The Louisville Courier Journal has a story on the Certificate of Need ordinances in Floyd and Clark Counties recently struck down by Judge Barker in the Southern District of Indiana. The ordinances are designed to protect county hospitals from competition and prohibit construction of new medical facilities without the county’s permission. Back in November, Judge Hamilton struck down a similar ordinance in Morgan County. In previous posts (here and here ), I discussed Perry County’s bewildering decision to adopt a similar ordinance even though they were aware that Judge Hamilton had ruled that they were beyond a county’s authority and illegal.
According to the Courier Journal article, Clark County has paid legal expenses of $70,000 to the law firm of Barnes and Thornburg in Indiana and an unspecified amount to their own county attorney. In making the determination of whether to appeal the decision, Dr. Gordon Gutmann, physician and president of the board of directors at the Clark County hospital makes a great deal of sense:
Gordon Gutmann, a physician and president of the board of directors at Clark Memorial, said it is his position that Clark County should not appeal the judge’s ruling to the 7th U.S. Circuit Court of Appeals in Chicago. It would cost more money and time, Gutmann said, and court opinions so far have shown that the regulation of local health care is up to the Indiana State Department of Health and not county government.
“If that’s what the law is it’s what the law is,” Gutmann said. “We have to suck it up and abide by it.”
Meanwhile, Floyd County’s attorney said there was a more than 50/50 chance Floyd County would appeal the decision. He said that he believes Floyd County has legal grounds to pass some type of ordinance regulating hospitals in addition to the regulatory authority assigned to the State Department of Health. The article did not specify what that additional authority might be.
I’m all for county authority to act. I think county government tends to be more responsive to the citizenry than state or federal government. But I just don’t see that the counties have a leg to stand on with respect to this issue. Under Indiana’s Home Rule structure, once authority over an issue has been assigned to a state agency, local governments do not have authority over the issue unless specifically granted such authority by statute. Two judges reviewing three different ordinances have failed to find such a specific grant of authority.
So, the $70,000+ question for the Perry County Commissioners is whether they think they can succeed where three others have failed or do they want to repeal their ill-considered decision to adopt a Certificate of Need ordinance?
[…] Certificate of Need programs, purporting to prohibit construction of medical facilities have been struck down because county authority is pre-empted by the state. The law generally has been that regulation of […]