- Associated Press - Tuesday, April 29, 2014

COLUMBIA, S.C. (AP) - South Carolina’s public health department on Tuesday asked the state’s highest court to revisit its ruling that the agency must administer a program regulating the building or expansion of medical facilities even though funding was vetoed by the governor.

When she vetoed the nearly $2 million needed to run the Certificate of Need program last year, Gov. Nikki Haley said the process would be best left to be sorted out in the free market. State legislators ultimately sustained Haley’s veto, although some House Republicans have said they didn’t intend to nix the program entirely.

Several dozen projects worth about $100 million that were under review were stalled. Hospitals sued, saying that state law still mandates the review, and the high court heard arguments last month.

Attorneys for the Department of Health and Environmental Control said they immediately laid off employees and shuttered the review process after the funding was vetoed. But in their ruling, justices pointed out the governor’s line-item veto power affected only funding, not the existence of a program set out in state law - even if that is what she intended.

“The Governor’s veto message leaves no doubt that she intended to use her line item veto power to abolish the entire CON program,” the court wrote. “However, the Governor is not empowered to exercise her veto pen in a manner that so broadly affects public policy and attempts to alter legislative intent by reaching back to repeal a permanent law.”

The court told DHEC to find another way to fund the program, such as changing its fee structure. But their reconsideration motion, DHEC attorneys wrote that any emergency fees put in place to resurrect the program would be very high and only temporarily effective.

“It would be a rogue agency indeed which attempted to circumvent the General Assembly’s rejection of a permanent regulation by attempting to achieve the same result by means of an emergency regulation,” agency attorneys wrote.

Haley filed an amicus brief in support of DHEC. In a statement provided to The Associated Press, Haley said Tuesday the court was out of line and said she stood by the decision of Associate Justice Costa Pleicones to dissent from the majority.

“The Supreme Court’s unprecedented and legally unsupported decision ordering DHEC to fund the Certificate of Need program has set a dangerous standard going forward - one that potentially gives agencies the power to ignore the will of the governor and the legislature,” Haley said. “I vetoed funding for this program because it’s a broken, politically driven process and the House supported my decision - it is not the Court’s place to order an agency to spend funds that a governor and the legislature constitutionally eliminated.”


Kinnard can be reached at https://twitter.com/MegKinnardAP



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