(dissenting).
I respectfully dissent.
HealthSouth of Alabama, LLC (“Health-South”), was issued two certificates of need (“CONs”) by the Certificate of Need Review Board (“CONRB”), each CON for a 17-bed inpatient physical-rehabilitation hospital. Although the Court of Civil Appeals’ opinion states that operating a facility with only 17 inpatient physical-rehabilitation beds was neither financially nor clinically feasible and describes those criteria as “key,” I do not believe the Court of Civil Appeals impermissibly elevated those criteria over any others. They were “key” because the decisions to grant the CONs to HealthSouth were clearly erroneous in light of these undisputed facts. According to the Court of Civil Appeals, in the SHP-adjustment-beds-CON matter, HealthSouth’s own witnesses testified that a freestanding 17-bed hospital was inappropriate:
“In adopting the ALJ [Administrative Law Judge]’s recommended order regarding the SHP-adjustment beds, the CONRB adopted the ALJ’s findings of fact as evidentiary support for its decision. The evidence before the ALJ showed that the operation of a facility with only 17 inpatient physical-rehabilitation beds was not only cost-prohibitive but also tvould not provide a sufficient number of patients to adequately assess the services being provided. Health-South’s president of the Southeast Region testified that ‘[a freestanding 17-bed hospital is] not critical mass enough to provide good clinical outcomes, and then it’s also just too small from a financial perspective. You can’t treat enough patients to support a freestanding building at 17 beds.’ The medical director and physiatrist at Health-South’s Lakeshore location testified be*44fore the ALJ as follows under questioning from HealthSouth’s counsel:
“ ‘Q. Is a 17-bed hospital sufficient clinically for Shelby County?
“‘A. Well, it isn’t just based on population; but there are also—if you look at freestanding hospitals in the U.S. there,—there aren’t 17-bed freestanding hospitals because a 17-bed hospital cannot provide the depth of specialization that is needed to serve the variety of rehab patients that are typically seen in a rehab hospital.’
“No evidence was presented before the ALJ or the CONRB that contradicts the testimony of those witnesses.”
HealthSouth of Alabama, LLC v. Shelby Ridge Acquisition Corp., 207 So.3d 14, 26-27 (Ala.Civ.App.2015) (emphasis added).
The CONRB adopted the following findings of the ALJ as its own: “[A] 17-bed, inpatient, physical-rehabilitation hospital ‘is not financially viable in and of itself.’ ... ‘[A] seventeen (17)-bed freestanding inpatient rehabilitation hospital is not large enough, would not have the capacity to treat enough patients to develop a great deal of expertise, and would not have enough critical mass to provide good clinical outcomes.’ ” HealthSouth, 207 So.3d at 27. This finding was based on Health-South’s own evidence. As noted by the main opinion, these are “valid” and “legitimate” considerations. What other factors in Ala.Code 1975, § 22-21-264(4), outweighed these glaring deficiencies in a 17-bed facility?
Of course, HealthSouth anticipated that it would be operating a 34-bed facility, not a 17-bed facility. “All” the evidence in the relocation-bed-CON matter supported building a 34-bed facility, which was the “minimum” number of beds required. HealthSouth, 207 So.3d at 19. But there was no application for a CON for a 34-bed facility. There were CON applications for 2 17-bed facilities, neither of which, standing alone, the undisputed evidence would support. The reality might be that a 34-bed facility will be built and that Health-South can cobble together enough CONs to fill it. However, the Court of Civil Appeals addressed this as follows:
“If we were to take the view that the CONRB’s approval of HealthSouth’s application for the relocation-bed CON somehow cured the evidentiary defects in the prior approval of the SHP-adjustment-bed CON, we would be construing the applications as if the proposal all along had been to build a 34-bed facility containing the 17 Carraway beds and the 17 SHP-adjustment beds. However, at the time the first CON application, which sought authorization to relocate the Carraway beds, was submitted, [the Statewide Health Coordinating Council] had not yet adjusted the SHP to add the 17 beds to Shelby County. Therefore, conflating the CON applications would be in violation of the statutory prohibition against inconsistency with the SHP.... We can find no statutory or regulatory authority that would permit us to consider subsequent events when evaluating CONRB’s decisions regarding these separate CON applications .... ”
HealthSouth of Alabama, LLC v. Shelby Ridge Acquisition Corp., 207 So.3d at 32.
I would affirm the decision of the Court of Civil Appeals; therefore, I dissent.
MURDOCK, J., concurs.