THE STATE OF SOUTH CAROLINA IN THE Supreme COURT In the Original Jurisdiction

South Carolina Department of Health & Environment Control,

V.
),..

Peti|jqne|;

South Carolina Hospital Association and South Carolina Health Care Association, each of these individually and as representative of their member applicants under the State Certification of Need and Health Facility Licensure Act, . . . . . . . . Respondents.

NOTICE TO RESPOND
TO: THE RESPONDENTS ABOVE-NAMED:

PLEASE TAKE NOTICE that as provided by Rule 245 of the South Carolina Rules of Appellate Procedure you have twenty (20) days after the service of this notice to file a return to the petition in this matter, a copy of which is herewith served upon you, and to serve a copy of your return upon the subscribers or any of them at either of their offices, namely, 2600 Bull Street, Columbia, SC 29201, or 1229 Lincoln Street, Columbia, SC 29201. W. Marshall Taylor, Jr. S.C. Bar No. 16646 S.C. Dept. of Health & Environmental Control 2600 Bull Street Columbia, SC 29201 (803)898-3350 Ashley C. Biggers S.C. Bar No. 17225 S.C. Dept. of Health & Environmental Control 2600 Bull Street Columbia, SC 29201 (803)898-3350 James B. Richardson, Jr. S.C. Bar No. 4718 1229 Lincoln Street Columbia, SC 29201 (803)799-9412

July 1, 2013.

THE STATE OF SOUTH CAROLINA IN THE Supreme COURT In the Original Jurisdiction
South Carolina Department of Health & Environment Control, v. South Carolina Hospital Association and South Carolina Health Care Association, each of these individually and as representative of their member applicants under the State Certification of Need and Health Facility Licensure Act Respondents. Petitioner,

PETITION TO FILE ACTION IN THE ORIGINAL JURISDICTION

TO: THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF SOUTH CAROLINA:

Your petitioner, the South Carolina Department of Health & Environmental Control, respectfully petitions the Court to entertain this action in its original jurisdiction. As grounds, petitioner would show as follows: 1. Petitioner is the sole agency charged with administering the State

Certification of Need and Health Facility Licensure Act, S.C. Code Ann. 44-7-110,-230 (hereafter, "the Act"), and more particularly Section 44-7-140. 2. Respondents South Carolina Hospital Association ("SCHA") and South

Carolina Health Care Association ("SCHCA") are associations whose membership includes many parties affected by the Act, inasmuch as these members are often subject to the requirements of the Act when they seek to engage in activity regulated by the Act. SCHA and SCHCA are joined in this action because, upon information and belief, their
1

memberships are too numerous to include as respondents herein, many of whom will not be directly affected by the subject matter of the complaint in any case; and because these associations will wish to be heard in regard to the subject of this action inasmuch as the subject matter will or could affect a substantial number of their members. 3. Petitioner's administration of the Act involves the activity of numerous

employees and requires petitioner to expend substantial sums of money each fiscal year. These expenditures are funded by the General Assembly by annual appropriation specifically identified for the purpose of administering the Act. 4. Forthe purpose of funding petitioner's administration of the Act during Fiscal

Year 2013-14, which begins July 1,2013, the General Assembly passed Bill No. 3710 on June 19, 2013. In Section 34, Item F2, of Bill No. 3710, the General Assembly appropriated the sum of $1.4 million of State general funds for petitioner's administration of the Act. 5. On June 25, 2013, Section 34, Item F2, of Bill No. 3710 was vetoed by the

Honorable Nikki Haley, Governor of the State of South Carolina. 6. On June 26, 2013, Governor Haley's veto of Section 34, Item F2, of Bill No.

3710 was sustained by the South Carolina House of Representatives. 7. 8. The General Assembly has adjourned sine die. Beginning July 1,2013, the petitioner will have no funds appropriated by the

General Assembly for the purpose of administering the Act, thereby rendering the Act an unfunded mandate during Fiscal Year 2013-14. 9. With stated exceptions, the Act provides as follows: A person or health care facility as defined in this article is required to obtain a Certificate of Need from the department before undertaking any of the following: *** The Act then identifies a number of actions requiring a Certificate of Need, such as "the construction or other establishment of a new health care facility * * * ." s.C. Code Ann.
2

 44-7-160.

See, e.g., Amisub of South Carolina, Inc. v. S.C. Dep't of Health &

Environmental Control, Op. No. 27257 (S.C. Sup. Ct. filed May 29, 2013). 10. Petitioner is informed and believes that the failure of the General Assembly

to fund the administration of the Act during Fiscal Year 2013-14 effects a suspension of petitioner's duty to administer the Act during that period of time. Jackson v. Sanford, 398 S.C. 580, 731 S.E.2d 722 (2011) ("If a line in the appropriations bill is vetoed in a constitutional manner and the veto is sustained, then the line is stricken . . ..."); State ex rel. McLeod v. Mills, 256 S.C. 21, 180 S.E.2d 638 (1971) ("[T]he permanent statute was suspended only during the time that the Appropriations Act was in force . . . . " ) ; Plowden v. Beattie, 185 S.C. 229,193 S.E. 651 (1937); Brooks v. Jones, 80 SC. 443, 61 S.E. 946 (1908); State ex rel. Buchanan v. Jennings, 68 SC. 411, 47 S.E. 683 (1904). 11. The effect of failure to fund is unclear in regard to those provisions of the Act

which are related to, but independent of, petitioner's duty to administer the Act, such as the provision quoted in paragraph 9, above. 12. The administration of the Act is a matter of public interest throughout the

State, as are the effects of the General Assembly's failure to fund petitioner's administration of the Act. 12. Upon information and belief, a multitude of circuit court actions are likely to

follow the General Assembly's failure to fund, as individual applicants seek relief in separate actions. This undesirable result can best be prevented by resolution of the questions identified in the complaint tendered herewith in this Court's original jurisdiction. WHEREFORE, petitioner moves the Court to accept the complaint tendered herewith in the Court's original jurisdiction so as to resolve the questions presented expeditiously and authoritatively.

Respectfully submitted, W. Marshall Taylor, Jr. S.C. Bar No. 16646 General Counsel, S.C. Dept. of Health & Environmental Control 2600 Bull Street Columbia, SC 29201 (803) 898-3350 Ashley C. Biggers S.C. Bar No. 17225 Associate General Counsel, S.C. Dept. of Health & Environmental Control 2600 Bull Street Columbia, SC 29201 (803) 898-3350 James B. Richardson, Jr. S.C. Bar No. 4718 1229 Lincoln Street Columbia, SC 29201 (803)799-9412

July 1,2013.

THE STATE OF SOUTH CAROLINA IN THE Supreme COURT In the Original Jurisdiction
South Carolina Department of Health & Environment Control, v. South Carolina Hospital Association and South Carolina Health Care Association, each of these individually and as representative of applicants under the State Certification of Need and Health Facility Licensure Act, Petitioner,

Respondents.

COMPLAINT
Petitioner, the South Carolina Department of Health & Environmental Control, alleges as follows: 1. Petitioner is the sole agency charged with administering the State

Certification of Need and Health Facility Licensure Act, S.C. Code Ann. 44-7-110,-230 (hereafter, "the Act"), and more particularly Section 44-7-140. 2. Respondents South Carolina Hospital Association ("SCHA") and South

Carolina Health Care Association ("SCHCA") are associations whose membership includes many parties affected by the Act, inasmuch as these members are often subject to the requirements of the Act when they seek to engage in activity regulated by the Act. SCHA and SCHCA are joined in this action because, upon information and belief, their memberships are too numerous to include as respondents herein, many of whom will not be directly affected by the subject matter of the complaint in any case; and because these associations will wish to be heard in regard to the subject of this action inasmuch as the
1

subject matter will or could affect a substantial number of their members. 3. Petitioner's administration of the Act involves the activity of numerous

employees and requires petitioner to expend substantial sums of money each fiscal year. These expenditures are funded by the General Assembly by annual appropriation specifically identified for the purpose of administering the Act. 4. Forthe purpose of funding petitioner's administration of the Actduring Fiscal

Year 2013-14, which begins July 1, 2013, the General Assembly passed Bill No. 3710 on June 19, 2013. In Section 34, Item F2, of Bill No. 3710, the General Assembly appropriated the sum of $1.4 million of State general funds for petitioner's administration of the Act. 5. On June 25, 2013, Section 34, Item F2, of Bill No. 3710 was vetoed by the

Honorable Nikki Haley, Governor of the State of South Carolina. 6. On June 26, 2013, Governor Haley's veto of Section 34, Item F2, of Bill No.

3710 was sustained by the South Carolina House of Representatives. 7. 8. The General Assembly has adjourned sine die. Beginning July 1, 2013, the petitioner will have no funds appropriated by the

General Assembly for the purpose of administering the Act, thereby rendering the Act an unfunded mandate during Fiscal Year 2013-14. 9. With stated exceptions, the Act provides as follows: A person or health care facility as defined in this article is required to obtain a Certificate of Need from the department before undertaking any of the following: * * * The Act then identifies a number of actions requiring a Certificate of Need, such as "the construction or other establishment of a new health care facility * * *." S.C. Code Ann. 44-7-160. 10. Petitioner is informed and believes that the failure of the General Assembly

to fund the administration of the Act during Fiscal Year 2013-14 effects a suspension of
2

petitioner's duty to administer the Act during that period of time. However, the effect of failure to fund is unclear in regard to those provisions of the Act which are related to, but independent of, petitioner's administration, such as the provision quoted in paragraph 9, above. 11. Upon information and belief, members of the respondent associations intend

to and will engage during Fiscal Year 2013-14 in activities regulated by the Act. Members so engaging will be affected by the suspension of funding for petitioner's administration of the Act. 12. The Uniform Declaratory Judgments Act, S.C. Code Ann. 15-53-10, et

seq., authorizes the Court to declare the rights and relations of the parties under the circumstances alleged above. 13. Petitioner is in need of a declaration that its duty to administer the Act during

Fiscal Year 2013-14 was suspended when the General Assembly failed to appropriate the funds needed to administer the Act. 14. Petitioner, as well as members of the respondent associations, are in need

of a declaration of the effect of suspension of administration of the Act upon the regulated activities of the respondents' members. WHEREFORE, petitioner prays for the following relief: (1) A declaration that the petitioner's duty to administer the Act during Fiscal Year 2013-14 was suspended by the General Assembly's failure to appropriate funds for that purpose; A declaration of the effect upon members of the respondent associations who intend to engage in activity regulated by the Act during Fiscal Year 2013-14; and Such other and further relief as may be just and proper.

(2) (3)

Respectfully submitted, W. Marshall Taylor, Jr. S.C. Bar No. 16646 General Counsel, SC. Environmental Control 2600 Bull Street Columbia, SC 29201 (803) 898-3350

Dept. of Health &

Ashley C. Biggers S.C. Bar No. 17225 Associate General Counsel, S.C. Dept. of Health & Environmental Control 2600 Bull Street Columbia, SC 29201 (803) 898-3350 James B. Richardson, Jr. S.C. Bar No. 4718 1229 Lincoln Street Columbia, SC 29201 (803)799-9412

July 1,2013.

THE STATE OF SOUTH CAROLINA IN THE Supreme COURT In the Original Jurisdiction

South Carolina Department of Health & Environment Control v. South Carolina Hospital Association and South Carolina Health Care Association, each of these individually and as representative of their member applicants under the State Certification of Need and Health Facility Licensure Act Petitioner,

Respondents.

AFFIDAVIT OF SERVICE

PERSONALLY appeared before me Carol L. Wingard, Jr., who, being duly sworn, deposes and says: 1. I served a copy of the following documents upon the respondent South

Carolina Health Care Association by personal delivery to its Kathryn Roland, director of education and events, at its offices at 176 Laurel Hurst, Columbia, South Carolina at 8:49 a.m. on July 1, 2013. 1. 2. 3. Notice to Respond. Petition. Complaint.

Copies of the first page of each of these three documents are attached to and incorporated

in this affidavit of service. 2. I am more than eighteen years of age and am not related to any party nor to

counsel for the petitioner. FURTHER DEPONENT SAYETH NAUGHT.

SWORN to before me on this 1st day of July, 2013.

ROLINA JOTARY PUBLIC OF SOUTH 'My commission expires: 4/6/14.

1(L.S.)

THE STATE OF SOUTH CAROLINA IN THE Supreme COURT In the Original Jurisdiction

South Carolina Department of Health & Environment Control, v. South Carolina Hospital Association and South Carolina Health Care Association, each of these individually and as representative of their member applicants under the State Certification of Need and Health Facility Licensure Act

Petitioner,

Respondents.

AFFIDAVIT OF SERVICE

PERSONALLY appeared before me Carol L. Wingard, Jr., who, being duly sworn, deposes and says: 1. I served a copy of the following documents upon the respondent South

Carolina Hospital Association by personal delivery to Allan Stalvey, its executive vicepresident, at its offices at 1000 Center Point Columbia, South Carolina at 9:17 a.m. on July 1, 2013. 1. 2. 3. Notice to Respond. Petition. Complaint.

Copies of the first page of each of these three documents are attached to and incorporated

in this affidavit of service. 2. I am more than eighteen years of age and am not related to any party nor to

counsel for the petitioner. FURTHER DEPONENT SAYETH NAUGHT.

ARD, SWORN to before me on this 1st day of July, 2013. ffiA (L.S.) NOTARY PUBLIC OF SOUTH CAROLINA My commission expires: 4/6/14.

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