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Ahmad v. Illinois Health Facilities and Services Review Board

Court of Appeals of Illinois, Fifth District

August 23, 2013

MAQBOOL AHMAD and MARION EYE CENTERS, LTD., Plaintiffs-Appellants,
v.
ILLINOIS HEALTH FACILITIES AND SERVICES REVIEW BOARD; THE DEPARTMENT OF PUBLIC HEALTH; CIRURGIA CENTRO, LLC; MARION HOLDINGS, LLC; RONALD E. OSMAN, Individually; DALE GALASSIE, Chairman of the Illinois Health Facilities and Services Review Board; RONALD S. EAKER, Member of the Illinois Health Facilities and Services Review Board; ALAN GREIMAN, Member of the Illinois Health Facilities and Services Review Board; JOHN HAYES, Member of the Illinois Health Facilities and Services Review Board; DAVID PENN, Member of the Illinois Health Facilities and Services Review Board; JAMES J. BURDEN, Member of the Illinois Health Facilities and Services Review Board; ROBERT J. HILGENBRINK, Member of the Illinois Health Facilities and Services Review Board; KATHRYN J. OLSON, Member of the Illinois Health Facilities and Services Review Board; and RICHARD H. SEWELL, Member of the Illinois Health Facilities and Services Review Board, Defendants-Appellees.

Rule 23 Order Filed: July 1, 2013.

Appeal from the Circuit Court of Williamson County. No. 11-MR-137 Honorable Brad K. Bleyer, Judge, presiding.

John Womick, Womick Law Firm, Chtd., Attorney for Appellants.

Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor General, Timothy K. McPike, Carl J. Elitz, Assistant Attorneys General, Ronald E. Osman, Ronald E. Osman & Associates, Ltd., Attorneys for Appellees.

JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Presiding Justice Spomer and Justice Wexstten concurred in the judgment and opinion.

OPINION

CHAPMAN, JUSTICE.

¶ 1 The issue in this appeal involves a surgical center located in Marion, Illinois. In 2010, controlling interest in the center was owned by Surgical Care Affiliates. Dr. Maqbool Ahmad entered into an agreement with Surgical Care Affiliates, dated December 2, 2010, to purchase a controlling interest in the surgical center. Surgical Care Affiliates then entered into another agreement on January 27, 2011, with attorney Ronald E. Osman, the sole owner of Cirurgia Centro, LLC, to purchase the controlling interest in the center. Cirurgia Centro then sought and received the required approval by the Illinois Health Facilities and Services Review Board (Board) for change of ownership. Dr. Ahmad and Marion Eye Centers asked for judicial review of that administrative approval. The Board filed a motion to dismiss the complaint on the basis that the plaintiffs lacked standing to challenge its decision. The trial court agreed and dismissed the complaint. Dr. Ahmad and Marion Eye Centers (Dr. Ahmad's company) appeal that dismissal.

¶ 2 FACTS

¶ 3 The Surgical Center of Southern Illinois is an Illinois-licensed ambulatory surgical treatment center (surgical center) located in Marion, Illinois. The Surgical Care Affiliates, LLC, owned the controlling interest in the surgical center. Dr. Maqbool Ahmad is an eye surgeon whose practice is Marion Eye Centers. Dr. Ahmad owned 30% of the surgical center. The physicians in Ahmad's practice, Marion Eye Centers, performed the majority of their surgeries at the surgical center. Ronald Osman is an attorney and the owner of Cirurgia Centro (Cirurgia). Ahmad and Osman both wanted to purchase Surgical Care Affiliates' controlling interest in the surgical center. Dr. Ahmad entered into a "letter of intent" agreement with Surgical Care Affiliates on December 2, 2010, to purchase the controlling interest in the surgical center. Osman entered into a contract with Surgical Care Affiliates on January 27, 2011, for the purchase of the same interest. The contract for the sale to Osman was contingent upon Cirurgia's receipt of approval of an exemption for change of ownership from the Illinois Health Facilities and Services Review Board.

¶ 4 Cirurgia filed its request for an exemption for the change of ownership with the Board. Pursuant to the Illinois Health Facilities Planning Act, a public hearing can be requested to allow the public to make written or oral comment on the change of ownership request. 20 ILCS 3960/8.5 (West 2010). That hearing was requested and was held on April 5, 2011. On June 28, 2011, the Board approved Cirurgia's request, over the objections of Dr. Ahmad. Cirurgia's purchase of the surgery center was finalized on June 30, 2011.

¶ 5 Dr. Ahmad and Marion Eye Centers, Ltd., filed their complaint seeking judicial review of the Board's decision on August 1, 2011. They asked the court to reverse the Board's decision or alternatively remand the matter to the Board to be treated as a "Certificate of Need" as opposed to the "Certification for an Exemption." The defendants filed motions to dismiss on the basis that neither plaintiff had standing to file the complaint. On November 17, 2011, the trial court dismissed the complaint on the basis of standing, finding that the plaintiffs were not "adversely affected persons, " as required by section 11 of the Illinois Health Facilities Planning Act (20 ILCS 3960/11 (West 2010)). The plaintiffs' request for reconsideration of the dismissal was denied on December 19, 2011. From these two court orders, Dr. Ahmad and Marion Eye Centers appeal.

¶ 6 LAW AND ANALYSIS

¶ 7 On appeal from a trial court's involuntary dismissal of a complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), we must determine "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." (Internal quotation marks omitted.) Doyle v. Holy Cross Hospital, 186 Ill.2d 104, 109-10, 708 N.E.2d 1140, 1144 (1999). Our review is de novo. In re Estate of Mayfield, 288 Ill.App.3d 534, 542, 680 N.E.2d 784, 789 (1997).

¶ 8 When there is a proposed change in ownership of an Illinois-licensed health care facility, the buyer "must submit an application for exemption to HFPB [Illinois Health Facilities and Services Review Board], submit the required application processing fee and receive approval from HFPB." 77 Ill. Adm. Code 1110.520(a) (2006); see also 20 ILCS 3960/6 (West 2010). Because the proposal to purchase the surgical center only required a change of ownership, the Board does not require the issuance of a permit–only a certificate. 20 ILCS 3960/6(b) (West 2010). The process for obtaining a certificate for change of ownership is streamlined. There is no right to a rehearing of the Board's decision. Even if the Board chairman refers the application to the full Board, the applicable statutes and regulations do not require a hearing prior to the full Board voting on the application. "An exemption shall be approved when information required by the Board by rule is submitted." Id. The process is simple with approval mandated if the applicant properly completes the written application. After the application is submitted, the Department of Public Health reviews the application to determine if it is complete. 20 ILCS 3960/8.5(a) (West 2010). Legal notices ...


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