Amedisys W. Va., LLC v. Pers. Touch Home Care of W.Va., Inc.
| Citation | 859 S.E.2d 341 |
| Decision Date | 11 June 2021 |
| Docket Number | No. 20-0401,No. 20-0308,20-0308 |
| Parties | AMEDISYS WEST VIRGINIA, LLC dba Amedisys Home Health of West Virginia, St. Marys Medical Center Home Health Services, LLC, and LHC Group, Inc., Petitioners Below, Petitioners v. PERSONAL TOUCH HOME CARE OF W.VA., INC. et al., and The West Virginia Health Care Authority, Respondents Below, Respondents Preston Memorial Homecare, LLC, et al., Petitioners, Below, Petitioners v. United Hospital Center, Inc., and The West Virginia Health Care Authority, Respondents Below, Respondents |
| Court | Supreme Court of West Virginia |
Robert L. Coffield, Esq., Caleb P. Knight, Esq., Flaherty Sensabaugh Bonasso PLLC, Charleston, West Virginia, Counsel for Petitioners.
Thomas G. Casto, Esq., Anna G. Casto, Esq., Lewis Glasser PLLC, Charleston, West Virginia, Counsel for Respondent Personal, Touch Home Care of W.Va., Inc.
James W. Thomas, Esq., Neil C. Brown, Esq., Jackson Kelly, PLLC, Charleston, West Virginia, Counsel for Respondent United Hospital Center, Inc.
Patrick Morrisey, Esq., Attorney General, B. Allen Campbell, Esq., Senior Assistant Attorney General, Charleston, West Virginia, Counsel for Respondents West Virginia Health Care Authority and Department of Health and Human Resources.
In these consolidated cases we are called upon to examine the State Health Plan Home Health Services Standards ("the Standards"), which were promulgated by respondent West Virginia Health Care Cost Review Authority ("HCCRA"), now the West Virginia Health Care Authority ("the Authority"), as part of its duties and responsibilities pursuant to West Virginia Code §§ 16-2D-1 to - 20 (2016 & Supp. 2020). The Standards were approved by the Governor on November 13, 1996. The Standards govern the Authority's consideration of applications from individuals and entities seeking to provide home health care services in a particular county, and include, inter alia, a methodology for determining whether there is an unmet need for such services in the county. If the Authority determines that an applicant has demonstrated the existence of unmet need and has otherwise satisfied all other requirements imposed by the Standards, the agency issues a Certificate of Need ("CON") allowing the applicant to offer services in the county.
Petitioners Amedisys West Virginia, L.L.C. dba Amedisys Home Health of West Virginia, St. Marys Medical Center Home Health Services, LLC, and LHC Group, Inc. ("the Amedisys petitioners") and petitioners Preston Memorial Homecare, LLC and Tender Loving Care Health Care Services of West Virginia, LLC dba Amedisys Home Health of West Virginia ("the Preston Memorial petitioners") (referred to collectively as "petitioners") contend that unmet need cannot be established unless the evidence shows that at least 229 individuals in the county in question are in need of home health care services. Respondents Personal Touch Home Care of W. Va., Inc. ("Personal Touch"), United Hospital Center, Inc. ("United"), and The West Virginia Health Care Authority ("the Authority") (referred to collectively as "respondents") counter that in an unbroken line of precedents dating back at least to 2002, the Authority's position has been that any number of individuals in need of the services — whether it's 1 or 100 or 1,000 — can be deemed sufficient to establish unmet need in the county. According to respondents, the 229 figure is an average county usage figure that comes into play only where another home health care provider has begun offering services in the county during the preceding 12-month period; in such case, the Standards require the new applicant to demonstrate a need at or beyond the 229 average usage figure, a requirement intended to give the recently established provider sufficient time to develop and grow its business before having to compete with a newcomer.
With this background in mind, we turn to the factual and procedural posture in these consolidated cases and then examine the single, dispositive issue presented in both. After review, and for the reasons explained herein, the decisions of the circuit court in No. 20-0308 and No. 20-0401 are affirmed.
In the first case, the Amedisys petitioners contend that a CON issued by the Authority to respondent Personal Touch was improper in that Personal Touch failed to demonstrate the requisite unmet need for additional home health services in Cabell and Wayne Counties.
On August 10, 2018, Personal Touch filed its application for a CON allowing it to expand its existing home health care services into Cabell and Wayne Counties. See id. § 16-2D-8(b)(23). In this regard, "[a] certificate of need may only be issued if the proposed health service is: (1) Found to be needed; and (2) Consistent with the state health plan, unless there are emergency circumstances that pose a threat to public health." See id. § 16-2D-12(a). According to the calculations contained in the application filed by Personal Touch, which followed the methodology contained in Section V(C)(1) — (3) of the Standards,1 the unmet need for home health care services was 29 individuals in Cabell County and 55 individuals in Wayne County.
On August 14, 2018, the application was deemed complete, see id. § 16-2D-13(c), and two days later, on August 16, 2018, the Authority issued a Notice of Review. See id. § 16-2D-13(d). Thereafter, the Amedisys petitioners sought recognition as "affected persons," statutorily defined in relevant part as "health care facilit[ies] located within this state which provide services similar to the services of the facility under review and which will be significantly affected by the proposed project." See id. § 16-2D-2(1)(E). Of particular relevance to this case, it is important to note that all existing home health care providers in Cabell and Wayne County,2 including the Amedisys petitioners, had been providing such services for more than 12 months preceding Personal Touch's application for a CON.
On December 12, 2018, a public hearing was held to determine whether the application of Personal Touch for a CON, which would allow it to expand its services into the counties in question, should be granted or denied by the Authority. To establish their case as affected parties, the Amedisys petitioners called Charles G. Gibbs, a health care consultant who was recognized as an expert in the field, to testify on their behalf. Mr. Gibbs took issue with the Personal Touch application in three respects. First, he contended that Personal Touch had based its unmet need calculations on 3-year-old data from fiscal year 2015, rather than on updated data from fiscal year 2017 which had been made publicly available on July 31, 2018, 10 days before Personal Touch filed its application.3 In this regard, Mr. Gibbs noted that the form used for applying for a CON specifies that "readily available data" be used and argued that the updated data was readily available in time to have been incorporated into the application. Second, Mr. Gibbs argued that Personal Touch had applied the wrong methodology for determining unmet needs in Cabell and Wayne County, in that it failed to apply the adjustment factor contained in section V(C)(4) of the Standards. See supra note 1. Mr. Gibbs acknowledged that the methodology utilized by Personal Touch comported with the Authority's longstanding interpretation of the Standards, specifically, that the adjustment factor came into play only in situations where other agencies in a county had received CON approval within the past 12 months.4 He argued, however, that the Authority's interpretation was wrong. In that regard, he testified that before the Standards were adopted in their final form, HCCRA had developed a sample application form that applied the adjustment factor in all cases, not just in the limited situation set forth above. He further testified that in 1997, two CON applications that had been decided by HCCRA5 had specifically referred to, and applied, the 229 figure as a threshold, not an adjustment, although he acknowledged that at least since 2002, the Authority had consistently taken the opposite position. Mr. Gibbs further testified to the fact that on January 11, 2010, another health care expert, Raymona Kinneberg, then-advisor to the Authority's Certificate of Need Director, wrote a letter in which she expressed agreement with Mr. Gibbs' opinion, stating that "no new agencies should be approved in a county where the number of unserved patients was below the threshold set in the standards, whether or not a new agency had been approved in the previous year."6 Mr. Gibbs also opined that what he deemed to be the Authority's "mistake" — failing to recognize that the adjustment factor should be applied in all cases — has been perpetuated in large part by the Authority's failure to "consider adjusting the threshold adjustment factor at the time it updates the need calculations[,]"7 in the 25 years which have elapsed since the Standards were established. Finally, Mr. Gibbs noted that in 2007, in a CON appeal in the Circuit Court of Mason County,8 the court had held that the Authority's interpretation of Section V(C) of the Standards "results in absurd and conflicting decisions" in that it would be possible "to approve an application where the projection of unmet need is between 1 and 228 available new patients and also deny one with the same projected result."9 See text infra. Third, Mr. Gibbs testified that with the Amedisys petitioners and others already providing home health services in Cabell and Wayne Counties, consumers have adequate choice and no need for additional services. Therefore, in Mr. Gibbs' view, the status quo should be maintained.
On April 4, 2019, the Authority issued its Decision, approving Personal Touch's CON application, conditioned on Personal Touch's submission of annual reports for the first three years of operation showing "the actual...
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