§ 131E-188. Administrative and judicial review.
§ 131E‑188. Administrative and judicial review.
(a) After a decision ofthe Department to issue, deny or withdraw a certificate of need or exemption orto issue a certificate of need pursuant to a settlement agreement with anapplicant to the extent permitted by law, any affected person, as defined insubsection (c) of this section, shall be entitled to a contested case hearingunder Article 3 of Chapter 150B of the General Statutes. A petition for acontested case shall be filed within 30 days after the Department makes itsdecision. When a petition is filed, the Department shall send notification ofthe petition to the proponent of each application that was reviewed with theapplication for a certificate of need that is the subject of the petition. Any affectedperson shall be entitled to intervene in a contested case.
A contested case shall beconducted in accordance with the following timetable:
(1) An administrativelaw judge or a hearing officer, as appropriate, shall be assigned within 15days after a petition is filed.
(2) The parties shallcomplete discovery within 90 days after the assignment of the administrativelaw judge or hearing officer.
(3) The hearing at whichsworn testimony is taken and evidence is presented shall be held within 45 daysafter the end of the discovery period.
(4) The administrativelaw judge or hearing officer shall make his recommended decision within 75 daysafter the hearing.
(5) The Department shallmake its final decision within 30 days of receiving the official record of thecase from the Office of Administrative Hearings.
The administrative law judgeor hearing officer assigned to a case may extend the deadlines in subdivisions(2) through (4) so long as the administrative law judge or hearing officermakes his recommended decision in the case within 270 days after the petitionis filed. The Department may extend the deadline in subdivision (5) for up to30 days by giving all parties written notice of the extension.
(a1) On or before thedate of filing a petition for a contested case hearing on the approval of anapplicant for a certificate of need, the petitioner shall deposit a bond withthe clerk of superior court where the new institutional health service that isthe subject of the petition is proposed to be located. The bond shall besecured by cash or its equivalent in an amount equal to five percent (5%) ofthe cost of the proposed new institutional health service that is the subjectof the petition, but may not be less than five thousand dollars ($5,000) andmay not exceed fifty thousand dollars ($50,000). A petitioner who receivedapproval for a certificate of need and is contesting only a condition in thecertificate is not required to file a bond under this subsection.
The applicant who receivedapproval for the new institutional health service that is the subject of thepetition may bring an action against a bond filed under this subsection in thesuperior court of the county where the bond was filed. Upon finding that thepetition for a contested case was frivolous or filed to delay the applicant,the court may award the applicant part or all of the bond filed under thissubsection. At the conclusion of the contested case, if the court does not findthat the petition for a contested case was frivolous or filed to delay theapplicant, the petitioner shall be entitled to the return of the bond depositedwith the superior court upon demonstrating to the clerk of superior court wherethe bond was filed that the contested case hearing is concluded.
(b) Any affected personwho was a party in a contested case hearing shall be entitled to judicialreview of all or any portion of any final decision of the Department in thefollowing manner. The appeal shall be to the Court of Appeals as provided inG.S. 7A‑29(a). The procedure for the appeal shall be as provided by therules of appellate procedure. The appeal of the final decision of theDepartment shall be taken within 30 days of the receipt of the written noticeof final decision, and notice of appeal shall be filed with the Division ofHealth Service Regulation, Department of Health and Human Services and servedon all other affected persons who were parties to the contested hearing.
(b1) Before filing anappeal of a final decision by the Department granting a certificate of need,the affected person shall deposit a bond with the Clerk of the Court ofAppeals.
(1) The bond shall besecured by cash or its equivalent in an amount equal to five percent (5%) ofthe cost of the proposed new institutional health service that is the subjectof the appeal, but may not be less than five thousand dollars ($5,000) and maynot exceed fifty thousand dollars ($50,000); provided that the applicant whoreceived approval of the certificate of need may petition the Court of Appealsfor a higher bond amount for the payment of such costs and damages as may beawarded pursuant to subdivision (2) of this subsection. This amount shall bedetermined by the Court in its discretion, not to exceed three hundred thousanddollars ($300,000). A holder of a certificate of need who is appealing only acondition in the certificate is not required to file a bond under thissubsection.
(2) If the Court ofAppeals finds that the appeal was frivolous or filed to delay the applicant,the court shall remand the case to the superior court of the county where abond was filed for the contested case hearing on the certificate of need. Thesuperior court may award the holder of the certificate of need part or all ofthe bond. The court shall award the holder of the certificate of needreasonable attorney fees and costs incurred in the appeal to the Court ofAppeals. If the Court of Appeals does not find that the appeal was frivolous orfiled to delay the applicant and does not remand the case to superior court fora possible award of all or part of the bond to the holder of the certificate ofneed, the person originally filing the bond shall be entitled to a return ofthe bond.
(c) The term"affected persons" includes: the applicant; any individual residingwithin the service area or the geographic area served or to be served by theapplicant; any individual who regularly uses health service facilities withinthat geographic area or the service area; any person who provides services,similar to the services under review, to individuals residing within theservice area or the geographic area proposed to be served by the applicant; anyperson who, prior to receipt by the agency of the proposal being reviewed, hasprovided written notice to the agency of an intention to provide similarservices in the future to individuals residing within the service area or thegeographic area to be served by the applicant; third party payers who reimbursehealth service facilities for services in the service area in which the projectis proposed to be located; and any agency which establishes rates for healthservice facilities or HMOs located in the service area in which the project isproposed to be located. (1977, 2nd Sess., c. 1182, s. 2; 1981, c. 651, s. 11; 1983, c. 775, s.1; 1983 (Reg. Sess., 1984), c. 1000, s. 1; 1987, c. 511, s. 1; 1991, c. 692, s.8; c. 701, s. 3; 1993, c. 7, s. 9; 1997‑443, s. 11A.118(a); 2005‑325,s. 5; 2007‑182, s. 1; 2009‑373, s. 2.)