Administrative — Certificate of Need – Substantial Prejudice – Competition

Pursuant to G.S. § 150B-23(a) and our caselaw, as part of the merits of its contested case, a petitioner must show that the respondent-agency substantially prejudiced the petitioner’s rights. Although petitioner argues that it was substantially prejudiced by respondent’s partial denial of its application for a certificate of need because respondent “limited the number of its own [dialysis] stations that [petitioner] could move,” a petitioner’s mere status as a denied competitive CON applicant alone is insufficient to establish substantial prejudice as a matter of law.

We affirm summary judgment in favor of the respondent-agency and the respondent-intervenor.

Although summary judgment is inappropriate where two or more applicants conform to the majority of the statutory criteria, summary judgment can be appropriate when an applicant fails to forecast evidence of substantial prejudice.

Bio-Medical Applications of North Carolina Inc. v. NC Department of Health & Human Services (Lawyers Weekly No. 011-071-22, 10 pp.) (Jefferson Griffin, J.) Appealed from of Office of Administrative Hearings (Stacey Bice Bawtinhimer, ALJ) Marcus Hewitt and Elizabeth Sims Hedrick for petitioner; Derek Hunter, Lee Whitman and Blakely Kiefer for respondents. 2022-NCCOA-199