# Colon Health Centers of America, LLC v. Hazel > Court of Appeals for the Fourth Circuit · October 23, 2013 · 733 F.3d 535 URL: https://www.frixlaw.com/law-library/cases/9843986 ## Case - **Full name:** COLON HEALTH CENTERS OF AMERICA, LLC; Washington Imaging Associates-Maryland, LLC, D/B/A Progressive Radiology, Plaintiffs-Appellants, v. Bill HAZEL, in His Official Capacity as Secretary of Health and Human Resources; Bruce Edwards, in His Official Capacity as Chairman of the Virginia State Board of Health; Paul Clements, in His Official Capacity as Member of the Virginia State Board of Health; Kay R. Curling, in Her Official Capacity as Member of the Virginia State Board of Health; Eric Deaton, in His Official Capacity as Member of the Virginia State Board of Health; John Detriquet, in His Official Capacity as Member of the Virginia State Board of Health; James E. Edmondson, Jr., in His Official Capacity as Member of the Virginia State Board of Health; Steven R. Escobar, in His Official Capacity as Member of the Virginia State Board of Health; H. Anna Jeng, in Her Official Capacity as Member of the Virginia State Board of Health; Charles K. Johnson, in His Official Capacity as Member of the Virginia State Board of Health; Bennie Marshall, in His Official Capacity as Member of the Virginia State Board of Health; Mary McCluskey, in Her Official Capacity as Member of the Virginia State Board of Health; M. Catherine Slusher, in Her Official Capacity as Member of the Virginia State Board of Health; Gail Taylor, in Her Official Capacity as Member of the Virginia State Board of Health; Amy Vest, in Her Official Capacity as Member of the Virginia State Board of Health; Eric O. Bodin, in His Official Capacity as Acting Director of the Office of Licensure and Certification and Director of the Division of Certificate of Public Need; Maureen Dempsey, in Her Official Capacity as State Health Commissioner; John W. Seeds, in His Official Capacity as Member of the Virginia State Board of Health, Defendants-Appellees. Pacific Legal Foundation; Curvebeam, LLC, Amici Supporting Appellants - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** October 23, 2013 - **Citations:** 733 F.3d 535; 2013 WL 5737706 - **Precedential status:** Published - **Opinion:** Concurrence by Wilson - **Judges:** Wilkinson, King, Wilson, Western, Virginia - **Cited by:** 47 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9843986 ## How later opinions describe it (automated extraction) - noting that "the Department of Justice and the Federal Trade Commission [have concluded] that certificate 'programs are not successful in containing health care costs, and ... pose serious anticompetitive risks that usually outweigh their purported economic benefits’ ” (citati… - recognizing that “dismissal [cannot be] based on a judge’s disbelief of a complaint’s factual allegations” - reversing the dismissal of the plaintiffs’ Pike claim because it “present[ed] issues of fact that cannot be properly resolved on a motion to dismiss” - stating the two tests for determining a violation of the Dormant Commerce Clause are both "fact-bound" - reversing the Rule 12 dismissal of dormant Commerce Clause purpose and effects claims because of the “fact- intensive quality of the substantive inquiry” ## Opinion text WILSON, District Judge, concurring: Plaintiffs would like to render medical services in Virginia with equipment they cannot utilize without first proving to the Commonwealth that the competition they bring with them will not harm established local health care providers. In my opinion, little distinguishes such a regulatory system from one that offends the dormant commerce clause by isolating local interests from the national economy. A handful of states initially developed certificate of need regulations in the 1960s. Congress injected the certificate of need regimen more broadly into national health care planning when it enacted the National Health Planning and Resource Development Act of 1974 (the “NHPRDA”), Pub.L. 93-641, 88 Stat. 2225, §§ 1-3, to control escalating health care costs and the widely diverging availability of health care services. The NHPRDA had the incidental effect of protecting the states’ certificate of need regimens from dormant commerce clause scrutiny. But twelve years later, Congress repealed the NHPRDA, Pub.L. 99-60, 100 Stat. 3743 (1986), after its failures had become well past obvious. The NHPRDA’s repeal removed the certificate of need’s shield from dormant commerce clause scrutiny. Yet, twenty-seven years later, in Virginia, and throughout much of the country, state certificate of need regimens continue to grow and now regulate an enormous segment of the national economy. The Virginia regimen explicitly regulates its share of that economy by using the certificate of need to “diseourage[] the proliferation of services that would undermine the ability of essential community providers to maintain their financial viability.” 12 Va. Admin. Code § 5-230-30 (2013). Stripped of its linguistic pretense, the Commonwealth’s purpose is to protect established “community providers” (i.e., established in-state interests) from the effects of competition. Though this purpose or goal may be legitimate, I find little difference in the means it employs to accomplish that goal — the limitation of competition — from illegitimate efforts to isolate local economic interests from the national economy. Wyoming v. Oklahoma, 502 U.S. 437, 456-57 , 112 S.Ct. 789 , 117 L.Ed.2d 1 (1992) (noting the court has “often examined a ‘presumably legitimate goal,’ only to find that the State attempted to achieve it by ‘the illegitimate means of isolating the State from the national economy’ ”). But even apart from its stated purpose, in my view, a state regulatory system that chooses to limit competition as its means to promote the delivery of health care will still likely, if not inevitably, entangle itself with the dormant commerce clause. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9843986. Public record. Not legal advice.