AGO 80-099.

• Case Date: January 28, 1980
• Court: North Dakota

North Dakota Attorney General Opinions 1980. AGO 80-099. LETTER OPINION January 28, 1980 (OPINION) OPINION 80-99Mr. Gene A. Christianson Acting Administrator North Dakota State Health Department State Capitol Bismarck, North Dakota 58505 RE: Department of Health v. Trinity Medical Center Administrative No. 79-301Dear Mr. Christianson: This opinion is in response to your letter dated December 31, 1979, concerning the acquisition of a CT head scanner by Trinity Medical Center, Minot, North Dakota, along with the "Findings of Fact and Conclusions of Law and Order" signed by Dr. Beithon, chairman of the State Health Council and dated December 28, 1979. Your letter stated:

The State Health Council at its December 18, 1979, meeting passed a motion concerning the Trinity Medical Center case. This motion consisted of three (3) parts:

First, on the basis of the information available to the Health Council, the Council believes that there has been a violation of the certificate of need law by Trinity Medical Center in initiating CT head scanning services without submitting and having approved a certificate of need application for this service because it is our belief that: (a) CT head scanning is a health care service, (b) this service was not provided by Trinity Medical Center prior to February of 1979, (c) the cost was over $100,000 in capital expenditures, and (d) the former whole body CT scanner application was denied by the Council on November 2, 1978.

Second, the Health Council requests that the Health Department seek appropriate action through civil court in order to determine whether or not a violation has occurred and if so, to establish the appropriate penalty, and

Third, that the Council establish findings of fact consistent with this motion.

With respect to the third part of the motion noted above, the Council subsequently passed a motion adopting seventeen (17) findings of fact to be signed by the chairman of the Council. In accordance with the request by the Health Council, the Department herewith transmits to your office the adopted findings of fact of the Council along with evidence gathered through an administrative hearing process in order that we may proceed with appropriate action in civil court.

Should your office desire additional information or have some questions concerning the aforementioned transmittal, please feel free to contact me.

For the reasons stated below, and pursuant to chapter 54-12, N.D.C.C., litigation requested against the Trinity Medical Center on this matter is not authorized. The basic certificate of need requirement is contained in section 23-17.2-04 of the North Dakota Century Code which provides, in part:

No hospital or related medical facility shall be constructed or expanded and no new medical care service shall be instituted after the effective date of this chapter except upon application for and receipt of a certificate of need as provided by this chapter.

This statute clearly requires a certificate of need for two, and only two, activities: (1) construction or expansion of a medical facility and (2) institution of a "new medical care service." Each type of governed activity will be addressed below. We must first determine whether the CT head scanner acquisition involves the institution of a new medical care service. The term "new medical care service" is not now defined in the statute, so we must look to other sources for a definition. We have reviewed the complete transcript, briefs, and exhibits in the administrative proceedings entitled Department of Health v. Trinity Medical Center, Administrative No. 79-301. Testimony illustrated a sharp conflict of opinion as to whether a CT head scanner provides a new medical care service or whether it is a technological advance within an existing medical care service, thereby substituting for and improving upon existing diagnostic techniques. It is our opinion that the more persuasive testimony explained that a CT head scanner does not provide a new medical care service. For examples, your attention is called to the testimony of Dr. Olson, Dr. Johnson, and Mr. Snow:

Q. In your professional opinion, is this the CT head scanner! another diagnostic tool?

A. Dr. Olson! Yes. I would just like to amplify on that a little bit, if I may. . . .I personally do not feel that this is a new service. I think the classical medical definition of service refers to, for example, surgery,

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