Hospice at Greensboro v NC Dept. of DHR

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA06-1641 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2007 HOSPICE AT GREENSBORO, INC. D/B/A HOSPICE AND PALLIATIVE CARE OF GREENSBORO and HOSPICE OF THE PIEDMONT, INC., Petitioners, v. North Carolina Department of Health and Human Services, Division of Facility Services No. 05 DHR 1392 Court of Appeals NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, LICENSURE AND CERTIFICATION SECTION and NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION, Respondents, Slip Opinion and CARROLTON HOME CARE, INC. D/B/A COMMUNITY HOME CARE AND HOSPICE, Respondent-Intervenor. Appeal by Respondent-Intervenor Carrolton Home Care, Inc. d/b/a Community Home Care and Hospice from the Final Agency Decision 22 August 2006 by Director Robert J. Fitzgerald in the North Carolina Department of Health and Human Services. Heard in the Court of Appeals 23 August 2007. Smith Moore LLP by Maureen Demarest Murray for PetitionerAppellee Hospice at Greensboro, Inc. d/b/a Hospice and Palliative Care of Greensboro and Hospice of the Piedmont, Inc. -2Williams Mullen Maupin Taylor, P.C. by Marcus C. Hewitt and Kevin Benedict for Respondent-Intervenor-Appellant Carrolton Home Care, Inc. Attorney General Roy A. Cooper, III by Assistant Attorney General June S. Ferrell for the State.Atty STROUD, Judge. Respondent-intervenor Carrolton Home Care, Inc., d/b/a Community Home Care and Hospice ( Community ) appeals from the Final Agency Decision by the North Carolina Department of Health and Human Services ( DHHS ), Division of Facility Services ( DFS ), which granted summary judgment in favor of Hospice at Greensboro, Inc. d/b/a Hospice and Palliative Care of Greensboro and Hospice of the Piedmont, Inc. (hereinafter petitioners ) in a contested case. For the following reasons, we affirm the granting of summary judgment in favor of petitioners. I. Background On 8 August 2005, the Certificate of Need Section ( CON Section ) of Community. the DHHS, DFS issued a No Review letter1 to The letter was based upon Community's certification to the CON Section that it had provided hospice services to one patient in Guilford County, thus allowing it to open a new branch office of its existing licensed hospice located in Cumberland County. The CON Section issued the No Review letter based upon its interpretation of In re Total Care, Inc. 1 See Hospice At See Hospice At Greensboro, Inc. v. North Carolina Dept. of Health and Human Services, ___ N.C. App. ___, ___, 647 S.E.2d 651, 655 (2007) for a description of the No Review letter process the CON Section used. -3Greensboro, Inc. v. North Carolina Dept. of Health and Human Services, ___ N.C. App. ___, ___, 647 S.E.2d 651, 659 (2007). [T]he CON Section has interpreted In re Total Care to create a new definition of service area, such that a health service provider s service area is any area in which it has recently served at least one patient. Hospice At Greensboro, Inc., at ___, 647 S.E.2d at 659; see also id. at 653-60 (discussing the one patient rule as developed and applied by the CON Section). The No Review letter authorized Community to open a hospice office in Guilford County, North Carolina without first obtaining a Certificate of Need ( CON ). On 12 August 2005, based upon the No Review letter, Community applied for a license from DHHS, DFS Licensure and Certification Section ( LC Section ), to operate a branch office in Guilford County. The LC Section granted the license on 16 August 2005, with an effective date of 4 August 2005. Community obtained its license twenty-three days before petitioners filed this contested case. Petitioners contested the DHHS, DFS CON Section s issuance of a No Review letter to Community. Petitioners contended the Guilford County office was required to have a CON while Community argued that its office is a branch office of its existing licensed and certified Cumberland County hospice which does not require a CON. The final DHHS, DFS agency decision determined that the Guilford County office must obtain a CON and granted summary judgment in favor of petitioners. Community appeals. -4Community raises four issues on appeal: (1) whether the LC Section s issuance of a license for Community s Guilford County hospice office, which then became fully operational, mooted the contested case filed by petitioners; (2) whether Community established a new institutional health service in Guilford County for which it was required to obtain a CON; (3) whether the CON Section had statutory authority to require a CON for a hospice branch office prior to 31 December 2005; and (4) whether the LC Section acted properly in issuing a license to Community. The factual situation and the legal issues presented by this case are substantially identical to those in two cases recently decided by this Court. See Hospice At Greensboro, Inc., ___ N.C. App. ___, 647 S.E.2d 651; Hospice & Palliative Care Charlotte Region v. North Carolina Dept. of Health and Human Services, ___ N.C. App. ___, 648 S.E.2d 284 (2007). Our holdings in the case sub judice are therefore determined by those prior cases. Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court. (citations omitted). In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). II. Mootness Community contends that the LC Section s issuance of a license for Community s Guilford County hospice office, which then became fully operational, petitioners. mooted the contested case filed by In Hospice & Palliative Care Charlotte Region, we -5addressed this same mootness issue and held that DFS did not err by concluding that the Licensure and Certification Section's issuance of a license for Community's . . . County hospice office, which then became fully operational, did not moot the contested case filed by [petitioners]. Hospice & Palliative Care Charlotte Region at ___, 648 S.E.2d at 287. The present case is controlled by Hospice & Palliative Care Charlotte Region, and therefore petitioner s argument is not moot even with Community s Guilford County s hospice being fully operational. See id. This assignment of error is overruled. III. Community New Institutional Health Service next argues that it did not establish a new institutional health service in Guilford County for which it was required to obtain a CON. [A]n existing institutional health service must obtain a new CON to open a branch office outside its service area. Such an office, regardless of the label affixed by its developer, is a new institutional health service for which a CON is required. See Hospice At Greensboro, Inc., at ___, 647 S.E.2d at 660-61 (emphasis added). A hospice s service area is the county in which it is located. See Hospice At Greensboro, Inc., at ___, 647 S.E.2d at 658; see also N.C. Gen. Stat. § 131E-176(24a) (2005). Community s Guilford County office is outside0 its service area as the new office is in a different county than the Cumberland County office. See id. Thus, because the Guilford County office is outside Community s service area, it is a new institutional health -6service for which a CON is required. at 658, 660-61. See id. at ___, 647 S.E.2d This assignment of error is overruled. IV. Statutory Authority Community also argues that the CON Section did not have statutory authority to require a CON for a hospice branch office prior to 31 December 2005. In Hospice & Palliative Care Charlotte Region,, we addressed and rejected Community s argument that the CON section had no statutory authority to require a certificate of need for a hospice branch office prior to 31 December 2005. 2 See Hospice & Palliative Care Charlotte Region at ___, 648 S.E.2d at 288. In Hospice & Palliative Care Charlotte Region, this Court found that a specific hospice was a new institutional health service created prior to 31 December 2005 and that as such it had to obtain a CON. [o]ur holding See id. in Hospice The Court specifically stated that at Greensboro [requiring a new institutional health service to obtain a CON] applied to the definition of new institutional health service as set forth in N.C. Gen. Stat. § 131E-176 prior to 31 December 2005. See id. In the present case, the No Review letter was filed 8 August 2005, prior to 31 December 2005. See id. The holding in Hospice & Palliative Care Charlotte Region therefore controls. 2 See id. We This argument was based upon the 2005 amendments to N.C. Gen. Stat. § 131E-176, which require a CON for all new hospice offices, effective 31 December 2005. See N.C. Gen. Stat. § 131E176 (2005). -7hold that the Final Agency Decision correctly concluded that Community established a new institutional health service in Guilford County for which it was required to obtain a CON. V. See id. License Due to our rulings on the first three issues, we need not address Community s fourth issue of whether the LC Section acted properly in issuing a license to Community. The Final Agency Decision concluded that the LC Section erred in issuing a license to Community on two grounds, one of which was the requirement of a CON. As we have determined that the LC Section should not have issued a license without a CON, we will not address the alternate grounds for the Final Agency Decision, which was that Community had not satisfied all licensure requirements. VI. Conclusion We therefore hold that Community s Guilford County office is a new institutional health service which requires a CON and affirm the Final Agency Decision entered on or about 22 August 2006 by DHHS, DFS Director Robert J. Fitzgerald judgment to petitioners. AFFIRMED. Judges ELMORE and STEELMAN concur. Report per Rule 30(e). awarding summary

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.