In re Professional Nurses Service

In re Professional Nurses Service (2005-246); 180 Vt. 479; 913 A.2d 381

2006 VT 112

[Filed 09-Nov-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 112

                                No. 2005-246


  In re Professional Nurses Service              Supreme Court
  Application for a Certificate of Need
                                                 On Appeal from
                                                 Commissioner of Banking, 
                                                 Insurance, Securities and 
                                                 Health Care Administration

                                                 May Term, 2006

  John P. Crowley, Commissioner

  Philip H. White and Kathleen B. O'Neill of Wilson & White, P.C.,
    Montpelier, and John D. Monahan, Jr. and Angela R. Clark of Dinse, Knapp &
    McAndrew, P.C., Burlington, for Appellants Vermont Assembly of Home Health
    Agencies.

  William H. Sorrell, Attorney General, and Bridget C. Asay, Assistant
    Attorney General, Montpelier, for Appellee Department of Banking,
    Insurance, Securities and Health Care Administration.

  Torin D. Togut, Lawrenceville, Georgia, for Appellee Professional Nurses
    Service, Inc.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

        
       ¶  1.  SKOGLUND, J.   This is an appeal by several regional home
  health agencies from a decision by the Commissioner of the Department of
  Banking, Insurance, Securities and Health Care Administration (BISHCA or
  Department) granting a certificate of need (CON) to Professional Nurses
  Service, Inc. (PNS) to provide the full range of home health care services
  in Vermont.  The CON effectively allows PNS to seek certification as a
  Medicare home health agency, and to compete for Medicare patients and other
  clients with the twelve regional nonprofit agencies, organized as the
  Vermont Assembly of Home Health Agencies (VAHHA).  The regional agencies
  claim that, in granting the CON, the Commissioner erroneously: (1) applied
  provisions of the CON Guidelines; (2) concluded that the additional service
  was necessary to address issues of cost, care, access, and other problems
  within the existing system; and (3) found that the existing agencies had
  not remedied the identified problems.  For the reasons set forth below, we
  affirm.


       ¶  2.  In January 2004, PNS filed a letter of intent with the
  Commissioner stating its intention to apply for a CON to become a home
  health agency authorized to provide a full range of home health services
  and thus become eligible for Medicare certification and reimbursement. 18
  V.S.A. § 9440(c)(2).  The following month, the Commissioner granted
  petitions by VAHHA and each of its twelve constituent members for
  interested party status.  Id. § 9440(c)(6).  The Commissioner determined
  that a CON was required for the proposal, and PNS submitted its application
  in April of 2004.  
   
       ¶  3.  Shortly thereafter, the agencies moved to dismiss the
  application, asserting that PNS had failed at the threshold to satisfy a
  mandatory statutory criterion entitling it to CON review.   The agencies
  relied on 18 V.S.A. § 9437(5), one of the five so called "mandatory"
  criteria for the granting of a CON.   See In re Prof'l Nurses Serv., Inc.,
  168 Vt. 611, 612, 719 A.2d 894, 895 (1998) (mem.) (observing, while
  affirming an order denying PNS's prior CON application, that "the
  Commissioner must consider the general criteria set forth in 18 V.S.A. §
  9436(a), and to grant a CON, the Commissioner must make the five findings
  required by 18 V.S.A. § 9437, sometimes called the mandatory criteria").
  (FN1)  The mandatory criterion in question requires that any proposed new
  health service be "consistent with the certificate of need guidelines
  published by the department in accordance with its rules." 18 V.S.A. §
  9437(5).  The agencies relied, in turn, on provisions of the then current
  CON Guidelines providing that any applicant to become a Medicare certified
  home health agency must demonstrate a need for the service; that in
  determining such need the Department shall consider the data it collects in
  monitoring the currently certified home health agencies, as well as "any
  additional evidence of need presented by the applicant"; and further that: 

    [i]f the data collected by the Department identify access, cost or
    quality issues in any area of the state, the Administration will
    encourage the agency or agencies with identified issues to remedy
    them, and will only consider approving additional home health
    agencies if the problems cannot be remedied in a timely manner.
    (FN2)    
       
       ¶  4.  The agencies argued that the CON Guidelines established "a
  virtual moratorium on new home health agencies" until the Department had
  identified particular problems and afforded the appropriate agency or
  agencies the opportunity to remedy them.  The Commissioner, however, denied
  the motion, observing that while the CON procedures contained no provision
  for the filing of a motion to dismiss, they did allow him to preliminarily
  assess whether problems existed within the existing home health system that
  required remediation by means of submitting questions and gathering
  additional information before ruling an application complete and suitable
  for consideration.  See 18 V.S.A. § 9440(b)(4) (after receipt of
  application, commissioner shall notify applicant whether it contains all
  necessary information and is complete, or whether "additional information
  is required").
   
       ¶  5.  Over the next several months, the Commissioner did, in fact,
  submit questions and gather additional information from both PNS and the
  regional agencies, and he finally ruled the application complete in
  December 2004. The Public Oversight Commission (POC) then held a public
  hearing in January 2005, at which PNS, VAHHA and its individual agencies,
  and members of the public were afforded the opportunity to testify and
  present evidence. 18 V.S.A. § 9440(c)(2).  Thereafter, by a vote of eight
  to two, the POC recommended granting the CON with two conditions, one
  capping the percentage of Medicare patients to be served by PNS, and the
  other requiring that PNS submit the same statistical reports required of
  the other agencies.


       ¶  6.  The Commissioner subsequently served notice of his proposed
  decision, explained that it differed from the POC's recommendation, and
  provided the parties an opportunity to submit exceptions and additional
  briefs, evidence, and argument.  18 V.S.A. § 9440(d)(6)(A) & (B).  On May
  9, 2005, the Commissioner issued his decision, conditionally granting the
  application "pending an opportunity for the existing agencies to remedy
  issues of unmet need . . . [as] . . . required by CON Criterion number 5." 
  The Commissioner's 31 page decision systematically addressed the general
  and mandatory criteria for the addition of new home health services in
  light of the substantial body of materials submitted by the parties, with
  particular emphasis on general criterion 4, 18 V.S.A. § 9436(a)(4) ("the
  need for the proposed new service on the part of the population served or
  to be served"), mandatory criterion 3, id. § 9437(3) ("in the absence of
  the proposed new service, patients would experience serious problems in
  terms of costs, availability, or accessibility, or other such difficulties
  as may be identified by the commissioner, in obtaining care of the type
  proposed"), and the CON Guideline providing that the Commissioner would
  consider approving new home health agencies only if identified problems in
  the existing agencies "cannot be remedied in a timely manner."
   
       ¶  7.  The Commissioner found "a degree of unmet need in Vermont
  that the current agencies are not meeting."  Citing the testimony, letters, 
  and affidavits of "a significant number of competent witnesses," as well as
  data provided by VAHHA and the individual agencies, the Commissioner
  determined that approximately one percent of Vermonters in need of home
  health services are not receiving those services from the regional
  agencies; that the existing agencies are aware of, but have failed to meet,
  that need; that some agency clients are not receiving services at the
  level, frequency, or timeliness they require; and that PNS is ready,
  willing, and able to fill the need.


       ¶  8.  The Commissioner also cited "adequate and competent evidence in
  the record" to support a finding, under the third mandatory criterion, that
  in the absence of the proposed new service "patients would experience
  serious problems in terms of costs, availability, or accessibility, or
  other such difficulties as may be identified by the commissioner . . . ." 
  18 V.S.A. § 9437(3).  The Commissioner cited, in this regard, evidence that
  Vermonters had been hospitalized beyond their discharge date due to the
  inability of the local regional agency to provide caregivers; that one
  percent of Vermonters are not receiving services when and as needed; and
  that PNS had been compelled to turn away Vermonters who had called to
  request assistance due to its lack of certification to provide the full
  range of home health services.  The Commissioner also cited evidence of
  significant projected growth in the segment of the population requiring
  home health services, and the concomitant critical need for additional full
  service providers with proven track records of providing quality home care
  services throughout the State, such as PNS.
   
       ¶  9.  Finally, as a means of ensuring compliance with the CON
  Guidelines, the Commissioner declined to grant the CON outright, ruling
  instead that it would become effective August 1, 2005, "unless VAHHA and
  the 12 individual home health agencies in Vermont demonstrate to the
  satisfaction of the Commissioner, on or before July 9, 2005, that they have
  remedied the identified issues and problems."  As allowed by the
  Commissioner, VAHHA and the individual agencies submitted written responses
  with supporting documentation concerning their remediation efforts on July
  11, 2005, and shortly thereafter PNS filed a response, with supporting
  affidavits, to the agencies' submissions.  Following the submission of
  additional brief replies, the Commissioner issued a written decision on
  August 1, 2005.  

       ¶  10.  In his nineteen page ruling, the Commissioner reviewed the
  agencies' "remediation" response, the heart of which was a five week study
  undertaken from May 23, 2005 to June 26, 2005, in which they collected data
  on all institutional referrals and denials of services, individual requests
  for services and denials, delayed discharges due to inadequate services,
  complaints concerning services, waiting lists for services, and delivered
  and missed home health visits.  While noting that the study demonstrated a
  relatively low percentage of access problems during the five week period,
  the Commissioner concluded that the agencies' submission had largely failed
  to demonstrate any "changes in policies or procedures intended or likely to
  remedy" problems in the provision of services previously identified by the
  Commissioner.  Accordingly, the Commissioner determined that the agencies
  had not met their remediation burden.   

       ¶  11.  The Commissioner thus ruled that the conditional CON issued on
  May 9, 2005, would become effective as of August 1, 2005. (FN3)  Six of the
  twelve regional agencies have appealed the Commissioner's rulings. (FN4) 
                                                                          
       ¶  12.  In evaluating the agencies' claims, it is critical at the
  outset to emphasize the extraordinarily narrow scope of review that we
  apply in this context.  The Legislature has delegated to the Division of
  Health Care Administration, under the direction of the Commissioner, the
  responsibility for "carrying out the policies of the state regarding health
  care delivery, cost and quality, by providing oversight of health care
  quality and expenditures through the certificate of need program . . . ." 
  18 V.S.A. § 9403.  In recognition of this broad delegation, we apply a
  highly deferential standard to decisions by the Commissioner.  As we
  explained in an earlier dispute between these same parties, "[a]bsent a
  clear and convincing showing to the contrary, decisions made within the
  expertise of [the Commissioner] are presumed correct, valid and
  reasonable."  In re Prof'l Nurses Serv., Inc., 164 Vt. 529, 532, 671 A.2d 1289, 1291 (1996); see also In re Prof'l Nurses, Serv., Inc., 168 Vt. at
  613, 719 A.2d  at 896 (we "presume" the Commissioner's ruling is correct,
  and require a "compelling indication of error" to overcome that
  presumption); In re Assurecare of Vt., Inc., 165 Vt. 535, 538, 686 A.2d 959, 961 (1996) (characterizing our standard of review in appeals from CON
  decisions as "very narrow"). 

       ¶  13.  Furthermore, in deference to the broad decision making
  authority conferred by the Legislature, we will not disturb the
  Commissioner's "statutory interpretations absent a compelling indication of
  error."  In re Prof'l Nurses Serv., Inc., 164 Vt. at 532, 671 A.2d  at 1291. 
  Similarly, we presume the Commissioner's interpretation of the Division's
  own regulations is correct, and require the challenging party to "show a
  compelling indication of error to overcome this presumption."  In re Cent.
  Vt. Med. Ctr., 174 Vt. 607, 609, 816 A.2d 531, 535 (2002) (mem.).  We will
  not set aside the Commissioner's findings unless clearly erroneous, viewing
  the evidence in the light most favorable to the decision, and excluding the
  effect of any modifying evidence.  Id.  "So long as the findings are
  supported by credible evidence, we will not disturb them."  Id. (citation
  omitted). 
   
       ¶  14.  It is also well to recall, as we have elsewhere noted, that
  while the proceedings before the Commissioner here contained some elements
  of the usual quasi judicial administrative process, "we do not have before
  us a record developed in a contested case" as we would in proceedings under
  the Administrative Procedure Act (APA).  Brattleboro Mem. Hosp. v. Dep't of
  Banking, Ins., Sec. & Health Care Admin.,  172 Vt. 630, 631, 782 A.2d 1217, 1219 (2001) (mem.); see 18 V.S.A. § 9440(a) (exempting CON procedures from
  the APA).   The CON application process is not governed by the rules of
  civil procedure or the rules of evidence.  Witnesses cannot be subpoenaed
  and are not subject to cross examination.  The enabling statutes and
  regulations authorize the parties to submit, and the Commissioner to
  consider, a broad range of "evidence," "information," and "data" subject to
  none of the usual limitations on hearsay or other restrictions normally
  applicable in judicial or quasi judicial proceedings.  See 18 V.S.A. §
  9440(a) (providing that CON application shall "contain such information as
  the commissioner establishes" or "deems necessary"); id. (providing that a
  CON applicant "may submit, and the Commissioner shall consider, any other
  information relevant to the application or the review criteria").  The CON
  Guidelines themselves state that in determining the need for new home
  health agencies, the Commissioner shall consider data submitted by the
  agencies and "any additional evidence of need presented by the applicant." 

       ¶  15.  It is altogether fitting, therefore, that the broad
  information gathering process utilized by the Commissioner in CON
  proceedings-similar in many respects to a quasi legislative proceeding-be
  given the widest possible latitude on review.  See, e.g.,  In re Cent. Vt.
  Med. Ctr., 174 Vt. at 610, 816 A.2d  at 537 (holding that Commissioner's
  interpretations must be upheld unless "arbitrary or capricious").
   
       ¶  16.  This standard does not lend itself to meaningful judicial
  review.  Nevertheless, we are constrained by the statute and the process
  outlined therein.  Without a record, without evidence, and without sworn
  testimony, the Court has no context in which to evaluate a decision of the
  Commissioner.  If the Legislature is unsatisfied with our role in the
  process, then the only remedy is to amend the process itself.

       ¶  17.  With these standards and limitations in mind, we turn to the
  several contentions raised by the agencies on appeal.  First, they claim
  that the Commissioner failed to comply with the requirements of the third
  CON Guideline providing that, when data collected by the Department
  identifies "access, cost or quality issues in any area of the state, the
  Administration will encourage the agency or agencies with identified issues
  to remedy them, and will only consider approving additional home health
  agencies if the problems cannot be remedied in a timely manner."  The
  agencies renew the argument, raised in their earlier unsuccessful motion to
  dismiss, that this provision precludes the Commissioner from considering a
  CON application for new home health services until an existing agency has
  received notice of identified problems and had an opportunity to remedy
  them. 
   
       ¶  18.  The Commissioner rejected this assertion, concluding that the
  CON Guidelines considered as a whole plainly contemplate the identification
  and remediation of existing problems within the context of the CON
  application process.  The first two CON Guidelines provide that applicants
  to become a Medicare certified home health agency must meet all statutory
  criteria and demonstrate a need for the service, and further provide that
  in determining such need the Department may consider any data collected to
  monitor the existing agencies as well as  "any additional evidence of need
  presented by the applicant."  (Emphasis added.)  The Commissioner also
  noted that the procedures to identify and remedy existing problems during
  the application process were readily at hand.  By first seeking additional
  information from the parties before ruling an application complete, and
  setting for a hearing before the POC, and second, by issuing notice of his
  proposed decision, he provided the agencies with an opportunity to address
  the issues of unmet need before granting a CON.

       ¶  19.  The Commissioner's interpretation of the CON Guidelines to
  authorize such an approach to the review and remediation process was a
  reasonable one in light of the Guideline's language and overall context. 
  While other procedures-such as deferring consideration of the application
  until after a suitable remediation period-might have also been acceptable,
  we cannot conclude that the Commissioner's method even approaches the level
  of capriciousness or compelling error necessary for judicial intervention. 
  Accordingly, the ruling must be upheld.  See In re Cent. Vt. Med. Ctr., 174
  Vt. at 610, 816 A.2d  at 537 (Commissioner's construction of regulations
  will be upheld "absent any express direction by the Legislature or any
  compelling indication of error," and "[s]o long as the Commissioner's
  interpretation is not arbitrary or capricious, we will allow it to stand").  
   
       ¶  20.  Relying on the same CON Guideline, the agencies also claim
  that the Commissioner was required to make specific findings
  "differentiat[ing] between different areas of the state in evaluating
  whether there existed serious access problems," rather than identifying
  issues that existed statewide.  Although the Commissioner declined to
  attribute to particular agencies the identified problems of missed visits,
  staffing shortages, delayed discharges, and other concerns, his findings
  were based expressly on data that was both aggregated and agency specific,
  as well as on the extensive testimony and affidavits of individual clients
  and healthcare providers concerning their experiences with specific
  agencies. The Commissioner also observed that the agencies had consistently
  maintained that they function "statewide as one coordinated system" to
  provide the most efficient coverage, and thus concluded that it was not
  unreasonable to evaluate the system as an integrated whole.  Mindful that
  we are charged with upholding the Commissioner's ruling absent "compelling
  indication of error," In re Prof'l Nurses Serv., Inc., 164 Vt. at 532, 671 A.2d  at 1291, we cannot conclude that the Commissioner's interpretation was
  so clearly erroneous, arbitrary, or capricious as to compel reversal.   

       ¶  21.  The agencies also claim that the evidence failed to support
  the Commissioner's conclusion that PNS had satisfied the third mandatory
  criterion by demonstrating that "in the absence of the proposed new
  service, patients would experience serious problems in terms of costs,
  availability, or accessibility, or such other difficulties as may be
  identified by the commissioner, in obtaining care of the type proposed." 
  18 V.S.A. § 9437(3).  The agencies assert that the "anecdotal" evidence of
  a few individuals was insufficient to support the Commissioner's finding of
  delayed hospital discharges due to the inaccessibility of home health care,
  and argue that the data failed to show that any sizeable number of
  Vermonters were not receiving home health care when and as needed, were
  experiencing delayed or diverted admissions, or were subject to serious,
  statewide access problems.
   
       ¶  22.  The Commissioner expressly considered and rejected the
  agencies' claim that the evidence offered by individual clients and health
  care providers recounting delayed discharges, missed or delayed home health
  visits, and inadequate training and understaffing was an unreliable basis
  for his findings.  The Commissioner observed that, in most cases, the
  evidence consisted of "first person testimony, under oath, of facts of
  which the witnesses had first hand knowledge."  The Commissioner also found
  that "nowhere does the law of CON require, nor does it favor, statistical
  evidence over first hand knowledge," rejecting as non binding a sentence in
  the "policy" section preceding the CON Guidelines stating that, to date, no
  party had adduced "objective information" demonstrating systemic problems
  within the existing agencies.  The Commissioner further observed in this
  regard that the provision requiring a showing of serious problems within
  the existing system did "not carry with it a threshold of a certain number
  of Vermonters who must be lacking in services," subsequently opining that
  it was important to view the data as representing "individual consumers in
  need of services" rather than lifeless  numbers and percentages. 

       ¶  23.  As noted, we must uphold the Commissioner's statutory and
  regulatory interpretations absent compelling indication of error, and its
  factual findings unless clearly erroneous.   In re Cent. Vt. Med. Ctr., 174
  Vt. at 608-09, 816 A.2d  at 535.  The Commissioner was well within his broad
  discretion here in determining the evidentiary threshold necessary to
  demonstrate "serious problems" within the existing system, in weighing the
  reliability of the evidence presented, and in assessing its overall
  probative value.  Considered in light of this standard, the data,
  testimony, and affidavits submitted by the agencies and PNS provide a
  credible basis to support the Commissioner's decision.  Nothing further was
  required.  
   
       ¶  24.  Finally, the agencies assert that the Commissioner's August
  1, 2005 decision on remediation was erroneous in a number of respects. 
  Their principal claim is that the Commissioner erred in ruling that their
  evidence was deficient.   As noted, the bulk of the agencies' remediation
  submission consisted of a five week study undertaken from May 23, 2005 to
  June 26, 2005, in which they collected data on all institutional referrals
  and denials of services, individual requests for services and denials,
  delayed discharges due to inadequate services, complaints concerning
  services, waiting lists for services, and delivered and missed home health
  visits.  While acknowledging that the study revealed  relatively low
  percentages of missed visits or other access problems during the period in
  question, the Commissioner found that it was fundamentally unresponsive to
  his charge that the agencies outline their efforts to remedy previously
  identified problems.  The agencies' submission, in the Commissioner's view,
  was aimed principally at rearguing the issue, previously decided, as to
  whether the evidence supported a finding of serious problems within the
  existing home health system, rather than attempting to "indicate any
  changes in policies intended or likely to remedy the access issues."  The 
  Department notes, as an example, that the agencies might have formulated
  plans and procedures to reduce the number of missed visits by retaining
  back up caregivers, or outlined a strategy to address the chronic problem
  of understaffing by increasing nurse training programs, recruiting new
  nurses and nurses aides, or enticing retired nurses back into the
  workforce.  In addition, the Commissioner observed that while the number of
  missed visits by caregivers during the five week period was not high as an
  overall percentage, "when viewed as representing individual consumers in
  need of services rather than as a percentage of missed visits compared to
  visits delivered, [the data] indicates that hundreds of Vermonters were not
  provided services during the time period studied."

       ¶  25.  The agencies claim, with some merit, that the favorable data
  contained in the five week study was not entirely irrelevant to the
  remediation question.  Nevertheless, it was within the Commissioner's broad
  discretion to determine whether the study set forth real remedial changes
  or merely, as he concluded, additional data "stress[ing] [the] statistical
  significance of missed visits as opposed to the impact [that] missed visits
  have on individuals and their families."  We will not second guess the
  Commissioner's judgment in such matters absent a compelling showing of
  error, a showing which the agencies have not made here.  See In re Cent.
  Vt. Med. Ctr., 174 Vt. at 610, 816 A.2d  at 537 (holding that it was within
  Commissioner's discretion to determine the standard of "need" for new
  institutional health services and decide whether that standard had been
  met).
   
       ¶  26.  The agencies raise a number of additional claims which require
  little extended discussion. They renew their assertion that the
  Commissioner improperly failed to make agency specific findings, arguing
  that their study revealed  minimal problems among the six agencies pursuing
  this appeal.  As discussed, however, the Commissioner's decision to focus
  on statewide needs within the system was not unreasonable, and certainly
  cannot be characterized as so clearly erroneous or capricious as to compel
  reversal.  

       ¶  27.  The agencies also contend the Commissioner erred in: (1)
  overruling their objection to two affidavits submitted by PNS which cited
  practices that occurred prior to the remediation period; (2) failing to
  exclude from consideration data from programs in which PNS already has
  authority to participate; (3) declining to distinguish between medically
  necessary services and supportive non medical services in evaluating the
  missed visit data; and (4) refusing to permit the agencies to  respond to
  the twenty-one affidavits submitted by PNS in their remediation response.  
  As noted, the Commissioner's decision was based on his conclusion that the
  agencies' five week study was "limited in its probative value because it
  studie[d] a limited universe of services in a limited time frame and
  because it stresse[d] statistical significance of missed visits as opposed
  to the impact missed visits have on individuals and their families." 
  Clearly none of the foregoing issues, whatever their individual merit,
  exercised any tangible influence on the Commissioner's ruling, or on his
  core conclusion that the agencies' study was largely unresponsive to the
  remediation question.
   
       ¶  28.  The agencies also renew their argument that the
  Commissioner erred in referring to "anecdotal" evidence contained in the
  individual affidavits submitted by PNS, some of which were anonymous or
  contained hearsay.   As we have explained, however, the CON procedures do
  not limit the Commissioner's consideration to statistical evidence or
  evidence that would be admissible in judicial proceedings, and the PNS
  affidavits plainly did not, in any event, affect the core of the
  Commissioner's holding.  Lastly, the agencies assert that the Commissioner
  applied "standardless" decision making in his remediation ruling.  They
  predicate the claim on the Commissioner's failure to specify "performance
  standards" for missed visits or delayed or diverted admissions.  As noted,
  however, the Commissioner reasonably determined-within his broad
  discretion-that a finding of serious problems within the existing system
  did not require proof of a particular percentage of missed visits, and
  similarly that a showing of remediation did not, in his considered
  judgment, turn upon evidence meeting a minimal statistical standard. 
  Absent a compelling showing of error in this regard, we find no basis to
  disturb the judgment. 

       Affirmed.



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Act 53, a comprehensive revision of the CON process enacted in 2003,
  and effective July 1, 2005, substituted a single list of six criteria for
  the so-called permissive and mandatory criteria, but the amendment did not
  take effect in time to apply in this case.  2003, No. 53, § 27.  All
  references in this opinion are to the statutes prior to the amendments.

FN2.  Although not applicable here, the Act 53 amendments phased out the
  former CON Guidelines, including the "remediation" provision, and the
  statutes now require that any new service  be "consistent with the health
  resource allocation plan" issued by the Commissioner.  18 V.S.A. § 
  9437(1).

FN3.  The Commissioner also declined to adopt the POC's recommendation to cap
  the percentage of Medicare patients to be served by PNS.  This ruling has
  not been challenged on appeal.

FN4.  The six agencies that have appealed are: Addison County Home Health &
  Hospice, Inc.; VNA & Hospice of Southwestern Vermont Health Care, Inc.;
  Dorset Nursing Association, Inc.; Rutland Area VNA & Hospice, Inc.;
  Manchester Health Services, Inc.; and Northern Counties Health  Care, Inc.,
  d/b/a Caledonia Home Health Care & Hospice.