concurring.
In this proceeding, the majority opinion has reinstated the certificate of need issued to United Hospital Center, Inc. (United) by the West Virginia Health Care Authority (HCA). I concur in the judgment reached by the majority opinion. I have chosen to write separately because I believe a different analysis should have been applied to attain the proper legal result.
A. The Certificate of Need Standards
The majority opinion acknowledged that none of parties raised the issue of whether HCA had authority to modify or amend certificate of need requirements. Nevertheless, the majority chose to sua sponte address this issue. In doing so the majority determined that, pursuant to W. Va.Code § 16-2D-6(d) (1999) (Repl.Vol.2001), “[a]n application for a certificate of need may not be made subject to any criterion not contained in [W. Va.Code § 16-2D-1 et seq.] or not contained in rules adopted pursuant to [W. Va.Code § 16-2D-8].” Based upon this finding, the majority opinion determined that the 5 mile geographical limitation created by HCA was invalid because it was not contained in a statute or regulation. This determination by the majority represents a misinterpretation of the law applicable to a certificate of need. I say “misinterpretation” because the majority decision has unnecessarily invalidated all of the certificate of need standards created by HCA that are not contained in a statute or regulation.
There is a difference between the “[m]ini-mum criteria for certificate of need reviews” under W. Va.Code § 16-2D-6, and the authority of HCA to modify or amend certificate of need standards under W. Va.Code § 16-2D-5 (1999) (Repl.Vol.2001). Pursuant to W. Va.Code § 16-2D-5(Z )(1), HCA is granted express authority to propose “amendments or modifications to the certificate of need standards[.]”1 Further, W. Va. Code § 16-2D-5(Z )(2) empowers the governor to “either approve or disapprove all or part of the amendments and modifications!;.]” 2
Pursuant to the authority of W. Va.Code §§ 16-2D-5(Z)(1) & (2), HCA has proposed and the governor has approved amendments and/or modifications to the following certificate of need standards:
*370Long-term Acute Care Hospitals (approved 7/10/00); Cardiac Surgery Services (approved 5/5/04); Lithotripsy Services (approved 7/7/00); Hospice Services (approved 6/21/01); Cardiac Catheterization (approved 8/22/02); Megavoltage Radiation Therapy Services (approved 10/9/02); Addition of Acute Care Beds (approved 10/9/02); Renovation-Replacement of Acute Care Facilities and Services(approved 10/9/02); Ambulatory Care Centers (approved 10/5/92); Ambulatory Surgical Centers (approved 10/5/92); Positron Emission Tomography (approved 7/7/00); Fixed Magnetic Resonance Imaging Services (approved 11/5/97); Birthing Centers (approved 10/5/92); Home Health Services(approved 11/13/96); Behavioral Health/Developmental Disabilities (approved 11/13/95); ICR/MR Group Homes (approved 10/5/92); In-home Personal Care Services (approved 5/4/99); and End Stage Renal Disease and Home Training (approved 10-5-92).3
One of the above certificate of need standards, Renovation-Replacement of Acute Care Facilities and Services,4 contained a 5 mile geographical limitation5 which the majority found was not set forth in W. Va.Code § 16-2D-6.or a regulation. Consequently, the majority held that HCA and the governor had no authority to impose the 5 mile geographical limitation. Implicit in this decision is that all of the above certificate of need standards are invalid because they provide factors that are not contained in W. Va.Code § 16-2D-6 or a regulation.
A decision reached this Term of Court illustrates the implications of the majority decision today. In Family Medical Imaging, LLC v. West Virginia Health Care Authority, 218 W. Va. 146, 624 S.E.2d 493 (2005), two physicians were denied a certificate of need to provide ultrasound diagnostic services to patients referred to them by other physicians. One of the issues raised in the case was whether HCA relied upon the standard for acute care facilities in denying the certifieate of need. This Court concluded that HCA did not rely on that standard, but instead relied upon the Ambulatory Care Centers standard. Ultimately, this Court affirmed the denial of the certificate of need. Under the decision rendered in the instant case, the two physicians may now reapply for a certificate of need and do not have to comply with the Ambulatory Care Centers standard, because that standard cannot be found in W. Va.Code § 16-2D-6 or a regulation. • It is therefore invalid under the majority decision. I do not believe the majority intended such an outcome.
B. United Hospital Center Should be Allowed to Keep the Certificate of Need Because of the Change in the Geographical Requirement
The record is clear. At the time United applied for a certificate of need, the certificate of need standard did not allow United to build its replacement facility outside of 5 miles of its existing facility. United was prepared to build the replacement facility 8 miles outside of its existing facility. Clearly, under the standards existing at the time of United’s application, it did not satisfy the geographical limitation of the certificate of need standards. Even so, HCA found that the additional 3 miles was harmless. I disagree.
This Court has consistently held that “[a]n administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs.” Syl. pt. 1, Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977). See also Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W.Va. 573, 583 n. 8, 466 S.E.2d 424, 434 n. 8 (1995) (“[A]n agency must follow and apply its rules and regulations in existence at the time of agency action.”). Insofar as United did not satisfy the 5 mile limitation at the time of its application, HCA should have denied the certificate of need. Otherwise, HCA would have empowered itself to make arbitrary decisions regarding the geographical limitation.
*371Although HCA should have denied United’s application when the decision was rendered, I would have upheld issuance of the certificate of need because the 5 mile limitation was extended to 15 miles during the pendency of the case. That is, United has now satisfied the current geographical limitation. I believe it would be an unnecessary waste of funds and administrative resources to have United reapply for a certificate of need when the only impediment to its issuance has been removed.
Based upon the foregoing analysis, I respectfully concur.
RENOVATION-REPLACEMENT OF ACUTE CARE FACILITIES AND SERVICES
I.DEFINITIONS
A. Acute Care: Inpatient hospital care provided to patients requiring immediate and continuous attention of short duration. Acute care includes, but is not limited to, medical, surgical, obstetric, pediatric, psychiatric, ICU and CCU care in a hospital.
B. Acute Care Bed: Any licensed inpatient bed dedicated to the use of patients requiring acute care.
C. Admission Rate: The number of patients entering the hospital for acute care services per 1,000 population.
D. Average Daily Census: The average number of licensed acute care beds in the hospital that are used by inpatients.
E. Average Length of Stay: The average number of days a patient stays in the hospital.
F. Bed: A general measure of hospital size and capacity.
G. Capital Expenditure: Those expenditures as defined in W.Va.Code § 16-2D-2, including a series of expenditures exceeding the expenditure minimum and determined by the Health Care Authority to be a single capital expenditure subject to review.
H. Coronary Care Unit (CCU): A special unit of the hospital equipped to provide maximum surveillance and support of vital function and definitive therapy to patients with acute or potentially reversible life-threatening impairment of the cardiovascular system.
I. Critical Access Hospital (CAH): A hospital designated as such by the West Virginia Office of Rural Health Policy in conformance with the requirements of the Medicare Rural Hospital Flexibility Program.
J. Discharge Planning: A coordinated effort to ensure that each patient to be discharged from a health care facility has a planned program of needed continuing care and follow up that seeks optimum functioning of that patient and the earliest practicable discharge.
K. Discharge Rate: The number of patients who have received acute care services discharged per 1,000 population.
L. Inpatient: A patient who has been admitted to the hospital for an 'overnight stay or longer.
M. Intensive Care Unit (ICU): Care provided in a specially licensed unit set up for the purpose of providing maximum surveillance and support of vital functions and definitive therapy for patients suspected of having acute, or potentially reversible life-threatening impairment of single or multiple vital systems (pulmonary, cardiovascular, renal or nervous systems). Such a unit requires special equipment and specially trained staff.
N. Level I Obstetrical Unit: A hospital obstetric unit, the function of which is to provide services primarily for uncomplicated maternity and newborn patients.
O. Level II Obstetrical Unit: A hospital obstetric and neonatal unit, the function of which is to provide a full range of maternal and newborn services for uncomplicated births and for the majority of complicated obstetrical problems and certain neonatal illnesses.
P. Level III Obstetrical Unit: A hospital obstetric and neonatal unit, the function of which is to provide care for normal births but especially for all the serious types of maternal-fetal and neonatal illnesses and abnormalities.
Q. Levels of Care: A system of categorizing services according to complexity and sophistication. Normally, acute care is divided into three levels: primary, secondary, and *372tertiary, with the primary level being comprised of the most basic services and the tertiary level being comprised of the most complex services.
R. Licensed, Beds or Hospital Beds: The basic index of hospital capacity, consisting of the beds in each hospital which are licensed for acute care use. In the case of state-operated acute care facilities, it is the number set up and staffed.
S. Neonatal: A term used to refer to an infant less than 29 days old.
T. Neonatal Intensive Care Unit: A specialized medical treatment unit of the hospital set up to provide extraordinary care to critical infants.
U. Observation Services: Services ordered by a patient’s physician and provided by a hospital on the hospital’s premises. These services include the use of a bed and periodic monitoring by the hospital’s nursing or other staff, which are reasonable and necessary for a possible admission to the hospital as an inpatient. Observation beds are not licensed acute care beds.
V. Observation Equivalent Days: The total observation hours divided by 24. Observation equivalent days may be added to acute care days to demonstrate peak occupancy.
W. Obstetrics: The branch of medicine that deals with the care of women before, during, and directly after childbirth.
X. Occupancy Rate: The average percentage of licensed beds in a hospital or one of its units that are filled as of midnight each day. To demonstrate peak occupancy, the hospital may also document the occupancy rate at a different time of the day.
Y. Outpatient A patient who is not admitted to the hospital for an overnight stay.
Z. Patient Flow: A hospital’s pattern of patient admissions and discharges.
AA. Patient Origin Study: A special study of hospital’s patient flow designed to determine the particular geographic areas from which an institution draws its patients and the institutions to which residents from an area go for hospitalization.
BB. Pediatric: The branch of medicine that deals with the care of children under 14 years of age.
CC. Peer Review: The evaluation of health professionals and them performance by their peers. This term relates to programs such as utilization review and professional review organizations.
DD. Psychiatric: The branch of medicine connected with mental disorder.
EE. Replacement: A project for the erection, construction, creation or other acquisition of a physical plant or facility. All beds in the replacement facility must be located within the same county or within fifteen (15) miles of the original facility.
FF. Renovation: A project for modernization, improvement, alteration or upgrading of an existing physical plant or equipment.
GG. String Beds: Beds used in small rural hospitals that may be used interchangeably as either general/medical/surgical beds or skilled nursing beds. Reimbursement is based upon the specific type of care provided. Swing bed days may be added to acute care days to demonstrate peak occupancy.
II. CURRENT INVENTORY
The Authority shall provide a current inventory of existing acute care beds and hospital beds by specialty to each applicant.
III. NEED METHODOLOGY
A. The Authority will consider for approval proposals for renovation or replacement of hospital beds or services, if the applicant submits reliable, probative, and substantial evidence that the project is necessary. Such necessity may only be proven by establishing one or more the following:
1. The service(s) provided by the applicant requires space, or the facility requires replacement or renovation to meet minimum requirements documented by written recommendations from appropriate accreditation or licensing agencies or documentation based upon comparisons to the minimum departmental square footage requirements of comparable services.
2. There are significant operating problems that can most effectively be corrected by the proposed replacement or renovation as documented by data re*373garding specific projected cost savings that would be achieved if the project were completed, and the proposed level of investment is appropriate in relation to such projected cost savings.
3.The replacement or renovation is being proposed to correct deficiencies that place the facility’s patients’ or employees’ health and safety at significant risk. Such deficiencies must be demonstrated by reference to the minimum requirements of licensing, regulatory, and accrediting organizations.
B. Regardless of the provisions of Section 111(A) above, the Authority will not approve a renovation or replacement if the proposed project will perpetuate or result in excess capacity of acute care beds. For the renovation or replacement of a patient care area, the following requirements also apply:
1. The Authority will not approve any renovation or replacement to a patient care area of a hospital where the number of licensed acute care beds, after completion of the renovation or replacement project, will equal or exceed 160% of the average daily census of the hospital for the past twelve (12) months. The Authority may consider an adjustment by the hospital to its average daily census for observation equivalent days and swing bed days. The Authority may also consider the impact of a distinct part unit on the hospital’s average daily census.
2. An applicant must remove acute care beds from its license to meet the 160% requirement. The applicant must submit an amended license to demonstrate the reduction in acute care beds during substantial compliance review.
3. If the removal of acute care beds from the hospital’s license would cause a breach of a covenant in a bond instrument, or other debt instrument to which the applicant is a party, the removal of beds from service may be used to meet the requirements of these standards. In this ease, the applicant must meet the requirements of the “Addition of Acute Care Beds Standards” to return said beds to service.
4. The Authority may grant an exception to the reduction of beds to meet the 160% average daily census requirement if the applicant has experienced significant fluctuations in its occupancy levels and (a) the applicant is the sole hospital in a county or (b) the applicant has exceeded an 85% acute care occupancy level for two consecutive months during the past twelve (12) months.
5. An acute care facility which has removed acute care beds from its license pursuant to the requirements of Section 111(B)(1) of these Standards, may restore acute care beds to its license if it meets the following requirements:
a. The facility has experienced significant fluctuations in its occupancy levels;
b. The facility has exceeded an 85% acute care occupancy level for two consecutive months during the past twelve (12) months;
e. The facility may add up to 10% of the number of acute care beds on its current license on an annual basis without undergoing certificate of need review, however it may not exceed the number of acute care -beds on its license immediately prior to the reduction of beds pursuant to Section 111(B)(1) of these Standards; and,
d. The facility must notify the Authority a minimum of ten (10) days prior to requesting an amendment increasing acute care beds on its license.
C. Critical access hospitals are not subject to the requirements of Section III(B).
IV. QUALITY
The applicant making the proposal for renovation or replacement for hospital beds must be in compliance with applicable licensing or certification organization requirements or have in place a substantive and detailed plan to come into compliance with applicable licensing or certification requirements.
*374V. CONTINUUM OF CARE
A. The applicant must demonstrate that the replacement or renovation under consideration is the most cost effective or otherwise most appropriate alternative to provide the needed services to the population to be served.
B. The applicant must demonstrate that it has an effective utilization review, peer review, quality assurance and discharge planning process.
VI. COST
A. The applicant must demonstrate financial feasibility of the facility following completion of the replacement or renovation. The applicant must also demonstrate that the capital related costs of the project are consistent with the Authority’s rate setting methodology in effect as of the date of application. The applicant must further demonstrate that the charges and costs used in projecting financial feasibility are equitable in comparison to prevailing rates for similar services in similar hospitals are defined by the Authority-
B. The applicant must demonstrate that the project is the superior alternative, after considering in significant detail the costs and effectiveness of the following alternatives:
1. Maintaining extant facilities;
2. The alternative project, if any, which is likely to result in the greatest increases in operating and cost efficiencies;
3. The alternative project, if any, which would use the lowest cost construction methods complying with licensing, accreditation, and building code requirements;
4. A combined analysis of items two and three above considering and analyzing the trade-offs between increases in operational efficiency juxtaposed with lower cost construction alternatives;
5. Merger, consolidation of facilities or sharing of services, and/or delivery of the service in an alternative setting; or
6. Closure of the service and/or such other alternative as may be suggested by the Authority.
C. The applicant shall submit reliable, probative and substantial evidence to demonstrate that the proposed square footage, construction cost per square foot and cost of fixed equipment for all nursing units, ancillary services and support areas directly affected by the replacement and/or. renovation are appropriate and reasonable for the types and volumes of patients which are projected to utilize the hospital’s services in the fifth year following completion of the project.
In preparing this objective analysis, the applicant must show that it has given prudent consideration to internal and external factors that will impact the operating environment of the hospital upon completion of the project.
The factors to be considered must include:
1. Trends in the demand for specific hospital services and recent demographic and/or medical practice changes that are likely to modify the trends.
2. The forecast of demand for the hospital’s services based upon the most probable assumptions. The applicant must submit a comprehensive listing of the assumptions underlying the forecast.
3. If the physical layout of the hospital, following completion of the replacement or renovation, will be conducive to efficient staffing and transportation of patients.
4. If the physical layout of the hospital, following completion of the replacement of renovation, will seek to maximize the amount of net usable square footage available for patient care.
5. A search of the literature and an architect’s certification regarding the amount of net usable square feet required for the performance of hospital activities at projected volume levels. The literature search shall include, but not be limited to, the requirements for state licensing or JCAHO Accreditation.
6. How the cost per square foot for replacement projects compares to the normal cost of good quality hospital construction as evidenced by recognized trade journals. For renovations, the applicant must consider how the *375cost per square foot for renovation of hospital areas compares to — and should not exceed — the normal cost of replacement. Where practicable, the applicant should reference recognized trade journals, such as Means Square Foot Costs, BOECKH, Engineering-News Record or Marshall and Swift. In determining normal cost adjustment, consideration should be given for the hospital departments involved, terrain, geographic area and other factors relevant to the source(s) utilized.
7. If the facility design and construction methods employed in the proposal will allow for flexibility to accommodate future changes in the mix of inpatient versus outpatient utilization at the hospital and the mix of services by the hospital.
8. How the hospital will accommodate disruption of normal operations during the period of construction and how savings in operating cost relate to increased capital cost incurred to minimize such disruptions.
9. The steps the hospital is taking to transfer inactive storage and other non-patient activities to less expensive off site areas.
10. Such other factors as may be requested by the Authority.
VII. SPECIALIZED ACUTE CARE
A hospital may change its bed complement, within its approved licensed beds, among specialized units for services that are currently offered by the hospital and which do constitute the addition of a new institutional health service, or the deletion of an existing health service.
In addition to the criteria set forth elsewhere for the replacement or renovation of acute care facilities, proposals involving specialized acute care units must comply with the following requirements:
A.Tertiary Pediatric Care Unit: An application for the replacement or renovation of a tertiary pediatric care unit shall be in substantial compliance with the following:
Tertiary pediatric care units will be operated in only three West Virginia hospitals: West Virginia University Hospitals, Inc., Charleston Area Medical Center, and.Ca-bell-Huntington Hospital.
B. Neonatal Intensive Care Unit An application for the replacement or renovation of Neonatal Intensive Care Unit (NICU) beds shall be in substantial compliance with the following guidelines.
1. The number qf NICU beds shall not exceed four beds per 1000 live births in the service area.
2. Level II NICU services shall be centralized at West Virginia University Hospitals, Inc., Charleston Area Medical Center and Cabell-Huntington Hospital.
3. Level II NICU services shall be considered for approval only at hospitals performing at least 1100 deliveries per year.
C. Obstetric Unit An application for the replacement or renovation of obstetric unit beds shall be in substantial compliance with the following guidelines.
1. Level II and Level III obstetric units shall perform át least 1100 deliveries per year.
2. Level I obstetric units shall perform at least 750 deliveries per year.
3. New Level I obstetric units may be considered for approval based upon less than 750 deliveries per year if the absence of the service would result in a population of at least 5000 being more than 30 minutes normal driving time from another obstetric unit.
D. Critical Care Unit An application for the replacement or renovation of Intensive Care Unit (ICU) beds or Coronary Care Unit (CCU) beds (collectively referred to as critical care units) shall be in substantial compliance with the following guidelines.
1. An ICU or CCU shall be staffed with qualified personnel under the direction of one or more appropriately trained on-site physicians. A hospital offering ICU or CCU services shall have a physician on-site for immediate consultation twenty-four hours a day. A CCU shall have a cardiologist or internist with adequate training in cardiology *376available for immediate consultation twenty-four hours a day.
2.Hospitals providing ICU or CCU services shall have in place with surrounding hospitals established protocols for the referral of stabilized patients. Hospitals which do not have ICU or CCU should have protocols to see that patients requiring such service be transferred as soon as possible after stabilization.
E. Psychiatric Unit An application for the replacement or renovation of psychiatric beds shall be in substantial compliance with the following guidelines.
1. A unit within a general acute care facility shall be specifically designated for the treatment of psychiatric patients and shall be designed to accommodate the special privacy, security and treatment requirements of the patients.
2. The applicant must demonstrate that each patient will have a treatment plan which includes a prioritization of major problems, stated in specific terms, with clear, concise and realistic goals and coordinated treatment modalities.
3. The applicant must clearly demonstrate that individuals requiring inpatient treatment will be discharged as soon as they are able to function in a less restrictive setting.
VIII. ACCESSIBILITY
The proposal shall not adversely affect the continued viability of an existing hospital or health care services that serves a population of at least 10,000 not having 30-minute access to another hospital or critical access hospitals (CAH).
IX. OTHER CONSIDERATIONS
The applicant must demonstrate that the renovation or replacement is in concert with the applicable sections of the applicant’s long-range facility and strategic plan.
X. DEMONSTRATION PILOT PROJECT
A.The Authority recognizes that occasionally certain acute care facilities which provide psychiatric services have excess capacity in their psychiatric units while other facilities in the same service area may need additional beds. In addition, existing State owned psychiatric beds operated by the Department of Health and Human Resources are insufficient to meet the needs of West Virginia.
As part of the Authority’s health planning research activities and responsibility to gather information on access to care, and notwithstanding any contrary provisions in the Renovation-Replacement Standards, the Authority will allow a limited number of acute care facilities with excess capacity to lease psychiatric beds under the conditions and circumstances described below. During this Demonstration Project, the Authority will gather data on the success of these programs and will evaluate whether this arrangement should be allowed on a permanent basis in West Virginia.
B. The Authority will allow no more than two Demonstration Pilot Projects at acute care facilities for the provision of short term psychiatric services.
C. Acute care facilities that wish to apply for the Demonstration Pilot Project must submit their requests on forms prepared by the Authority.
D. Acute care facilities that wish to apply for the Demonstration Pilot Project must submit a signed copy of a collaborative agreement with all parties, including the Department of Health and Human Resources.
E. The application shall be a joint application with the Lessor facility and the Lessee facility. The following criteria must be met by the applicants:
1. The Lessor acute care facility must have a psychiatric unit with excess capacity.
2. The Lessee acute care facility must be a facility which currently provides psychiatric services and is in compliance with all federal and state requirements related to this service.
3. The Lessee must have a need for additional short term psychiatric beds.
4. The Lessee and Lessor must be located in the same acute care service area as defined by the State Health Plan.
F. The Demonstration Pilot Project will be for a two year period. The Lessor facility *377will report to the Authority, on an as requested basis, any information the Authority may request to determine the feasibility of the continuation of the Demonstration Pilot Project. Should either applicant fail to comply with these standards at any time, the Authority may terminate the Demonstration Pilot Project.
G. The Authority’s decision to grant a request to participate in the Demonstration Pilot Project does not constitute a Certificate of Need, or any entitlement to the facilities to provide these services beyond the terms of the pilot. During the pilot, the Authority will closely monitor the success of the program and will evaluate whether it is appropriate to allow this arrangement to continue in West Virginia. The Authority may consult with the Department of Health and Human Resources in evaluating the success of this program.
STARCHER, J.,dissenting.
Frankly, I have no idea whether the majority opinion’s reasoning is correct. I suspect, however, that the case for the five mile limitations’ facial invalidity is not so pat or facile as the majority opinion suggests. Furthermore, the majority opinion fails to address the real concern of the appellee Fairmont General Hospital in this case — a negative effect on an established community hospital that is located but a few miles from the site of the proposed new hospital.
First, the issue of the facial validity of the “five mile limitation” was neither argued nor briefed to this Court — or, as far as I can see, to the circuit court. Consequently, this Court did not have the benefit of analysis, research, or advocacy on this issue from the excellent lawyers on all sides of this case — to lay out the positives and the negatives of the position taken by the majority opinion. Nor did this Court have before it the positions and analysis of other governmental and private actors who have a vital interest in the validity of the State’s Health Plan — of which the “five mile limitation” is but a small part.
As Justice Davis has noted in her separate opinion, it is entirely possible that the majority opinion’s gratuitous and unnecessary ruling has the potential to gut West Virginia’s Health Plan. Whether the majority opinion has a sound basis for doing so is unknowable — because there has been no adversarial testing of the theory adopted by the majority.
This sort of “judicial activism” often occurs when courts arrogate to themselves the task of seeking out and deciding an issue that no one has brought to or argued before the Court. It is then that one may more often see opinions that are flawed in their premises, and that can wreak havoc that is un-thought of and unintended by the court that issued the opinion. I fear that the majority opinion in the instant case has such a potential.
Second, where was the Health Care Authority’s concern or lack of concern for the appellee taken into account in the opinion? Unfortunately, this is an example where the giants of an industry simply roll over a weaker facility. Because of this decision, I prognosticate that within a few years following the opening of the grand new UHC facility along Interstate-79, Fairmont General Hospital will cease being a community-based hospital operated by a local board of directors. It will either have to “join Wal-Mart” and become part of the conglomerate, or it will be required to change its mission — perhaps to become a long-term care facility, or something of such nature.
Having said all this, I reiterate that the majority might properly have reached its current conclusion — and I might have agreed with it — had all issues been vigorously presented to this Court by the parties. Particularly, with respect to the “five mile limitation point,” the instant case should have been ordered to be re-briefed and re-argued on the major issue identified by the majority. Then the members of this Court would have had a basis, and a clear right, to rule on the major issue raised by the majority opinion.
Absent such re-briefing and re-argument, this Court is “flying blind,” and basically guessing at a proper result. I cannot join in such a “blind guess,” so I dissent from the majority opinion’s reasoning and its new syllabus point.
. W. Va.Code § 16-2D-5(Z)(1) (1999) (Repl.Vol.2001) provides in full:
The state agency shall coordinate the collection of information needed to allow the state agency to develop recommended modifications to certificate of need standards as required in this article. When the state agency proposes amendments or modifications to the certificate of need standards, it shall file with the secretary of state, for publication in the state register, a notice of proposed action, including the text of all proposed amendments and modifications, and a date, time and place for receipt of general public comment. To comply with the public comment requirement of this section, the state agency may hold a public hearing or schedule a public comment period for the receipt of written statements or documents.
. W. Va.Code § 16-2D-5(1 )(2) provides in full:
All proposed amendments and modifications to the certificate of need standards, with a record of the public hearing or written statements and documents received pursuant to a public comment period, shall be presented to the governor. Within thirty days of receiving the proposed amendments or modifications, the governor shall either approve or disapprove all or part of the amendments and modifications, and, for any portion of amendments or modifications not approved, shall specify the reason or reasons for nonapproval. Any portions of the amendments or modifications not approved by the governor may be revised and resubmitted.
. See http://www.hcawv.org^CertOfNeed/con-RevStd.htm.
. I have attached the Renovation-Replacement of Acute Care Facilities and Services certificate of need standards as an appendix to this concurring opinion. I have done this in order to provide an example of what the majority has actually invalidated.
.The geographical limitation has been amended to now read 15 miles.