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Administrative – CON – Underserved Populations – Comparison Data Unavailable

WakeMed v. North Carolina Department of Health & Human Services (Lawyers Weekly No. 13-07-0045, 19 pp.) (Ann Marie Calabria, J.) Appealed from the Department of Health & Human Services. N.C. App.

Holding: The purpose of G.S. § 131E-183(a)’s Criterion 13(a) is to allow a certificate of need (CON) applicant to “demonstrate the contribution of the proposed service in meeting the health-related needs of the elderly and of members of medically underserved groups….” The respondent-agency correctly concluded that “the General Assembly’s focus in Criterion 13 is upon the services being proposed in the CON application at issue, and not upon the aggregate facility-wide services that are not part of the project proposed in the CON application being reviewed.”

We affirm the agency’s final agency decision in favor of the intervenor-CON applicant.

The agency’s findings establish that the facility-wide data which petitioner contends should be the basis of the comparison in Criterion 13(a) would provide no information regarding “the extent to which the proposed service will be accessible….”

Furthermore, unlike in the nursing home case cited by petitioner, there was no publicly available information regarding the service lines included in the intervenor’s CON application. The agency properly concluded that no service-line specific comparison could be conducted under Criterion 13(a) due to this lack of data.


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