Did USC need higher-education commission approval to expand its Greenville medical program?

Plain-English summary

In 2011, the South Carolina Attorney General reaffirmed its earlier conclusion that USC's plan to add first- and second-year medical courses in Greenville was an expansion of an existing program, not a new program requiring approval by the Commission on Higher Education. The university already taught third- and fourth-year students there. The AG said a commission staff memorandum did not change the statutory limit on the commission's authority.

The opinion said the university could notify the commission about the change by writing, appearing before it, or both. It concluded that neither the university's consent nor internal commission policies could give the commission power to approve an expansion outside its statutory jurisdiction. The AG treated whether the state needed another medical school as a policy question outside its opinion.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Did USC need commission approval to add earlier medical-school years in Greenville? A: The AG said no. It treated the proposal as an expansion of the existing Greenville program rather than a new program under the cited approval statute.

Did the commission staff memorandum change the AG's view?
A: No. The AG reviewed it and reaffirmed its January 2011 opinion, saying internal policy could not enlarge statutory jurisdiction.

Could USC ask the commission to approve the expansion voluntarily? A: The opinion said consent could not confer subject-matter jurisdiction on the commission. It distinguished giving notice from seeking approval.

Did the AG decide whether Greenville needed an expanded medical school? A: No. It said that was a policy judgment rather than a legal question its office could answer.

Background and statutory framework

A senator asked the AG to reconsider its January 2011 opinion after the commission's staff disagreed. The AG reread S.C. Code Ann. Section 59-103-35, which required commission approval for a new higher-education program, and related statutes. It relied on the distinction between a new program and an expansion already underway at the same location, and on the rule that an agency cannot expand its own statutory authority through policy.

Citations and references

The opinion quotes S.C. Code Ann. Section 59-103-35 and discusses Davis Mech. Contractors, Inc. v. Wasson and the Ahrens decision on agency authority. It reaffirms the January 5, 2011 AG opinion.

Official title

“seeking guidance regarding ‘the extent, if any of the legal authority of the South Carolina Commission on Higher Education (CHE) to require its approval of the USC School of Medicine’s expansion of the existing Medical School program in Greenville to include first and second year medical students.’”

Requester

The Honorable John Courson, Senator, District No. 20

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-11-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/courson-j-os-9259-5-11-11-higher-education-usc-school-of-medicine-expansion.pdf

Original opinion text

ALANWn.sON
AlTORNEY GENERAL

May 11 , 2011

The Honorable John Courson
Senator, District No. 20
Post Office Box 142
Columbia, South Carolina 29202
Dear Senator Courson:
You note that in December of 2010 you requested an opinion from this Office "seeking guidance regarding 'the extent, if any of the legal authority of the South Carolina Commission on Higher Education (CHE) to require its approval of the USC School of Medicine' s expansion of the existing Medical School program in Greenville to include first and second year medical students."' You further state in your letter that this Office responded with an opinion dated January 5, 2011. You note that our "review and analysis of the applicable Jaw, regulations and policies determined that the CHE's jurisdiction extended only to approval of 'new programs,' which did not include U.S.C.'s planned expansion of an existing program on an existing campus.'" We concluded in our January 5 opinion that "CHE approval is not required in order to proceed with the project. Instead, the University may move forward in Greenville with notification to CHE of change in program status." You now seek to determine whether the January 5, 2011 Opinion remains the Opinion of this Office. By way of background, you state the following:
[s]ince that January 5 opinion was issued, the CHE has raised several concerns reflected in a memorandum that disagrees with your Office's conclusion. A copy of this CHE "Staff Analysis" memorandum is enclosed for your review and reference. In light of the points and questions raised in the agency's memorandum, I respectfully request an opinion addressing two questions: 1.

After consideration of the CHE "Staff Analysis," do you agree with the conclusions stated in your Office' s January 5, 2011 opinion, or do you believe that these conclusions should be modified based on the agency's memorandum?

2.

If you determine that the conclusions reached in your Office's January 5, 201 1 opinion do not require modification, what are the legally mandated procedural limitations, if any, on the conduct of the University and the CHE for moving forward with the USC School of Medicine' s planned expansion?

REMBERT c. DENNIS BUILDING • Posr OFFICE Box 11549 •

CoLUMBIA, SC 2921 1-1549

• TELEPHONE 803-734-3970 • FACSIMlLE 803-253-6283

The Honorable John Courson
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May 11, 2011

Law I Analysis
Question 1

Our opinion of January 5, 2011 reviewed numerous authorities concerning the scope of CHE's authority. We reviewed the text of S.C. Code Ann. Section 59-103-35 which provides that "[n]o new program may be undertaken by any public institution of higher education without the approval of the commission.'' (emphasis added). Also reviewed were § 59-101-150 (''No new program shall be undertaken by a State-supported institution of higher learning without the approval of the Commission or the General Assembly.") (emphasis added), as well as§ 59-123-10 ("any new programs undertaken by the institution [i.e. the Medical University of South Carolina] will first be approved by the Commission on Higher Education.") (emphasis added). Second, our opinion referenced South Carolina authorities, as well as authority from other jurisdictions which concluded that the tenn "new" excluded expansions to preexisting programs or other activities. See, e.g. Davis Mech. Contractors, Inc. v. Wasson, 268 S.C. 26, 30, 231 S.E.2d 300, 302 (1977) [finding that the tenn "new business" in the Tax Code and concluding that "[a] continuation of a pre-existing concern even with major additions and expansions is not the establishment of a new enterprise within the meaning" of the statute]. Finally, the January 5 opinion considered a CHE precedent, which concluded that when USC and MUSC combined resources to develop a joint Phannacy School, CHE asked the Schools to provide only a ''Notification of Change in Program Status" fonn. Importantly, that coordinated pharmacy school received separate accreditation, had its own dean, delivered the curriculum at a new location, and created new elective courses. Despite these expansions to the schools' existing pharmacy programs, the CHE did not attempt to require agency approval in that situation. lo this Office's opinion, the CHE's conduct in that instance was consistent with the limited scope of its statutory authority to approve or disapprove only "new programs," not expansions of existing ones. Based on our review of all applicable authorities, this Office concluded as follows: In our opinion the proposed addition to the USC Medical School program in Greenville

does not require CHE approval. Employing the common and ordinary meaning of the phrase "new program," as used in the statutes relating to CHE's authority, we deem the addition of first and second year USC Medical School courses in Greenville to the already established program---one in which third and fourth years of USC medical School have long been offered in Greenville-to be the addition to an existing program rather than the establishment of a "new program" for purposes of§ 59-103-35 and related statutes. Therefore, we concluded that "a court would likely find that CHE approval for the expansion of the USC Medical School Program in Greenville from a two-year program to a four-year program is not required.'' Your letter indicates that upon receipt of our January 5, 2011 opinion, the CHE raised several concerns reflected in a memorandum indicating disagreement with this Office's conclusion. Your letter also enclosed a copy of that "Staff Analysis" memorandum. We have reviewed that memorandum fully and now reaffinn and reiterate the conclusions stated in our January 5, 2011 opinion.

The Honorable John Courson

Page3
May 11, 2011

The agency's memorandum did not materially dispute any aspect of our earlier legal analysis. It did not reference any South Carolina statute bestowing upon CHE the jurisdiction to approve anything other than "new programs." Nor did the Memorandum identify any case law from South Carolina's courts or courts from other jurisdictions which interpret the tenn "new" to include an expansion of an existing concern. Instead, the "Staff Analysis" memorandum focused almost exclusively upon the agency's internal policies (both past and present). There, the author(s) argued such policies should detennine what constitutes a "new program" under the South Carolina Code. This is incorrect. The South Carolina Supreme Court bas been clear that, though agencies should be given deference when interpreting their own regulations, they cannot expand or alter their jurisdictional reach by way of internal policy; only the General Assembly may do so. See, e.g., Ahrens v. State, Op. No. 26966 (S.C. Sup. Ct. filed May 2, 2011) (Shearouse Adv. Sh. No. 15, at 33) (reiterating that "an agency may not make rules that 'conflict with, or ... change in any way the statute conferring such authority"' (quoting Fisher v. JH. Sheridan Co., 182 S.C. 316, 326, 189 S.E. 356, 360 (1936))) (ellipses in original); S.C. Tax Comm 'n v. S.C. Tax Bd of Review, 278 S.C. 556, 560, 299 S.E.2d 489, 491 (1983). ("An order cannot be made by an administrative body which would materially alter or add to the law."). The CHE, as a state agency, is jurisdictionally limited by the plain terms of its enabling statute. See, e.g. Captain's Quarters Motor Inn v. S.C. Coastal Council, 306 S.C. 488, 490, 413 S.E.2d 13, 14 (1991) ("As a creature of statute, a regulatory body is possessed of only those powers expressly conferred or necessarily implied for it to effectively fulfill the duties with which it is charged."). Therefore, prior iterations of the CHE's internal policies or other so-called "longstanding'' practices simply do not have any relevance to the agency's subject matter jurisdiction, which has remained statutorily unchanged for over thirty years. In addition to its comments about the agency's internal policies, the "Staff Analysis" memorandum stated that "[t]he AG does not take into account or reference existing law concerning the role of the Deans' Committee of Medical Education (§ 59-101-190) and its relationship to CHE's authority." This Office is aware of the Deans' Committee on Medical Education. That Committee's mission is a narrow one, and nowhere did the General Assembly bestow upon it jurisdiction to approve or disapprove of expansions of already-existing medical programs. Finally, the "Staff Analysis" memorandum stated that "the AG's opinion does not consider the fundamental question of whether South Carolina needs another medical school" or whether USC's planned expansion would "meet such a need." When rendering opinions, this Office may not give a view regarding policy decisions made by various state institutions. See Op. S.C. Atty. Gen., June 26, 1992 ("Only the legal questions will be addressed herein; no comment is made as to policy matters or as to the wisdom of the undertaking."); Op. S.C. Atty. Gen., July 31, 1985 ("Of course, this opinion addresses only the legal questions presented and does not comment upon the administrative, budgetary and business decisions which the parties themselves must address."). Our review was, and remains, limited to the scope of the CHE's subject matter jurisdiction over USC's planned expansion. The advisability of whether South Carolina needs another medical school stated in the "Staff Analysis" memorandum is not a proper point of consideration by this Office and we cannot comment upon such policy considerations in our Opinion.

The Honorable John Courson
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May 11, 2011

For these reasons, this Office fully reaffirms its formal opinion of January 5, 2011. The legal authorities that are properly considered when analyzing this issue lead to the conclusion that a court would likely find that the CHE does not have subject matter jurisdiction to approve of the expansion of the USC School of Medicine in Greenville, a location at which it already educates medical students. Question 2

As noted above, this Office believes that the CHE lacks subject matter jurisdiction to consider and approve of the planned expansion of the USC School of Medicine. While this Office cannot require parties to take any steps by virtue of an advisory opinion, we can outline important considerations of which both the CHE and the University should be aware. First, as discussed above, the CHE only has the authority granted to it by the General Assembly. Anything that it does inconsistent with or outside of these statutory boundaries "is null and void." Responsible Econ. Dev. v. S.C. DHEC, 371 S.C. 547, 553, 64 l S.E.2d 425, 428 (2007). Therefore, in this Office's opinion, any attempts by the agency to consider for its approval the medical school's expansion would be beyond the scope of its authority and therefore invalid, unenforceable, and ultra vires, as the CHE does not have subject matter jurisdiction to approve the expansion of the USC School of Medicine in Greenville. Second, the South Carolina Supreme Court is clear that subject matter jurisdiction "cannot be waived or conferred by consent." Atlanta Skin & Cancer Clinic, P.C. v. Hallmark Gen. Partners, 320 S.C. 113, 121 , 463 S.E.2d 600, 605 (1995). Thus, even if the University were inclined to submit to the CHE's approval process, it could not do so. The University does not have the authority to expand the scope of the CHE's jurisdiction or otherwise disregard the jurisdictional parameters that the General Assembly has placed on the agency. As a result of these considerations, this Office previously advised that the University could provide "notice" to the CHE regarding its plans with the School of Medicine in Greenville. In our view, such notice may be provided either by written communications, an appearance before the Commission, or both . However, in this Office's opinion, both USC and the CHE are legally prohibited from participating in a process whereby the CHE considers for approval the University's planned expansion, and any efforts or attempts to do so would Ukely be deemed by a court to be null and void. Sincerely,

Alan Wilson
AW/an