Administrative  –  CON Review – Opportunity to Comment – Different Projects – Constitutional – Equal Protection

Petitioner had the opportunity to submit comments to the respondent-agency and to make comments at a public hearing about a competitor’s proposed certificate of need for an ambulatory surgery center; nevertheless, petitioner invites us to hold that the agency’s failure to follow its recommendations amounted to the denial of its opportunity to comment. We decline this invitation.

We affirm the administrative law judge’s grant of summary judgment for respondents.

Petitioner claims that its own prior applications for certificates of need were subjected to more rigorous agency review, thereby depriving petitioner of equal protection under the law. Again, we disagree.

The projects petitioner claims received a more intensive review were previously resolved and involved different facts and circumstances than the case at bar, which warranted the application of different criteria and findings under G.S. § 131E-183(a). Thus, petitioner’s argument that it was deprived of equal protection because the agency reviewed the instant application for a CON with less rigor is without merit.

Caldwell Memorial Hospital, Inc. v. North Carolina Department of Health & Human Services (Lawyers Weekly No. 012-087-19, 11 pp.) (John Arrowood, J.) Appealed from the Office of Administrative Hearings (David Sutton, ALJ) Joy Heath, Elizabeth Scott and Anderson Shackelford for petitioner; June Ferrell for respondent; Maureen Demarest Murray and Ellis Wilson Martin for respondent-intervenors. N.C. App. Unpub.