Request By:
Mr. Tony Goetz
Executive Director
East Kentucky Health Systems
Agency, Inc.
P.O. Box 531
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
We are in receipt of your letter in which you ask our opinion of the scope and application of the Kentucky Certificate of Need, Licensure and Regulations Act of 1972 (hereinafter referred to as "Act.")
The first question is whether the Act applies to state health facilities. KRS 216.405 makes the Act applicable to public (state, county and municipal) health facilities:
"' Health facility and health services' means any program, institution, place, building, or agency or portion thereof, public or private, whether organized for profit or not, used, operated or designed to provide medical diagnosis, treatment, nursing, rehabilitative or preventive care to any person or persons. This shall include, but shall not be limited to health facilities and health services commonly referred to as hospitals, extended care and recuperation centers, nursing homes, personal care homes, homes for the aged and infirm, intermediate care facilities, outpatient clinics, ambulatory care facilities, emergency care centers and services, community mental health and mental retardation centers, home health agencies, health maintenance organizations and others providing similarly organized services regardless of nomenclature." KRS 216.405(6) (emphasis added); see also KRS 216.445(1).
The second question is whether the Department for Human Resources, Bureau for Health Services must obtain approval of the Kentucky Certificate of Need Board (hereinafter "Board") before a state respiratory disease hospital at Paris, Kentucky can be closed. KRS 216.445(1) provides:
"Construction or modification of health facilities or health services whether public, nonprofit, private or investor owned shall not be commenced unless a certificate of need has been issued therefor, in accordance with the provisions of KRS 216.405 to 216.485."
KRS 216.405(4) defines the term, "construction or modification" as:
". . . [T]he erection, building, alteration, reconstruction, modernization, improvement, extension or establishment of a health facility or service . . . which:
"(a) . . . .
"(b) Will . . .
"1. . . . .
"2. Increase or decrease the bed complement of a health facility or health service."
Even though the closing of the hospital at Paris will decrease the bed complement of the hospital, we conclude that the closing is not a "construction or modification, " as defined by the statute, quoted supar, so as to be within the scope of the Act. Because the Act is ambiguous in this regard, we may apply rules of statutory construction, cf. Commonwealth v. Ross, 135 Ky. 315, 122 S.W. 161 (1909). We base our conclusion on two of these rules.
First, the definition of "construction or modification, " which must be met if the Act is to apply, is specific; i.e. alteration, reconstruction, et cetera. Nowhere in this definition is the word, "closing," or its equivalent mentioned. It is a primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned, Smith v. Wedding, 303 S.W.2d 322, 323 (1957). Based upon this rule, the conclusion which obtains is that the closing of a health facility is not a "construction or modification" as that term is defined by statute.
Second, to hold that the closing of a health facility was subject to the Board's approval could lead to an impractical result. For example, as in this case, the lack of available funds to operate the facility would render the Board's disapproval a practical nullity. We cannot construe the Act to bring about this awkward result, cf. Martin v. Louisville Motors, 276 Ky. 696, 125 S.W.2d 241 (1939).
Therefore, we are of the opinion that the Kentucky Certificate of Need, Licensure and Regulations Act of 1972 does apply to public health facilities and services including state facilities and services. However, we conclude that the Act does not apply when the operation of a health facility is terminated.