Did Tennessee's 2015 law reclassifying high-volume abortion clinics as ambulatory surgical treatment centers force them to get a Certificate of Need before they could be licensed?

Subject

Opinion No. 15-52, Application of Public Chapter 419, June 11, 2015

Plain-English summary

Tennessee's 2015 Public Chapter 419 changed the definition of "ambulatory surgical treatment center" (ASTC) in Tenn. Code Ann. § 68-11-201(3). The amendment swept in any private physician's office that performed more than 50 surgical abortions a year, requiring those practices to be licensed by the Department of Health as ASTCs. The law took effect July 1, 2015. The Department of Health and the Health Services and Development Agency (HSDA) jointly asked the AG: do those existing practices also need to get a Certificate of Need (CON) from HSDA before they can be licensed?

The AG said no. The text of Public Chapter 419 said nothing about a CON. The CON statute generally requires CONs for "construction, development, other establishment, or major modification" of a health care institution. Those are terms that fit new or expanded facilities, not existing offices that suddenly came within a new definition. The legislative history of Public Chapter 419 was about patient safety, sanitary conditions, and health inspections, not about the need-and-feasibility questions that drive CON review. And as a practical matter, the CON process takes months: a letter of intent, public notice, bimonthly review cycles, agency report, possible contested case hearing. Imposing a CON requirement as an implicit pre-condition would have made it functionally impossible to comply with the July 1, 2015 effective date. The AG presumed the legislature does not enact useless statutes and read Public Chapter 419 not to impose a CON pre-condition.

Currency note

This opinion was issued in 2015. 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.

In particular, the abortion regulatory landscape in Tennessee has changed substantially since 2015, including state and federal litigation and the U.S. Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), which returned abortion regulation to the states. Anyone trying to apply this opinion today should check current law before relying on any specific procedural rule.

Common questions

What does a CON actually do?

A Certificate of Need is a state agency's determination that a proposed new health care facility (or major modification of an existing one) is needed in the geographic area, economically feasible, and consistent with the orderly development of healthcare. The HSDA grants CONs. The CON process is meant to prevent over-building of health care infrastructure and is independent of the licensing process that the Department of Health runs.

Why couldn't the legislature have wanted CON review for these practices?

Two reasons. First, "construction, development, other establishment, or major modification" are the statutory trigger phrases for CONs. An existing practice that is already operating would not normally trigger any of those. Second, the CON process can take many months, and the effective date of the new law was only about two months after enactment. Imposing a CON requirement would have made it nearly impossible for existing practices to comply with the licensing deadline.

Did the legislature's purpose matter?

Yes. The AG looked at the committee debates and floor discussion of HB1368/SB1280 and noticed that the legislators talked about patient safety, sanitary conditions, and health inspections, not about need or economic feasibility. CONs were not mentioned in the legislators' discussions. That confirmed the AG's reading that the 2015 amendment was meant to add these practices to the licensing regime, not to subject them to a new regulatory review.

Could the legislature have imposed a CON requirement explicitly?

Yes, but it did not. The AG applied the expressio unius canon: when the legislature mentions a licensure requirement but is silent on CON, the silence is meaningful. The legislature presumably knows the CON statute exists and would have referenced it had it wanted to apply it.

What about new practices opening after July 1?

A practice that did not exist before July 1, 2015, would be a new "construction, development, other establishment" and would presumably need a CON under the general statute. The opinion specifically addresses existing practices that suddenly fell within the new ASTC definition.

Background and statutory framework

Public Chapter 419 (2015) amended Tenn. Code Ann. § 68-11-201(3) to expand the definition of "ambulatory surgical treatment center" to include any private physician's office where more than 50 surgical abortions are performed annually. The Act was signed May 8, 2015 and took effect July 1, 2015 "the public welfare requiring it." 2015 Tenn. Pub. Acts, ch. 419, § 2.

ASTCs must be licensed by the Tennessee Department of Health under Tenn. Code Ann. §§ 68-11-201 et seq. The separate CON regime (Tenn. Code Ann. §§ 68-11-1601 et seq.) is administered by the Health Services and Development Agency and generally requires a CON for the construction, development, other establishment, or major modification of a health care institution, including an ASTC. Tenn. Code Ann. §§ 68-11-1602(7)(A), 68-11-1607(a)(1), 68-11-1607(a)(2). When a CON is required, Tenn. Code Ann. § 68-11-1607(b) requires it before the Department can issue a license.

The CON process: a letter of intent (Tenn. Code Ann. § 68-11-1607(c)(1)), bimonthly review cycles (§ 68-11-1607(c)(5)), agency review and written report (§ 68-11-1608), and the possibility of a contested case hearing (§ 68-11-1610(a)). The process typically takes several months.

Statutory-interpretation rules applied: give effect to legislative intent without unduly restricting or expanding the statute (In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010)); start with the text (BellSouth Telecommunications, Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997)); read in context (Loftin v. Langsdon, 813 S.W.2d 475, 478 (Tenn. Ct. App. 1991)); use legislative history when ambiguous (Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 528 (Tenn. 2010)); apply expressio unius (Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 633 (Tenn. 2008)); presume legislative awareness of existing law (Washington v. Robertson Cnty., 29 S.W.3d 466, 473 (Tenn. 2000)) and that the legislature did not intend a useless statute (Lee Med., 312 S.W.3d at 527).

Citations

• Tenn. Code Ann. § 68-11-201(3) (definition of ASTC, as amended)
• Tenn. Code Ann. §§ 68-11-201, et seq. (Department of Health licensing)
• Tenn. Code Ann. §§ 68-11-1601, et seq. (Certificate of Need regime)
• Tenn. Code Ann. § 68-11-1602(7)(A) (CON-triggering facilities)
• Tenn. Code Ann. § 68-11-1607(a)(1), (a)(2) (CON construction/establishment triggers)
• Tenn. Code Ann. § 68-11-1607(b) (CON required before licensure)
• Tenn. Code Ann. § 68-11-1607(c) (letter of intent and review cycles)
• 2015 Tenn. Pub. Acts, ch. 419
• In re Estate of Davis, 308 S.W.3d 832 (Tenn. 2010)
• Lee Med., Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010)
• Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626 (Tenn. 2008)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-52.pdf

Original opinion text

Opinion No. 15-52
Application of Public Chapter 419

Question

Does Public Chapter 419, which amends the definition of "ambulatory surgical treatment center" in Tenn. Code Ann. § 68-11-201(3), require an existing private physician's office practice that now falls within the terms of the amended definition—i.e., is a practice that has been performing more than fifty surgical abortions annually—to obtain a certificate of need for the establishment of an ambulatory surgical treatment center before the July 1, 2015, effective date of the statutory amendments?

Opinion

No. We conclude that the General Assembly did not intend to require such existing office practices to obtain a certificate of need prior to becoming licensed as ambulatory surgical treatment centers.

ANALYSIS

In 2015, the General Assembly enacted Public Chapter 419. The legislation amends Tenn. Code Ann. § 68-11-201(3), which defines the health care facilities that must be licensed as ambulatory surgical treatment centers (ASTCs). As amended, the statute will require any private physician's office practice where more than fifty (50) surgical abortions are performed in any calendar year to obtain a license from the Tennessee Department of Health as an ambulatory surgical treatment center:

(3) "Ambulatory surgical treatment center" means any institution, place, or building devoted primarily to the maintenance and operation of a facility for the performance of surgical procedures or any facility in which a surgical procedure is utilized to terminate a pregnancy. Such facilities shall not provide beds or other accommodations for the stay of a patient to exceed twelve (12) hours duration; provided, that the length of stay may be extended for an additional twelve (12) hours in the event such stay is deemed necessary by the attending physician, the facility medical director, or the anesthesiologist for observation or recovery, but in no event shall the length of stay exceed twenty-four (24) hours. No patient for whom a surgical procedure is utilized to terminate a pregnancy shall stay at such a facility for a period exceeding twelve (12) hours. Individual patients shall be discharged in an ambulatory condition without danger to the continued well-being of the patients or shall be transferred to a hospital. Excluded from this definition are private physicians' office practices where a total of fifty (50) or fewer surgical abortions are performed in any calendar year.

2015 Tenn. Pub. Acts, ch. 419. The legislation was signed into law by Governor Haslam on May 8, 2015, and will take effect on July 1, "the public welfare requiring it." Id., § 2. The language of Public Chapter 419 clearly requires all private physicians' office practices that meet the 51-plus-annual-abortions threshold as of July 1, 2015, to obtain licensure from the Department of Health as ambulatory surgical treatment centers.

You inquire whether any such office practice that is not already licensed as an ASTC must first obtain a certificate of need (CON) from the Health Services and Development Agency. This question is prompted by the fact that other already-existing statutes require a certificate of need for the construction, development, other establishment, or major modification of an ambulatory surgical treatment center. Tenn. Code Ann. §§ 68-11-1602(7)(A), 68-11-1607(a)(1), 68-11-1607(a)(2). Certificates of need are granted by the Health Services and Development Agency. Tenn. Code Ann. § 68-11-1602(1). When a certificate of need is required, it must be granted before the Department of Health may issue a license. Tenn. Code Ann. § 68-11-1607(b).

Answering your question requires interpretation of statutory language of Public Chapter 419. When construing a statute, the primary goal is to give effect to the intent of the legislature without broadening or restricting the statute beyond its intended scope. In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010). Because courts must presume that the legislature says in a statute what it means and means in a statute what it says there, the search for the meaning of statutory language begins with the statute itself. BellSouth Telecommunications, Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997). The words of a statute are given their natural and ordinary meaning unless the legislature used them in a specialized, technical sense. Id. A statute's meaning is to be determined, not from special words in a single sentence or section, but from the act taken as a whole, and viewing the legislation in the light of its general purpose. Loftin v. Langsdon, 813 S.W.2d 475, 478 (Tenn. Ct. App. 1991).

In attempting to resolve a statutory ambiguity or when it is not clear what the legislature had in mind, courts may look beyond the statutory text to, among other things, public policy, historical facts preceding or contemporaneous with the enactment of the statute being construed, the background and purpose of the statute, earlier versions of the statute, the caption of the act, the legislative history of the statute, and the entire statutory scheme in which the statute appears. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 528 (Tenn. 2010). Moreover, when the terms of a statute are ambiguous or its significance is doubtful, other statutory rules of interpretation may be used. For example, legislative intent also may be ascertained through applying the principle of expressio unius est exclusio alterius ("to express one thing is to exclude others"). Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 633 (Tenn. 2008).

Here, when the words of Public Chapter 419 are given their ordinary and normal meaning, it appears that the General Assembly did not intend to require that existing practices now coming within the new ASTC definition obtain a certificate of need, since no mention is made of a certificate of need. The expression by the Legislature of a licensure requirement and the absence of any reference to a certificate of need requirement in Public Chapter 419 strongly suggests that a certificate of need requirement is not included.

To resolve any possible ambiguity as to whether the General Assembly intended that already-operating physicians' office practices performing more than fifty surgical abortions annually must, before the effective date of the new chapter, first obtain a CON before becoming licensed as an ASTC, we have also examined public policy, historical facts preceding the enactment of the statutory amendment, the background and purpose of the amendment, and the legislative history of the amendment. After doing so, and as described below, we conclude that the Legislature did not intend to impose a CON requirement upon such practices.

First, we note that a certificate of need is generally required for the construction, development, other establishment, or modification of a health care institution. Tenn. Code Ann. § 68-11-1607(a)(1), (a)(2). A practice that is already in existence would not appear to fall within the natural and ordinary meaning of these terms, which refer to the building of a new facility or the expansion of an existing facility.

Second, the legislative history of Public Chapter 419 reveals clearly that the General Assembly's concerns were directed at patient safety, sanitary conditions, and health-related inspections—matters that fall within the scope and authority of the Department of Health's licensing and regulatory functions under Tenn. Code Ann. §§ 68-11-201, et seq.—rather than at the issues of need, economic feasibility, and orderly development of healthcare that are considered by the Health Services and Development Agency in granting or denying certificates of need for health care facilities under Tenn. Code Ann. §§ 68-11-1601, et seq. See, e.g., Senate Judiciary Committee, Debate on SB1280, 109th Gen. Assembly (April 7, 2015); House Session, Debate on HB1368/SB1280, 109th Gen. Assembly (April 21, 2015). Certificates of need were not mentioned at all in the legislators' discussions.

Third, the certificate of need process, as established by statute, is often a lengthy one. For example, an application for a CON must be commenced by the filing of a letter of intent that is also published in a newspaper of general circulation. Tenn. Code Ann. § 68-11-1607(c)(1). Review cycles begin every two months. Tenn. Code Ann. § 68-11-1607(c)(5). The Department of Health must review, verify, analyze, and file a written report upon each CON application for the establishment of an ASTC. Tenn. Code Ann. § 68-11-1608. A health care institution or person who files a written objection to an application may petition for a contested case hearing before an administrative law judge. Tenn. Code Ann. § 68-11-1610(a). Thus, it would be difficult, if not impossible, for an existing, currently-operating practice that now finds itself within the new ASTC definition as of July 1, 2015, to obtain a certificate of need in time to come into compliance with the new licensure requirement if a certificate of need were deemed an implicit pre-condition to the license.

The General Assembly is presumed to be aware of its prior enactments and the state of the law when it enacts legislation. Washington v. Robertson Cnty., 29 S.W.3d 466, 473 (Tenn. 2000). Furthermore, courts presume that the General Assembly did not intend to enact a useless statute. Lee Med., Inc., supra, 312 S.W.3d at 527. The fact that completion of the CON process generally requires at least several months provides additional support for our conclusion that Public Chapter 419 does not require existing practices that now come within the new ASTC definition to obtain a CON as a pre-condition to licensure as an ASTC, since requiring a CON would be tantamount to requiring something that is virtually impossible. In adopting Public Chapter 419 in late April 2015, the Legislature did not intend to require existing physicians' office practices that were already performing more than fifty surgical abortions annually to obtain a certificate of need before and in addition to a license by the July 1, 2015, effective date of the enactment.

In conclusion, it is our opinion that while Public Chapter 419 clearly requires all private physicians' office practices that perform more than fifty surgical abortions annually to obtain a license as an ambulatory surgical treatment center from the Department of Health, such already-existing practices are not also required to obtain a certificate of need for the establishment of an ambulatory surgical treatment center before the July 1, 2015, effective date of the statutory amendments.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

SUE A. SHELDON
Senior Counsel

Requested by:
Vincent Davis, MPH
Director, Office of Health Care Facilities
Tennessee Department of Health
665 Mainstream Drive, Second Floor
Nashville, Tennessee 37243

Melanie M. Hill
Executive Director
Tennessee Health Services and Development Agency
502 Deaderick Street, Ninth Floor
Nashville, Tennessee 37243

Footnote: You are aware of at least two office practices that would come within the amended definition of an ASTC and would therefore be subject to licensure requirements as an ASTC under Public Chapter 419.