Gordon v. Allen, 1394-96-4

• Decision Date: 04 March 1997
• Docket Number: No. 1394-96-4,1394-96-4
• Citation: 482 S.E.2d 66,24 Va.App. 272
• Parties: Ralph L. GORDON, State Health Commissioner, Department of Health v. Dr. Harold H. ALLEN, Jr., d/b/a Physicians Surgical Alliance, P.C. Record
• Court: Virginia Court of Appeals

Page 66

482 S.E.2d 66

24 Va.App. 272

Ralph L. GORDON, State Health Commissioner, Department of Health v. Dr. Harold H. ALLEN, Jr., d/b/a Physicians Surgical Alliance, P.C.

Record No. 1394-96-4.

Court of Appeals of Virginia,

Alexandria.

March 4, 1997.

Carol S. Nance, Assistant Attorney General (James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Jane D. Hickey, Senior Assistant Attorney General, on briefs), for appellant.

Wyatt B. Durrette, Jr., Richmond (John T. Brennan, Jr.; Thomas A. Guidoboni, Washington, DC; Bronson F. Byrd, Fairfax; Durrette, Irvin & Bradshaw; Michaels, Wishner & Bonner, Washington, DC, on brief), for appellee.

Virginia Hospital & Healthcare Association (Julia Krebs-Markrich, Falls Church; H. Lane Kneedler; D. Patrick Lacy; Hazel & Thomas, Richmond, on brief), Amicus Curiae for appellant.

Present: MOON, C.J., and WILLIS and FITZPATRICK, JJ.

WILLIS, Judge.

The State Health Commissioner appeals from a final judgment of the trial court reversing the commissioner's denial of Dr. Harold H. Allen, Jr.'s request for a determination of nonreviewability under the certificate of public need (COPN) statute, Code § 32.1-102.1 et seq., ¹ and holding that statute to be unconstitutionally vague. For the reasons set forth below, we reverse the judgment of the trial court.

I.

On January 28, 1994, Dr. Allen, d/b/a Physicians Surgical Alliance, notified the commissioner that he intended to establish an "outpatient surgical hospital" in Sterling, Virginia. He requested a determination by the commissioner that the COPN statute did not apply to "outpatient surgical hospitals" and that COPN review and approval of his project was unnecessary. He contended that the COPN statute defined a universe of "medical care facilities," and strictly limited to that universe the facilities requiring COPN review. See Code § 32.1-102.1. He contended that although licensure law recognizes an "outpatient surgical hospital" as a type of medical care facility, Code § 32.1-123 et seq., "outpatient surgical hospitals" are not included specifically in the list of medical facilities requiring COPN review under Code § 32.1-102.1. He contended that, therefore, the COPN statute did not apply to his proposed facility.

By letter dated February 16, 1994, the Department of Health (Department) rejected Dr. Allen's argument. The Department concluded that Dr. Allen's proposed medical care facility was a specialized center developed for the provision of outpatient or ambulatory surgery. It recommended that COPN review and approval of his facility be required for certification. ² In issuing its recommendation, the Department stated that:

This categorization of a type of medical care facility in the COPN law is neither subtle nor ambiguous. A plain reading of this term does not allow for any reasonable suggestion that facilities such as those developed by Dr. Allen would not fall within its ambit simply because they are specialized centers for outpatient or ambulatory surgery that require licensure in Virginia as outpatient surgical hospitals.

As you know, the authors of Virginia's COPN law did not establish the list of medical care facilities subject to COPN review as a subset of the medical care facilities subject to licensure in Virginia. There are categories of "medical care facility" subject to COPN review which are not licensed by the Department of Health or any other state agency as medical care facilities. Likewise, the Department requires licensure of certain types of facilities and services that are not regulated under the COPN law. Therefore the fact that you have been able to detect some congruence in the nomenclature used to describe medical care facilities subject to COPN review and medical care facilities subject to licensure in Virginia is irrelevant.

Upon Dr. Allen's request for reconsideration of the Department's recommendation, the commission conducted an informal fact-finding conference. Dr. Allen argued that the phrase "[s]pecialized centers or clinics or that portion of a physician's office developed for the provision of outpatient or ambulatory surgery," as applied to him, was unconstitutionally vague. On November 17, 1994, the commissioner rejected Dr. Allen's argument and held that he was required to undergo COPN review to obtain approval of his proposed outpatient surgical hospital.

Pursuant to the provisions of the Virginia Administrative Process Act (VAPA), Code §§ 9-6.14:15 to 9-6.14:21, Dr. Allen appealed the commissioner's case decision to the trial court, which, after hearing argument on August 31, 1995, issued a letter opinion reversing the commissioner's decision and ruling that the COPN statute and regulations were unconstitutionally vague. The trial court denied the commissioner's motion for reconsideration.

II.

On August 8, 1996, we made a preliminary determination that the transcript of the August 31, 1995 hearing had not been filed timely. See Rule 5A:8. We ordered the commissioner to show cause why this appeal should not be dismissed. We directed that the parties' briefs contain argument concerning: (1) whether the transcript of the August 31, 1995 hearing was properly made a part of the record on appeal; and (2) if not, whether that transcript is indispensable to a determination of the issues.

We conclude that the transcript was not properly made a part of the record on appeal. However, we further find that the transcript is not indispensable to a determination of the issues. See Turner v. Commonwealth, 2 Va.App. 96, 99, 341 S.E.2d 400, 401-02 (1986).

"Under the VAPA, the circuit court's role in an appeal from an agency decision is equivalent to an appellate court's role in an appeal from a trial court. In this sense, the General Assembly has provided that a circuit court acts as an appellate tribunal." School Board v. Nicely, 12 Va.App. 1051, 1062, 408 S.E.2d 545, 551 (1991).

The July 7, 1994 informal fact-finding conference and the Department's accumulation of the agency record performed a trial court's traditional fact-finding function. See Code §§ 9-6.14:16, 9-6.14:17. The agency record was filed timely in the trial court. The August 31, 1995 hearing before the trial court was an appellate proceeding. The trial court's function was limited to considering the parties' legal arguments based upon the agency record. While our consideration of the issues might have been aided by a review of the August 31, 1995 transcript, the written record, encompassing the parties' pre-hearing briefs, the trial court's letter opinion, and the agency record, along with transcripts of the Department's informal fact-finding conference and argument before the trial court to reconsider its decision, provides a sufficient record for our consideration of this appeal.

III.

In his petition for appeal to the trial court, Dr. Allen asserted that the commissioner's decision was illegal because:

[I]t is based upon a portion of the Certificate of Public Need statute which itself is unconstitutionally vague under both the United States and Virginia Constitutions. Specifically, the determination...