RALEIGH, N.C. (AP) — A state appeals court on Tuesday rejected a request by an Eastern North Carolina eye doctor to strike down a state law that requires regulators to agree new operating rooms are needed in his region before they could be built.
A three-judge panel of the intermediate-level state Court of Appeals court ruled the state’s certificate of need law doesn’t violate the constitutional rights of Dr. Jay Singleton and the Singleton Vision Center when it comes to the situation the ophthalmologist wants to change.
Certificate of need requires a medical entity seeking to expand bed space or use expensive equipment to receive formal approval from the Department of Health and Human Services that declares the services are necessary to reflect population growth or patient needs, among other conditions. Republican legislative leaders and other right-leaning think tanks have sought to reform or do away with certificate of need, replacing them with more free-market forces.
In 2020, Singleton sued DHHS and executive and legislative branch leaders, alleging that he’s essentially unable to expand his New Bern practice and offer less costly surgeries. Singleton performs most of his outpatient surgeries at Carolina East Medical Center in New Bern, the only facility with an operating room certificate in Craven, Jones and Pamlico counties, Tuesday’s’ opinion read.
State regulators have calculated there’s no need for additional operating room space in the three counties, the opinion said, and that Carolina East representatives have indicated the hospital would fight any effort to issue additional operating room certificates.
Superior Court Judge Michael O’Foghludha dismissed the lawsuit last year. He agreed with lawyers for state officials who argued Singleton’s demands — which included blocking enforcement of the certificate law and declaring it unconstitutional as it applied to him — couldn’t be granted through the court.
Singleton appealed the case, which prompted attention from outside groups. Associations representing North Carolina hospitals and other groups filed a brief supporting the certificate law, while the John Locke Foundation in Raleigh filed another siding with Singleton — himself represented by lawyers from a national libertarian-leaning nonprofit law firm.
Writing the unanimous opinion, Court of Appeals Judge John Tyson said Singleton and his practice had “failed to exhaust or even attempt to invoke statutory and administrative remedies available to them” that could show he was deprived of procedural due process.
“The remedy plaintiffs admittedly and essentially seek is for a fact-finding administrative record and decision thereon to be cast aside and a CON to be summarily issued to them by the court,” Tyson wrote. “This we cannot do.”
But Tyson added that the ruling doesn’t preclude medical practices from challenging the certificate law in court in the future, or to make the case with the General Assembly, DHHS or state commissions that the “process is costly and fraught with gross delays, and service needs are not kept current.”
Judge Toby Hampson and Jeffery Carpenter agreed with Tyson’s ruling. A review of the ruling by the state Supreme Court isn’t automatic because the opinion was unanimous.
In North Carolina, legislators have declared that requiring state review of new institutional health services based on need, cost of services and other considerations promote the health and lives of people in the state, the opinion said.
Tyson pointed out that at least 12 states have eliminated the certificate of need systems. The legislature approved small changes to North Carolina’s system last summer, and the Senate passed a wide-ranging health car access bill last month that would scale back the system even further if it became law.