- Associated Press - Monday, June 2, 2014

COLUMBIA, S.C. (AP) - South Carolina’s highest court has said that it won’t revisit its ruling on a program regulating the building or expansion of medical facilities.

Late last month, the state Supreme Court denied the Department of Health and Environmental Control’s request to rehear arguments over the Certificate of Need program, which state law requires medical facilities to go through for approval to expand or build.

When Gov. Nikki Haley vetoed the nearly $2 million needed to run the program, she said the process should be sorted out in the free market. State legislators ultimately sustained Haley’s veto, although some House Republicans said that they didn’t intend to nix the program entirely.

Hospitals sued, saying that state law still mandated the review. Before the Supreme Court earlier this year, attorneys for DHEC said the agency immediately laid off employees and shuttered the review process after the funding was vetoed.

But in their ruling, justices ruled that DHEC must administer the program, pointing out that 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 in 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.

In a letter dated last week, DHEC said the agency is rehiring staff to run the program and hopes to be ready to accept applications in mid-July.

“By then, the Department should also know what, if any, changes the legislature may make to the CON program, and can incorporate any such legislative changes into the Department’s processes,” DHEC said in a May 27 letter.

When the program’s funding was cut off, several dozen projects worth about $100 million that were under review were stalled.


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

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