Bio-Medical Applications v. Bd. of Appeals, No. 02-AA-72.

Docket NºNo. 02-AA-72.
Citation829 A.2d 208
Case DateJuly 24, 2003
CourtCourt of Appeals of Columbia District

829 A.2d 208

BIO-MEDICAL APPLICATIONS OF the DISTRICT OF COLUMBIA d/b/a FRESENIUS MEDICAL CARE NORTH AMERICA, Petitioner,
v.
DISTRICT OF COLUMBIA BOARD OF APPEALS AND REVIEW, Respondent,
CAPITOL DIALYSIS, LLC, Intervenors

No. 02-AA-72.

District of Columbia Court of Appeals.

Argued November 5, 2002.

Decided July 24, 2003.


829 A.2d 209
Ronald L. Castle, with whom Lisa A. Estrada was on the brief, Washington, DC, for petitioner

John T. Brennan, with whom Kathleen M. Stratton was on the brief, Washington, DC, for intervenors.

Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, at the time filed a statement in lieu of brief for respondent.

Before RUIZ, GLICKMAN and WASHINGTON, Associate Judges.

GLICKMAN, Associate Judge:

Bio-Medical Applications of the District of Columbia, Inc. d/b/a/ Fresenius Medical Care North America ("Fresenius") appeals a decision of the District of Columbia Board of Appeals and Review ("BAR") that upheld the State Health Planning and Development Agency ("SHPDA") Director's grant of a certificate of need for Capitol Dialysis, LLC ("Capitol") to establish a kidney dialysis center. Fresenius contends that SHPDA should not have approved Capitol's application for a certificate of need because a draft chapter on

829 A.2d 210
end-stage renal disease services prepared for the District's Health Systems Plan did not project a need for additional dialysis stations. Because the SHPDA was not bound by this unadopted draft, and its issuance of a certificate of need was otherwise based on substantial evidence and in accordance with applicable law and regulations, we affirm

I.

The State Health Planning and Development Agency is "responsible for health systems development in the District." D.C.Code § 44-402(b) (2001). To ensure that health care resources are allocated appropriately, SHPDA is required to develop a Health Systems Plan for the District. See D.C.Code § 44-404(a), (b) (2001); see also Speyer v. Barry, 588 A.2d 1147, 1158 (D.C.1991). The Health Systems Plan must "[a]rticulate the policy of the District with respect to maintaining and improving the health of District residents and the health care delivery system in the District," "[p]roject current and future health care trends," "[i]dentify the health needs of District residents and recommend alternatives to address those health needs," and "[p]rioritize health issues." D.C.Code § 44-404(a)(1-4) (2001). The Plan serves as "a planning and development blueprint for the health activities of the [District]." Roanoke Mem'l Hosps. v. Kenley, 3 Va.App. 599, 352 S.E.2d 525, 528 (1987).

D.C.Code § 44-404 sets forth procedural requirements for the adoption and promulgation of the Health Systems Plan. First, the SHPDA is directed to develop a proposed Health Systems Plan with input from the Statewide Health Coordinating Council ("SHCC"), a fifteen member advisory body appointed by the Mayor with the advice and consent of the Council. See D.C.Code §§ 44-403, 44-404(a) (2001). SHPDA must also "[p]rovide for public involvement in and evaluation of the development and implementation of the [Health Systems Plan]," and must hold at least one public hearing on the Plan. D.C.Code § 44-404(c)(1) (2001). "Upon completion and promulgation of the final [Health Systems Plan], the SHPDA shall publish a notice of its completion and issuance in the District of Columbia Register and forward a copy of the final [Health Systems Plan] to the District of Columbia Public Library." D.C.Code § 44-404(d) (2001). A new plan is to be issued every five years. D.C.Code § 44-404(e) (2001).

In addition to its responsibilities for developing the Health Systems Plan, SHPDA administers the certificate of need program. See D.C.Code § 44-402(b)(3) (2001). The certificate of need program is intended to ensure "an equitable distribution of health care facilities" by requiring proponents of new health services to demonstrate that the new services are needed. Speyer, 588 A.2d at 1165. With limited exceptions, anyone proposing to offer in the District of Columbia a new institutional health service must first obtain from the SHPDA "a certificate of need that demonstrates a public need for the new service or expenditure." D.C.Code § 44-406(a) (2001).

When an application for a certificate of need is filed, SHPDA staff prepare an analysis of the application. See 22 DCMR §§ 4303.1, 4303.2 (2003). This staff analysis is forwarded to the SHCC, which reviews the application and makes a recommendation to the Director of SHPDA on whether to grant the certificate of need. See 22 DCMR § 4303.3 (2003). The Director makes the ultimate decision on certificate of need applications. The Director is not obligated to follow the staff or SHCC recommendations. See 22 DCMR §§ 4303.8, 4303.9 (2003). To grant an application,

829 A.2d 211
the Director must make a "written finding" that the applicant meets all statutory and regulatory requirements for a certificate of need. D.C.Code § 44-410(a) (2001)

Those requirements are spelled out in SHPDA regulations. See 22 DCMR §§ 4050.1-4050.43, 4309.1-4309.33 (2003). The criteria include the requirement that the proposed new health service be "consistent with" the Health Systems Plan:

A [certificate of need] review shall consider the relationship of the health services being reviewed to the applicable Annual Implementation Plan and State Health Plan1. Each decision of the SHPDA, or the appropriate judicial or administrative review body, to issue a Certificate of Need shall be consistent with the State Health Plan, except in emergency circumstances that pose an imminent threat to public health.

22 DCMR § 4309.4. Other regulations similarly require that proposed projects be "in conformance with" the Plan, 22 DCMR § 4050.3, and be "needed to meet service and/or facility levels required for the District as specified in" the Plan. 22 DCMR § 4050.6(a).

II.

On February 7, 2000, Capitol submitted an application for a certificate of need for a free-standing 20-station dialysis center to be located at 140 Q Street in Northeast Washington, D.C. Ordinarily, the need for a new dialysis center would be examined by reference to the Chapter on End-State Renal Disease Services in the Health Systems Plan. At the time of Capitol's application, however, SHPDA was still in the process of developing a Health Systems Plan to replace the old (and obsolete) 1989 State Health Plan and was utilizing a Draft Chapter on End-Stage Renal Disease Services ("Draft Chapter") to evaluate certificate of need applications such as Capitol's. This Draft Chapter had not been adopted formally in accordance with the procedural requirements of D.C.Code § 44-404. Based on data concerning the number of District residents with end-stage renal disease and the anticipated growth of that patient population, the Draft Chapter projected that the District needed to have 291 dialysis stations by 2002. Because the District had 326 approved dialysis stations as of January 1999, the Draft Chapter concluded that "there is no need for additional adult chronic dialysis in-facility stations by the end of the year 2002."

Capitol argued that its new dialysis facility was needed in order to "improve availability and accessibility of dialysis services" in the District. Capitol argued that dialysis patients in D.C. Wards Four and Five were "particularly underserved" and that its new dialysis facility would provide those patients with more convenient and accessible dialysis care. Social workers and a nephrologist submitted letters in support of Capitol's application, claiming that many patients in Wards Four and Five had difficulty obtaining the dialysis treatment they required. Some patients had to remain in acute care facilities longer than necessary until a dialysis slot was

829 A.2d 212
found for them. Others, many of them elderly or disabled, were forced to take public transportation to distant dialysis centers at inconvenient times.

Capitol acknowledged that the Draft Chapter found no need for additional dialysis stations but argued that this conclusion was not binding because the Draft Chapter "is not yet final and is not accorded the weight of what will ultimately be the final, adopted Comprehensive Health Plan on ESRD Services." Capitol further argued that the Draft Chapter relied on old data and that newer data from 1997 and 1998 revealed that the number of patients needing dialysis care was growing more rapidly than had been assumed. Applying the methodology of the Draft Chapter to its updated patient data, Capitol purported to show that seventy-nine additional dialysis stations would be needed by 2004.

SHPDA staff reviewed Capitol's application and concluded that, although Capitol's application satisfied all other criteria, Capitol had not demonstrated a need for the new facility. The staff report noted that the Draft Chapter did not project a need for more dialysis stations and that a utilization survey of existing District facilities showed that they could accommodate some three hundred additional dialysis patients. Based on these two factors, the staff found "no clear need" for an additional dialysis facility. The staff report recognized that patients may not always have convenient dialysis schedules, but it concluded that such concerns were best addressed through a revision of the Draft Chapter.

The staff report was forwarded to the Project Review Committee of the SHCC. At a June 8, 2000 public hearing on Capitol's application, the Project Review Committee recommended that a certificate of need be granted. Committee members expressed "reservation[s]" about using a need calculation that did not account for whether dialysis slots were "at a time that's inconvenient for the patient" or "at a location that's inconvenient for the patient." While one member of the Committee expressed concern that approval of the certificate of need conflicted with the need...

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    ...blueprint” for provision of health services in the District, Bio – Medical Applications v. District of Columbia Bd. of Appeals & Review , 829 A.2d 208, 210 (D.C.2003). In the Plan, SHPDA identifies health services needs in the District and sets priorities for limitation or expansion of thes......
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    ...what the agency's decision has to be." Bio–Med. Applications of District of Columbia v. District of Columbia Bd. of Appeals & Review, 829 A.2d 208, 217 (D.C.2003) (internal quotation marks omitted).III. We turn first to whether the recent amendment to ECIIFA applies to the current proceedin......
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9 cases
  • 1618 21ST STREET TENANTS'ASS'N v. Phillips, No. 02-CV-893.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 24, 2003
    ...building at 2012 Massachusetts Avenue, N.W., which Phillips believed it could acquire for $7.8 million after discussions with the owners. 829 A.2d 208 Therefore, based on this assessment, Phillips offered the 1618 property to the tenants for $7.8 million. This offer was made after Phillips ......
  • Medstar Health, Inc. v. D.C. Dep't of Health, No. 14-AA-328
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 15, 2016
    ...blueprint” for provision of health services in the District, Bio – Medical Applications v. District of Columbia Bd. of Appeals & Review , 829 A.2d 208, 210 (D.C.2003). In the Plan, SHPDA identifies health services needs in the District and sets priorities for limitation or expansion of thes......
  • Aeon Fin., LLC v. Dist. of Columbia, Nos. 12–CV–695
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • February 6, 2014
    ...force of law and does not bind the District. See, e.g., Bio–Medical Applications of D.C. v. District of Columbia Bd. of Appeals & Review, 829 A.2d 208, 215 (D.C.2003). Finally, Aeon suggests in passing that it was “unconstitutional” for the District to single Aeon out for enforcement of the......
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    • United States
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    • January 14, 2016
    ...what the agency's decision has to be." Bio–Med. Applications of District of Columbia v. District of Columbia Bd. of Appeals & Review, 829 A.2d 208, 217 (D.C.2003) (internal quotation marks omitted).III. We turn first to whether the recent amendment to ECIIFA applies to the current proceedin......
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