The Department of Health and Environmental Control also asked the justices to take up the case directly, bypassing lower courts, according to the lawsuit obtained by The Associated Press.
DHEC said it made the move because of lawsuits it anticipated after the agency decided last week that it would suspend the Certificate of Need program. It made the decision after the Legislature did not override Gov. Nikki Haley’s veto of
$1.7 million to run the program.
Legal questions need to be answered because the law requiring DHEC to review and approve new nursing homes, hospital expansions, new medical facilities and new equipment that costs more than $600,000 still remains on the book, even if there is no
money to pay for it. Several groups that represent hospitals and other medical businesses predicted a court fight.
“In an effort to avoid a multitude of costly, duplicative legal actions, DHEC petitioned the S.C. Supreme Court this morning to resolve the legal questions presented by these events,” DHEC spokesman Mark Plowden said in a statement.
The court will have to decide whether it wants to take the case.
Haley has said she vetoed money for the program because she thinks it’s an impediment to the free market and is no longer needed.
Before Haley became governor, Lexington Medical Center, where she worked as a fundraiser, fought for nearly a decade to be allowed to do open heart surgery. DHEC initially refused permission but relented after a compromise was reached with another Columbia-area hospital.
The fiscal year begins Monday, and DHEC Director Catherine Templeton said the program is now suspended.
“As a state agency, our only authority comes from state law. Our legal staff worked hard last week to determine our options, and we were left with only one that complies with the law,” Templeton said in a statement.
Some lawmakers and supporters of the program have said DHEC could move money from other parts of the agency to keep it going, especially since the law requiring the review remains in effect.
DHEC disagrees, citing a 2011 brief filed with the state Supreme Court from Glenn McConnell when he was president pro tem saying that money vetoed from the budget by the governor can’t be used for its intended purpose if the veto is sustained.
DHEC also cites a 2010 attorney general’s opinion that a court would likely conclude that if the Legislature doesn’t fund a program, it suspends the program’s obligations for that fiscal year.
Several groups, including the South Carolina Hospital Association, say the Certificate of Need program is still necessary. They say the review of projects keeps medical costs down by preventing expensive projects without enough demand and makes sure health care options remain for people in rural areas.
About three dozen projects worth about $90 million in South Carolina are awaiting DHEC approval. Other projects are being appealed or are in legal battles.