A challenge of the constitutionality of North Carolina’s Certificate of Need law may be heading back to the state Supreme Court.
On Friday, a three-judge panel of superior court judges ruled unanimously against New Bern optometrist Jay Singleton, who alleged that Certificate of Need law restricts the right to earn a living and creates illegal monopolies.
The case was sent down to the panel by the Supreme Court last year, when the high court decided that Singleton’s argument was not just about his situation, but about the constitutionality of the law as a whole.
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Certificate of Need law mandates that health care providers cannot expand services — be it new MRI machines, hospital beds or operating rooms — unless they are filling a pre-identified need.
The North Carolina Department of Health and Human Services identifies these needs by looking at population numbers, demographics and utilization of various health care facilities, services and equipment to see what local area needs what. Health care providers then apply to meet those needs.
Singleton wanted to dedicate a room to provide more complex, invasive procedures. The state told him it was illegal without a Certificate of Need. Why? There is no identified “need” for more operating room capacity in New Bern — beyond what is already provided by CarolinaEast Medical Center.
Singleton is arguing that the law grants exclusive privileges to CarolinaEast and creates a monopoly, while simultaneously restricting his economic liberty to earn a living.
The three-court panel, which consisted of Republican Judge Jeffrey Foster of Pitt County, Republican Judge Troy Stafford of Iredell County and Democratic Judge Jacqueline Grant of Buncombe County, didn’t agree with Singleton.
The panel found that the law serves the public interest, pursuing the legitimate purpose of protecting public health and affordable health care through reasonable means. They also found that no monopoly actually exists, considering that New Bern residents can access 80 operating rooms from nine different providers in the wider region.
Singleton’s lawyers are planning to appeal this decision, though this case has already been through the appellate process once.
“In 2023, the North Carolina Supreme Court granted review in this case to resolve foundational questions about the North Carolina Constitution’s protections for the right to earn a living,” Singleton’s lawyer Joshua Windham told Carolina Public Press.
“Last fall, the court sent us back down to the trial court to proceed through a three-judge panel because the allegations of our complaint, if proven, could render the CON law unconstitutional across the board.
“We have now complied with that instruction. The three-judge panel appears to have largely adopted the government’s legal theories, which remain as wrong today as they have always been. We look forward to taking this fight back to the North Carolina Supreme Court, which we expect will treat the CON law with the genuine skepticism it deserves under the North Carolina Constitution.”
If the Court of Appeals rules against Singleton, he could petition for a discretionary review from the Supreme Court. Or, the Court of Appeals could certify the case directly to the Supreme Court. That’s possible, given the significant public interest and constitutional implications of this case.
Whether the Supreme Court would choose to hear it again remains to be seen.
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