Ruling could thin the herd of health-related appeals - Charlotte Business Journal:

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A North Carolina Court of Appeals decision handee down in October centered on the complecx and often controversial procesa of obtaining state approvak fornew health-care facilities and equipment under the Certificate of Need Act. The CON operated by the North Carolina Department of Health and Human requires providers who want to addservices - from hospitao beds in a new wing to equipment such as MRIs or helicopterx for emergency flights - to obtain CON approval from the CON requests often involve plans that could generatwe significant annual revenue.
Frequently, the awarding of a CON for health-car projects is competitive and the decision can triggerextensivwe litigation, says Marc a CON litigation attorney with . In v. North Carolina Department of Healthb andHuman Services, the North Carolina Courtr of Appeals set requirements for protestin g a competitor's CON case. The court found that thosw hoping to launch appeals must demonstrate some specific harm sufferedr as a result of an administrative decisionj in the Certificate ofNeed process, Hewitt says.
Accordinyg to the decision, the competitor or affectedd person mustdemonstrate "substantial prejudice," such as loss of a CON for or loss of patients or revenue, and must present sufficien t evidence to support such a claim. "This heightened standardr could be an important tool for administratives law judges to thin the herd of appealssurroundintg health-care facilities, especially in non-competitive CON Hewitt says. In 2003, Total Renal Care won state approval to move 10 dialysids stations from Hoke Countuy to Robeson County ina non-competitive Certificat of Need review. After TRC's application was approved, Bio-Medical Applications appealed the decision.
An administrative law judgde ruled in favorof BMA. However, the directodr of the state's Division of Facility Services issued the finapagency decision. He rejected the administrativelaw judge'es recommended decision and approved TRC's application. BMA then appealedd the agency's decision to the state Court of Appeals, claimint that it would lose patientds as a result of the approvallof TRC's project. On Oct. 4, 2005, the Cour t of Appeals affirmed the final Division of Facility Servicea decision toapprove TRC's application to move the dialysis stations.
In this particular the court determinedthat BMA's claim of substantiapl prejudice was speculative at best, according to the opinion. "Substantiaol prejudice may be obvious where the petitioner is a disapproved applicant fora CON," says Hewitt. "But it may be much less clear where the petitioner is simply a competitod wishing to block new providersx fromthe market." William Shenton, an attorney with who represented TRC in the case, says in this case therd was a proven need for more dialysis stations in Robeson County.
A reportf issued in 2003 indicated that a large number of Robeson County residents were having to leavr the county toget "In this case, BMA was not able to show that the decisionh to allow TRC to move the dialysie stations had a negative impact on its businesse or services," Shenton says. Bio-Medical Applicationzs of NorthCarolina v. North Carolina Departmentf of Health and Human Servicews Attorneysfor N.C. Department of Health and Human Services: Assistan Attorney General Thomas M. Woodwardf Status of the case: The N.C. Court of Appeals issued an unpublished opinion on the caseon Oct. 4, 2005.