidence that operating a 17-bed facility was not economically feasible could not reasonably support SHPDA’s decision to grant HealthSouth the CON for the adjustment beds. The main opinion then concludes that the circuit court’s rebanee on the adjustment-bed CON in granting the relocation-bed CON was misplaced because the circuit court had already reversed SHPDA’S decision granting the adjustment-bed CON. Therefore, the main opinion concludes, SHPDA’s decision to grant HealthSouth the CON for the relocation beds was improper.

I believe that the approach taken by the main opinion creates a Catch-22 situation for HealthSouth and SHPDA. As a practical matter, HealthSouth had to be granted one or the other of the 17-bed CONs first, and both are required for Health-*38South to be able to construct and operate an economically feasible 34-bed facility. Under the main opinion’s rationale, however, neither the relocation-bed CON nor the adjustment-bed CON would, by itself, be justifiable without the other. Thus, the community that HealthSouth seeks to serve with a new facility, first proposed in 2009, is left with no inpatient physical-rehabilitation beds.

SHPDA, the agency entrusted with regulating the construction of new health-care facilities, was aware of HealthSouth’s overall plan and its proposal to seek two CONs when it granted HealthSouth the CONs. The total number of beds granted to HealthSouth, which will enable it to opei'ate a 34-bed facility in Shelby County, fits within the SHP.

“The scope of judicial review of an order issued by SHPDA awarding a CON is provided in § 41-22-20(k), Ala.Code 1975:
“ ‘Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“ ‘(1) In violation of constitutional or statutory provisions;
“‘(2) In excess of the statutory authority of the agency;
“ ‘(3) In violation of any pertinent agency rule;
“ ‘(4) Made upon unlawful procedure;
“ ‘(5) Affected by other error of law;
“ ‘(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“ ‘(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.’”

Affinity Hosp., LLC v. Brookwood Health Servs., Inc., 143 So.3d 208, 212 (Ala.Civ.App.2013).

“[I] ... reiterate that the circuit court ‘was in no better position to review [SHPDA’s] decision than this court,’ that ‘[t]he weight or importance assigned to any given piece of evidence presented in a CON application is left primarily to the [Certificate of Need Review Boardj’s discretion, in light of the [Certificate of Need Review Boardj’s recognized expertise in dealing with these specialized areas,’ that a reviewing court is not to ‘substitute its judgment for that of the administrative agency,’ and that that principle applies ‘even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.’ Colonial [Mgmt. Grp., L.P. v. State Health Planning & Dev. Agency ], 853 *39So.2d [972] at 974, 975 [(Ala.Civ.App.2002) ].”

Ace Home Health Care, LLC v. Gentiva Health Servs., Inc., 162 So.3d 931, 939 (Ala.Civ.App.2014).

The circumstances presented in this case are rare if not completely unique. SHPDA, HealthSouth, and interested parties such as Shelby Ridge Acquisition Corporation d/b/a Shelby Ridge Rehabilitation Hospital all were aware of HealthSouth’s desire to operate a 34-bed facility, and all knew where the beds had to come from to enable the facility to have its full complement of beds. No one was deprived of an opportunity to challenge HealthSouth’s overall plan, which was necessarily pieced together by obtaining from SHPDA the required CONs to relocate the existing beds and to add the new “adjustment beds” to the proposed facility.

Because of the especially complex circumstances in this case, I would defer to the expertise of SHPDA and to the decisions it made regarding the granting or denial of the CONs. Therefore, I believe that the circuit court should have affirmed each of SHPDA’s decisions relating to the granting or denial of the CONs at issue, and I would affirm or reverse the circuit court’s judgments accordingly.

For the reasons set forth above, I concur in part and dissent in part in appeal nos. 2120872 and 2120907; I concur in appeal no. 2130515, and I dissent in appeal no. 2130628.