       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                                FILED
                                                                   May 29, 1998
NATIONAL HEALTHCARE, L.P., )
                           )                                   Cecil W. Crowson
     Plaintiff/Appellant,  )                                  Appellate Court Clerk
                           )                  Davidson Chancery
VS.                        )                  No. 97-469-I
                           )
SPARTA MEDICAL INVESTORS )                    Appeal No.
LIMITED PARTNERSHIP and    )                  01A01-9712-CH-00718
THE TENNESSEE HEALTH       )
FACILITIES COMMISSION,     )
                           )
     Defendants/Appellees. )


                        CONCURRING OPINION

      I concur with the results of the court’s opinion.


      The Tennessee Health Facilities Commission employs a procedurally unique
three-step procedure. The first step consists of the Commission’s preliminary
decision on an application for a CON. See Tenn. Code Ann. § 68-11-108 (1996). If
one of the affected parties contests the Commission’s preliminary decision, the
second step consists of a contested case hearing in accordance with Tenn. Code Ann.
§ 68-11-109 (1996). Administrative law judges usually preside at these hearings and
then issue an initial decision. The third step is the Commission’s consideration of the
administrative law judge’s initial decision and its issuance of a final decision.


      The Tennessee Health Planning and Resource Development Act of 1987, Tenn.
Code Ann. §§ 68-11-101, -125 (1996 & Supp. 1997), contains no provision explicitly
preventing the Commission from granting a final CON on terms and conditions that
are different from the terms and conditions of the CON preliminarily granted under
Tenn. Code Ann. § 61-11-108. When a petition for a contested case hearing in
accordance with Tenn. Code Ann. § 68-11-109 is filed, the hearing must relate to the
original application for a certificate of need filed with the Commission. The record
contains no convincing evidence that the consideration of the various permutations
of Sparta Medical Investors, L.P.’s application for a CON undermined National
Health Care, L.P.’s ability to present proof opposing the approval of a second nursing
home in Sparta.


      Following my own independent review of the administrative record, I find that
there is substantial and material evidence supporting the Commission’s approval of
a 100-bed non-skilled nursing home with twenty skilled beds and including an
Alzheimers unit and its conclusion that this facility was economically feasible to
build and operate.



                                       _______________________________
                                       WILLIAM C. KOCH, JR., JUDGE




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