COLUMBIA — South Carolina health officials on Monday asked the state Supreme Court to decide if the agency can suspend a program that regulates whether new medical facilities can be built, hospitals can expand and doctors can buy expensive equipment.
The Department of Health and Environmental Control also asked the justices to take up the case directly, bypassing lower courts, according to the lawsuit obtained by The Associated Press.
DHEC said it made the move because of lawsuits it anticipated after the agency decided last week that it would suspend the Certificate of Need program. It made the decision after the Legislature did not override Gov. Nikki Haley’s veto of $1.7 million to run the program.
Legal questions need to be answered because the law requiring DHEC to review and approve new nursing homes, hospital expansions, new medical facilities and new equipment that costs more than $600,000 still remains on the book, even if there is no money to pay for it. Several groups that represent hospitals and other medical businesses predicted a court fight.
“In an effort to avoid a multitude of costly, duplicative legal actions, DHEC petitioned the S.C. Supreme Court this morning to resolve the legal questions presented by these events,” DHEC spokesman Mark Plowden said in a statement.
The Supreme Court will have to decide whether it wants to take up the case.
Haley has said she vetoed the money for the program because she thinks it’s an impediment to the free market and is no longer needed. Before she became governor, Lexington Medical Center, where she worked as a fundraiser, fought for nearly a decade to be allowed to do open heart surgery. DHEC initially refused permission but relented after a compromise was reached with another Columbia-area hospital.
The fiscal year began Monday, and DHEC Director Catherine Templeton said the program is now suspended.
“As a state agency, our only authority comes from state law. Our legal staff worked hard last week to determine our options, and we were left with only one that complies with the law,” Templeton said in a statement.
The House sustained Haley’s veto after Ways and Means Chairman Brian White took the floor and said the veto was just about the money, not whether the program should continue. Some lawmakers and supporters of the program have said DHEC could move money from other parts of the agency to keep it going, especially since the law requiring the review remains in effect.
But DHEC disagrees. The agency cites a 2011 brief filed to the state Supreme Court from Glenn McConnell when he was president pro tem, saying that money vetoed from the budget by the governor can’t be used for its intended purpose if the veto is sustained. DHEC also cites a 2010 attorney general’s opinion that a court would likely conclude that if the Legislature doesn’t fund a program, it suspends the program’s obligations for that fiscal year.
Several groups, including the South Carolina Hospital Association, said the Certificate of Need program is still needed. They said the review of projects keeps medical costs down by preventing expensive projects without enough demand. The program also makes sure health care options remain for people in rural areas.
The South Carolina Medical Association is glad DHEC is asking the state Supreme Court whether it can suspend the program simply because it isn’t funded, said Dr. Bruce Snyder, the association’s president.
Snyder said if state leaders want to get rid of the Certificate of Need requirement, they should have worked to repeal the law and had full legislative hearings and debate. Deciding what to do with the program under such short notice causes problems, he said.
“It puts doctors, hospitals and nursing homes at risk. And we don’t like the uncertainty,” Snyder said.
About three dozen projects worth about $90 million in South Carolina are awaiting DHEC approval. Other projects are being appealed or are in legal battles, including two companies trying to build a new hospital in Berkeley County.
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