Midtown Medical, LLC VS The Department of Health & Hospitals

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STATE F LO YANA i URT C F APP AL T LT di C3 2Q1 f 5 16 MIDT0INN ILLC ICAL VERSUS THE DEPARTMENT OF HEALTH HOSPITALS udgmentrendered G D 5 ZC Appealed from the 19 udicial Distriat Court in and for the Parish of East Baton Ptouge Louisiana A Trial Court No 608 74 Honorabie V4 Fields Judg n iis i t ELLiE T SC ILLING ORNEY FOR AT NEW ORLEANS LA LANT APP PLAINTIFF fN N1IDT0 MEDICAL LLC NEAL R ELLIOTT R TORNEY FOR k BATON ROUGE LA APPELLEE EFENDANT GEPARTMENT OF HEALTH HOSPITAiS BEFORE KUHN PETTIGREW D AI McDONALD PETTIGREW J The plaintiff Midtown Nied LL lidto an outpatient abortion facility cal n appeals a trial courk judgment that ffir an admir law decision finding that the ed istrative defendant Department of Health ar H piiH lawfully imposed two separate d sRitals 00 600 fines against Midtow and tha the bases for imposing thQSe fines alleged n violations of the applicable Louisi Ad Code regulation were proper na inistrative Because we find that DHH was witho a to levy fines against Midtown we t athi r reuerse the judgment of the trial cnurt rev Yhe findings and order of the rse administrative law judge AU and vacate the unauthorized imposition of fines againsk Midtown BACKGROUND FACT AND PROCEDURAL HISTORY S On anuary 13 2011 DHH sent a ta Midtown informing itthat as a result of etter a health survey conducted at Midtown facility an April 22 2010 it was being assessed s two civil fines in the amount of 600 each a total fine of 1based on DHH 00 00 200 s determination that the facility was out of compliance with federal and state rules for or abortion clinics Specifically the letter noted the facility had deficient practices in violation of Louisiana Administrative Cod LEiC tit 48 pt I Governing Body and 4405 LAC tit 48 pt I 4423 Anesthesia Seniices anci that those i eficiencies constituted Class C violations pursuant to a rub puuiishea by this Department in July of 2000 nal in that the facility action er inact ir h reas cr a potential for harm by s o i e ated directly threatening the health safe rigrts a v of its residents The letter aiso y ieffare informed Midtown of its right o recp nforma adnriinistrative reconsideration and an t es or administrative appeaL Midtown exercised its r to hal9 he alleged defciencies tf the ght nge rough informal dispute resolution process whicn was held on June 29 2010 Notwithstanding the challenge and evidence presented DHH affirmed the deficiencies DHH provided further detafis of the alfeged violations Co Midtown in the April 2 2010 survey statement however because we ultimately conclude hat DHH was without authority to levy a fine against Midtown those details are not pertinent to this appeal L On February 10 2011 Midtown requested an administrative appeal In that appeal it filed a motion for summary judgment on July 8 2011 asserting that DHH did not have the authority to impose the fines arad r cafy zS 2011 it filed a second motion for summary judgrn challenginq the fnes s kr rbitrary capric and an abuse nt y e ious of discretion A hearing on both motions was neid before an AU on September 19 2011 following which a decision and order was rendered on December 29 2011 affirming s DHH decision to impose the fines In accordance with La R 49 Midtown S 964 B timely filed a Petition for udicial Review of the AU decision and order s Midtown again asserted that DHH was without authority to impose the fines and that its decision to do so was arbitrary capricious and an abuse of discretion The matter was heard by the trial court on June 12 2012 following which the trial court signed a judgment on uly 22 2012 affirming the administrative law decision and order This appeal by Midtown followed APPLICABLE LAVN An outpatient abortion facility is among the publie health care facilities governed I and licensed by DHH pursuant to La S 2199 R 40 which 1 A provides For purposes of this Part facility sha mean any one or l more of the following an adult day health care facility substance abuse treatment facility ambulatory addiction surgery center case anagement r facility urine drug screening facility mobile cholestefol screening facility end stage renal disease facility supplier of portable X services ray home health agency hospice hospital ICF facility DD outpatient abortion facifity or any other health care provider or certified by the Department of Health and licensed Hospitals Emphasis added The statute further provides in pertinent part as foflows with emphasis added to those portions relevant to the issue presented herein 2 The opening r operatior of a facility without a license or registration therefor shatll be a snisdemEanor punishable upon canviction by a fne f nat less than one thousand dollars nor more than five thousand dollars Each day s violation shall constitute a separate ofFense 3 3 It shall be a violation to oRerata a facility which holds a current license registratioi r certificate if one of the following apply a As a result of a licensure or ertSfocation survey it is determined by an agency to be in violation of one or more conditions correct of licensure or certification and such conditions of violation has failed to within the time prescribed by law or by the agency K Mk 4 Any violation provided for in Paragraph 3 of this Subsection shall entitle both the facility and the complainant to an administrative appeaL B 1 Any person or entity violating the provisions of Paragraph A of this Section when such a io poses a 3 ation threat to the health safety ights or welfa of a resident e or dient may be iab for civil fines in addition to any e criminal action which may be brought under other applicable laws The department sha adopt ru in accordance es with the Administrative Procedure Act which define specific classifications of violations articulate factors in assessing civil fines including mitigating circumstances such as an effective corporate compliance program and explain the treatment of continuing and repeat deficiencies I 2 A schedule of civil fines by class of violations shall be as follows c Class C io that create a condition or occurrence ations relating to the operation and maintenance of a facility which eate c a potentia for harm by di threatening the y ect health safety rights or we of a resident o c Civil fare ient fines shall not exceed one thousand dollars for the first violation and shall not exceed two thousand dollars per day for repeat violations In accordance with the mandate of 40 to adopt rules in July 2000 DHH B 2199 adopted LAC title 50 pt I 5501 the regulation upon which it admittedly relied upon when imposing the fines on Midtown That regulation provides as follows A Any health care facility isted in Subsection B be w found to be in violation of any state or federal statute regulation or any Department of Health and Hospitals Department rule adopted pursuant to the Administrative Procedure Act governing administration and operation of the facility may be sanctioned as provided in this Chapter 4 B For purposes of t hapter f is cility refers to any agency licensed by Departr P HPalth and Hospitals as an at ae adult day healtt care cert rsubstance abuse addiction treatment facility iacor arri surgical center case managemerrt ageracy rvne cr screQr suppliers g ing clinic of portable x s h reaith gency hcspice ray rva rn e hospitdi or int z ac f the mentaliy t re r s r d retard Emphasis by bolding added STANDARD OF R EVIEW We note that even though the standard of review set forth in LSA 49 S G R 964 applies to district courts when they sit in an appellate mode and review an administrative agency final decision or order in an adjudication proceeding judicial s review of final decisions of the Commission does not lie in any district court but is constitutionally vested in the First Circuit Court of Appeal pursuant to LSA Art X Const 12 Thus the standard of review contained in LSA 49 does not apply to S G R 964 review of decisions of the Commission because judiciaf review is performed by the First Circuit Court of Appeal not by a district court Metoyer v Department of Health and Hospitals Office of Public Health 2Q08 p 3 App 1 Cir 10 0515 La 08 14 2008 WL 4567281 unpublished opinion The appropriate standard of revi of an act by the C Service Commission w ivn vil is to determine whether the conclusion reache y the Commission was arbitrary and i capricious A conclusion of a public body ds dwhen the conclusion has no PCIpUS 6 substantial evidence to support it or the co is contrary to substantiated competent evidence The word arbitrary implies a disregard of evidence or of the proper weight thereof Id at p 4 ANALYSIS The clear language of La R 40 reveals that the statute is not self 2199 effectuating rather pursuant to subsectia B DHH is required by the statute to n promulgate rules that define the circu u which a particular facility may be nstances oder assessed a civil fine Moreover the ass2ssment of fines according to the clear language in subsection B of the statute is permissiue e wlthin the discretion of the depa tment 5 Notably an outpatien b ac is ab ffrom the f n 9 nr i tv ities cl listed in 5501 as tir san facilities that DHH can s c that outpatient abortion lea an eF cfiFe f pe c sfa facility does not fali vithin the s f aa rj qther tacili listed in the statute y An outpatien abortson acility ava5 defir d k fitaF L iri La R 40 as t isiakure r S 2175 5 3 an outpatient facility n tha nsis rtr R 40 vr an ambulatory her ltar d S 2102 centeras surgica defined in R 40 n wh a second trimester or five or more S 2133 ch jy first trimester abortions per month are performed mphasis added The transcript of the hearing before the AU reveals that counsel for DHH candidly admitted that the exclusion of outpaYient a facilities from the LAC provision ortion authorizing it to assess fines was not Er rather DHH simply did not have the tentional resources to expend on revising thE rc nd that ds why it has not to date been done fe Notwithstanding he intent of DHi1 the sta ianguage is clear When a law s ry utc clear and free from am a ets ii o not fead to absurd consequerces iguity c at s it must be given effect as writter See B r Zeichner 2012 p 6 njamin 1763 La 13j 5 4 113 So 197 202 writ den 2Q l8 120 So 270 3d ed 3 a 30j13 4187 3d McLane Southern Inc v Bridges 2Q1 a 4 App 1 Cir 3 il 59 1 La 13 21 3d So 1262 1265 Because LAC itle S0 p I 5541 pursuant to whlch DHH ma assess civil fines excludes outpatient abortior faeifiti DHH lacked the authority to s impose the fines at issue CONCLUSION Accordingly we reverse the jud oftne tria court that erroneously afFirmed ment the decision and order of th imfnFSt i judqe azive uu Midtown 50 637 2 Medical LC are assesaed are to eb ted he vac Department of ieaith The fines imposed against Costs of this appea n the amour f t itaBs s Ffc REVERSED Z We note that as of August 2p 2013 DkiH filed a nokiee of ir LA REG TEXT 3351G3 whereby it tent proposes ta amend its regulations by repealing LA SO 55 in its eMirety and adopt LAC ChapEer k Chapter I 48 46 which spec lists abo facifities among the facilities it can regulate cally tion 6

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