Scoppe: Certificate of need suit raises familiar issues

Associate EditorJuly 17, 2013 

Scoppe

— IF THE LEGISLATURE refused a request for more funding for the Revenue Department, would that give the agency’s director the authority to stop collecting taxes? What if the Legislature cut the agency’s budget by 10 percent? Or 50 percent?

At what point does an executive-branch official have the power to act as a legislature — to stop doing the job that state law requires him to do? Can that point ever be reached, absent a court order, as long as the law remains on the books?

What if the county offices are closed the day a builder goes to apply for a building permit? Does that mean she can go ahead and begin construction without one? What if the office that issues the permits is closed for the week? Or the month?

At what point does the fact that the office is temporarily closed relieve the builder of the legal requirement that she have a permit before she builds? Can that point ever be reached, absent a court order, as long as the requirement remains on the books?

Since Gov. Nikki Haley vetoed funding for the state’s certificate of need program — which requires hospitals, nursing homes and some specialty facilities to obtain permission before opening or expanding medical facilities or purchasing expensive equipment — DHEC Director Catherine Templeton has acted as though the question about her latitude to ignore the law is a non-issue and the one about the public’s right to ignore it doesn’t even exist.

I don’t think the first question is nearly as clear-cut as she does. Particularly after the Ways and Means chairman gets up on the floor of the House and tells his fellow representatives that they can uphold the governor’s veto and the program will continue, because DHEC will transfer funds to keep it going. At the least, that means that Ms. Templeton is incorrect when she says the House intended to shut down the program. And in close legal calls, the win generally goes to legislative intent.

What if the governor had vetoed funding for prosecutors in the attorney general’s office? While that office was in the middle of a big trial. Could he dismiss the case? Or would he find a way to press forward using other positions?

In fact, wouldn’t he have an obligation to do that? If the attorney general refused to perform his statutory duties, wouldn’t he be making law instead of implementing it? And wouldn’t that violate the separation of powers provision in the state constitution?

But let’s assume that Ms. Templeton is right, that she doesn’t have the authority to transfer money from somewhere else in her budget to keep the program operating. Let’s assume that the attorney general would have to nol pros the case he’s in the middle of prosecuting when the governor vetoes his funding for prosecutors.

That still leaves us with the second question, the one about the public’s obligation to obey the law, as opposed to bureaucrats’ obligation to enforce it.

In some cases, this is a distinction without a difference. The fact that you’re still legally bound by traffic laws doesn’t matter a lot if the Highway Patrol’s budget is zeroed out and there’s no one to give you a ticket.

But the state’s licensing and permitting functions are different. Telling medical businesses they are free to proceed as if the Legislature had repealed the certificate of need requirement is the same as the Board of Medical Examiners telling people they’re free to practice medicine without a license because its budget was temporarily zeroed out.

Would anyone really believe the board has that authority?

For her part, Ms. Templeton acknowledges that “I don’t have the authority to suspend” the law. Rather, she says the Legislature suspended it, through boiler-plate language in the state budget that says, “All acts or parts of acts inconsistent with any of the provisions of Parts IA or IB of this act are suspended for Fiscal Year 2013-2014.”

That’s a better argument than the one in her lawsuit, which relies on a Supreme Court case concerning the limits of the governor’s veto power. A case in which the court specifically declined to address whether agencies can transfer money to cover vetoed items. A case that had nothing to do with the public’s obligation to obey a law for which enforcement funding has been vetoed.

But it’s a stretch to say the certificate of need requirement is “inconsistent” with a budget that has no money to administer the program. Indeed, Ms. Templeton told me that if the Supreme Court declares that the requirement remains, DHEC would continue “at a snail’s pace” to administer the program. Which is to say that she has the capability of continuing to administer it.

Unlike previous constitutional battles she has provoked, Gov. Haley was acting perfectly within her authority when she vetoed the funding for this program. It was an irresponsible decision, because if it stood, it would create this untenable legal situation, but she had the authority to make it. The person who might have crossed a legal line was Ms. Templeton — a director over whom the governor has no direct or even indirect legal authority but who owes her allegiance to the governor.

But the House is not without blame. Ms. Templeton made a point last year and this year to tell legislators that the program was underfunded and that they needed to either provide more money or eliminate the requirement. She made it clear that she didn’t think she had the authority to transfer money within her budget to keep it running and in fact had no intention of doing that if legislators zeroed it out or the governor vetoed the funding. Right or wrong, she had made that clear. So by voting to uphold the veto, the House was enabling this crisis. Inviting it even.

Ms. Templeton probably did the most responsible thing she could when she filed a lawsuit asking the Supreme Court to sort out the legalities, since there was going to have to be a lawsuit to sort this out anyway. In fact, one could argue that she needed to declare the program’s requirements suspended before she could file that lawsuit.

But it’s a lawsuit that will cost taxpayers and the hospitals and nursing homes money that none of us should have to spend. Money we’re having to spend because our political branches have failed to do their jobs. Again.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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