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MISSION HOSPITALS v. N.C. DEPT. OF HEALTH

No. COA06-1642.

658 S.E.2d 277 (2008)

MISSION HOSPITALS, INC., Petitioner, and North Carolina Radiation Therapy Management Services, Inc. d/b/a 21st Century Oncology, Petitioner-Intervenor, v. N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF FACILITY SERVICES, CERTIFICATE OF NEED SECTION, Respondent, and Asheville Hematology and Oncology Associates P.A., Respondent-Intervenor.

Court of Appeals of North Carolina.

March 18, 2008.

Attorney(s) appearing for the Case

Smith Moore, LLP, by Maureen Demarest Murray, William W. Stewart, Jr., and Allyson Jones Labban, Greensboro, for petitioner-appellee, Mission Hospitals, Inc.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, by Susan H. Hargrove, Sean A. Timmons, and Courtney H. Mischen, Raleigh, for petitioner-intervenor-appellee, North Carolina Radiation Therapy Management Services, Inc. d/b/a 21st Century Oncology.

Attorney General Roy Cooper, by Assistant Attorney General June S. Ferrell, for respondent-appellee N.C. Department of Health and Human Services, Division of Facility Services.

Bode, Call & Stroupe, LLP, by S. Todd Hemphill, Diana Evans Ricketts and Matthew A. Fisher, Raleigh, for respondent-intervenor-appellant Asheville Hematology and Oncology Associates, P.A.

Nelson, Mullins, Riley & Scarborough LLP, by Wallace C. Hollowell, III, Raleigh, on behalf of Alliance Imaging, Inc., amicus curiae.

Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene, Lee M. Whittman, and Sarah M. Johnson, Raleigh, on behalf of Bio-Medical Applications of North Carolina, Inc., amicus curiae.

STEELMAN, Judge.

The North Carolina Department of Health and Human Services, Division of Facility Services erred by engaging in ex parte communications with one party without notice to the other parties or affording an opportunity to all parties to be heard. Because the ex parte communications were prejudicial to appellant's substantial right to a fair and impartial process, the Final Agency Decision is vacated. Upon remand, the Agency shall address...

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