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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bridges v. Banner Health (12/19/2008) sp-6329

Bridges v. Banner Health (12/19/2008) sp-6329

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


ROBERT L. BRIDGES, M.D., and )
ALASKA OPEN IMAGING, LLC, ) Supreme Court No. S- 12559
)
Appellants, ) Superior Court No. 4FA-06-1377 CI
)
v. ) O P I N I O N
)
BANNER HEALTH d/b/a ) No. 6329 December 19, 2008
FAIRBANKS MEMORIAL )
HOSPITAL, and KARLEEN )
JACKSON, in her official capacity as )
Commissioner, STATE OF ALASKA, )
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Niesje J. Steinkruger, Judge.

          Appearances:  Robert J. Gunther,  Law  Office
          of  Robert J. Gunther, Anchorage, and Mark S.
          Bledsoe,  Law  Offices of  Mark  S.  Bledsoe,
          Anchorage, for Appellants.  Peter J. Maassen,
          Ingaldson,  Maassen & Fitzgerald,  Anchorage,
          and  Peter  Gruenstein, Gruenstein &  Hickey,
          Anchorage,  for  Appellee Fairbanks  Memorial
          Hospital.    Stacie   L.   Kraly,   Assistant
          Attorney   General,  and  Talis  J.  Colberg,
          Attorney General, Juneau, for Appellees State
          of Alaska and Karleen Jackson.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, and Carpeneti, Justices.  [Winfree,
          Justice, not participating.]

          EASTAUGH, Justice.
I.   INTRODUCTION
          The  superior court enjoined Alaska Open Imaging Center
(AOIC)  from  operating its Fairbanks magnetic resonance  imaging
(MRI)  facility  without first obtaining a  certificate  of  need
(CON).   Six weeks after the superior court issued the injunction
enjoining  AOIC,  AOICs  medical director,  Dr.  Robert  Bridges,
unsuccessfully   moved  to  intervene  in  the   superior   court
proceeding.   Dr. Bridges appeals the denial of his  intervention
motion  and  AOIC appeals the injunction.  Because  the  superior
court  did  not err in determining that Dr. Bridgess intervention
motion  was untimely, we affirm its denial.  As to AOICs  appeal,
we  also  affirm in part.  The CON statute does not  violate  the
Alaska  Constitutions  equal  protection  clause  or  prohibition
against special legislation.  But because there appears to be  an
unresolved  genuine  issue of material fact about  whether  AOICs
facility  satisfies AS 18.07.111(8)(B)s exclusion for offices  of
private physicians, we vacate the injunction and remand.
II.  FACTS AND PROCEEDINGS
          Alaskas   certificate  of  need   (CON)   statute,   AS
18.07.031,  requires  that  a health  care  provider  seeking  to
construct  a health care facility at a cost equaling or exceeding
the  statutes  monetary threshold obtain a CON  from  the  Alaska
Department  of Health and Social Services (DHSS).1  In  2004  the
Alaska  Legislature enacted House Bill (H.B.) 511,  amending  the
CON  statute.2   Among other changes, H.B.  511  added  the  term
independent  diagnostic testing facility  to  the  definition  of
health care facility in AS 18.07.111(8).3
          Banner  Health  owns  and operates  Fairbanks  Memorial
Hospital.4   In  October 2005 Mike Powers,  the  hospitals  chief
executive  officer,  informed DHSS Commissioner  Karleen  Jackson
that Alaska Open Imaging Center (AOIC) had applied for a building
permit  to  open  an  MRI  facility in  Fairbanks  without  first
obtaining  a  CON;  Powers  asked DHSS to  determine  whether  AS
18.07.031 required AOIC to obtain a CON.
          In   November  2005  Commissioner  Jackson  asked  Jeff
Kinion,  one  of AOICs managers at the time, whether AOICs  plans
were  subject  to  the CON requirements.  Kinion  responded  that
AOICs   facility  is  not  a  health  care  facility   under   AS
18.07.111(8)  because,  per  AS 18.07.111(8)(B),  a  health  care
facility  does  not  include the offices  of  private  physicians
.  .  . whether in individual or group practice.  Kinion asserted
that  the  CON  requirement does not apply to AOIC because  AOICs
facility  is  a  private physicians office,  not  an  independent
diagnostic testing facility.
          In  response Commissioner Jackson informed Kinion  that
DHSS had reviewed the documents Kinion had provided and concluded
that  the  facility will be constituted as an office  of  private
physicians in group practice and therefore in accordance with  AS
18.07.111(8)  is  not considered a health care facility  for  the
          purposes of the [CON] program.
          In  February  2006  Banner  Health  asked  Commissioner
Jackson  to reconsider her decision that AOICs facility  did  not
require a CON.  She denied the request, determining that 7 Alaska
Administrative  Code (AAC) 07.012 controls this  question.   This
regulation   states   that,  for  purposes   of   AS   18.07.111,
  independent  diagnostic testing facility means a fixed-location
facility or mobile facility that (1) performs diagnostic  testing
using  major diagnostic testing equipment . . . and  (2)  is,  or
would be, required to enroll as an independent diagnostic testing
facility for purposes of Medicare or Medicaid reimbursement under
42  C.F.R. 410.33.5  Commissioner Jackson concluded that AOIC  is
not an independent diagnostic testing facility because the Center
for Medicare and Medicaid Services does not characterize AOIC  as
an independent diagnostic testing facility for billing purposes.
          In  March  2006  Banner Health filed a  superior  court
complaint   for   injunctive  and  declaratory   relief,   naming
Commissioner  Jackson  and  AOIC as  defendants.   Banner  Health
sought  an injunction to enjoin DHSS from relying on 7 AAC 07.012
and  a  judicial  declaration that  7  AAC  07.012  is  void  and
unenforceable   because  it  unlawfully   conflicts   with   both
legislative  intent  and the plain language of  AS  18.07.111(8).
Banner  Health  asserted that if the regulation exempts  entities
such  as  AOIC  from  the  CON  laws,  the  regulation  would  be
inconsistent with the statute because the regulation  requires  a
facility  both  to be an independent diagnostic testing  facility
and  to enroll as an independent diagnostic testing facility  for
Medicare and Medicaid reimbursement purposes.  Banner Health also
requested   a   preliminary  injunction  to  enjoin   AOIC   from
constructing or operating its Fairbanks facility without a CON.
          Commissioner  Jackson  and  AOIC  each  opposed  Banner
Healths  motion.   Commissioner Jackson argued that  the  statute
directed   DHSS   to   include  independent  diagnostic   testing
facilities  in the CON process, but left DHSS free to  define  an
independent diagnostic testing facility.  She asserted  that  the
regulation  is  valid because DHSSs adoption of  the  Center  for
Medicare and Medicaid Services definition is consistent with  the
statute.   AOIC  likewise  argued that  the  DHSS  regulation  is
consistent with the statute.  It also argued that a balancing  of
equities did not support Banner Healths request for an injunction
and  that  granting  injunctive relief  to  Banner  Health  would
violate  the equal protection clause of the Alaska Constitution.6
AOIC  cross-moved to dismiss the complaint, arguing that if  H.B.
511 applied to AOIC it would be an unconstitutional special act.7
          The  superior court denied AOICs motion to  dismiss  in
July  2006.   In August 2006 the court held a hearing  on  Banner
Healths   motion.   After  concluding  that  7  AAC   07.012   is
inconsistent with AS 18.07.111, the court, by order of  September
7,  2006,  declared the regulation void to the extent it  negates
the   legislatures  intent  to  include  AOIC  and   other   like
independent  diagnostic testing facilities within the  definition
of  health care facility, and thus subject to the requirements of
the [CON] program.  The court also found that Banner Health would
face  irreparable  harm  if the court did  not  grant  injunctive
          relief; it therefore enjoined AOIC from operating its facility.
Concerned  whether  AOIC  could  be  adequately  protected,   the
superior  court made the injunction conditional, giving AOIC  180
days   until  February  5,  2007  to  obtain  a  CON  before  the
injunction would take effect.  Commissioner Jackson provided AOIC
an  expedited  schedule that, if followed, would  allow  AOIC  to
obtain  a  CON  decision before the injunction became  effective.
AOIC did not apply for a CON.
          In  October 2006, six weeks after the court granted the
injunction  against  AOIC,  Dr.  Robert  Bridges,  AOICs  medical
director,  moved to intervene in Banner Healths suit.  He  argued
that  he is an equity owner of AOIC and the primary guarantor  of
approximately $10,000,000 of AOICs debt and that he therefore has
important individual rights that the injunction impairs.
          In   December  2006  the  superior  court  denied   the
intervention  motion,  concluding  that  Dr.  Bridges   had   not
satisfied  the requirements of Alaska Civil Rule 24.   The  court
determined that Dr. Bridgess motion was untimely because  he  had
been aware of and involved in litigation . . . since 3/06 and  in
[the] administrative process long before that, and that he failed
to   establish  that  AOIC  did  not  adequately  represent   his
interests.
          In January 2007 Dr. Bridges filed the present appeal in
this  court and moved under Alaska Appellate Rule 205 for a  stay
of the injunction pending appeal; we denied his motion.
          AOIC closed its facility in February 2007.  Dr. Bridges
then   organized  Aurora  Diagnostic  Imaging,  LLC,  a   limited
liability  company  solely  owned  by  Dr.  Bridges,  and   asked
Commissioner Jackson to determine whether Aurora needed to obtain
a  CON  in  order to purchase an MRI unit.  Commissioner  Jackson
initially  determined that Aurora would be required to  obtain  a
CON,  but she later vacated that determination and concluded that
Auroras  facility is not a health care facility as that  term  is
defined in AS 18.07.111(8).
          In  March  2007 Banner Health moved for entry of  final
judgment in its favor.  AOIC opposed, and also moved for  summary
judgment on six of AOICs affirmative defenses that the court  had
not   expressly  discussed  (equal  protection,  procedural   due
process,    substantive   due   process,   unnecessary    special
legislation, statutory exclusion for private physicians  offices,
and  failure  to  join an indispensable person).   In  April  the
superior  court entered judgment in favor of Banner  Health.   It
did not rule on AOICs motion for summary judgment.
          Dr.  Bridges appeals the superior courts denial of  his
motion to intervene, arguing that he was entitled to intervention
as  of  right;  he alternatively argues that he was  entitled  to
permissive  intervention.  AOIC successfully moved in this  court
for  permission to participate as an appellant with Dr.  Bridges.
AOIC  appeals  the injunction, arguing that the CON  statute,  as
amended  by  H.B.  511, violates the Alaska  Constitutions  equal
protection and protection against unnecessary special legislation
provisions.   It  also  argues that it is  exempt  from  the  CON
program because it is an office[] of private physicians, and that
the  superior court erred in granting summary judgment to  Banner
Health  before  ruling on AOICs motion for summary  judgment  and
adjudicating AOICs defenses.
III. DISCUSSION
     A.   Standard of Review
          We apply our independent judgment to constitutional law
issues,  and consider precedent, reason, and policy.8  We  review
for  abuse  of  discretion  denials  of  motions  for  permissive
intervention9 and denials of motions to intervene as of right  if
timeliness  is  at  issue.10  We review entry  of  a  preliminary
injunction for abuse of discretion.11  We will find an  abuse  of
discretion  only  when  we  are left with  a  definite  and  firm
conviction,  after  reviewing the whole record,  that  the  trial
court erred in its ruling.12  We review de novo a superior courts
legal determinations in issuing a preliminary injunction.13
          We  review  de  novo  grants of  summary  judgment  and
dispositions that in essence have the effect of granting  summary
judgments.14  Viewing the facts in the light most favorable to the
moving  party,15 we affirm if there is no genuine factual dispute
and the moving party is entitled to judgment as a matter of law.16
     B.   AOICs and Dr. Bridgess Appeals Are Not Moot.
          As  an  initial matter, Banner Health and  Commissioner
Jackson argue that AOICs appeal should be dismissed as moot.   If
AOICs   appeal  were  moot,  Dr.  Bridgess  appeal   would   also
necessarily  be  moot  as there would be  no  case  in  which  to
intervene.
          Banner  Health  contends  that  AOICs  appeal  of   the
injunction  is moot because AOIC has stopped serving patients  at
its  Fairbanks  location, because Dr. Bridges has  formed  a  new
company  to  take  over  and operate the facility  as  a  private
physicians office excluded from the CON requirement, and  because
AOIC  no  longer has ownership interest in the Fairbanks  office.
Commissioner Jackson asserts that any decision rendered  in  this
appeal would be purely advisory as there is no actual controversy
between the parties.
          An  issue  is  moot if it is no longer a present,  live
controversy,  and  the party bringing the  action  would  not  be
entitled   to  relief,  even  if  it  prevails.17    Because   AS
22.05.010(b)  allows  parties to appeal to this  court  judgments
entered in civil actions commenced in the superior court,  we  do
not  need  to consider whether the establishment of Dr.  Bridgess
new business moots AOICs appeal of the injunction.  In LaMoureaux
v. Totem Ocean Trailer Express, Inc. we said that AS 22.05.010(b)
draws no distinctions between judgments which are adverse because
a  party  has been required to pay money for costs and  attorneys
fees  and  those  which  are adverse because  a  party  has  been
required to pay money as damages.  In each case, an appeal  is  a
matter  of right.18  Here, the superior court awarded a total  of
$12,870.54 in attorneys fees against AOIC; AOIC therefore has the
right  to  appeal  the  lower  court  ruling.   And  Dr.  Bridges
therefore  may  appeal the denial of his motion to  intervene  in
AOICs suit.


     C.   The  Superior  Court Did Not Abuse  Its  Discretion  in
     Denying Dr. Bridgess Motion To Intervene.
          
          Dr.  Bridges  first moved to intervene in the  superior
court  in  October  2006.   He argued that  he  was  entitled  to
intervene  as  of  right  under Alaska  Civil  Rule  24(a)19  and
alternatively   argued  that  he  was  entitled   to   permissive
intervention under Civil Rule 24(b).20  He contended that he  was
an   equity   owner  of  AOIC  and  the  primary   guarantor   of
approximately $10,000,000 of AOICs debt and that he therefore had
important  individual  rights that the injunction  impaired.   He
asserted below that the injunction impinged on his constitutional
rights  to  equal  protection and procedural and substantive  due
process,  and violated the constitutional bar against unnecessary
special acts.  He also argued that the injunction denied him  his
right   to  the  statutory  exclusion  for  offices  of   private
physicians.
          A four-part test determines whether a party is entitled
to intervene as a matter of right:
          (1)  the  motion  must  be  timely;  (2)  the
          applicant  must  show  an  interest  in   the
          subject matter of the action; (3) it must  be
          shown that this interest may be impaired as a
          consequence of the action; and (4) it must be
          shown  that  the  interest is not  adequately
          represented by an existing party.[21]
          
          The  superior  court denied Dr. Bridgess  motion  after
concluding  that Dr. Bridges failed to meet the first and  fourth
parts.   Because  a  party  must meet all  four  requirements  to
intervene as a matter of right, we may affirm the superior courts
decision  if the record supports either ground for denial.22   We
focus here on the timeliness of the intervention motion.
          In  Scammon  Bay Assn v. Ulak we adopted the  four-part
inquiry  used by federal courts to determine whether a motion  to
intervene meets Rule 24s timeliness standard:
          (1)  the length of time the applicant knew or
          reasonably   should  have  known   that   its
          interest  was imperilled before it  moved  to
          intervene;
          
          (2)   the  foreseeable prejudice to  existing
          parties if intervention is granted;
          
          (3)    the  foreseeable  prejudice   to   the
          applicant if intervention is denied; and
          
          (4)   idiocratic circumstances which,  fairly
          viewed,     militate    for    or     against
          intervention.[23]
          
          As  to the first factor, Dr. Bridges argues that it was
entirely  reasonable for him to expect that  the  superior  court
would  address his individual rights if it imposed an  injunctive
order.  This argument is without merit.  Dr. Bridges did not file
his  motion  to intervene until October 26, 2006  a month  and  a
half  after the superior court issued the injunction on September
          7, 2006.  Dr. Bridges was a founder and part owner of AOIC, and
described  his  positions with AOIC as its Medical  Director  and
Manager.   He  was  therefore aware or on notice  from  the  time
Banner  Health first sued AOIC in March 2006 that his  individual
rights  might  be  impaired by entry of  an  injunction.   Banner
Healths  March  2006  complaint requested  both  declaratory  and
injunctive  relief  against  AOIC.   The  crux  of  Dr.  Bridgess
argument is that he had no reason to intervene sooner because  he
could  not have reasonably foreseen that the superior court would
rule  against  AOIC  on  its  defenses asserting  deprivation  of
individual  rights.  But a potential party to a cause  of  action
may not delay intervening simply because it wishes to wait to see
if an existing party will prevail, or because it assumes that the
existing   party  will  prevail.   Allowing  this   delay   would
effectively  grant potentially interested parties  the  right  to
what the superior court appropriately termed a do over.
          Noting   that   the  second  factor   the   foreseeable
prejudice to existing parties if intervention is granted  is  the
most  important timeliness factor,24 Dr. Bridges next argues that
granting his motion would not have significantly prejudiced other
parties  because  it would have caused only a  minor  delay.   He
similarly argues that the third factor  the foreseeable prejudice
to  the applicant if intervention is denied  weighs in his  favor
because  the  denial of intervention would lead  to  considerable
prejudice   to  himself  and  would  subject  him  to  financial,
professional,  and  reputational harm.  But these  arguments  are
unpersuasive  because  Dr.  Bridges has  not  presented  evidence
showing  that  he  lacked the opportunity  to  advance  arguments
addressing  his  individual  rights  before  the  injunction  was
entered.  The record instead indicates that AOIC argued on behalf
of  its owners and employees.25  It also indicates that, on AOICs
behalf,  Dr.  Bridges  filed an extensive affidavit  setting  out
AOICs  position.26  There is no indication that Dr.  Bridges  was
unable  to  advocate  for his personal rights  through  AOIC  and
therefore no reason to think that denying his intervention motion
prejudices him.
          Dr.  Bridges also argues that, under the fourth factor,
three  idiocratic  circumstances militate for  intervention:  the
superior  courts failure to join Dr. Bridges under  Alaska  Civil
Rule  19(a);27 Banner Healths acts that divert[ed]  the  superior
court  from  considering the rights of the individual  physician;
and  the  superior  courts refusal to address  AOICs  affirmative
defenses.   These arguments are unpersuasive.  As  to  the  first
two,  Dr.  Bridges was able to advocate for his  personal  rights
through  AOIC.   As  to  the third, the  superior  courts  order,
entitled  Preliminary and Permanent Conditional  Injunction,  and
Declaratory Judgment, fully resolved the merits of the underlying
action.   The  superior courts oral ruling also establishes  that
the  superior  court fully resolved the merits of the  underlying
case.   As we explain in Part III.F, the superior court  was  not
required to explicitly address AOICs summary judgment motion  and
affirmative defenses; it implicitly rejected them when it granted
the injunction to Banner Health.28
          Finally, another idiocratic consideration here is  that
          Dr. Bridges first moved to intervene only after the superior
court had ruled on the merits and granted the injunction.  As  we
stated  in  Mundt v. Northwest Explorations, Inc., [a]pplications
[to  intervene] made after the conclusion of litigation  normally
are  not  timely,  absent  a  showing of  justification  for  the
litigants  failure  to act more promptly.29   In  light  of  this
touchstone, and for the reasons we discussed above, the  superior
court  did  not  abuse  its discretion in  determining  that  Dr.
Bridgess motion was untimely.30
          Dr.  Bridges  alternatively argues  that  the  superior
court  abused its discretion in denying his motion for permissive
intervention under Civil Rule 24(b).  But permissive intervention
also  requires timely application.31  [M]otions to  intervene  of
right  are  found to be untimely less often than  are  permissive
intervention  motions due to the greater likelihood of  prejudice
to the applicant.32  Because Dr. Bridgess motion for intervention
as  of  right was untimely, the superior court did not abuse  its
discretion in denying for the same reason Dr. Bridgess motion for
permissive intervention.
     D.   The  Superior Court Did Not Err in Refusing To Rule  on
          AOICs  Summary  Judgment Motion and in  Granting  Final
          Judgment  to  Banner  Health Before Adjudicating  AOICs
          Affirmative Defenses.
          
          AOIC  argues that the superior court erred in  granting
injunctive relief to Banner Health before ruling on AOICs summary
judgment  motion and addressing AOICs affirmative defenses.   But
as AOIC recognizes,33 a ruling on one motion is an implicit denial
of   another  contradictory  pending  motion.34   Similarly,  the
superior  court  was  not  required to explicitly  address  AOICs
affirmative  defenses.   The  superior  court,  in  issuing   the
injunction,  implicitly rejected AOICs constitutional  arguments.
And,  in  determining  that  AOICs  facility  is  an  independent
diagnostic   testing  facility,  it  implicitly  rejected   AOICs
argument that its facility is a private physicians office.35   We
therefore next address the merits of AOICs arguments.
     E.   Alaska  Statute 18.07.111(8), as Amended by  H.B.  511,
          Does  Not Violate the Equal Protection or Special  Acts
          Provisions of the Alaska Constitution.
          
          AOIC advances an equal protection argument,36 asserting
that  AS  18.07.111(8), as amended by H.B. 511, is discriminatory
because  it  allows cardiologists at the Alaska Heart  Institute,
urologists  at the Alaska Urological Associates, and orthopedists
at  the  Alaska  Spine Institute to expend funds beyond  the  CON
threshold  to purchase such equipment for their private  offices.
(Emphasis  added.)   AOIC contends that H.B.  511s  inclusion  of
independent  diagnostic testing facilities in  the  CON  statutes
definition  of health care facility has the effect  of  including
the  offices of radiologists who use MRIs and CT scanners,  while
excluding   the   offices  of  cardiologists,   urologists,   and
orthopedists who use the same equipment.  AOIC contends that such
disparate  treatment accorded the offices of radiologists  vis  a
vis  the  offices  of other medical specialties  using  the  same
          equipment violates equal protection because the classification
chosen  does  not  closely relate to a legitimate  and  important
governmental interest.
          Equal  protection claims are analyzed under  a  sliding
scale  approach which places a greater or lesser  burden  on  the
state to justify a classification depending on the importance  of
the individual right involved.37  Banner Health concedes that the
right  of  an owner of an independent diagnostic testing facility
to  construct  an  MRI facility is an important right  for  equal
protection   purposes.38   Under  the  sliding  scale   approach,
burdening  an  important right must be justified by an  important
governmental  objective, and there must be a close nexus  between
that objective and the means chosen to accomplish it.39
          We  do not need to consider whether the CON statute  is
justified by an important governmental objective or whether there
is  a close nexus between that objective and the means chosen  to
accomplish it, because we conclude that the CON statute does  not
treat similarly situated entities differently.  The statute  does
not distinguish between radiologists and other specialists; it is
facially   neutral  and  classifies  all  independent  diagnostic
testing facilities as health care facilities.40  Furthermore, the
exclusion for offices of private physicians excludes all  private
physicians  offices from the CON statute, regardless  of  medical
specialty.41  The DHSS regulations define independent  diagnostic
testing  facility based on the type of equipment used,  and  also
include  types  of  equipment  used  by  specialists  other  than
radiologists.42  It therefore appears that the medical groups AOIC
mentions are exempt from the CON requirement not because of their
specialities, but because they satisfy the exclusion for  offices
of  private  physicians.  AOIC has not argued  that  radiologists
cannot satisfy that exclusion.
          AOIC also contends that the CON statutes definition  of
health care facility is unconstitutional because it violates  the
prohibition against special acts.43  This prohibition was adopted
to prevent abuse of the legislative process by picking favorites.44
A  statute  is  unconstitutional special legislation  if  (1)  it
creates   [a]  totally  arbitrary  and  unreasonable  method   of
classification,  or (2) it creates a permanently closed  class.45
We evaluate challenges under this provision according to the test
applied to nonsuspect classifications in equal protection cases.46
Under  this test, we examine the legislative goals and the  means
used to advance them [to] determine whether the legislation bears
a fair and substantial relationship to legitimate purposes.47
          On  its  face, H.B. 511 is a general act.48   But  AOIC
argues  that  the superior court has concluded that  the  general
classification  independent diagnostic testing facility  must  be
viewed  as  a  special classification that creates a  permanently
closed  class  that will forever and for all time  include  AOIC.
(Emphasis  in original.)  Because AOIC does not argue  that  H.B.
511   creates   an   arbitrary   and   unreasonable   method   of
classification, we focus solely on AOICs closed-class argument.
          As the Nebraska Supreme Court stated, A closed class is
one  that limits the application of the law to present condition,
and  leaves no room or opportunity for an increase in the numbers
          of the class by future growth or development . . . .49  Alaska
Statute  18.07.111(8), as amended by H.B. 511, applies  uniformly
to  any  entity that seeks to construct an independent diagnostic
testing facility.50  It does not specifically target AOIC, and the
class covered by the statute will grow if additional health  care
providers  seek  to  construct  independent  diagnostic   testing
facilities.  The statute therefore does not create a closed class
potentially   prohibited   by  the   Alaska   Constitution.    It
consequently  does  not  violate the  constitutional  prohibition
against special acts.
     F.   Whether  AOIC  Is a Private Physicians Office  that  Is
          Exempt from the CON Program Presents a Genuine Issue of
          Material Fact.
          
          AOIC   argues   that  the  superior  court   erred   in
determining that AOIC is not a private physicians office excluded
by   AS  18.07.111(8)(B)  from  the  definition  of  health  care
facility.   Although  H.B. 511 amended the definition  of  health
care   facility   to   include  independent  diagnostic   testing
facilities,  it  did  not  alter the  private  physicians  office
exclusion.51
          Because  the superior court did not conduct a trial  or
evidentiary hearing, we review the grant of the injunction  as  a
grant of summary judgment.  We consequently review the injunction
to determine whether the superior court was correct in concluding
that, as a matter of law, AOIC is not a private physicians office
exempt  from  the  CON laws.  In so doing, we  view  all  factual
inferences in favor of AOIC, and view the facts in the light most
favorable to it.52
          Commissioner Jackson argues that AOIC is not a  private
physicians office because at the legislative hearing on H.B. 511,
AOIC  identified  itself  as  an independent  diagnostic  testing
facility.   Dr.  Bridges there testified that AOIC  is  the  only
independent diagnostic testing facility in Alaska and AOICs then-
CEO,  Sam Korsmo, answered affirmatively when a legislator  asked
him  whether  H.B. 511 would affect AOIC.  Korsmo  answered  that
[t]he bill will impact AOIC if it chooses to upgrade equipment or
expand services.  It would be required to request a CON.
          The   superior  court  determined  that  AOIC  was  not
exempted  by the private physicians office exclusion because  the
legislative  history establishes that it was the  intent  of  the
legislature when HB-511 was passed to include Alaska Open Imaging
Center  and similar imaging centers in the definition  of  health
care  entities under independent diagnostic treatment  facilities
for  purposes of the certificate of need statute.  But given that
independent diagnostic testing facility is a term of art that was
coined by the Center for Medicare and Medicaid Services and  that
appears   to   have  no  general  usage  outside   the   Medicare
classification  context,53 it is logical  to  conclude  that  the
legislature intended the term to have the same meaning  given  it
by the agency.
          According   to  AOIC,  it  identified  itself   as   an
independent  diagnostic facility during the  legislative  hearing
because  AOIC  was  then classified as such  by  the  Center  for
          Medicare and Medicaid Services.  At AOICs request, the agency
later  conducted  a  review  and  determined  that  AOIC  was   a
physicians  group practice rather than an independent  diagnostic
testing  facility.   Taken in the light most favorable  to  AOIC,
this  reclassification gives rise to a genuine issue of  material
fact  as  to  whether AOIC was an independent diagnostic  testing
facility  when  the superior court ruled on AOICs  defense.   The
manual  for the federal Medicare program describes the  standards
the  Center  for  Medicare and Medicaid Services uses  to  decide
whether an entity is an independent diagnostic testing facility.54
We  accordingly remand to superior court with instructions to use
standards  such as these to determine whether AOIC satisfied  the
private  physicians  office exclusion at the time  Banner  Health
moved to enjoin its operation in Fairbanks.
          No   party   has  argued  that  we  should  allow   the
commissioner to either interpret the controlling statute or  make
additional fact findings, but given the basis for our remand,  we
do  not  mean  to  foreclose the superior court from  considering
whether a remand to the commissioner would be appropriate.
IV.  CONCLUSION
          We  therefore  AFFIRM  the denial of  the  intervention
motion, VACATE the injunction, and REMAND for further proceedings
consistent with this opinion.
_______________________________
     1      See  AS  18.07.031.   Subsection  (d)  mandates  that
[b]eginning July 1, 2005, the $1,000,000 expenditure threshold in
(a) of this section is increased by $50,000 annually on July 1 of
each  year  up to and including July 1, 2014.  When AOIC  applied
for  a building permit, the expenditure threshold was $1,050,000.
AOIC  does  not  dispute that the cost of the MRI facility  would
meet the monetary threshold.

     2    Ch. 48,  7, SLA 2004.

     3     AS 18.07.111(8) as amended in 2004 defines health care
facility  as  a  private, municipal, state, or federal  hospital,
psychiatric  hospital, independent diagnostic  testing  facility,
residential psychiatric treatment center, tuberculosis  hospital,
skilled   nursing  facility,  kidney  disease  treatment   center
(including  freestanding hemodialysis units),  intermediate  care
facility, and ambulatory surgical facility.

     4     We  refer  to  Banner  Health and  Fairbanks  Memorial
Hospital  collectively as Banner Health unless  context  requires
otherwise.

     5    7 AAC 07.012(b) (2006).

     6    Alaska Const. art. I,  1.

     7     Alaska Const. art. II,  19 (The legislature shall pass
no  local or special act if a general act can be made applicable.
Whether a general act can be made applicable shall be subject  to
judicial determination.).

     8     Alaska Pub. Interest Research Group v. State, 167 P.3d
27,  34  (Alaska  2007);  accord Alaska  Legislative  Council  v.
Knowles, 21 P.3d 367, 370 (Alaska 2001).

     9     Reust v. Alaska Petroleum Contractors, Inc., 127  P.3d
807, 825 (Alaska 2005).

     10     Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d
906, 912 (Alaska 2000).

     11    City of Kenai v. Friends of Recreation Ctr., Inc., 129
P.3d 452, 455 (Alaska 2006).

     12    Id. at 455 (internal quotations and citation omitted).

     13    Id.

     14    Alaska Trademark Shellfish, LLC v. State, 172 P.3d 764,
766  (Alaska 2007).  No party seems to suggest that the  superior
court  proceeding was effectively an administrative  appeal  from
agency decisions.  Because we view the entry of the injunction as
having   in  essence  granted summary judgment to Banner  Health,
there  is  no  need  to consider sua sponte whether  this  appeal
should be treated as an administrative appeal.

     15     McCormick  v. Reliance Ins. Co., 46 P.3d  1009,  1011
(Alaska 2002).

     16    Alaska Trademark Shellfish, 172 P.3d at 766.

     17     Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,
380  (Alaska  2007) (quoting Fairbanks Fire Fighters Assn,  Local
1324 v. City of Fairbanks, 48 P.3d 1165, 1167 (Alaska 2002)).

     18     LaMoureaux v. Totem Ocean Trailer Express, Inc.,  651
P.2d 839, 840 n.1 (Alaska 1982).

     19    Alaska R. Civ. P. 24(a) (Upon timely application anyone
shall  be  permitted to intervene in an action when the applicant
claims an interest relating to the property or transaction  which
is  the  subject of the action and the applicant is  so  situated
that  the  disposition of the action may as  a  practical  matter
impair or impede the applicants ability to protect that interest,
unless  the  applicants  interest is  adequately  represented  by
existing parties.).

     20    Alaska R. Civ. P. 24(b) (Upon timely application anyone
may  be  permitted to intervene in an action when  an  applicants
claim  or defense and the main action have a question of  law  or
fact  in  common.  . . . In exercising its discretion  the  court
shall  consider  whether the intervention will  unduly  delay  or
prejudice  the  adjudication  of  the  rights  of  the   original
parties.).

     21     State  v.  Weidner, 684 P.2d 103, 113  (Alaska  1984)
(adopting  four-part test from Foster v. Gueory, 655  F.2d  1319,
1324-25 (D.C. Cir. 1981)).

     22    Harvey v. Cook, 172 P.3d 794, 799 (Alaska 2007).

     23     Scammon  Bay Assn v. Ulak, 126 P.3d 138, 143  (Alaska
2005)  (citing  Banco Popular de Puerto Rico v.  Greenblatt,  964
F.2d  1227,  1231 (1st Cir. 1992)); see also Kirk v. Demientieff,
145  P.3d  512,  520 (Alaska 2006) (holding attorneys  motion  to
intervene  in former clients tort suit untimely because  attorney
had   clear  and  early  notice  that  former  client  would  not
adequately represent his interests).

     24    Ulak, 126 P.3d at 143.

     25     AOICs May 1, 2006 memorandum opposing Banner  Healths
motion for a preliminary injunction recognized that Banner Health
sought  injunctive  relief enjoining the radiologists  at  [AOIC]
from  treating  their patients; argued that the  reputations  and
future  economic  interests of AOIC and  its  staff  radiologists
would be severely and irreparably damaged; and asserted that  the
immediate economic effect on AOIC and its radiologists caused  by
an  injunctive  order would far outweigh any small economic  harm
that Banner [Health] may suffer.

     26    See Red Top Mining, Inc. v. Anthony, 983 P.2d 743, 746-
47  (Alaska  1999)  (denying  companys  motion  to  intervene  as
untimely  because, among other things, two shareholders had  been
involved and filed affidavits in underlying dispute).

     27    Civil Rule 19(a) states in pertinent part:

          A person who is subject to service of process
          and  whose joinder will not deprive the court
          of  jurisdiction over the subject  matter  of
          the  action shall be joined as a party in the
          action if . . . the person claims an interest
          relating to the subject of the action and  is
          so  situated  that  the  disposition  of  the
          action in the persons absence may . . . as  a
          practical matter impair or impede the persons
          ability to protect that interest . . . .
          
Alaska R. Civ. P. 19(a).

     28     See  Brandon v. Corr. Corp. of Am., 28 P.3d 269,  274
(Alaska  2001) (citing Parson v. Marathon Oil Co., 960 P.2d  615,
618  (Alaska  1998); LeDoux v. Kodiak Island  Borough,  827  P.2d
1121,  1123 (Alaska 1992)) (stating that a rule on one motion  is
an implicit denial of another contradictory pending motion).

     29     Mundt  v. Nw. Explorations, Inc., 947 P.2d  827,  830
(Alaska 1997) (holding applicants motion to intervene was  timely
even  though  it  was  filed after superior court  entered  final
judgment  because  record  was unclear  whether  applicant  knew,
before court issued its order invalidating her interest in  land,
her parcels of land would be affected by the litigation).

     30     See Alaskans for a Common Language, Inc. v. Kritz,  3
P.3d 906, 912 (Alaska 2000).

     31    Id. at 912.

     32     Ulak, 126 P.3d at 143 (citing 7C Charles Alan Wright,
Arthur  R. Miller & Mary Kay Kane, Federal Practice and Procedure
1916 (1986)).

     33     AOICs opening brief states, Appellants submit that [a
superior  courts  decision to not address a  motion  for  summary
judgment]  is  an  implicit denial of the motion  .  .  .  .   In
objecting to Banner Healths proposed judgment below, AOIC  stated
that  [t]he  courts  oral  ruling of August  8,  2006  implicitly
rejects AOICs legal arguments regarding the applicability of Art.
I,   1 (equal protection) and Art. II,  19 (special acts) of  the
Alaska Constitution.

     34    Brandon v. Corr. Corp. of Am., 28 P.3d 269, 274 (Alaska
2001).

     35     See  Catherine M. Boerner, Online OIG  Audit  Reports
Offer Additional Information About Independent Diagnostic Testing
Facilities,  9  NO.  1 J. Health Care Compliance  39,  40  (2007)
([Independent   diagnostic  testing  facilities]   are   entities
independent  of hospitals or physician offices in which  licensed
or   certified   nonphysician  personnel  (technicians)   perform
diagnostic tests under physician supervision.).

     36     Article  I,  section  1  of the  Alaska  Constitution
provides:
          This   constitution  is  dedicated   to   the
          principles  that all persons have  a  natural
          right  to  life,  liberty,  the  pursuit   of
          happiness,  and the enjoyment of the  rewards
          of  their own industry; that all persons  are
          equal   and   entitled   to   equal   rights,
          opportunities, and protection under the  law;
          and   that  all  persons  have  corresponding
          obligations to the people and to the State.
          
     37    Glover v. State, Dept of Transp., Alaska Marine Highway
Sys., 175 P.3d 1240, 1257 (Alaska 2008).

     38     See Commercial Fisheries Entry Commn v. Apokedak, 606
P.2d  1255, 1266 (Alaska 1980) (stating that right to  engage  in
economic endeavor is important).

     39     State v. Enserch Alaska Constr., Inc., 787 P.2d  624,
633 (Alaska 1989).

     40    See AS 18.07.111(8).

     41    See AS 18.07.111(8)(B).

     42    The DHSS regulation states:

          (b)   For  purposes of AS 18.07.111 and  this
          section,   independent   diagnostic   testing
          facility  means a fixed-location facility  or
          mobile facility that
          (1)   performs diagnostic testing using major
          diagnostic testing equipment; for purposes of
          this   paragraph,  major  diagnostic  testing
          equipment means
               (A)   magnetic  resonance imaging  (MRI)
          equipment;
               (B)      a    cardiac    catheterization
          laboratory and related imaging equipment;
               (C)  ultrasound imaging equipment;
               (D)    a  positron  emission  tomography
          (PET) scanner;
               (E)  a computed tomography (CT) scanner;
          or
               (F)        a      positron      emission
          tomography/computed    tomography    (PET/CT)
          scanner . . . .
          
7 AAC 07.012(b).

     43     Article  II,  section 19 of the  Alaska  Constitution
provides:

          The  legislature  shall  pass  no  local   or
          special  act  if a general act  can  be  made
          applicable. Whether a general act can be made
          applicable  shall  be  subject  to   judicial
          determination.   Local   acts   necessitating
          appropriations by a political subdivision may
          not  become  effective unless approved  by  a
          majority  of  the  qualified  voters   voting
          thereon in the subdivision affected.
          
     44     2 Norman J. Singer, Sutherland Statutory Construction
40.1,  at 212-13 (6th ed. 2000) (citing Boucher v. Engstrom,  529
P.2d 456 (Alaska 1974) (overruled on other grounds by McAlpine v.
Univ. of Alaska, 762 P.2d 81 (Alaska 1988))).

     45    Id. at 213.

     46    Baxley v. State, 958 P.2d 422, 430 (Alaska 1988).

     47    State v. Lewis, 559 P.2d 630, 643 (Alaska 1977).

     48    See AS 18.07.111(8).

     49     City  of Ralston v. Balka, 530 N.W.2d 594, 601  (Neb.
1995) (internal quotations and citation omitted).

     50    See AS 18.07.111(8).

     51    See ch. 48,  7, SLA 2004.

     52    See Anchorage Citizens for Taxi Reform v. Municipality
of Anchorage, 151 P.3d 418, 422 (Alaska 2006).

     53     Health Care Financing Administration [now Center  for
Medicare  and  Medicaid Services], 62 Fed. Reg.  33158  (proposed
Jun. 18, 1997), 1997 WL 329235 at *33179-81.

     54    The manual provides that an entity generally should not
be considered independent from a physicians office if:

          [1]  It  is  a  physician  practice  that  is
               owned, directly or indirectly, by one or
               more physicians or by a hospital;
               
          [2]  The entity primarily bills for physician
               services    (e.g.,    evaluation     and
               management  (E & M) codes) and  not  for
               diagnostic tests;
               
          [3]            It    furnishes
                         diagnostic
                         tests primarily
                         to     patients
                         whose   medical
                         conditions  are
                         being   treated
                         or  managed  on
                         an      ongoing
                         basis by one or
                         more physicians
                         in          the
                         practice;
                         
          [4]  The  diagnostic tests are performed  and
               interpreted  at the same location  where
               the   practice  physicians  also   treat
               patients for their medical conditions.
               
          . . . .

          We  recognize that many diagnostic tests  are
          radiological  procedures  that  require   the
          professional  services of a radiologist.   We
          also   recognize  that  the   nature   of   a
          radiologists   practice  is  generally   very
          different  from  those  of  other  physicians
          because radiologists usually do not bill E  &
          M codes or treat a patients medical condition
          on   an   ongoing  basis.   Nevertheless,   a
          radiologist or a group of radiologists should
          not  necessarily be required to enroll as  an
          IDTF.   The following features would indicate
          that  a radiology practice is not independent
          from a physician office or hospital:
          
          [1]  The practice is owned by radiologists, a
               hospital, or both;
               
          [2]  The  owner radiologists and any employed
               or   contracted  radiologists  regularly
               perform  physician services (e.g.,  test
               interpretations) at the  location  where
               the diagnostic tests are performed;
               
          [3]  The  billing  patterns of  the  enrolled
               entity  indicate that the entity is  not
               primarily a testing facility and that it
               was    organized    to    provide    the
               professional  services  of  radiologists
               (e.g.,  the  enrolled entity should  not
               bill   for   a  significant  number   of
               purchased  interpretations,  it   should
               rarely   bill  only  for  the  technical
               component of a diagnostic test,  and  it
               should bill for a substantial percentage
               of  all  of the interpretations  of  the
               diagnostic   tests  performed   by   the
               practice); and
               
          [4]  A    substantial   majority    of    the
               radiological     interpretations     are
               performed at the practice location where
               the diagnostic tests are performed.
               
Center  for  Medicare  and  Medicaid Services,  Medicare  Program
Integrity Manual ch. 10, 5.1 (2005).

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