Appeal from the Orders of the State Health Facility Hearing Board in the case of In Re: Hickory House Nursing Home, Inc., et al. Project No. Con-81-A-0314-B (Archdiocese of Philadelphia), Docket No. CN-83-015, dated June 18, 1984 and October 23, 1984.
Richard B. Cappalli, for petitioner.
Carolyn B. McClain, Assistant Counsel, with her, Ruth M. Siegel, Chief Counsel, for respondent, Department of Health.
Jeanne Ward Ryan, with her, Jane Landes Foster, Stradley, Ronon, Stevens & Young, for intervening respondent, Archdiocese of Philadelphia.
Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail. Judge Barry did not participate in the decision in this case.
[ 91 Pa. Commw. Page 130]
Hickory House Nursing Home, Inc. (Petitioner) appeals the decision of the State Health Facility Hearing Board (Board) which upheld the Department of Health's (Department) grant of a Certificate of Need (CON) to the Archdiocese of Philadelphia (Archdiocese) for the construction of a one hundred and fifty (150) bed nursing home in Chester County.
Petitioner, the Archdiocese and the Department entered into a Stipulation of Facts which we are accepting as our own for purposes of this decision. The Archdiocese filed an application for a CON with the Department and the Health Systems Agency of Southeastern Pennsylvania (HSA) on April 30, 1982. On May 25, 1982, HSA initiated its review of the application, and on June 30, 1982, HSA requested additional information. The HSA notified the Archdiocese of meetings in August which the Archdiocese was required to attend -- the Chester County Advisory Board, the Plan Implementation Committee and the Executive Committee. The HSA has established a policy of notifying the public (excluding the applicant and other persons requested by the applicant) of hearings by
[ 91 Pa. Commw. Page 131]
publishing notice thereof in the Philadelphia Inquirer's Legal Notice Section and in the HSA newsletter "Update"; the HSA does not have a policy of notifying anyone of any hearings by telephone. Notwithstanding these policies, the HSA did not publish prior notice of these meetings.
The Chester County Advisory Board meeting was held on August 6, 1982, and the Plan Implementation Committee meeting was held August 11, 1982. The Executive Committee hearing was cancelled because of an expected lack of quorum. "During the period when the project was under consideration by [the Department], no public hearings were conducted on that project." Stipulation of Fact #29. On August 31, 1982, the Secretary of Health (Secretary) disapproved of the application.
The Archdiocese appealed the Secretary's decision, and on February 11, 1983, the Board remanded consideration of the CON to the Department for the purpose of conducting a public hearing in accordance with the provisions of Sections 703 and 704 of the Health Care Facilities Act (Act), Act of July 19, 1979, P.L. 130, as amended, 35 P.S. §§ 448.703 and 448.704. The remand order provided that the public hearing could be conducted either by the Department or HSA, at the option of the Department. The Department determined that HSA should conduct the hearing.
The HSA scheduled the public hearing for May 13, 1983. The HSA published a notice of the hearing in the April 25, 1983 issue of the Philadelphia Inquirer; notice was not published in the "Update" newsletter. The HSA did not provide individual notice by ...