by Jim Fisher METRO EDITOR
CHARLESTON — The state Supreme Court ruled 4-1 Tuesday to allow United Hospital Center to build a new hospital along Interstate 79 in Bridgeport.
The opinion, written by Justice Brent Benjamin, was released at 3 p.m. Justices Robin Davis and Elliott “Spike” Maynard, as well as Chief Justice Joseph Albright, concurred, with Davis reserving the right to file a concurring opinion. Only Justice Larry Starcher dissented, reserving the right to file a dissenting opinion.
“The hospital is very pleased that we prevailed at the Supreme Court. ... It puts a finality to it for everybody’s sake,” said UHC President Bruce Carter. “What we will do now is proceed. We will get our construction design team back together, we will put our finance team back together, and we will go on now and complete the final design work and the final financing work so we can sell the bonds to put this together.”
Carter said he hopes the new hospital will be open by November 2009.
The Supreme Court’s opinion reverses a Nov. 24, 2004, ruling by Marion County Circuit Judge Fred Fox, which had overruled the state Health Care Authority’s earlier Certificate of Need approval and subsequent affirmation by the Office of Judges.
Fairmont General Hospital had appealed both rulings.
The Su-preme Court further re-manded the case for issuance of the Certificate of Need.
“From what we understand, that means it’s over,” said UHC spokeswoman Suzanne Hornor.
That understanding was echoed by Marianne Kapinos, general counsel for the Health Care Authority, and Fairmont General Hospital board member Nick Fantasia.
“I think at this point in time, based on the information presented to us, the options for Fairmont General Hospital have been exhausted at this level,” Fantasia said.
The basis of the high court’s decision is that the State Health Plan’s five-mile limitation conflicts with state law and the HCA’s Certificate of Need Plan.
The limitation was in place when UHC filed its Certificate of Need application, but was later relaxed to either 15 miles or within the same county.
Neither state code nor the Certificate of Need Plan contains such a mileage limitation, according to Benjamin’s opinion.
That’s important because the Certificate of Need Plan states that an application must be “consistent with the state health plan,” which means that the HCA determines the majority of the application supports the plan, “unless the (State Health) Plan is in conflict with any statute or this rule.”
Citing a 1984 opinion from the District Court of Appeal of Florida, Benjamin wrote that the five-mile limitation “precludes a balanced consideration of all the statutory criteria for certificate of need reviews ...”
In his ruling, Fox wrote that one purpose of the limitation is to protect hospitals from encroachment of new facilities.
While that’s a valid assumption, Benjamin wrote, Fox cited no source and the Supreme Court has “found no clear legislative policies or guidelines that would have authorized the Authority and the Governor to incorporate a five-mile limitation” into the Certificate of Need process.
Citing a 2003 West Virginia opinion, Benjamin wrote that the Legislature must make clear its public policy objectives. Essentially, the court has held that the Legislature cannot grant a blank check to the executive branch or any government agency.
“The Court’s research indicates that the Legislature has not specified any clear public policy objectives or guidelines that would have authorized the five-mile limitation,” Benjamin wrote.
“In any case, the Authority ought not be bridled, without clear legislative-permitting guidelines, by such a self-imposed arbitrary limitation as it goes about implementing its statutory mission, including its consideration of statutory criteria for certificate of need reviews,” Benjamin wrote.
In fact, the five-mile rule may very well go against the Legislature’s stated goals of providing health care in an “orderly, economical and consistent” manner, Benjamin wrote, quoting from state code.
Also, the “general welfare and protection of the lives, health and property of the people ... require that the type, level and quality of care ... be subject to review and evaluation before any new institutional health services are offered or developed ...” Benjamin quoted from the code.
The limit also may preclude the HCA from avoiding unnecessary duplication of services, Benjamin wrote.
In support, Benjamin noted “that within less than six years after the Authority (or its predecessor agency) and the Governor imposed the five-mile limitation, they extended it to fifteen miles and allowed a replacement hospital to be constructed within the same county ...”
Benjamin further noted “that the Authority in issuing a certificate of need ... ruled that eight miles ‘is not materially inconsistent with (five miles).’”
“The Authority has thus itself acknowledged the arbitrariness of the restriction by greatly expanding its radius in 2002 and by giving the limitation an elasticity of its choosing in a specific case,” Benjamin wrote.
