War Mem'l Hosp. v. The W.Va. Health Care Auth.

• Decision Date: 12 April 2023
• Docket Number: 21-0901
• Parties: War Memorial Hospital, Inc. v. The West Virginia Health Care Authority
• Court: West Virginia Supreme Court

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War Memorial Hospital, Inc.
v.
The West Virginia Health Care Authority

No. 21-0901

Supreme Court of Appeals of West Virginia

April 12, 2023

BUNN, JUSTICE, dissenting, joined by Chief Justice Walker:

The majority decision in this case allows petitioner War Memorial Hospital, Inc., to place a magnetic resonance imaging ("MRI") scanner at an outpatient facility owned by its parent company and located twenty miles from the hospital in another county without obtaining a Certificate of Need ("CON"). The majority ignores the defined term "hospital" in the CON article of the West Virginia Code. This erroneous interpretation allows a hospital to acquire and utilize an MRI scanner costing up to $750,000 without seeking a CON and to place it anywhere in West Virginia, even next door to its competitor. See W.Va. Code §§ 16-2D-2(21) and 16-2D-11(c)(27) (eff. 2017).^[1]

The Legislature created a process requiring approval and receipt of a CON before certain health services are acquired, offered, or developed. See W.Va. Code § 16-2D-8 (eff. 2016). The Legislature declared that "the offering or development of all health services" must be accomplished, among other things, in a way that "avoid[s] unnecessary duplication of health services," and "contain[s] or reduce[s] increases in the

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cost of delivering health services." W.Va. Code § 16-2D-1(1) (eff. 2016) (noting the legislative findings of the CON article). See also Amedisys W.Va., LLC v. Pers. Touch Home Care of W.Va., Inc., 245 W.Va. 398, 408, 859 S.E.2d 341, 351 (2021) (explaining purpose of CON legislation). Still, the Legislature determined that some services are exempt from the formal CON process. See W.Va. Code §§ 16-2D-10, -11 (eff. 2017).

The West Virginia Health Care Authority ("WVHCA") denied the petitioner's request for a CON exemption, pursuant West Virginia Code § 16-2D-11(c)(27) (eff. 2017), to place an MRI scanner in an outpatient facility without a CON, explaining that the WVCHA already granted a CON to the hospital's parent company to develop a medical office building at the proposed location. The WVHCA reasoned that "the acquisition and utilization of a . . . MRI scanner by a hospital which the hospital does not intend to use at its primary location is not exempt from [CON] review." The Office of Judges affirmed the WVHCA, and circuit court ultimately affirmed the Office of Judges, explaining that the petitioner's proposed interpretation of the exemption "would allow a hospital to acquire and utilize MRI scanners in any location without regard to whether there is a need for the service or considering the impact such additional services would have on existing MRI services located at other hospitals already established in an area." The circuit court concluded that "it is clear that the Legislative intent of the exemption was that the MRI device would be acquired and used by the hospital in the acquiring hospital's facility." I would have affirmed the circuit court's decision on other grounds. Specifically, based on

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the definition of the term "hospital" and the plain language of the statutory scheme at issue. Because the majority's conclusion erroneously dismisses this plain language, I respectfully dissent.

The basis for the majority's decision is simply that "[c]learly" the petitioner met every statutory requirement because (1) petitioner was a hospital that met the definition of the term hospital, and (2) it sought "the acquisition and utilization" of an MRI scanner within the relevant price range. The majority further maintains that because the Legislature put in geographic-specific language in some CON exemptions, but not the one at issue here, then no limit exists on where a hospital may place a MRI scanner within the relevant price range so long as the hospital is the entity utilizing and acquiring it. This interpretation improperly expands the...