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In re Certification of Need Issued to Bloomingdale Convalescent Center

Decided: May 4, 1989.

IN THE MATTER OF CERTIFICATION OF NEED ISSUED TO BLOOMINGDALE CONVALESCENT CENTER


On appeal from the Final Decision of the New Jersey State Commissioner of Health.

Antell, Brochin and Conley. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).

Brochin

[233 NJSuper Page 47] The New Jersey Commissioner of Health has issued a certificate of need for the establishment of the Bloomingdale Convalescent

Center, a nursing home for the long term care of up to 120 geriatric patients. The facility is to be located in the Borough of Bloomingdale, New Jersey, a community in a rural part of Passaic County, not far from Wanaque, New Jersey, where the applicant for the certificate is currently operating a nursing home under the name, Wanaque Convalescent Center. The certificate of need, which is a prerequisite for the establishment of the new nursing home, N.J.S.A. 26:2H-7, is conditioned upon the conversion of 120 general service beds at the Wanaque nursing home from long term general geriatric care to use for treatment of patients with Acquired Immune Deficiency Syndrome and AIDS Related Complex.

The Borough of Wanaque filed suit to enjoin the Wanaque facility from "receiving and treating any individuals afflicted with AIDS at the Wanaque Convalescent Center," and the Boroughs of Wanaque and Bloomingdale both appealed from the Commissioner's issuance of a certificate of need for the Bloomingdale Convalescent Center.

The Borough of Wanaque has settled its injunction suit and has withdrawn its notice of appeal. Although no AIDS or ARC patients are to be housed or treated in Bloomingdale, the Borough of Bloomingdale has pursued its appeal. Alleging that the Commissioner has failed to comply with pertinent statutes and with the applicable regulations of the Department of Health, the Borough of Bloomingdale asks us to reverse the issuance of the certificate of need for the establishment within its borders of a nursing home for the long term care of 120 general geriatric patients.*fn1 For the following reasons, we have

concluded that the Commissioner has deviated in material respects from the controlling statutes and from her own regulations, and we therefore reverse.

The Commissioner of Health has the authority to grant certificates of need. N.J.S.A. 26:2H-9; Application of Overlook Hosp., 215 N.J. Super. 401, 409 (App.Div.1987); Nat. Nephrology Foundation v. Dougherety, 138 N.J. Super. 470, 474 (App.Div.1976). But the Legislature has directed that "The commissioner shall recognize the Statewide Health Coordinating Council and the Health Systems Agencies as the recommending agencies in carrying out the purpose of this act and those functions prescribed to these agencies by Federal Law 93-641."*fn2 See N.J.A.C. 8.33-1.3(k) (". . . the Health Systems Agencies and the Statewide Health Coordinating Council shall provide full consideration of each application submitted to them . . .").

The regulations issued by the New Jersey Commissioner of Health provide that the Statewide Health Coordinating Council is to "act as the coordinating agency for the recommendations of the Health Systems Agencies and other State departments as necessary in all substantive review matters." N.J.A.C. 8:33-3.5(a). However, our State statutes and regulations do not describe the composition or function of the Council except by reference to the federal law which prompted its establishment. A section of that law, 42 U.S.C.A. § 300m-3 (repealed by

Pub.L. 99-660), provides that a Statewide Health Coordinating Council shall be composed of no fewer than sixteen representatives of health service agencies within the state and, in addition, representatives of consumers and providers of health care services, and other persons appointed by the governor. The functions prescribed for the Council by the federal statute are primarily policy making, relating to the preparation and revision of the State health plan.*fn3

Our State statutes and regulations also refer to federal law for the meaning of "Health Systems Agency."*fn4 Omitting details and qualifications which are not relevant to our purpose, "health systems agency for a health service area" is defined by 42 U.S.C.A. §§ 300 l -1 and 300 l -2 (repealed by Pub.L. 99-660) as an entity, either a nonprofit private corporation, a public regional planning body or a local government unit whose area is coextensive with the health service area, whose "primary responsibility [is] the provision of effective health planning for its health service area and the promotion of the development within the area of health services, manpower, and facilities which meet identified needs, reduce documented inefficiencies, and implement the health plans of the agency." The pertinent New Jersey regulation describes the responsibilities of health service agencies in substantially ...


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