Date: 04-09-1981

Case Style: Tulsa Area Hospital Council, Inc. v. Oral Roberts University

Case Number: 1981 OK 29

Judge: Hodges

Court: Oklahoma Supreme Court on appeal from the District Court of Tulsa County

Plaintiff's Attorney: Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick by William G. Paul and Richard C. Ford, Oklahoma City, and Boone, Smith, Davis & Minter by L.K. Smith, Tulsa, for appellee.

Defendant's Attorney: Moyers, Martin, Conway, Santee & Imel by Jack H. Santee and James R. Miller, Tulsa, for appellant, Oral Roberts University.

Jan Eric Cartwright, Atty. Gen., of Oklahoma by Thomas H. Tucker, Gerald E. Kelley and Amalija J. Hodgins, Oklahoma City, for appellant, Oklahoma Health Planning Commission.

Description: ¶1 The Tulsa Area Hospital Council, Inc., an Oklahoma non-profit corporation, appealed to the District Court of Tulsa County from an order of the Oklahoma Health Planning [626 P.2d 318] Commission [OHPC]. OHPC granted a certificate of need, pursuant to 63 O.S.Supp. 1975 § 2651 ,1 to Oral Roberts University [ORU] for the construction of a 294-bed hospital in which holistic medicine would be practiced. The order granting the certificate to the City of Faith Hospital was vacated on appeal and the cause remanded to OHPC for further findings because the District Court found that the granting of the certificate was: 1) "clearly erroneous in view of the reliable material, probative and substantial evidence, and 2) in violation of the Establishment Clause of the First Amendment of the United States Constitution."

¶2 A dual regulatory system controls new hospital construction. No new institutional health services may be offered or developed unless a certificate of need is obtained from OHPC. This state agency is comprised of the department heads of the Oklahoma departments of Health, Mental Health and Human Services.2 Under the National Health Planning & Resources Development Act of 1974, the Secretary of Health & Welfare is empowered to withhold reimbursement under medicare, medicaid, and other federal health payments for that portion of patient charges reflecting expenses relating to new capital expenditures unless the state agency, i. e., OHPC, makes a favorable recommendation of the need for such expenditures.3 OHPC has the statutory duty to assure the orderly development of health services and the responsibility for operating and implementing a state program of health planning and of administering all health planning functions.4

¶3 Promptly upon the receipt of any certificate of need application, OHPC is required to thoroughly investigate the need of the proposed services. The investigation, pursuant to 63 O.S.Supp. 1975 § 2652 , must include:

(a) the adequacy of institutional health services in the locality,

(b) the availability of services which may serve as alternatives or substitutes,

(c) the adequacy of financial resources for the new services,

(d) the availability of sufficient manpower to properly staff and operate the proposed new services,

(e) the availability of both allopathic and osteopathic facilities and services to protect the freedom of patient choice in the locality, and

(f) any other matter which the Commission deems appropriate.

I

¶4 The stated avowed major purposes of the City of Faith Hospital are to provide: 1) unique health care delivery to meet the needs of an existing national constituency; 2) clinical medical education for doctors, nurses and health personnel, and 3) an accessible situs for clinical research. OHPC specifically found a constituent demand existed for a hospital facility to provide holistic treatment, a unique approach to the delivery of health care to the whole patient through ministry to the body, mind, and spirit. This treatment involves the incorporation of prayer and touching into standard and recognized medical procedures. Although the District Court did not disturb the validity of the finding, it held that the ground upon which OHPC decided constituent need was clearly erroneous. Because OHPC failed to determine the size and geographical source of the constituent demand in patient numbers, and to then measure that demand against the existing hospital beds in the Tulsa area in order to calculate the number of beds needed in Tulsa, the court found the granting of the certificate of need was not supported by substantial evidence.

[626 P.2d 319]

¶5 The applicable statute, 63 O.S.Supp. 1975 § 2652 , supra,5 lists several factors which must be investigated before a certificate of need may be granted. The number of beds is not a specific requirement, but an investigation of the adequacy of institutional health services in the locality is required. It is undisputed by the parties that there are no holistic institutional health services provided either in Tulsa or in the United States. A review of the daily hospital reports made by the major Tulsa hospitals, indicating the number of beds available, reflected that the Tulsa hospitals have average occupancy rates of 95.5%, 93.8%, 93.7%, 90.0%, and 72.9%.

¶6 Although two Tulsa County hospitals subsequently offered to permit the training of ORU medical students and to permit practice by holistic physicians, OHPC found this to be an unsatisfactory substitute or alternative because holistic medicine requires the presence of medical personnel acting together as a team in proximity with the patient. Existing hospitals are unwilling to allocate geographic units for the holistic treatment of patients or the education of medical personnel. The holistic concept of care involves a team effort in which a complete environment exists where each person in the health care delivery is dedicated to the same philosophy of healing. Existing hospitals, because of their architectural structure and of their unwillingness to allocate geographic units for holistic treatment of patients or the education of medical personnel, are unable to provide a health care facility in which this total team concept can be expedited. The element of proximity is of alleged critical importance. It is asserted that proximity promotes regular contact among those on the health care team and with the patient, increasing the opportunity to touch. It is alleged that the laying on of hands by touching the patient is a method of transferring concern and compassion. The court erred when it found that all that was needed to provide the prayer stream was unrestricted access of the prayer partner to the patient. This concept fails to recognize that the evidence presented was that holistic medicine as conceived by ORU requires a complete complement of health professionals dedicated to a team effort in a controlled atmosphere.

¶7 OHPC found that the existence of a constituency was apparent from the receipt of OHPC of approximately 400,000 handwritten letters from people who believed that their medical and physical needs cannot be met in other hospitals. The Cooper & Lybrand survey reported that 91.4% of the national constituency, if seriously ill, would consider coming to the City of Faith or bring members of their families. Analysis of the mail by the OHPC staff reflected that if the hospital were in existence over half of the beds would be occupied by presently ill letter writers. The National Health Planning and Resources Development Act of 1974, 42 U.S.C. § 300n-1(c)(7), provides that special consideration be given to facilities which fulfill special needs to individuals who do not reside in the area where the proposed health care is to be provided.

¶8 A survey of medical and nursing personnel revealed that there was enough man-power to operate and staff the proposed new services. Services requiring extreme outlays for expensive equipment such as CAT scanners and linear accelerators were planned to be delayed with utilization of present medical facilities until the significant need occurred. Neither burn nor obstetrical facilities were contemplated.

¶9 The statute also provides for consideration of the availability of both allopathic and osteopathic facilities to provide freedom of choice to the patient, and whether financial resources for the new services are adequate. It is apparent that OHPC had the authority to consider under (e) and (f) of the statute the possibility that the patients' freedom of choice might include holistic medicine, and that the special needs of a national constituency were relevant. The adequacy of funding was not disputed.

[626 P.2d 320]

¶10 Great weight is to be accorded the expertise of an administrative agency, and a presumption of validity attaches to the exercise of expertise when the administrative agency is reviewed by the judiciary. A court of review may not substitute its own judgment for that of an agency, particularly in the area of expertise which the agency supervises.6 The rationale for this rule is that courts do not possess the specialized knowledge, training, experience or competency to substitute opinions for the judgment of qualified experts. The legislature has recognized that the expertise in some cases of legislative authority is better left to those who have refined abilities in narrow areas, controlled only by general guidelines established by the legislature.7 If the facts determined by the administrative agency are supported by substantial evidence, and the order is otherwise free of error, the decision of the agency must be affirmed.8

¶11 To properly issue a certificate of need, OHPC must find, after its investigation, that the action proposed in the application is necessary and desirable in order to provide the required institutional health services in the area to be served; the proposed action can be economically accomplished and maintained; and that it will contribute to the orderly development of health services in the area.9 We find that OHPC complied with the statutory requirements, and that the granting of the certificate of need was not clearly erroneous in view of the reliable material, probative and substantial evidence.

II

¶12 We next address the finding of the trial court that OHPC contravened the Establishment Clause of the First Amendment by granting the certificate of need.

¶13 Although the Establishment Clause requires that the State be neutral in its relations with groups of religious believers and non-believers, the State and its agencies are not required to be hostile adversaries.10 Public welfare is broad and inclusive, the values it represents are spiritual, physical, aesthetic and monetary. The history of the Establishment Clause contains many constitutionally permissible examples of accommodations on the part of government to religion.11 Public support for sectarian hospitals has long been the policy and practice.12

¶14 The three primary prohibitions against which the Establishment Clause was intended to provide protection are the sponsorship, financial support and active involvement of [626 P.2d 321] the sovereign in religious activity. Cumulative criteria promulgated by the United States Supreme Court has resulted in the development of a three-part test in considering alleged Establishment Clause infringements.13 Under this scrutiny, the action of OHPC in granting the certificate of need must:

A) have reflected a clearly secular purpose;

B) have had a primary effect that neither advanced nor inhibited religion; and

C) have avoided excessive government entanglement with religion.14

A

¶15 The requirement that granting of the certificate of need must have a secular purpose is to prevent government action aimed at religious promotion. The secular purpose test requires that the State have a non-sectarian reason for its action. Although the State may only act pursuant to secular goals, incidental conformity with religious purposes does not render the action unconstitutional. The Establishment Clause does not bar state or federal regulation of conduct which happens to coincide with religious beliefs. It has been concluded by the Congress and the Legislature, in many instances, that the general welfare of society demands regulation. For example, murder, theft, perjury, and adultery, constitute violations of secular law. The fact that these temporal violations are also violative of the tenets of the Judeo-Christian religions does not invalidate the regulation.15

¶16 The health of the populace is an over-riding secular goal. Promotion and improvement of the people's health is a corresponding handmaiden to the inalienable right to the pursuit of happiness. The promotion and improvement of the health of the citizens is a fundamental obligation of the local, state, and federal governments.16 The State of Oklahoma has recognized these secular public necessities by requiring an investigation of proposed new medical services and institutions before a certificate of need may be issued. The federal government has recognized this by permitting exceptions where special constituent needs are shown.17 The combined efforts of the private sector and state and federal results in construction of hospitals and health care for the common good. The coincidence of secular and religious purposes does not threaten those evils which promote interdependence of Church and State. The provision by the State of the presentation of the opportunity of its citizens to seek health services in accordance with their preferences is clearly an acceptable secular purpose when examined within the dictates of the Establishment Clause. When viewed with these precepts, we find no governmental action promoting a religion.

B

¶17 The granting of the certificate of need did not advance or inhibit religion. The fact that some religious group might receive some incidental benefit as the result of construction of the hospital is not controlling. The primary effect achieved by construction of medical facilities is the promotion of the public welfare, not the advancement or inhibition of religion. The focus of the test is the function, secular or religious, which the government aid [626 P.2d 322] subsidizes - not the nature of the institution, secular or religious, which receives the aid.18 OHPC maintained a neutral position in granting the certificate of need.

C

¶18 The question presented is primarily a medical issue. The involvement by the State is to permit the orderly development of medical facilities for the promotion of the public welfare. The investigation and granting of the certificate of need by OHPC does not constitute an excessive entanglement with religion.19 There is no attempt by OHPC to either supervise or interact with the City of Faith on a continuing basis, and any contact between Church and State is minimal. The involvement in this case is no greater than there is when the State reviews secular education requirements of parochial schools, permits the incorporation of a religious group or the requirement that churches acquire building permits. There is no continuing governmental surveillance, nor is any evidence of excessive governmental entanglement with religion presented under the facts before us.

¶19 The granting of the certificate of need by OHPC did not violate the Establishment Clause.

* * *

See: http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=1981+OK+29

Outcome: ¶20 REVERSED.

Plaintiff's Experts:

Defendant's Experts:

Comments: