In The Court of Appeals

Amisub of South Carolina, Inc., d/b/a Piedmont Medical Center, Appellant,


South Carolina Department of Health and Environmental Control, Charlotte- Mecklenburg Hospital Authority, d/b/a Carolinas Healthcare System, and Carolinas Physicians Network, Inc., Respondents.

Appeal From the Administrative Law Court
John D. McLeod, Administrative Law Judge

Opinion No. 2010-UP-523
Submitted December 1, 2010 – Filed December 10, 2010
Withdrawn February 7, 2011
Heard March 23, 2011
Substituted and Refiled April 25, 2011   


Travis Dayhuff and Holly G. Gillespie, both of Columbia, for Appellant.

Ashley Caroline Biggers, Nancy S. Layman, Carlisle  Roberts, Jr., James G. Long, III, and Edward H. Bender; all of Columbia, for Respondents.

PER CURIAM:  Amisub of South Carolina, Inc., d/b/a Piedmont Medical Center (Piedmont) appeals the grant of summary judgment by the Administrative Law Court (ALC) in a contested case arising from a decision made by Respondent South Carolina Department of Health and Environmental Control (the Department) in favor of Respondents Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Healthcare System and Carolinas Physicians Network, Inc.  On appeal, Piedmont argues the ALC erred when it determined Carolinas Healthcare Urgent Care - Fort Mill (the Center) is "the office of a licensed private practitioner" and is, therefore, exempt from certificate of need (CON) review under S.C. Code Ann. Regs. 61-15 § 104(2)(e) (Supp. 2010).  We withdrew our initial decision and scheduled oral arguments. 

Piedmont asserts the ALC erred in granting summary judgment to CHS and CPN without allowing Piedmont the opportunity to conduct discovery.[1]  We agree and conclude that the ALC erred in finding that it could resolve the case as a matter of law by granting summary judgment without affording Piedmont the opportunity to conduct discovery. See Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003) ("Summary judgment is a drastic remedy and must not be granted until the opposing party has had a full and fair opportunity to complete discovery."); Lanham v. Blue Cross & Blue Shield of S.C., Inc., 349 S.C. 356, 363, 563 S.E.2d 331, 334 (2002) (finding the court of appeals correctly reversed the trial court's decision to rule on the summary judgment motion when Lanham was not able to conduct further discovery to respond to Blue Cross's claim). 

Additionally, we disagree with the Department's subject matter jurisdiction argument.  The Department sought reconsideration of our initial opinion because it alleged there was no decision rendered by the Department in this matter.  The record indicates that there was a decision by the Department to exempt the Center from review.  For example, in a letter from CHS to the Department dated December 19, 2007, CHS stated that the Department provided notification that the Center was exempt from CON review.  Also, in a letter dated February 13, 2009, from the Department, written to CHS and Piedmont, the Department stated, "[t]he S.C. Board of Health and Environment Control decided on February 12, 2009, not to conduct a Final Review Conference on the above-referenced matter."  Additionally, the subject line of the letter states: "Docket No. 09-RFR-06 – Staff decision dated October 26, 2007 (mailed 1/7/2009) to approve an exemption (E-07-125) for an expenditure by health care facility for a non-medical project." (emphasis added).  Furthermore, included in the same letter is the following reference to section 44-1-60(F) of the South Carolina Code (Supp. 2010):  "[I]f a final review conference is not conducted within sixty days, the department decision becomes the final agency decision, and an applicant, permittee, licensee, or affected person requests . . . a contested case hearing before the Administrative Law Court." (emphasis added).  

Therefore, we reverse the judgment and remand to the ALC pursuant to Rule 220(b), SCACR, and the following authorities to allow discovery to be conducted and completed: S.C. Code Ann. § 1-23-610(B)(d) (Supp. 2010) ("The court of appeals may . . . remand the case for further proceedings; or, it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is . . . affected by other error of law . . . ."); S.C. Dep't of Consumer Affairs v. Foreclosure Specialists, Inc., 390 S.C. 182, 184, 700 S.E.2d 468, 469 (Ct. App. 2010) (stating an appellate court reviews questions of law in ALC cases de novo).  After completion of discovery, the ALC may proceed as deemed appropriate to reach a final disposition.[2]



[1] While we initially questioned preservation of the discovery issue, our reading of the final order indicates the ALC determined that discovery was not necessary to making a decision on the motion for summary judgment. 

[2] Although not preserved for our review, in light of our remand we note the ALC's statement that the Center's status as a "physician office" exempts it from CON review as a matter of law, is an error of law.  See S.C. Code Ann. Regs. 61-15 § 104(2)(e) (Supp. 2010) (indicating a physician office is not exempt from CON review if the total cost expended on acquiring medical equipment to be used for diagnosis or treatment is greater than $600,000);  see alsoMRI at Belfair, LLC v. S.C. Dep't of Health & Envtl. Control, Op. No. 26962 (S.C. Sup. Ct. filed April 25, 2011) (Shearouse Adv. Sh. No. 14 at 15) (discussing S.C. Code Ann. Regs. 61-15 § 102(1)(f) (Supp. 2010) regarding whether the total cost for the acquisition exceeds $600,000 and noting the Department "must not allow a potential CON applicant to avoid the CON process based on an arbitrary factor").