Cheshire Convalescent Center, Inc. v. Commission on Hospitals and Health Care

Citation34 Conn.Supp. 225,386 A.2d 264
Decision Date09 December 1977
Docket NumberNo. 110372,110372
CourtCourt of Common Pleas of Connecticut
PartiesCHESHIRE CONVALESCENT CENTER, INC. v. COMMISSION ON HOSPITALS AND HEALTH CARE.

Gitlitz, Ronai & Berchem, Milford, for plaintiff.

Carl R. Ajello, Atty. Gen., and William J. Clarke, Asst. Atty. Gen., for defendant.

JACOBSON, Judge.

This appeal seeking judicial review and reversal of a decision of a state agency, the commission on hospitals and health care, hereinafter the commission or the CHHC, was brought pursuant both to § 4-183 of the General Statutes, the Uniform Administrative Procedure Act, hereinafter the UAPA, and to § 19-73p of the General Statutes. The commission denied by a five-to-four vote the plaintiff's application made pursuant to § 19-73m of the General Statutes for permission to conduct a capital construction project which would have included the right to construct a 120-bed addition for the care of sixty chronic and convalescent home patients and sixty rest home with nursing supervision patients at an estimated project cost of $1,830,000. Although the plaintiff's project had, after extensive review and analysis, obtained a recommendation for approval from the Northwest Connecticut Health Systems Agency, Inc., a hearing panel of commissioners, after hearing testimony at a November 17, 1976 hearing, recommended that the full commission deny the application.

At its regularly scheduled January 25, 1977 meeting, the commission considered the recommendation of the panel, dated January 18, 1977, to deny the application, and adopted the panel's negative recommendation by a vote of five to four, with the tenth commissioner present, chairman pro tem William J. Lavery, not voting. The panel's recommendation thus became the decision of the commission:

"This recommendation (to deny) is made for the following reasons:

"1. The criteria used by the Commission as a guideline for allocating nursing home beds shows the Northwest Health Service Area to be overbedded by 64 beds and the community of Cheshire overbedded by 258 beds.

"2. While the high quality of care at the Cheshire facility is recognized, such quality of care in and of itself cannot be deemed as sufficient reason to justify the construction of additional inpatient health resources in a community which is overbedded by Commission guidelines." (Emphasis added.)

The plaintiff, also referred to as the applicant, thereupon appealed to this court claiming a reversal and modification of the decision under § 4-183(g) on the ground that substantial rights of the plaintiff had been violated by the decision.

I

The plaintiff is a Connecticut corporation and is licensed by the state department of health to operate a chronic and convalescent nursing home for eighty patient beds, i. e., a skilled nursing home, and a rest home with nursing supervision for forty patient beds, i. e., intermediate care beds, in the town of Cheshire. The principals of the corporation are Andrew J. Barth and Evelyn Barth, and their son, Andrew J. Barth, Jr.

On or about October 12, 1976, pursuant to § 19-73m the plaintiff made application to the defendant commission for permission to conduct a capital construction project in the town of Cheshire for the purpose of constructing an additional sixty-bed skilled nursing facility and an additional sixty-bed rest home with nursing supervision facility at an estimated project cost of $1,830,000. Simultaneously with the filing of the application with the commission, the applicant also filed a copy with the Northwest Connecticut Health Systems Agency, Inc., hereinafter the health systems agency or the HSA. The health systems agency was created pursuant to congressional mandate by the National Health Planning and Resources Development Act of 1974, 42 U.S.C. § 300k et seq. It replaces the former Comprehensive Health Planning Agency mentioned in § 19-73m in Connecticut's health care regulatory superstructure. Such agencies exercise a fact finding and health resource allocation function in specified geographical health planning areas known as "health service areas." Health systems agencies, such as the Northwest agency which had geographical jurisdiction with respect to Cheshire's application, have advisory functions only, and the ultimate decision with respect to capital construction projects initiated by application pursuant to § 19-73m is a final adjudicatory function of the CHHC. See §§ 19-73m, 4-166(2).

On or about October 13, 1976, the HSA commenced its deliberations preparatory to rendering its advisory recommendation. Members of the HSA review panel paid a personal site visit to the applicant's 120-bed facility, and the review committee, as well as the board of directors of the agency, deliberated on the project at four separate meetings held on November 8, 1976, November 16, 1976, November 23, 1976, and December 16, 1976. At the various fact finding sessions before the diverse subgroups of the HSA, the applicant was asked by the HSA to explain away, if it could, the guideline or standard then in use by the CHHC in deciding or adjudicating requests made pursuant to § 19-73m. That standard or guideline, to the effect that "70 nursing home beds per 1,000 population aged 65 or over" would be a rule to be applied by the CHHC as a "statewide ceiling" for allocating capital construction of nursing home beds, was adopted by the commission, at its May 13, 1975 meeting. That rule was developed as a result of recommendations made to the CHHC by a special study group, i. e., the Long Term Care Task Force, which found that a moratorium on the issuance of certificates of approval for nursing home beds was necessary in order to determine how many of 5700 nursing home beds previously authorized by the commission's predecessor, the council on hospitals, would be actually constructed and placed in service.

At the HSA hearings, the applicant's counsel questioned the validity of an administrative agency's imposing and adopting, without public comment or hearings, a moratorium rule on what, both de jure and de facto, was a license for capital construction projects. And although the statistics developed by the commission by the use of that formula showed that the subject health service area in general and Cheshire in particular were overbedded, the applicant's counsel contended before the HSA that the adoption of the rule of 70 beds per 1000 aged population was not merely a guideline but an "agency statement of general applicability that implements . . . or prescribes law or policy" and as such was a regulation as defined by the UAPA. See General Statutes § 4-166(7). The HSA was, therefore, told that the moratorium rule, as such a regulation, was required to have been adopted and promulgated in accordance with the regulation adoption or rule-making procedure prescribed in detail in the UAPA. See General Statutes § 4-168(a), (b) (concerning notice and hearings); § 4-169 (concerning approval of regulations by the attorney general); and § 4-170 (concerning the legislative regulation review committee). And since the CHHC had never complied with the UAPA rule-making procedures, reference to that guideline or criteria would, the HSA was told, be improper.

Indeed, on October 28, 1975, Deputy Director Sarah S. Hirakis, the proponent of the May 13, 1975 motion to adopt the guideline, issued a memorandum to the commission members in which, after restating the text of the May 13, 1975 guideline as adopted, she admonished the commission members of the following legal concern: "Since the Attorney General's Office has ruled that a moratorium cannot be legally declared, recommendations # 14 and # 15, recommending bed policy allocation, are therefore void." (Emphasis added.) Despite, however, the admitted and patent illegality, the memorandum concluded with the staff's recommendation that the statewide ceiling of 70 beds per 1000 population be adopted as a rule and guideline, but with the deletion of the three words "after the moratorium."

Although some effort was made by the applicants before the HSA with respect to directing a legal attack on the validity of the CHHC's ceiling as applied to them, their presentation included a thorough documentary record concerning the other statutory criteria which the CHHC may consider in passing upon a capital construction application under § 19-73m. Those criteria are set forth in § 19-73k.

The applicant's presentation attempted to demonstrate that its rehabilitative therapy program, its function as a resource and teaching institution, its service to patients outside the health service area, its community care or home health care program, and its unusually high ratio of rehabilitated patients as compared to other institutions placed Cheshire in the category of a specialized facility whose services were not duplicated within the health service area. Thus, even if the 70 beds to 1000 population rule were valid, Cheshire contended that its unique program placed itself, because of the quality and nature of its care, outside the strictures of that limitation. The HSA agreed.

The hearing before a panel of three members of the commission on hospitals and health care was held and concluded on November 17, 1976. The hearing, as announced by the panel chairman, Francis P. DellaFera, was conducted pursuant to the provisions of the UAPA. Thus the application for permission to conduct the capital construction project was a contested case within the meaning of § 4-166(2) of the UAPA, thereby rendering applicable the procedural protections of §§ 4-177 and 4-178 relating to the presentation of evidence, the right of cross-examination, and the duty of an agency to make "(f)indings of fact . . . based exclusively on the evidence and on matters officially noticed." See §§ 4-177(g) and 4-178(3). At the hearing, the applicant again introduced the same evidence presented to the HSA concerning: (a) its unique...

To continue reading

Request your trial
5 cases
  • U.S. Life Title Ins. Co. of New York v. Department of Commerce and Ins. of State of Tenn.
    • United States
    • Court of Appeals of Tennessee
    • September 23, 1988
    ...it enables interested parties to express their views concerning the proposed rule. Cheshire Convalescent Center, Inc. v. Commission on Hosps. & Health Care, 34 Conn.Supp. 225, 386 A.2d 264, 271 (C.P.1977); Louisville & Jefferson County Planning & Zoning Comm'n v. Ogden, 307 Ky. 362, 210 S.W......
  • West Virginia Chiropractic Soc., Inc. v. Merritt
    • United States
    • Supreme Court of West Virginia
    • May 29, 1987
    ...1194, 86 L.Ed.2d 1563 (1942); Associated Dry Goods Corp. v. E.E.O.C., 720 F.2d 804 (4th Cir.1983); Cheshire Convalescent Center v. Comm'n on Hospitals, 34 Conn.Supp. 225, 386 A.2d 264 (1977); Board of Education v. Cooperman, 209 N.J.Super. 174, 507 A.2d 253 (1986); United Consumers Club, In......
  • Oppel v. Giles, NNHCV165036426
    • United States
    • Superior Court of Connecticut
    • January 3, 2019
    ......Mobile. Medical Testing Services, Inc., 265 Conn. 791, 815, 830. A.2d 752 ... "each state board, commission, department or officer. authorized by law ... (Internal quotation marks omitted.) Cheshire Convalescent. Center, Inc. v. Commission on Hospitals and Health Care, . 34 Conn.Supp. 225, ......
  • Perini Services, Inc. v. Maryland Health Resources Planning Com'n
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1985
    ....... MARYLAND HEALTH RESOURCES PLANNING COMMISSION, et al. . No. 932, Sept. Term, 1985. . Court of ... (CON) to construct a 144 bed comprehensive care nursing home and a twenty person adult day care ... recognized, however, the difficulty new hospitals face in attempting to comply with this standard ...v. Southern Maryland Hospital Center, et al., 66 Md.App. 480, 490-91 505 A.2d 117 ....2d 60 (2d Dept.1976); Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals and Health ...356, 417 A.2d 358 (1979); and Cheshire Convalescent Center, Inc. v. Commission on ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT