Request By:
Hon. Sidney C. Kinkead, Jr.
Stites & Harbison
101 East Vine Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Virgil W. Webb III, Assistant Attorney General
In your letter to this office dated March 18, 1983 you stated that a group of physicians propose to purchase a linear accelerator and open a radiation clinic. The legal question set forth in your letter was whether or not the physicians would be required to obtain a certificate of need under KRS 216B.061 in order to operate the clinic or whether the exemption set out in KRS 216B.020 (2)(a) applies.
KRS 216B.020 (2)(a) reads as follows:
(2) Nothing in this chapter shall be construed to authorize the licensure, supervision, regulation or control in any manner of:
(a) Private offices and clinics of physicians, dentists, and other practitioners of the healing arts.
The problem then requires that the legislative intent of the above statute be determined. The purpose of Chapter 216B is stated as follows:
216B.010. LEGISLATIVE FINDINGS AND PURPOSES. -- The general assembly finds that the licensure of health facilities and health services is a means to insure that the citizens of this Commonwealth will have safe, adequate and efficient medical care; that the proliferation of unnecessary health care facilities, health services and major medical equipment results in costly duplication and underuse of such facilities, services and equipment; and that such proliferation increases the cost of quality health care within the Commonwealth. Therefore, it is the purpose of this chapter to provide for the establishment of the Kentucky health facilities and health services certificate of need and licensure board for the purpose of licensing health facilities and services, and acting on applications for certificates of need.
KRS 216B.010.
To interpret a statute the rule is to ascertain and determine the intent of the legislature. That intention is ascertained by looking at the words of the statute. Those words are to be given their usual, everyday meaning.
Gateway Construction Company v. Wallbaum, Ky. 356 S.W.2d 247 (1962).
The precise question raised in your letter was addressed by the
New Jersey Court of Appeals in Marsh v. Finley, 160 N.J. Super 193, 389 A.2d 490 (1978), cert. denied 78 N.J. 396, 396 A.2d 583 (1978). In Marsh the Court, applying the above rules of statutory construction, concluded that a physician would not be required to obtain a certificate of need to purchase a C.A.T. scanner. The court noted that the legislative intent was to limit the spiraling cost of institutional health care. The Court concluded that the exclusion of ". . . services provided by a physician in his private practice" from the definition of "health care service" meant that the physician was exempt from the Health Care Facilities Planning Act notwithstanding that the equipment would cost approximately $500,000 and require a large staff. The Court stated:
In the case at bar plaintiff's practice, even with the addition of the scanner, remains essentially a private practice. His practice does not involve merely the provision of facilities for medical diagnosis and treatment, as in a hospital or other institutional facility, but the actual diagnosis and treatment of patients seeking his aid. Plaintiff's practice and the tools he uses are inseparable. The scanner will apparently be only one of many diagnostic tools which are incidental to his specialty of radiology. The Commissioner's construction of the act suggests that a radiologist must obtain a certificate of need for every costly radiological tool he may use. In our judgment such construction would distort the legislative intent.
Marsh, Id., 493-494.
Although the language of the New Jersey and Kentucky statutes is not identical, it appears that the same result should apply. Based upon the above authorities it is the opinion of this office that a certificate of need is not required.
"Clinic" is defined as: "A medical establishment run by several specialists working cooperatively" American Heritage Dictionary of the English Language, 251 (1980). That definition is in accord with those found in medical dictionaries. One defines "clinic" as: "An establishment where patients are admitted for special study and treatment by a group of physicians practicing medicine together." Dorland's Illustrated Medical Dictionary, 314 (24th Ed. 1965). Another defines the word as: "A place where patients are treated by physicians who practice medicine as a group." J. E. Schmidt Attorney's Dictionary of Medicine, Vol. I, C-161 (17th Ed. 1982).
By exempting clinics from the operation of the statute the legislature indicated that it did not intend that KRS 216B apply to equipment purchased as a part of a joint effort. As long as the physicians who make up the partnership do not merely provide the funds for the equipment but are associated with the clinic and the accelerator is intended for the treatment of their patients, a certificate of need should not be required.