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IN THE SUPREME COURT OF IOWA
No. 73 / 05-2019 Filed August 10, 2007 BIRCHANSKY REAL ESTATE, L.C., AND FOX EYE SURGERY, L.L.C., Appellees, vs. IOWA DEPARTMENT OF PUBLIC HEALTH, STATE HEALTH FACILITIES COUNCIL, Respondent, ST. LUKE'S HOSPITAL AND MERCY MEDICAL CENTER, Appellants. ________________________________________________________________________ Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

Two hospitals appeal the district court's determination a certificate of need was not required for an ophthalmologist's proposed outpatient surgical facility. REVERSED.

Michael A. Dee and Rebecca A. Brommel of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for appellant St. Luke's Hospital.

Edwin N. McIntosh and Heather L. Campbell of Dorsey & Whitney, LLP, Des Moines, for appellant Mercy Medical Center.

2 Douglas A. Fulton of Brick, Gentry, Bowers, Swartz, Stoltze & Levis, P.C., West Des Moines, for appellees.

Maureen Keehnle, Des Moines, for amicus curiae Iowa Hospital Association.

3 STREIT, Justice. An ophthalmologist wants to open an outpatient surgical facility in Cedar Rapids. Iowa law requires the sponsor of such a facility to first obtain a certificate of need ("CON") from the Iowa Department of Public Health ("Department") before the facility can be developed unless a statutory exemption is applicable. Because we find the ophthalmologist's proposed facility required a CON, we reverse the decision of the district court. Moreover, the Department's decision to deny the

ophthalmologist's CON application was reasonable. I. Facts and Prior Proceedings.

This case centers on Dr. Lee Birchansky's efforts to establish an outpatient surgical facility 1 in Cedar Rapids. Under Iowa law, the

Department must first issue a CON before an outpatient surgical facility can be developed. Iowa Code

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