REL: 02/28/2014
REL: 08/29/2014 (as modified on denial of rehearing)




Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                          OCTOBER TERM, 2013-2014

                         _________________________

                                  1110588
                         _________________________

Ex parte STV One Nineteen Senior Living, LLC, d/b/a Somerby
               at St. Vincent's One Nineteen

                     PETITION FOR WRIT OF CERTIORARI
                      TO THE COURT OF CIVIL APPEALS

  (In re:      Daniel Senior Living of Inverness I, LLC, d/b/a
                        Danberry at Inverness

                                          v.

  STV One Nineteen Senior Living, LLC, d/b/a Somerby at St.
      Vincent's One Nineteen; State Health Planning and
  Development Agency; and Certificate of Need Review Board)

              (Montgomery Circuit Court, CV-10-901242;
                  Court of Civil Appeals, 2100476)
1110588

MURDOCK, Justice.

      Daniel Senior Living of Inverness I, LLC, d/b/a Danberry

at Inverness ("Danberry") successfully appealed to the Court

of Civil Appeals from a decision of the Montgomery Circuit

Court affirming the issuance by the State Health Planning and

Development Agency ("SHPDA") of a certificate of need to STV

One   Nineteen         Senior    Living,    LLC,   d/b/a     Somerby    at

St. Vincent's One Nineteen ("Somerby") on an "emergency"

basis.     Daniel Sr. Living of Inverness I, LLC v. STV One

Nineteen Sr. Living, LLC, [Ms. 2100476, Feb. 3, 2012] ___

So.   3d   ___   (Ala.    Civ.   App.    2012).    This    Court   granted

Somerby's petition for certiorari review of the decision of

the Court of Civil Appeals.          We now affirm that decision.

                  I.    Legal and Factual Background

                 A. The CON-Review Process Generally

      The Alabama Legislature has enacted a statutory scheme to

provide for "health care services and facilities found to be

in the public interest."          Section 22-21-261, Ala. Code 1975,

states:

           "The Legislature of the State of Alabama
      declares that it is the public policy of the State
      of Alabama that a certificate of need program be
      administered in the state to assure that only those

                                     2
1110588

      health care services and facilities found to be in
      the public interest shall be offered or developed in
      the state. It is the purpose of the Legislature in
      enacting this article to prevent the construction of
      unnecessary and inappropriate health care facilities
      through a system of mandatory reviews of new
      institutional health services, as the same are
      defined in this article."

      To effectuate the aforesaid purpose, the legislature

enacted Article 9, "Control and Regulation of Development of

Certain Health Care Facilities," of Title 22, Chapter 21, of

the Alabama Code, codified at §§ 22-21-260 to 22-21-278, Ala.

Code 1975.    Article 9 gives the Statewide Health Coordinating

Council ("SHCC") (see § 22-4-7 and -8, creating the SHCC)

responsibility for preparing and periodically revising the

State Health Plan ("SHP"), a comprehensive catalogue of the

health-care needs of the State.          The SHP "provide[s] for the

development of health programs and resources to assure that

quality health services will be available and accessible in a

manner which assures continuity of care, at reasonable costs,

for   all    residents   of   the       state."   Ala.   Code   1975,

§ 22-21-260(13).     See Ala. Code 1975, § 22-21-260(13) and

(15); Ala. Admin. Code (SHPDA) Rule 410-2-1-.02.

      To aid in the administration of the State's health-

planning law, the legislature also created SHPDA, a body

                                    3
1110588

composed of three consumers, three health-care providers, and

three representatives appointed by the governor.        Ala. Code

1975, § 22-21-260(14).      Under the state-health-planning laws

adopted by our legislature, health-care providers must apply

to SHPDA for a certificate of need (sometimes referred to

herein as a "CON") before offering a new institutional health

service, and that service must be consistent with the SHP.

Ala. Code 1975, §§ 22-21-263(a), -265(a), and -267; Health

Care Auth. of Athens & Limestone Cnty. v. SHCC, 988 So. 2d

574, 578 n.1 (Ala. Civ. App. 2008).          Institutional health

services subject to the CON-application process include, among

many other things, converting long-term-care beds from one

category to another.      Ala. Code 1975, § 22-21-263(a)(3); Ala.

Admin. Code (SHPDA) Rule 410-1-4-.01(1)(c)(3)(v).1

       In the standard CON-application process, the applicant

must file a letter of intent ("LOI") with SHPDA at least 30

days prior to submitting the CON application.         Ala. Admin.

Code       (SHPDA) Rule 410-1-7-.05(1).   Upon determining that an

application is complete, SHPDA notifies the applicant and

       1
     The legislature also has tasked SHPDA with promulgating
rules and regulations governing regular and emergency
CON-application procedures. See, e.g., Ala. Code 1975, §§ 22-
21-267, -268, -274, and -275.
                                  4
1110588

"other    affected    persons,"   such     as   competing    health-care

providers, of the application and the review schedule.              Ala.

Admin. Code (SHPDA) Rule 410-1-7-.08.               A mandatory 90-day

"review period" or "review cycle" then begins.              Ala. Admin.

Code (SHPDA) Rule 410-1-7-.09.           The other affected persons

then have 45 days to submit opposition, if any, to the

application, Ala. Admin. Code (SHPDA) Rule 410-1-7-.13, and 55

days to request a contested-case hearing on the application.

Ala. Admin. Code (SHPDA) Rule 410-1-7-.15.

    The Certificate of Need Review Board ("the CONRB")2 is

required to hold monthly public hearings to review pending

applications.      Ala. Admin. Code (SHPDA) Rule 410-1-7-.17.         As

was done in this case, the CONRB can "batch" applications

together    into     the   same   review    cycle    for    comparative,

competitive consideration; the batched-review cycle takes 180

days.    Ala. Admin. Code (SHPDA) Rule 410-1-7-.19.




    2
     In the health-care-services regulatory scheme, the terms
"SHPDA" and "CONRB" are deemed synonymous and are used
interchangeably. Ala. Admin. Code (SHPDA) Rule 410-1-2-.01.
For ease of understanding, we generally refer to the panel of
individuals that holds hearings on CON applications as the
CONRB, while using the term SHPDA to refer to the agency in
its more general regulatory capacity.
                                   5
1110588

    The CONRB is required to issue a final order granting or

denying a CON application within 15 days of the public hearing

at which the application was considered.           Ala. Admin. Code

(SHPDA) Rule 410-1-8-.07(1)(a).        A party "aggrieved" by a

SHPDA decision may submit a request for reconsideration by the

CONRB of its decision within 15 days of that decision, but it

is not required to request reconsideration before seeking

judicial review.     See Ala. Code 1975, § 22-21-275(12); Ala.

Admin.    Code   (SHPDA)   Rule   410-1-8-.09(1)   and   (3).   The

aggrieved party also may, but is not required to, request a

fair hearing within 15 days of what would otherwise become the

CONRB's final decision, with or without first submitting a

motion for reconsideration.        Ala. Admin. Code (SHPDA) Rule

410-1-8-.16.

    The fair hearing is a de novo review.           Ala. Code 1975,

§ 22-21-275(14); Ala. Admin. Code (SHPDA) Rule 410-1-8-.22(1).

The record of the hearing before the CONRB is part of the

record before the administrative law judge presiding at the

fair hearing and is entitled only to "due consideration" by

the administrative law judge, who is alternately referred to

in the regulations and in SHPDA communications as a fair


                                  6
1110588

hearing officer ("FHO").   Id.   The FHO is required to enter a

final order containing findings of fact and conclusions of

law, Ala. Admin. Code (SHPDA) Rule 410-1-8-.24, and that order

"shall be considered the final decision" of SHPDA, § 22-21-

275(14), Ala. Code 1975; Ala. Admin. Code (SHPDA) Rule 410-1-

8-25.     The FHO's decision can be appealed to, among other

circuit courts, the Montgomery Circuit Court.         Ala. Admin.

Code (SHPDA) Rule 410-1-8-.24.

    The process for filing an emergency CON application is

authorized by § 22-21-268, Ala. Code 1975, which provides:

         "Any person may apply, either independently and
    without notice under Section 22-21-267[3] or as a
    part of an application filed under Section
    22-21-267, for an emergency certificate of need for
    the authorization of capital expenditures made
    necessary by unforeseen events which endanger the
    health and safety of the patients.         Emergency
    capital   expenditures    include,   but   are   not
    necessarily limited to, emergency expenditures to
    maintain quality care, to overcome failure of fixed
    equipment, including heating and air conditioning
    equipment, elevators, electrical transformers and
    switch gear, sterilization equipment, emergency
    generators,   water   supply   and   other   utility
    connections. Applications for emergency certificates
    of need shall include a description of the work to
    be done and/or equipment to be purchased, the cost
    thereof, justification for considering the capital
    expenditure as being of an emergency nature and such

    3
     Section 22-21-267,     Ala.     Code   1975,   concerns   the
CON-application process.
                                 7
1110588

    other information as the SHPDA may require.
    Emergency certificates of need issued hereunder
    shall be subject to such special limitations and
    restrictions as the duration and right of extension
    or renewal as may be prescribed in the rules and
    regulations adopted by the SHPDA."

    Rule 410-1-10-.01, Ala. Admin. Code (SHPDA), governs the

emergency procedure and provides, in pertinent part:

         "(1) Any person may apply independently and
    without notice for an emergency certificate of need
    for the authorization of capital expenditures made
    necessary by unforeseen events which endanger the
    health and safety of the patients.        Emergency
    capital   expenditures   include,   but   are   not
    necessarily limited to, emergency expenditures to
    maintain quality care, overcome failure of fixed
    equipment, including heating and air conditioning
    equipment, elevators, electrical transformers, and
    switch gear, sterilization equipment, emergency
    generators,   water   supply  and   other   utility
    connections and damage caused by natural or manmade
    disaster.

               "(a) The applicant must notify the
          state agency in writing, describing the
          nature of the emergency, the probable
          amount of the emergency expenditure and the
          anticipated   date   that   the   emergency
          expenditure would be obligated.         The
          applicant must clearly demonstrate that an
          emergency exists. "

    The emergency CON-application procedure avoids the notice

requirements and competitive review involved in a standard CON

application.   As the parties here (and SHPDA in the Court of

Civil Appeals) state in their briefs, and as is consistent

                              8
1110588

with the type of emergency expenditures described above,

emergency applications are usually uncontested. Corroborative

of this fact is the fact that, prior to this case being

appealed to the Court of Civil Appeals, Alabama's appellate

courts had never had occasion to discuss either § 22-21-268 or

Rule 410-1-10-.01.

                    B. Facts and Procedural History

    On March 25, 2010, the SHCC, in response to Somerby's

request, voted to adjust the SHP to indicate the need for 164

specialty-care       assisted-living-facility       ("SCALF")   beds   in

Shelby County.4       SCALF beds are dedicated to housing memory-

impaired patients, such as those suffering from dementia. The

parties     agree    that   such   beds   require     more   specialized

personnel    and    security   measures   than   do   assisted-living-

facility ("ALF") beds.         On March 31, 2010, then Governor Bob

Riley approved the adjustment to the SHP.



    4
     Before the SHCC adjusted it, the SHP had indicated a need
for 96 SCALF beds in Shelby County. Evidence submitted to the
SHCC revealed, however, that there were actually 128 SCALF
beds in service in that county when the adjustment was made.
Therefore, the adjustment to the SHP to indicate the need for
164 SCALF beds in Shelby County essentially reflected a need
for an additional 36 SCALF beds above the 128 SCALF beds
already in service.
                                    9
1110588

    After      the    adjustment   to    the   SHP,    both   Somerby    and

Danberry applied for a CON to convert 24 of their existing ALF

beds in Shelby County to SCALF beds.               However, on May 28,

2010,    the   same   day   that   Somerby     filed   its    standard   CON

application, Somerby also applied for an emergency CON to

convert 24 of its existing ALF beds in Shelby County to SCALF

beds.5    Thus, Somerby applied for both a standard CON and an

emergency CON in an attempt to convert 24 of its ALF beds to

SCALF beds.

    Danberry opposed Somerby's emergency CON application. On

June 16, 2010, the CONRB met to consider Somerby's emergency

CON application.        The meeting featured live testimony and

other evidence and argument supporting and opposing Somerby's

emergency application.         That same day, the CONRB approved

Somerby's application for an emergency CON by a vote of four

to one.    The CONRB issued a final, written decision granting

Somerby the emergency CON on July 1, 2010, slightly more than

a month after Somerby had filed its application.




    5
     Somerby had filed a LOI on March 25, 2010, to submit a
standard CON.
                                    10
1110588

    On      July   8,   2010,   Danberry   filed   a    motion   for

reconsideration, which, because it had been filed only 13 days

in advance of the hearing, was not heard at the July 21 CONRB

meeting.6    See Ala. Admin. Code (SHPDA) Rule 410-1-8-10; Rule

410-1-9-.05. At the next meeting on August 18, 2010, Danberry

stipulated that discussion of the motion was moot because the

motion had been denied by operation of law 30 days after it

was filed.    See Ala. Code 1975, § 41-22-17(e).       On August 20,

2010, Danberry filed a request for a fair hearing.

    The fair hearing was held on September 3, 2010, after

which the FHO entered his order.           The FHO concluded that

Somerby's emergency CON application was due to be granted, and

he provided two alternative grounds for his decision.        First,

he concluded that Somerby's rights under its emergency CON had

already vested, and that Danberry therefore had lost its right

to a fair hearing.      Alternatively, he concluded that Somerby

had provided substantial evidence that its emergency CON


    6
     Somerby in its brief and the FHO in its final order state
that Danberry filed its motion for reconsideration on July 8,
13 days before the July 21 hearing. Danberry states in its
appellate brief that it filed the motion on July 7. Danberry
does not contest that its motion, though timely as it related
to the CONRB's final decision, was filed too late to be heard
at the July 21 meeting.
                                 11
1110588

application presented an actual emergency within the meaning

of § 22-21-268 and Rule 410-1-10-.01.7

    Danberry appealed the FHO's order to the Montgomery

Circuit Court, pursuant to § 41-22-20, Ala. Code 1975.                   The

circuit court entered a judgment affirming SHPDA's decision to

issue   Somerby    an   emergency    CON   for    the    24   SCALF    beds.

Danberry then appealed to the Court of Civil Appeals.                    The

Court of Civil Appeals reversed the circuit court's decision

on the ground that Somerby's application did not present an

emergency   within      the   contemplation       of    the   statute    and

regulation.   As noted, Somerby            petitioned this Court for

certiorari review of the decision of the Court of Civil

Appeals.

                        II.   Standard of Review

    Section       41-22-20(k),    Ala.     Code    1975,      states    that

"[SHPDA's] order shall be taken as prima facie just and

reasonable and the [reviewing] court shall not substitute its

    7
     The FHO addressed the issue whether Somerby's request
qualified as an "emergency" under the law because, as his
order explained, "this Fair Hearing Officer feels that the
prudent action is for him to proceed with a ruling in regard
to the Fair Hearing to assist in any way a reviewing Court in
the event a reviewing Court determines that the Fair Hearing
Officer's Granting of the Motion to Strike and Dismiss was due
to be reversed."
                                    12
1110588

judgment for that of [SHPDA] as to the weight of the evidence

on questions of fact."       Our review of SHPDA's conclusions of

law and its application of the law to the facts, however, are

de novo.   See Ex parte Wilbanks Health Care Servs., Inc., 986

So. 2d 422, 425 (Ala. 2007) (stating, among other things, that

the   Alabama     Medicaid   Agency    did   not   have    "unfettered

discretion" to define the term "maintenance").

                         III.    Discussion

                                  A.

      At the outset, we note that Somerby has contended that

its CON was fully "vested" prior to Danberry's request for a

fair hearing.      Somerby asserts that that vesting prevented

Danberry   from    challenging   the   CON   issued   by   the   CONRB.

Because Danberry could not challenge the issuance of the CON,

Somerby argues, the Court of Civil Appeals could not, in

effect, revoke the CON based on a determination that there was

not an "emergency."

      As a preliminary matter, we note that Somerby contends

that Danberry waived any right to challenge the issuance of

the CON because it failed to make a substantive argument on

the vesting issue to the Court of Civil Appeals.            A careful


                                  13
1110588

reading of the circuit court's opinion, however, reveals that,

although    the   circuit    court    apparently     believed    that    the

vesting    of   Somerby's    CON    had   occurred   in   a   manner    that

truncated the administrative-review process, the circuit court

saw nothing in this vesting that affected Danberry's right to

judicial review of the issuance of the CON.                   Clearly, the

circuit court conducted that judicial review, noting in the

process    that   Danberry    had    complied   with      §   41-22-21(k).

Moreover, the circuit court's judgment leaves no doubt that

that court did decide the issue of the propriety of the

issuance of the CON on its merits.

    Appropriately, therefore, Danberry challenged the circuit

court's judgment in its brief to the Court of Civil Appeals by

challenging the circuit court's decision as to the merits of

the CONRB's issuance of an emergency CON.                 Similarly, the

Court of Civil Appeals addressed the circuit court's judgment

on that basis.     Clearly, the Court of Civil Appeals declined

Somerby's invitation to affirm the circuit court's decision on

the alternative legal ground that further administrative and,

in turn, judicial challenges to the issuance of its CON had

been foreclosed by the alleged "vesting" of the CON.                    Like


                                     14
1110588

SHPDA in its brief to the Court of Civil Appeals, the majority

of that court found no reason to discuss the issue.                Not even

the dissenting opinion seized upon it as a ground for its

position. Nonetheless, as it is entitled to do, Somerby tries

again in this Court to achieve a discussion of the issue

whether "vesting" should serve as an alternative ground for

upholding the circuit court's judgment.               Unlike the Court of

Civil Appeals, we will discuss the issue. We see no waiver of

the issue by Danberry.

    As     to   its   merits,   Somerby's     argument      regarding   the

alleged    "vesting"    of   its   CON   is   based    on   a   fundamental

misunderstanding of the intent of the applicable statutes and

regulations.      This misunderstanding is best reviewed within

the framework of the procedural history of this case.

    On July 1, 2010, the CONRB granted the emergency CON to

Somerby.    Pursuant to § 22-21-275(12), Danberry then had 15

days to file a request that the CONRB reconsider its decision.

The effect of such a request within the time allowed by the

statute is made clear by the statute:

    "Request for reconsideration shall be made in
    writing not more than 15 days subsequent to the date
    the agency (SHPDA) decision is deemed final and
    shall have the effect of holding in abeyance the

                                    15
1110588

      final decision and suspending any certificate of
      need issued pursuant thereto, subject to the outcome
      of the public hearing."

§ 22-21-275(12)(emphasis added).           Danberry timely filed its

request for reconsideration within the time allowed by the

statute, specifically, on July 8, 2010.            Therefore, pursuant

to the plain language of § 22-21-275(12), the decision of the

CONRB, which would otherwise have been final and upon which

Somerby otherwise could have acted, was "suspended" subject to

the outcome of Danberry's request.

      The next meeting of the CONRB following Danberry's filing

of its request for reconsideration was on July 21.             Under the

applicable regulation, the CONRB will not consider a request

for reconsideration filed less than 15 days before any given

meeting.      As a result, the CONRB did not consider Danberry's

request for reconsideration at its July 21 meeting and, as a

consequence, that request was denied by operation of law on

August 7, 30 days after its filing, pursuant to § 41-22-17(e),

Ala. Code 1975.        With the denial on August 7 by operation of

law of Danberry's request for reconsideration, Danberry had

the   right    under    the   law   to   request   a   "fair   hearing."

Specifically, as was the case following the initial decision


                                    16
1110588

by the CONRB, Danberry had 15 days from the denial of its

request for reconsideration to request a fair hearing.                      In

language identical to that prescribing the effect of a request

for reconsideration to the CONRB, the effect of a timely

request for a fair hearing is made clear by the statute:

    "The appeal shall be commenced by a request for a
    fair hearing by the applicant or any competing
    applicant, which request shall be made within 15
    days of the date that the decision by the state
    agency became final, or in the event of a request
    for reconsideration, within 15 days of the date that
    the decision of the state agency on reconsideration
    became final and shall have the effect of holding in
    abeyance the decision and suspending any certificate
    of need issued pursuant thereto subject to the
    outcome of the fair hearing."

Ala. Code 1975, § 22-21-275(14) (emphasis added).                    See also

Ala. Admin. Code (SHPDA) Rule 410-1-8-.17 ("The request for

fair hearing shall have the effect of holding in abeyance the

issuance   of   the   Certificate         of   Need   and   suspending    any

Certificate     of   Need   issued   pursuant         to   SHPDA's   decision

subject to the outcome of the fair hearing.").

    Danberry timely filed its request for a fair hearing

within the time allowed by the statute, specifically, on

August 20, 2010.        Therefore, under the plain language of

§ 22-21-275(14), the denial by operation of law on August 7 of


                                     17
1110588

Danberry's motion for reconsideration, which otherwise would

have made the CONRB's decision final and upon which Somerby

otherwise could have proceeded to act as of August 22, 2010,

was "suspended" on August 20 as a result of Danberry's timely

request for a fair hearing.

    Notwithstanding     the   timely    filings   by   Danberry   for

reconsideration and a fair hearing within each of the 15-day

windows described above, Somerby argues that it, Somerby, took

unilateral action during the second of those 15-day windows

that deprived Danberry of the right to the completion of the

administrative review that Danberry was in the midst of

pursuing.         Specifically,        Somerby    contends    that,

notwithstanding the apparent intent of § 22-21-275(12) and

(14), § 22-21-270(d), Ala. Code 1975,8 contemplates that,

    8
        Section 22-21-270(d) provides:

         "(d) Upon completion of the construction and
    issuance of a certificate of completion or the
    receipt of proof of purchase of equipment or
    inauguration   of   a  new   health   service,   the
    certificate of need shall be vested in and continued
    in force and effect as a part of the health care
    facility and shall survive changes of control and
    changes of ownership of the health care facility
    without further certificate of need approval by this
    agency."

(Emphasis added.)
                                18
1110588

simply by acting quickly enough following a CONRB decision in

its favor, a prevailing CON applicant can unilaterally "cut

off" the aggrieved party's rights under those statutes. It is

in   this   regard   that   Somerby   evinces    a   fundamental

misunderstanding of the statutory provisions at issue.

     The purpose of § 22-21-270 is to address the duration --

i.e., the "shelf life" -- of a CON.      See generally, e.g.,

Roberts Health Care, Inc. v. SHPDA, 698 So. 2d 106, 107 (Ala.

1997) (citing § 22-21-270 and Ala. Admin. Code (SHPDA) Rule

410–1–11–.01., which largely tracks § 22-21-270(a), for the

proposition that a CON generally has a 12–month "duration" and

that SHPDA may extend the life of a CON for an additional

12 months based on certain criteria).9     It is necessary to

establish such a "shelf life" for a number of reasons.      Most

fundamentally, the very purpose for issuing     "certificates of

need" is to meet "needs" –- existing needs.     It was never the

intent of the statutory scheme, therefore, for an applicant to

be able to obtain a CON on the basis of some purportedly

existing need, but then fail to act reasonably promptly on the


     9
     Accordingly, § 22-21-270 is aptly titled: "Certificates
of need –- Period for which valid; extension of time;
termination; transferability."
                              19
1110588

issuance of the CON and thereby leave unmet the need for which

the CON was issued.     Beyond that, the circumstances that

justify the issuance of a CON so as to allow an applicant to

offer some new service (e.g., population growths and shifts,

available technology, the management and ownership of the

applicant) are subject to change in the years following the

issuance of a CON.

    Accordingly, the first sentence of § 22-21-270 states

simply that "[a] certificate of need ... shall be valid for a

period not to exceed 12 months and may be subject to one

extension not to exceed 12 months, provided the criteria for

extension as set forth in the rules and regulations of the

SHPDA are met." (Emphasis added.) Subsection (a) of § 22-21-

270 then goes on to explain that applications for an extension

filed under § 22-21-270 shall be accompanied by a new "filing

fee."   Moreover, it goes on to explain how the 12-month life

of a CON is intended to work:    "If no obligation has occurred

within such [12-month] period, the certificate of need shall

be considered terminated and shall be null and void."     That

is, if the recipient of the CON has not acted upon it within

the 12-month period, the CON simply expires of its own accord.


                                20
1110588

Without such a provision, nothing would prevent a prevailing

applicant    from   "sitting   on"    a   CON   for   years   after    its

issuance, then attempting to act upon it.

     The point of § 22-21-270 is to provide for a natural

expiration of a certificate of need if it is not acted upon

within some defined period after the administrative decision

to issue that certificate has become final, not to override or

truncate the process by which that decision becomes final, a

process clearly prescribed in other portions of the SHPDA

statutes and regulations.      All the various provisions of § 22-

21-270 bear this out.     We have already noted the language of

the first sentence of § 22-21-270 describing simply the period

during which a CON shall remain "valid."         The last sentence of

§   22-21-270(a)    provides    that      "[s]hould     the   obligation

[contemplated by the CON] be incurred within [the 12-month

period or an extension thereof], the certificate of need shall

be continued in effect for a period not to exceed one year or

the completion of the construction project, whichever shall be

later, or the inauguration of the service or the actual

purchase    of   equipment."     Subsection       (b)    explains     that

"[f]ailure to commence [a] construction project within the


                                 21
1110588

time period stated in [an applicable] construction contract or

to complete the construction project within the time period

specified in the construction contract, which may be extended

by mutual agreement of the parties ..., shall render the

certificate of need null and void, unless tolled or extended"

pursuant to statute or SHPDA rule or regulation.    Moreover,

subsection (c) explains that "[a]pplicants who held valid

certificates of need which were terminated under this section

may file a new application for a certificate pursuant to and

subject to the provisions of this article."

    It is in the same vein as these other provisions of § 22-

21-270 that subsection (d) explains what happens to the "life"

of a CON if the provider acts reasonably promptly to begin

meeting the needs for which the CON was issued:

    "Upon completion of the construction and issuance of
    a certificate of completion or the receipt of proof
    of purchase of equipment or inauguration of a new
    health service, the certificate of need shall be
    vested in and continued in force and effect as a part
    of the health care facility and shall survive changes
    of control and changes of ownership of the health
    care facility without further certificate of need
    approval by this agency."

In other words, while the other subsections of § 22-21-270

largely concern themselves with the consequences of persuading


                             22
1110588

SHPDA to issue a certificate of need and then not acting upon

it, subsection (d)    conversely describes the expected and

desired course of events: a certificate of need is issued,

and, within a reasonably prompt time, the holder of the

certificate fulfills its implied promise to provide the new

service, acquire the new equipment, or begin construction of

the new facility, thereby preventing the certificate from

simply expiring from nonuse.10

    The   foregoing   finds   yet     further    corroboration   in

provisions of the law that establish the point at which the

"shelf life" of a CON begins to run.            Specifically, SHPDA

itself (which, again, has not embraced the vesting argument

crafted by Somerby), measures that shelf life from the point


     10
      As noted, one of the factors assessed by SHPDA in
deciding whether a CON should be issued to an applicant is the
ownership of that applicant. Accordingly, what it means for
a CON to "vest" is further explained by subsection (e), which
states that "[p]rior to becoming vested under subsection (d),
a certificate of need shall not be transferable, assignable,
or convertible other than to an entity under common ownership
and control."

     We also note that, before March 2013, the applicable
wording of § 22-21-270(d) provided merely that "[u]pon
completion of the construction and issuance of a certificate
of completion or the receipt of proof of purchase of
equipment, the certificate of need shall be continued in force
and effect." See Act No. 2012-294, Ala. Acts 2012.
                                 23
1110588

at which all properly requested administrative reviews are

concluded, the administrative decision to issue the CON is

final, and the CON is, in turn, "issued."             As noted, § 22-21-

270 starts with the basic premise that, unless the CON is

acted upon, the life of a CON will be 12 months from the date

the    CON   is   "issued."     Rule      410-1-8-.08   of   the   Alabama

Administrative Code adopted by SHPDA specifically explains

when it is that the "issuance" of a CON occurs for purposes of

§ 22-21-270 and, in so doing, confirms what § 22-21-275(12)

and (14) mean by their provisions for the "suspension" of a

CON:

            "(1) The executive director of the state agency
       shall issue a certificate of need to the applicant
       thirty (30) days after the decision of the
       Certificate of Need Review Board is deemed final,
       unless the issuance of the certificate of need is
       suspended   by   the  filing   of   a  request   for
       reconsideration pursuant to Sections 410-1-8-.14 and
       410-1-8-.15, or request for fair hearing under
       Section 410-1-8-.17. The 30 day period may be waived
       or extended with the consent of all parties."

(Emphasis added.)       In other words, SHPDA itself understands

the provisions of § 22-21-270 to provide for a 12-month (or

longer if extended) life of a CON that will begin at the point

at which any properly requested reconsideration and/or fair

hearing      is   concluded   and   the    CON   is   actually     "issued"

                                    24
1110588

thereafter.11   Compare, e.g., Bradbury Mem'l Nursing Home v.

Tall Pines Manor Assocs., 485 A.2d 634, 638 (Me. 1984) ("The

Certificate of Need Act, 22 M.R.S.A. § 311, gives 'any person

aggrieved by a final decision of the department' the right to

review in accordance with the Administrative Procedure Act, 5

M.R.S.A. §§ 11001-11008. The Department's decision to issue a

CON is not 'considered final until the Department has taken

final action on a request for reconsideration under section

310.'").




     11
      See Ala. Admin. Code (SHPDA) Rule 410-1-11-.01,
explaining that a CON is "valid for a period" that runs "from
the date of issuance," and also that that period is tolled
during the pendency of any judicial review of the decision to
issue the CON:

     "A Certificate of Need issued under these rules
     shall be valid for a period not to exceed twelve
     (12) months from the date of issuance, and may be
     subject to one extension not to exceed twelve (12)
     months, provided the holder of the Certificate of
     Need applies in writing for the extension and meets
     the extension criteria set out in Chapter 410-1-11
     of these rules and regulations. The running of the
     duration of the initial twelve (12) month period, or
     an extension thereof, shall be tolled from the date
     of the filing of a civil action arising under any of
     the provisions of Title 22, Chapter 21, Article 9,
     Code of Ala. 1975, being §§ 22-21-260 through -278,
     or other judicial proceeding until such action is
     dismissed from the judicial process."
                              25
1110588

    Not only does the language of the § 22-21-270 itself fail

to support Somerby's position, the understanding of § 22-21-

270 urged upon this Court by Somerby is in direct conflict

with the administrative- and judicial-review processes clearly

prescribed in §§ 22-21-275(12) and (14).         We cannot conclude

that it was the legislature's intent to speak out of "one side

of its mouth" in establishing certain rights to administrative

and judicial review within clearly prescribed time limits in

§ 22-21-275 (with no reference to any exceptions created by §

22-21-270), while simultaneously intending to "speak out of

the other side of its mouth" in § 22-21-270(d) (without any

reference to § 22-21-275) so as to allow one side to a dispute

to "rush out" and purchase equipment or sign a construction

contract   and   thereby    unilaterally       thwart   the   clearly

prescribed administrative procedures and deadlines for due

consideration    of   the   merits   of   an    application   for   a

certificate of need.12

     12
      In addition to, and corroborative of, the foregoing, an
interpretation of § 22-21-270(d) of the nature urged by
Somerby would raise due-process concerns.    Somerby insists
that, despite Danberry's timely filings, somehow the law
prevented Danberry from challenging Somerby's CON.     Such a
possibility, especially the foreclosure of any judicial
review, raises a fundamental due-process problem. Danberry
should not be put in the position of having followed the
                                26
1110588

    As     noted,   Danberry    responded      at    each   step    of   the

administrative-review process (and the subsequent judicial-

review process) in a timely manner.           Somerby does not contend

otherwise.          Instead,    it    takes     the     position     that,

notwithstanding      Danberry's      timely    compliance    with    every

requirement of the administrative-review process, Somerby's

CON "vested" in the midst of that review process in a manner

that should be understood to "cut off" the continuation and

fulfillment of that process and, as a result, also "cut off"

the right to judicial review.             In effect, Somerby takes the

position     that   its   CON   vested      before    Danberry     had    an

opportunity to challenge it.         We reject this position.

                                     B.

    We turn now to the primary issue before us, whether the

Court of Civil Appeals correctly concluded that Somerby's

application was not properly considered as an application for



review processes prescribed to it by law and yet for reasons
beyond its control be foreclosed from receiving that review.
See generally Alabama Republican Party v. McGinley, 893 So. 2d
337, 344 (Ala. 2004) (observing that "[t]he hallmarks of
procedural due process are notice and 'the opportunity to be
heard "at a meaningful time and in a meaningful manner"'"
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976),
quoting in turn Armstrong v. Manzo, 380 U.S. 545, 552
(1965))).
                                     27
1110588

a   "emergency"   CON.      We     answer      this    question      in   the

affirmative, as did the Court of Civil Appeals.

     An "emergency" CON is issued as an exception to the

general   requirements    imposed       by   the    legislature   for     the

issuance of a standard CON.       The statutory provision by which

this exception is created is § 22-21-268, Ala. Code 1975,

which reads as follows:

          "Any person may apply, either independently and
     without notice under Section 22-21-267 or as a part
     of an application filed under Section 22-21-267, for
     an   emergency    certificate   of    need   for   the
     authorization of capital expenditures made necessary
     by unforeseen events which endanger the health and
     safety   of   the   patients.      Emergency   capital
     expenditures include, but are not necessarily limited
     to, emergency expenditures to maintain quality care,
     to overcome failure of fixed equipment, including
     heating and air conditioning equipment, elevators,
     electrical     transformers    and     switch    gear,
     sterilization equipment, emergency generators, water
     supply and other utility connections. Applications
     for emergency certificates of need shall include a
     description of the work to be done and/or equipment
     to be purchased, the cost thereof, justification for
     considering the capital expenditure as being of an
     emergency nature and such other information as the
     SHPDA may require. Emergency certificates of need
     issued hereunder shall be subject to such special
     limitations and restrictions as the duration and
     right of extension or renewal as may be prescribed in
     the rules and regulations adopted by the SHPDA."

(Emphasis   added.)      Ala.    Admin.      Code   (SHPDA)   Rule    41.-1-

10.01(1), reads in all material respects identically to the

                                   28
1110588

statutory language quoted above, except for the addition of

one additional example following the reference to "failure of

fixed equipment," namely, "damage caused by natural or manmade

disaster."      (Emphasis added.)        Thus, the "emergency" CON has

been    made    available   by   statute    only   for    the   purpose   of

addressing "unforeseen events" that "endanger the health and

safety" of "the patients."

       As noted at the outset, the legislature has provided an

extensive statutory scheme for assessing and planning for

circumstances that bear upon the health-care needs of the

public, including, for example, the growth and shifting of

populations and advances in technology.                  In providing for

"emergency" CONs, however, the legislature makes reference to

"unforeseen events," clearly meaning some event that does not

fall within the ambit of the normal assessment and planning

process.       Moreover, it is not all unforseen events that can

justify the issuance of an emergency certificate, but only

those unforseen events that, if left uncorrected, actually

pose a danger to -– "endanger" -– health and safety.               Further

still, the danger to be alleviated within the contemplation of

emergency-CON statute is not one to the public generally, but


                                    29
1110588

to what the statute refers to as "the patients," implying a

danger    to     the    applicant's      existing     patients.       This

implication, as well as the general nature of the emergency

circumstances suggested by all the above-emphasized terms, is

borne out by the examples provided by the legislature, which

deal generally with equipment failures, such as failures of

heating        and     air-conditioning       equipment,       elevators,

sterilization equipment, etc.         A rule or regulation adopted by

SHPDA further corroborates this understanding by adding to the

list of examples "damage" to an applicant's facilities caused

by a "natural or manmade disaster."            Clearly, therefore, the

legislature (as well as SHPDA) contemplated a true "emergency"

as some "event" that by its very nature could not be planned

for and that actually endangers the health or safety of an

applicant's existing patients, rather than some change or

addition to existing plant or services by which a provider

could serve new patients or provide new services.

    The   statutory      language     makes   clear   the   legislature's

intent, and that legislative intent makes sense.                  If fixed

medical equipment suddenly fails, that is an "unforseen event"

that could easily "endanger the health and safety of the


                                    30
1110588

patients."      The same is true of "heating and air conditioning

equipment" -- if an air-conditioning unit suddenly fails in

August, the temperatures inside a building could easily rise

to unbearable and clearly dangerous levels.                 If the "water

supply" of a medical facility is suddenly interrupted or

tainted in some way, or if its "emergency generators" or

"sterilization equipment" suddenly fails, those are clearly

unforeseen events that immediately place at risk the health

and safety of patients at the facility.            The addition in the

regulation is of the same ilk: if a tornado tears the roof off

a surgical facility or frozen pipes burst and destroy patient

rooms in a hospital, the health and safety of patients has

been endangered immediately.

    In     contrast,       standard     CON-approval       procedures    are

consistent with the normal assessment, planning, and approval

responsibilities prescribed to SHCC and SHPDA, including the

advanced       assessments   and   planning     that   inform    the    SHP.

Assessing, planning for, and meeting such needs are not within

the contemplation of the "emergency" provisions at issue here.

Every    CON    is   a   certificate    that   meets   a   "need."      When

unexpected events suddenly put the health or safety of an


                                       31
1110588

applicant's patients at risk, a very different and time-

sensitive circumstance is presented.

      The circumstances under which Somerby was granted its CON

do not meet the specific requirements necessary to qualify for

an "emergency" CON. Somerby's application stated that "urgent

CON approval is necessary in order to provide proper care for

dementia related conditions in the northeastern part of Shelby

County." Somerby repeatedly emphasized in its application the

pace of population growth in Shelby County and asserted that

the county's medical-service providers would not be able to

meet the needs of the increasing elderly population with

respect   to   SCALF   services    unless      the   emergency   CON   was

approved.

      The fact that the aging population in a given county is

increasing at a faster pace than in other counties or that the

SHCC votes to adjust the SHP as it relates to a given county

does not reflect an "unforeseen event" or one that gives rise

to an "emergency" within the meaning of the statutes at issue.

The changing medical needs of a given community are exactly

the   type   of   circumstance    that   the    standard   CON-approval

process (in conjunction with petitions to modify the SHP) is


                        [substituted p. 32]
1110588

designed to address.          Approving an "emergency" CON simply

because    the   change    will   allow   a   medical     provider    to    be

prepared for a projected increase in demand for a particular

medical-service     need     obliterates      any   distinction      between

standard and emergency CONs.

     Even leaving aside the failure of the extant circumstances

to satisfy the "unforeseen" and "emergency" criteria, there is

no   "endangerment"       here.    Somerby    did   not   allege     in    its

application that it had existing patients who would be denied

immediate and proper medical care without approval of the

emergency CON. Instead, at the CONRB hearing, Somerby offered

testimony only that it was unable to offer SCALF services to

two potential residents.13        The record establishes that other

facilities exist in the area to serve elderly patients with

dementia;   the   Somerby     SCALF   beds    would   merely   make       such

services more convenient.14

      13
      The president of Somerby, Michael Mays, testified at the
fair hearing that, since the approval of the emergency CON,
Somerby had moved four residents into the SCALF beds and that
it had contracts to fill two more beds. Thus, in the midst of
the purported "emergency," 18 of the 24 new SCALF beds were
not receiving immediate use.
      14
      Somerby asserts in a footnote in its brief that
"[e]vidence at the Fair Hearing showed that Mrs. Day, a former
resident of Somerby who had to move to another facility that
                           [substituted p. 33]
1110588

    In short, we agree with the following observation made in

the main opinion of the Court of Civil Appeals:

         "In   seeking   an    emergency   CON,   Somerby
    essentially relied on the same evidence that it
    relied on in its application for a standard,
    nonemergency CON.     Somerby's application for an
    emergency CON was based on evidence indicating that
    there is a general need for SCALF beds in Shelby
    County, that Somerby could provide services that
    would meet this need, and that those services would
    be   valuable   and   convenient.     However,   that
    application does not demonstrate an emergency as
    contemplated by § 22-21-268 and Rule 410-1-10-.01(1).
    Somerby's emergency CON application is essentially a
    standard CON application disguised as an emergency
    CON application."

Daniel Sr. Living of Inverness I, LLC, ___ So. 3d at ___.



provided SCALF services, died while waiting for SCALF services
at Somerby." Somerby's brief, p. 44 n.19. The testimony at
the fair hearing from Stephen Day, Mrs. Day's husband,
presents a different picture. Mr. Day testified that he was
a resident of Somerby and that he "chose Somerby because of
its location and the fact that it was designed with different
levels of care including independent living, assisted living,
and proposed memory care unit."      He stated that Mrs. Day
originally also was a resident at Somerby, but that she had
Alzheimer's disease, and, because of that, he had moved her
"into the closest memory care facility which is about six
miles away." Mr. Day testified that he visited his wife once
or twice every day at that facility, "[b]ut that much driving
is troubling to me and I would welcome the convenience of just
being able to walk a short distance several times a day" to
see her. (Emphasis added.) Mr. Day added that Mrs. Day had
"recently suffered complications which required her to move to
a skilled nursing facility 20 miles away." It appears to be
undisputed that sometime after Mr. Day's testimony Mrs. Day
died while in the skilled-nursing facility.
                    [substituted p. 34]
1110588

    Somerby contends that the Court of Civil Appeals failed

to give due deference to the governing agency's interpretation

of the applicable statute and promulgated regulation.                      In

support    of     this    argument,      Somerby    cites   an   exhibit   it

submitted       that     listed    the   CONRB's    decisions    issuing   28

emergency CONs.          A review of those decisions reveals that,

although a few of the decisions were substantially analogous

to the examples listed in § 22-21-268, it is undeniable that

the CONRB has granted emergency CONs in several instances that

were not so analogous.

    Analogous          decisions     included      the   approval    of   four

additional hemodialysis stations needed to accommodate 27

patients    who    had     been    displaced    from     Talladega   Dialysis

because of damage to the roof, HVAC unit, and interior of that

facility caused by a tornado on June 21, 2010; approval for 10

additional       hemodialysis       stations       needed   to   accommodate

patients who would transfer from Dialysis Clinic, Inc.-Dothan

to Wiregrass Kidney Center because a facility of Dialysis

Clinic, Inc.-Dothan had been destroyed by severe flooding; and

approval of the relocation by Dialysis Clinic, Inc., of 19




                                         35
1110588

hemodialysis stations needed to accommodate 106 patients who

were displaced due to severe flooding in Dothan.

    Decisions that were not analogous included, among others:

approval   of    the    acquisition       and    operation   of   a   linear

accelerator for the University of South Alabama Mitchell

Cancer Institute because it had "demonstrated a substantially

unmet   community      need   for   the   proposal";    approval      of   the

relocation of the facility for Tuscaloosa University Dialysis

because of a projected increase in Tuscaloosa County's elderly

population      in   coming    years;      and    the   approval      of   10

applications for the relocation of administrative offices for

health-care businesses based on projected increases in the

elderly populations of the counties in which the businesses

were located despite the fact that the decisions acknowledged

that no patient care was being provided at the administrative

offices.

         "'The   fundamental   principle   of   statutory
    construction is that words in a statute must be given
    their plain meaning.' Mobile Infirmary Med. Ctr. v.
    Hodgen, 884 So. 2d 801, 814 (Ala. 2003). 'When a
    court construes a statute, "[w]ords used in [the]
    statute must be given their natural, plain, ordinary,
    and commonly understood meaning, and where plain
    language is used a court is bound to interpret that
    language to mean exactly what it says."' Ex parte
    Berryhill, 801 So. 2d 7, 10 (Ala. 2001) (quoting IMED

                                     36
1110588

       Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344,
       346 (Ala. 1992))."

Trott v. Brinks, Inc., 972 So. 2d 81, 85 (Ala. 2007).

       In this instance, the applicable statute dictates that an

"emergency" CON is authorized when "unforeseen events which

endanger      the    health   and   safety          of   the   patients"      require

capital expenditures by a health-care facility.                            It is true

that    our    precedents       provide       for    weight     to    be    given   an

administrative interpretation of the statute by the agency

charged with its administration; however, this is true only

"if the interpretation is reasonable."                     Ex parte State Dep't

of Revenue, 683 So. 2d 980, 983 (Ala. 1996).                        The majority of

the    CONRB's      decisions    cited     by       Somerby    do    not    represent

reasonable interpretations of § 22-21-268.                           Instead, they

simply redefine the nature of what constitutes an "emergency"

under the statute.            Those CONRB decisions cannot amend by

practice what the law itself does not permit.

       The decision by the CONRB in this case, like previous

decisions approving "emergency" CONs for changes in medical

services      that    clearly     are     not       of   an    emergency      nature,

contradicts the law.            Unlike most of those other decisions,

however, using the emergency-CON process in a situation like

                                         37
1110588

the    one    presented   here    also      gives    an   unfair    competitive

advantage to the service provider that receives the CON.                      We

observed above that emergency-CON applications are usually

uncontested.          This is not surprising for a true emergency

situation, because the condition to be remedied endangers the

health and life of existing patients at a medical facility,

and the applicant is the only party in a position to address

the emergency and to protect the affected patients -- there

are no competing applicants.           In that circumstance, the notice

requirements       that       apply    to     standard-CON         applications

understandably can be bypassed.

       In situations like the present case, however, there is no

"emergency" that must be addressed in order to alleviate some

immediate      unexpected     danger     to   the    health   and    safety   of

Somerby's patients; rather the "emergency" is based on meeting

the health-care needs of a county whose aging population is

growing.      It is often the case, as here, that there is more

than    one    medical     facility      that   would      compete     for    the

opportunity      to    meet   such    needs,    if    given   notice    and    an

opportunity to do so.             Granting an emergency CON to one

facility to meet such a broad medical need undermines the


                                       38
1110588

integrity     of   the   review   process.     Returning    to   the   clear

distinction provided by the law between emergency and standard

CONs prevents applicants from "gaming the system."

     The emergency CON issued in the present case, if allowed

to stand, would allow the aforesaid "gaming" to rise to a new

level.     As Judge Moore noted in his special concurrence below,

in   the   oral    argument   before     the   Court   of   Civil   Appeals

"counsel for the parties acknowledged that the CONRB had never

in its history issued an emergency CON on the basis that the

State Health Plan had underestimated a need for certain beds

in a particular area."        Daniel Sr. Living of Inverness I, LLC,

___ So. 3d at ___ n.5 (Moore, J., concurring specially).

     The chairman of the CONRB as much as admitted the need for

today's decision.        During the CONRB's hearing on an emergency-

CON application filed by Danberry (after the CONRB's approval

of Somerby's emergency CON) to host the remaining 12 SCALF

beds of the original 36 SCALF beds approved in the SHP, the

chairman stated:         "If you wanted to be very technical about

the definition of an emergency, and I admit we have gone

outside that definition a few times, we have, but at what




                                    39
1110588

point do we go back to the purity of what the law says about

what an emergency is?"    (Emphasis added.)

       The CONRB denied Danberry's application for an emergency

CON on the ground that it did not fit within the definition of

an "emergency" under § 22-21-268.       By the same token, it

should have denied Somerby's application for an "emergency"

CON.    By upholding the Court of Civil Appeals' decision to

this effect, we hopefully have reached "the point" about which

the chairman inquired.

                         IV.   Conclusion

       The Court of Civil Appeals correctly ruled that the CONRB

erred by granting Somerby an emergency CON.      We affirm that

court's decision reversing the judgment of the circuit court.

       AFFIRMED.

       Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur.

       Moore, C.J., concurs in part and dissents in part.

       Bryan, J., recuses himself.*




     *Justice Bryan was a member of the Court of Civil Appeals
when that court considered this case.

                                40
1110588

MOORE, Chief Justice (concurring in part and dissenting in

part).

    I agree with the statement in the main opinion that the

vesting of a certificate of need ("CON") does not "cut off"

the right of an opponent to the CON to judicial review;

otherwise, I dissent.




                            41
