BRYAN, Justice.
The Alabama State Health Planning and Development Agency ("SHPDA") granted HealthSouth of Alabama, LLC ("HealthSouth"), a certificate of need ("CON") allowing HealthSouth to operate 17 inpatient physical-rehabilitation beds in Shelby County. In a separate proceeding, SHPDA granted another CON to HealthSouth allowing it to operate an additional 17 inpatient physical-rehabilitation beds in Shelby County. HealthSouth intended to use the two CONs to build and operate a 34-bed inpatient physical-rehabilitation hospital. Shelby Ridge Acquisition Corporation d/b/a Shelby Ridge Rehabilitation Hospital ("Shelby Ridge") opposed HealthSouth's CON applications, and, after SHPDA issued the CONs to HealthSouth, Shelby Ridge appealed SHPDA's decision to the Montgomery Circuit Court. The circuit court reversed one of SHPDA's decisions but affirmed the other. HealthSouth, SHPDA, and Shelby Ridge appealed separately to the Court of Civil Appeals, which consolidated the appeals and concluded that SHPDA had erred by granting the CONs to HealthSouth. HealthSouth of Alabama, LLC v. Shelby Ridge Acquisition Corp., [Ms. 2120872, June 12, 2015] 207 So.3d 14 (Ala.Civ.App. 2015). HealthSouth and SHPDA separately petitioned this Court for certiorari review, which we granted. We have consolidated these appeals for the purpose of issuing one opinion.
While the appeals were pending before us, the parties resolved their disputes; the
HealthSouth's brief, at 3-4 (footnote omitted).
We agree with the parties that the Court of Civil Appeals erred. A detailed recitation of that court's analysis is unnecessary. It is sufficient to note that the pivotal error of that court's opinion is the characterization as "key" and determinative two of the many considerations to be evaluated and balanced by SHPDA in considering CON applications. Specifically, the Court of Civil Appeals isolated and prioritized the "financial feasibility" statutory subfactor and a concern for clinical "depth of specialization," which is not actually an enumerated statutory factor or subfactor but may be a legitimate consideration for SHPDA. The Court of Civil Appeals then determined that there was insufficient evidence of those two considerations and, based on that determination, concluded that SHPDA had erred. In doing so, the Court of Civil Appeals usurped SHPDA's role. There is no statute or SHPDA regulation that makes those two considerations "key" or determinative in every proceeding on a CON application. It is the proper role of SHPDA, not a reviewing court, to weigh those factors and others in determining whether to grant a CON.
Section 22-21-266, Ala.Code 1975, establishes findings SHPDA must make to grant a CON in cases like this one. Neither of the considerations prioritized by the Court of Civil Appeals is a required finding under § 22-21-266, which provides:
It is undisputed that SHPDA made these required findings in issuing the CONs to HealthSouth. The Court of Civil Appeals did not determine that these required findings were not made.
Section 22-21-264, Ala.Code 1975, establishes eight nonexclusive factors SHPDA must consider, i.e., SHPDA may consider other factors, in making its findings. The fourth factor is a "[d]etermination of a substantially unmet public requirement for the proposed health care facility ... that is consistent with orderly planning within the state and the community for furnishing comprehensive health care, such determination to be established ... after giving appropriate consideration to" eight subfactors, one of which is "[f]inancial feasibility." § 22-21-264(4)a. (emphasis added). But "financial feasibility" is one of only eight subfactors SHPDA must balance and "giv[e] appropriate consideration to" in considering whether there is a "substantially unmet public requirement" for the services proposed by the CON application. Further, a concern for "depth of specialization" is not an enumerated factor or subfactor, but it may be a valid consideration cited by SHPDA given that the factors enumerated in § 22-21-264 are nonexclusive.
In short, neither "financial feasibility" nor a concern for "depth of specialization" is a determinative factor in a proceeding on a CON application. SHPDA is charged with weighing the various factors and subfactors (such as financial feasibility) in a particular case; it is SHPDA, not a reviewing court, that must use its expertise and discretion to prioritize the relevant considerations. As the Court of Civil Appeals has noted:
Affinity Hosp., LLC v. St. Vincent's Health Sys., 129 So.3d 1022, 1030 (Ala.Civ. App.2012).
We also agree with Presiding Judge Thompson's observations regarding these appeals:
"Ace Home Health Care, LLC v. Gentiva Health Servs., Inc., 162 So.3d 931, 939 (Ala.Civ.App.2014).
HealthSouth, 207 So.3d at 37 (Thompson, P.J., dissenting).
Based on the foregoing, we reverse the judgment of the Court of Civil Appeals and render a judgment in favor of HealthSouth and SHPDA. We also remand the cases to the Court of Civil Appeals with instructions that that court remand the cases to the circuit court so the parties may implement there solution they have reached.
1141042 — REVERSED AND JUDGMENT RENDERED AND CASE REMANDED WITH INSTRUCTIONS.
1141043 — REVERSED AND JUDGMENT RENDERED AND CASE REMANDED WITH INSTRUCTIONS.
STUART, BOLIN, PARKER, MAIN, and WISE, JJ., concur.
MOORE, C.J., concurs in the result.
MURDOCK and SHAW, JJ., dissent.
SHAW, Justice (dissenting).
I respectfully dissent.
HealthSouth of Alabama, LLC ("HealthSouth"), was issued two certificates of need ("CONs") by the Certificate of Need Review Board ("CONRB"), each CON for a 17-bed inpatient physical-rehabilitation hospital. Although the Court of Civil Appeals' opinion states that operating a facility with only 17 inpatient physical-rehabilitation beds was neither financially nor clinically feasible and describes those criteria as "key," I do not believe the Court of Civil Appeals impermissibly elevated those criteria over any others. They were "key" because the decisions to grant the CONs to HealthSouth were clearly erroneous in light of these undisputed facts. According to the Court of Civil Appeals, in the SHP-adjustment-beds-CON matter, HealthSouth's own witnesses testified that a freestanding 17-bed hospital was inappropriate:
HealthSouth of Alabama, LLC v. Shelby Ridge Acquisition Corp., [Ms. 2120872, June 12, 2015] 207 So.3d 14, 27 (Ala.Civ. App.2015) (emphasis added).
The CONRB adopted the following findings of the ALJ as its own: "[A] 17-bed, inpatient, physical-rehabilitation hospital `is not financially viable in and of itself.'... `[A] seventeen (17)-bed freestanding inpatient rehabilitation hospital is not large enough, would not have the capacity to treat enough patients to develop a great deal of expertise, and would not have enough critical mass to provide good clinical outcomes.'" HealthSouth, 207 So.3d at 27. This finding was based on HealthSouth's own evidence. As noted by the main opinion, these are "valid" and "legitimate" considerations. What other factors in Ala.Code 1975, § 22-21-264(4), out-weighed these glaring deficiencies in a 17-bed facility?
Of course, HealthSouth anticipated that it would be operating a 34-bed facility, not a 17-bed facility. "All" the evidence in the relocation-bed-CON matter supported building a 34-bed facility, which was the "minimum" number of beds required. HealthSouth, 207 So.3d at 19. But there was no application for a CON for a 34-bed facility. There were CON applications for 2 17-bed facilities, neither of which, standing alone, the undisputed evidence would support. The reality might be that a 34-bed facility will be built and that HealthSouth can cobble together enough CONs to fill it. However, the Court of Civil Appeals addressed this as follows:
HealthSouth of Alabama, LLC v. Shelby Ridge Acquisition Corp., 207 So.3d at 32.
I would affirm the decision of the Court of Civil Appeals; therefore, I dissent.
MURDOCK, J., concurs.