author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellant, v. Jeffrey Lewis SPENCER, Appellee.
    No. 06-0565.
    Supreme Court of Iowa.
    Aug. 3, 2007.

      Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Jennifer Miller, County Attorney, and Paul G. Crawford, Assistant County Attorney, for appellant.
    Brandon Brown of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble, and Cook, L.L.P., Des Moines, for appellee.
   WIGGINS, Justice.

The State requests discretionary review of a district court order suppressing tape recordings of conversations allegedly containing evidence of sexual abuse between the defendant and his alleged minor victim. The minor’s father made the recordings without the prior consent of either the minor or the defendant. The district court found because there was no prior consent to record, the recordings violated Iowa Code chapter 808B (2005). Because we interpret section 808B.2(2)(c) to allow a parent to consent to the recording of conversations between his minor child and the defendant under the vicarious consent doctrine, we reverse the district court order and remand the case for further proceedings.

I. Background Facts and Proceedings.

Jeffrey Spencer was a teacher at Leni-han School. Lenihan School houses a specialized program for students with behavioral and scholastic problems. A.T. transferred to Lenihan about six weeks before the end of the 2005 school year. Spencer taught A.T. in the specialized program. At the time, A.T. was thirteen years old and in the eighth grade. Spencer was forty-two years old.

A.T. lived with her father, Arnold Thompson. During the summer of 2005, Thompson became suspicious of A.T.’s relationship with Spencer. Thompson based this suspicion on what he described as “a bunch of little things.” For example after school was out, Thompson picked up his home telephone while A.T. was placing a call and heard “a man’s voice on a voice recorder.” Thompson did not recognize the voice. Suspicious, he asked A.T. whose voice he heard over the phone. She informed him it was Spencer’s voice. Thompson asked A.T. why she was calling Spencer. A.T. explained she was checking on some grades. Thompson reminded A.T. her grades had already been released a week before. Thompson became even more suspicious of the phone call after observing A.T. with her two friends. After questioning A.T. about the phone call, Thompson testified her two friends “piped in” and added, “Mr. Spencer’s really cool and so on and so forth.” Thompson told A.T. not to contact Spencer while school was out.

A.T. and her friends left Thompson’s home. Shortly thereafter Thompson received a phone call from one of the friend’s mother. The mother informed Thompson she overheard the three girls talking about Spencer and A.T. The mother told Thompson that his suspicions were true.

During the last week in June Thompson was unexpectedly at home. At about ten in the morning the phone rang, Thompson answered, and found Spencer on the other end. Spencer asked Thompson if he could speak with A.T. Thompson thought that Spencer “sounded a little surprised” after Thompson answered the phone instead of A.T. Thompson also noted the number Spencer called from that morning appeared on his caller identification for “a few weeks here and there.”

Thompson’s suspicions were also raised when he discovered Spencer took A.T. on a second swimming field trip to a lake after the school year ended. Finally, Thompson’s suspicions of Spencer were heightened because, although unconfirmed, he heard rumors that Spencer had been sexually involved with a fifteen- or sixteen-year-old girl.

On June 14, 2005, Thompson reported his concerns to the Marshalltown police. Thompson advised the police of his fears and that “he planned to further investigate by placing a recorder on his telephone.”

Thompson testified he began recording his home telephone on either June 29 or 30. He never told his daughter or Spencer that he was recording the phone calls. However, A.T. knew Thompson had a recorder and previously asked her father if he had been recording her telephone conversations. At that time, Thompson was not recording the telephone conversations and told A.T. as much.

On July 6 Thompson called the Mar-shalltown police and informed the police he had recorded several phone conversations between Spencer and A.T. that contained inappropriate content of a sexual nature. Out of concern for the legality of the recordings, the police did not listen to the recordings, but instead had Thompson inform an officer of the tapes’ content.

An investigation took place, and on September 29, Spencer was charged with sexual exploitation by a school employee in violation of Iowa Code sections 709.15(1)(/'), (g) and 709.15(3)(u); indecent contact with a child in violation of section 709.12(1) or (2); and lascivious contact with a minor in violation of section 709.14.

Spencer pled not guilty to all three charges. Claiming Thompson’s recordings violated Iowa Code chapter 808B because neither Spencer nor A.T. gave prior consent to record, Spencer filed a motion to suppress the tape recordings of the conversations between himself and A.T. The State resisted and urged the district court to interpret the statute to include the vicarious consent doctrine and find Thompson can and did vicariously consent on behalf of his daughter, A.T., to the recording.

After finding the vicarious consent doctrine had not previously been applied in Iowa and declining to adopt the doctrine itself, the district court granted Spencer’s motion to suppress. The district court prohibited admission of the recordings of the conversations between A.T. and Spencer and any testimony pertaining to these recordings.

The State applied for discretionary review. We granted the State’s application and stayed the district court proceedings until the resolution of this issue.

II. Issue and Scope of Review.

The sole issue in this case is whether chapter 808B bars the admission of Thompson’s recordings of the telephone conversations between A.T. and Spencer. Therefore, because this issue is one of statutory interpretation, the standard of review is for correction of errors at law. State v. Hornik, 672 N.W.2d 836, 838 (Iowa 2003).

III. Analysis.

A person violates the Iowa interception of communications act by willfully intercepting oral communications that are not otherwise exempt from or subject to an exception contained in chapter 808B. Iowa Code § 808B.2. If an interception is in violation of chapter 808B, the evidence is barred from any court proceeding. Id. § 808B.7.

The State claims the recordings of the telephone conversations do not violate chapter 808B because Thompson meets the consent exception contained in the chapter. The State argues the statute allows Thompson, as guardian to minor A.T., to vicariously consent on behalf of A.T. to record the telephone conversations between A.T. and Spencer.

Under section 808B.2(2)(c) when a party to a communication not acting under color of law gives consent to intercept that communication, the recording does not violate the act. Id. § 808B.2(2)(c). This consent exception is inapplicable if the interception is for the purposes of committing a criminal, tortious, or other injurious act. Id. The full text of this consent exception states:

It is not unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing a criminal or tortious act in violation of the Constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.

Id.

If prior consent is obtained, the contents of the communication and any derivative evidence may be admitted “in a criminal proceeding in any court of the United States or of this state or in any federal or state grand jury proceeding.” Id. § 808B.4(3). Therefore, in order to decide whether the district court correctly barred the recordings from evidence, we must determine whether the provisions of chapter 808B allow Thompson to vicariously consent to the recording of conversations between A.T. and Spencer.

Currently, chapter 808B does not specifically provide for a parent or guardian to consent to the interception of his or her minor child’s communications. Compare id. § 808B.2(2)(c), with Ga.Code Ann. § 16 — 11—66(d) (allowing a parent or guardian of a child under eighteen years of age, with or without the consent of such minor child, to intercept the child’s communications in the family home for the purpose of ensuring the welfare of such minor child). Spencer argues because there is no explicit statutory provision creating a vicarious consent exception and the Iowa legislature included two consent exceptions and an operator exception, “it is presumed and inferred that [the legislature] intended to exclude all other exceptions.” However, the issue is not whether the legislature meant to adopt another exception to chapter 808B, instead this court is determining whether the present consent exception is satisfied when the consent of a minor party to the conversation is given by that minor’s parent or guardian.

Before engaging in statutory construction, we must first determine whether the statute is ambiguous. IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001). A statute is ambiguous “if reasonable persons could disagree as to its meaning.” Id. (citation omitted). “Ambiguity may arise in two ways: (1) from the meaning of particular words; or (2) from the general scope and meaning of a statute when all its provisions are examined.” Id. (citations and internal quotation omitted).

“Consent” is defined as “capable, deliberate, and voluntary agreement to or concurrence in some act or purpose implying physical and mental power and free action.” Webster’s Third New International Dictionary 482 (unabr. ed.2002). Under this definition, a valid consent requires the person giving consent to have the requisite physical and mental ability to do so. In other words, to consent to something requires more than just giving permission.

Under the laws of this state, the legislature has frequently examined the concept of consent when applied to minors. We find the legislature has not applied this concept consistently. For example, the legislature has enacted several statutes prohibiting a minor from consenting to certain acts. A minor cannot consent to having sex until the minor is fourteen and only then in limited circumstances as provided by law. Iowa Code ch. 709. For a minor under the age of fourteen, both parents are required to consent in writing to the minor child’s name change. Id. § 674.6. The legislature does not allow a minor to consent to an abortion procedure without parental notification or compliance with a judicial bypass procedure. Id. § 135L.3. A minor cannot obtain a driver’s license without the consent of a parent or guardian. Id. § 321.180B. The legislature also prohibits a minor from marrying without the consent of a parent or compliance with a judicial bypass procedure if the minor is sixteen or seventeen years old. Id. § 595.2(2)-(5).

On the other hand, the legislature has provided minors the right to consent in a few instances. For example, minors are bound by all contracts, unless the minor disaffirms the contract as provided by law. Id. § 599.2. A minor can maintain a deposit account with a state bank without the consent of a parent, guardian, or conservator and with the same effect as though the minor were an adult. Id. § 524.805(5).

These statutes illustrate that in order to account for a minor’s vulnerability and a minor’s inability to make sound judgments about certain conduct, Iowa’s legislative policy ordinarily requires a parent’s or guardian’s input. With this in mind, we find the definition of the word “consent” as used in section 808B.2(2)(c) is ambiguous when applied to minors.

To resolve this ambiguity this court must determine the legislative intent behind the statute. IBP, Inc., 633 N.W.2d at 325.

We determine legislative intent from the words chosen by the legislature, not what it should or might have said. Absent a statutory definition or an established meaning in the law, words in the statute are given their ordinary and common meaning by considering the context within which they are used. Under the guise of construction, an interpreting body may not extend, enlarge or otherwise change the meaning of a statute.

Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004) (internal citations omitted). This court avoids interpreting a statute in such a way that leads portions of it to be redundant or irrelevant. State v. Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006). Instead, we look at a statute in its entirety. State v. Bower, 725 N.W.2d 435, 442 (Iowa 2006). In interpreting a statute this court looks for “an interpretation that is reasonable, best achieves the statute’s purpose, and avoids absurd results.” Id.

The vicarious consent doctrine allows for a parent or guardian, under certain circumstances, to give consent in lieu of the minor’s consent to legally intercept that minor’s communications. The vicarious consent doctrine is an issue of first impression for this court. Furthermore, the Iowa legislative history lacks any commentary on the purpose or intent of the legislature with regard to the issue in this case.

However, Iowa’s interception of communications act contains nearly identical language to that of the federal wire and electronic communications interception and interception of oral communications act (“federal interception of communications act”). In 1968 Congress enacted the federal interception of communications act. Pub.L. No. 90-351, § 802, 82 Stat. 212 (codified as amended at 18 U.S.C. §§ 2510-21 (1968)). The Iowa legislature enacted its interception of communications act in 1989. 1989 Iowa Acts ch. 225, §§ 22-29. Therefore, we can look to the federal act and the interpretations placed on the consent provision by the federal courts and assume the Iowa legislature had the same objectives in mind and employed the statutory terms in the same sense as its federal counterparts. City of Davenport v. Pub. Employment Relations Bd., 264 N.W.2d 307, 313 (Iowa 1978). However, the federal court decisions construing the federal statute are neither conclusive nor compulsory. Id. These federal decisions are merely illuminating and instructive on the meaning of our statute. Id.

The federal interception of communications act contains a consent exception that nearly mirrors the language of the consent exception in the Iowa interception of communications act. The federal exception states:

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

18 U.S.C. § 2511(2)(d).

The federal courts have interpreted this consent exception in the federal act to allow a minor’s parent or guardian to provide that minor’s prior consent to intercept a wire, oral, or electronic communication of that minor. This exception has been stated as follows:

[A]s long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording.

Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir.1998); accord Wagner v. Wagner, 64 F.Supp.2d 895, 896 (D.Minn.1999) (“adopting] the vicarious consent doctrine, finding that as long as the guardian has a good faith, objectively reasonable belief that the interception of telephone conversations is necessary for the best interests of the children in his or her custody, the guardian may vicariously consent to the interception on behalf of the children”); Campbell v. Price, 2 F.Supp.2d 1186, 1191 (E.D.Ark.1998) (finding “defendant’s good faith concern for his minor child’s best interests, may, without liability under [the federal interception of communications act], empower the parent to intercept the child’s conversations with her non-eustodial parent”); Thompson v. Dulaney, 838 F.Supp. 1535, 1544 (D.Utah 1993) (stating “as long as the guardian has a good faith basis that it is objectively reasonable for believing that it is necessary to consent on behalf of her minor children to the taping of phone conversations, vicarious consent will be permissible in order for the guardian to fulfill her statutory mandate to act in the best interests of the children”).

The Pollock court stressed the vicarious consent doctrine is not a per se rule approving of vicarious consent in all circumstances, but rather “a clear emphasis is put on the need for the ‘consenting’ parent to demonstrate a good faith, objectively reasonable basis for believing such consent was necessary for the welfare of the child.” Pollock, 154 F.3d at 610. The test creates some important limitations on the ability of a parent or guardian to vicariously consent to the recording of his or her minor child’s conversations. As the Pollock court explained:

We stress that while this doctrine should not be interpreted as permitting parents to tape any conversation involving their child simply by invoking the magic words: “I was doing it in his/her best interest,” there are situations, such as verbal, emotional, or sexual abuse by the other parent, that make such a doctrine necessary to protect the child from harm. It is clear that this is especially true in the case of children who are very young. It would be problematic, however, for the Court to attempt to limit the application of the doctrine to children of a certain age, as not all children develop emotionally and intellectually on the same timetable, and we decline to do so.

Id.

Thus, the motive or purpose of the parent or guardian in recording the conversation is an important factor in determining whether a parent or guardian can vicariously consent for his or her minor child. In fact, in Pollock the court was unable to grant summary judgment because it found “there [were] questions of material fact as to [the parent’s] motivation in taping the conversations.” Id. at 612.

Further, the minor child’s age, although not dispositive, is also an important factor in considering whether a parent or guardian can vicariously consent for the minor child. Here, A.T. was thirteen years old when the conversations were recorded. Although A.T. was not a young child, her ability to consent to the recording is not mutually exclusive to Thompson’s ability to vicariously consent. See id. at 608 (noting the federal district court’s statement that “ ‘we are not inclined to view [the child’s] own ability to actually consent as mutually exclusive with her mother’s ability to vicariously consent on her behalf ”).

Some commentators charge that the Pollock test fails to adequately address a minor’s right to privacy. See Daniel R. Dinger, Should Parents be Al-loioed to Record a Child’s Telephone Conversations when they Believe the Child is in Danger ?: An Examination of the Federal Wiretap Statute and the Doctrine of Vicarious Consent in the Context of a Criminal Prosecution, 28 Seattle U.L.Rev. 955, 992 (2005) (discussing critics’ concerns about a minor’s right to privacy under the vicarious consent doctrine). However, even though minors have a right to privacy, that right must be considered in the context of society’s concern for children. Bellotti v. Baird, 443 U.S. 622, 635-39, 99 S.Ct. 3035, 3043-46, 61 L.Ed.2d 797, 808-11 (1979). Society’s concern for minors may be constitutionally reflected in our statutes to account for: (1) minors’ peculiar vulnerabilities and their need for concern, sympathy, and paternal attention; (2) minors’ inability to make sound judgments about their own conduct; and (3) our deference to the guiding role of parents. Id.; City of Panora v. Simmons, 445 N.W.2d 363, 368 (1989).

The Supreme Court and this court have held it is “the fundamental right of parents to make decisions concerning the care, custody, and control of them children.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000); Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001). Further, parents have a duty to protect their children because children “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.” Bellotti, 443 U.S. at 635, 99 S.Ct. at 3044, 61 L.Ed.2d at 808. Thus, in the context of section 808B.2(2)(e), we conclude a minor child’s right to privacy is not violated when a parent or guardian vicariously consents for that minor consistent with the protections provided by the Pollock test.

State courts have also examined the vicarious consent doctrine as applied to either the federal interception of communications act or its state’s own act. Like the federal courts, many states that have applied the vicarious consent doctrine have done so in the context of custody battles, one parent recording the conversation of the child and the other parent. See Silas v. Silas, 680 So.2d 368, 371 (Ala.Civ.App. 1996) (applying the vicarious consent doctrine to the state interception of communications act where one parent recorded a conversation between the minor child and the other parent); Smith v. Smith, 923 So.2d 732, 740 (La.Ct.App.2005); (same); Cacciarelli v. Boniface, 325 N.J.Super. 133, 737 A.2d 1170, 1176 (1999); (same); Kroh v. Kroh, 152 N.C.App. 347, 567 S.E.2d 760, 764 (2002) (same). However, some state courts have examined the vicarious consent doctrine in a criminal case with facts similar to those presented here.

In State v. Diaz, a babysitter was indicted for second-degree aggravated assault and second-degree endangering the welfare of a child after the parents secretly videotaped the babysitter abusing their infant-child. 308 N.J.Super. 504, 706 A.2d 264, 265 (1998). After finding the federal interception of communications act consent exception to be virtually identical to the consent exception within the New Jersey statute, the New Jersey Superior Court adopted the Pollock test and allowed recorded statements of the babysitter and the infant-child’s verbal reaction into evidence. Id. at 269-70.

Nevertheless, not all state courts have adopted the vicarious consent doctrine. In State v. Christensen, the Washington Supreme Court declined to adopt the vicarious consent doctrine where a mother listened to a conversation between her daughter and her daughter’s boyfriend in which a crime was discussed. 153 Wash.2d 186, 102 P.3d 789, 796 (2004). However, Christensen is distinguishable from the present ease because, unlike the Iowa and federal statutes, which only require one party to consent to the recording, Washington’s statute requires all parties to the conversation to consent to the recording. Wash. Rev.Code § 9.73.030. Further, the Washington Supreme Court found its statute extends considerably greater protections to its citizens than do comparable federal statutes and rulings and its “statute, unlike similar statutes in thirty-eight other states, tips the balance in favor of individual privacy.” Id. at 795-96.

The Michigan Court of Appeals applied the Pollock test to the federal interception of communications act, but declined to apply the Pollock test to its statute in a case involving a father recording conversations between his minor child and the child’s mother. Williams v. Williams, 237 Mich.App. 426, 603 N.W.2d 114, 116 (1999) (per curium). However, Williams is distinguishable from our case because Michigan law requires the consent of both parties when a third party records a conversation. Sullivan v. Gray, 117 Mich.App. 476, 324 N.W.2d 58, 60-61 (1982).

The West Virginia Supreme Court of Appeals declined to adopt the vicarious consent doctrine under its statute, which only requires one party to consent, when it held a father did not have the authority to consent on behalf of his children to the interception of conversations between his children and their mother. W. Va. Dep’t of Health & Human Res. ex rel. Wright v. David L., 192 W.Va. 663, 453 S.E.2d 646, 648 (1994). However, the facts of David L. are distinguishable from the present case. There, the father, who claimed to have given vicarious consent, had the recording device placed in the mother’s home, rather than in his own home. Id. In a later case, the West Virginia court had the opportunity to revisit vicarious consent. In that case, the court refused to adopt the vicarious consent doctrine finding there was no statutory basis to do so. State v. Williams, 215 W.Va. 201, 599 S.E.2d 624, 630 (2004). However, in that case the court allowed the tape recording into evidence, finding the minor herself consented to the recording. Id.

After considering (1) the weight of authority behind the adoption of the vicarious consent doctrine; (2) the similarity between the Iowa statute, the federal statute, and the statutes of those states adopting vicarious consent; (3) the protections against parental abuse provided by the doctrine; (4) our conclusion a minor’s right to privacy is not violated when a parent or guardian vicariously consents for that minor consistent with the protections prpvid-ed by the doctrine; and (5) the refusal of the Iowa legislature to allow a minor to consent to certain acts, especially with respect to those matters traditionally left to a parent or guardian to determine the best interests of the child, we interpret section 808B.2(2)(c) to include the vicarious consent doctrine as outlined in Pollock. In interpreting section 808B.2(2)(c) to include the vicarious consent doctrine, we find no basis to believe the Iowa legislature intended to subject parents and guardians to criminal and civil penalties when, out of concern for the best interests of their minor child, they record that child’s conversations.

Therefore, as long as Thompson can show a good faith, objectively reasonable basis for believing that it was necessary and in the best interests of A.T. to consent to the taping on her behalf, Thompson may vicariously consent on behalf of A.T. to record the conversations between A.T. and Spencer. Consequently, we reverse the decision of the district court suppressing Thompson’s recordings of conversations between A.T. and Spencer. We remand the case to the district court to determine the admissibility of the recordings under the vicarious consent doctrine.

V. Disposition.

Because we hold section 808B.2(2)(e )’s consent exception includes the vicarious consent doctrine, we reverse the district court’s ruling on the motion to suppress and remand the case for the district court to determine the admissibility of the recordings under the vicarious consent doctrine as outlined in Pollock.

REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS.

address a minor’s right to privacy. See Daniel R. Dinger, Should Parents be Allowed to Record a Child’s Telephone Conversations, when they Believe the Child is in Danger?:, An Examination of the Federal Wiretap Statute and the Doctrine of Vicarious Consent in the Context of a Criminal Prosecution, 28 Seattle U.L.Rev. 955, 992 (2005) (discussing critics’ concerns about a minor’s right to privacy under the vicarious consent doctrine). However, even though minors have a right to privacy, that right must be considered in the context of society’s concern for children. Bellotti v. Baird, 443 U.S. 622, 635-39, 99 S.Ct. 3035, 3043-46, 61 L.Ed.2d 797, 808-11 (1979). Society’s concern for minors may be constitutionally reflected, in our statutes to account for: (1) minors’ peculiar vulnerabilities and their need for concern, sympathy, and paternal attention; (2) minors’ inability to make sound judgments about their own conduct; and (3) our deference to the guiding role of parents. Id.; City of Panora v. Simmons, 445 N.W.2d 363, 368 (1989).

[18] The Supreme Court and this efeurt have held it is “the fundamental rjght of parents to make decisions concerning the care, custody, and control of $&eir children.” Troxel v. Granville, 580 U.S. 57, 65, 120 S.Ct. 2054, 2060, 1474.Ed.2d 49, 56 (2000); Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001). Further; parents have a duty to protect their children because children “often lack the experience, perspective, and judgment to recognize and avoid choices that could fyé detrimental to them.” Bellotti 443 U.S. it 635, 99 S.Ct. at 3044, 61 L.Ed.2d at 808. Thus, in the context of section 808B.2(2)(c), we conclude a minor child’s right to privacy is not violated when a parent or guardian vicariously consents for that minor consistent with the protections provided by the Pollock test.

State courts have also examined the vicarious consent doctrine as applied tai either the federal interception of communications act or its state’s own act. Lake the federal courts, many states that/have applied the vicarious consent doctrine have done so in the context of custody battles, one parent recording the Qbnversation of the child and the other parent. See Silas v. Silas, 680 So.2d 368, ,-371 (Ala.Civ.App. 1996) (applying the vicarious consent doctrine to the state interception of communications act where one parent recorded a conversation betwfeen the minor child and the other parent); Smith v. Smith, 923 So.2d 732, 740 (La.Ct.App.2005); (same); Cacciarelli A Boniface, 325 NJ.Super. 133, 737 A.2d 1170, 1176 (1999); (same); Kroh Vy/Kroh, 152 N.C.App. 347, 567 S.E.2d/760, 764 (2002) (same). However, some/state courts have examined the vicarious^ consent doctrine in a criminal case jth facts similar to those presented here.

In a case involving a mother tape recording sexually explicit telephone conversations between her twelve-year-old daughter and the defendant, the Texas court found the federal interception of communications act to be “substantively the same” as its statute. Alameda v. Texas, — S.W.3d-,-(Tex.Crim.App. 2007). Even though the Texas statute did not explicitly state whether consent could be given vicariously by a parent, the court found it was not adding a new exception to its interception of cdmmunications statute. Id. at-. Rather, the court explained, it was applying the vicarious consent doctrine to the existing consent exception in the Texas statute. Id. at-. Further, the court stated the vicarious .consent doctrine does not unlawfully violate a minor’s right to privacy because parents have the right to consent for their child. Id. at -. Therefore, the court applied the vicarious consent doctrine to hold ' the

tapes were properly entered into evidence. ' 'Id. at-.

■babysitter was indict-e aggravated assault sndangering the wel-the parents secretly itter abusing their in-Super. 504, 706 A.2d er finding the federal unications act consent ually identical to the consent exception within the New Jersey statute, the New Jersey Superior Court adopted the Pollock test^nd allowed recorded statements of the babysitter and the infant-child’s verbal reaction into evidence. Id. at 269-70. \

Nevertheless, not all state courts have adopted the vicarious consent doctrinte^ In State v. Christensen, the Washington Supreme Court declined to adopt the viearh ous consent doctrine where a mother lis- ^ tened to a conversation between her/ daughter and her daughter’s boyfriend ió which a crime was discussed. 1⅞3 Wash.2d 186, 102 P.3d 789, 796 (2004). However, Christensen is distinguishable from the present case because, unlike the Iowa and federal statutes, which only require one party to consent to/the recording, Washington’s statute requires all parties to the conversation to/consent to the recording. Wash. Rev.Code § 9.73.030. Further, the Washington Supreme Court found its statute extends considerably greater protections to its citizens than do comparable federal statutes and rulings and its “statute, ünlike similar statutes in thirty-eight other states, tips the balance in favor of individual privacy.” Id. at 795-96. •!

The Michigan Court of Appeals applied the Pollock test to the federal interception of communications act, but declined to apply the Pollock test to its statute in a case involving a father recording conversations

between his minor child and the child’s mother. Williams v. Williams, 237 Mich. App. 426, 603 N.W.2d 114, 116 (1999) (per curium). However, Williams,is distinguishable from our case because Michigan law requires the consent of/both parties when a third party records^ conversation. Sullivan v. Gray, 117 hJiclnApp. 476, 324 N.W.2d 58, 60-61 (1982)1

The West Virginia Supreme Court of Appeals declined ,tb adopt the vicarious consent doctrine/under its statute, which only requires one party to consent, when it held a father did not have the authority to consent on /behalf of his children to the interception of conversations between his children and their mother. W. Va. Dep’t of Health & Human Res. ex rel. Wright v. DaviÁ L„ 192 W.Va. 663, 453 S.E.2d 646, 648' (1994). However, the facts of David L/Í are distinguishable from the present v/case. There, the father, who claimed to xhave given vicarious consent, had the recording device placed in the mother’s home, rather than in his own home. Id. In a later., case, the West Virginia court had the opportunity to revisit vicarious consent. In that case, the court refused to adopt the vicarious consent doctrine finding there was no statutory basis to do so. State v. Williams, 215 W.Va. 201, 599 S.E.2d 624, 630 (20Q4). However, in that case the court allowed the tape recording into evidence, finding 'the minor herself consented to the recording'.. Id.

After considering (1) the weight of authority behind the adoption ofithe vicarious consent doctrine; (2) the ‘‘similarity between the Iowa statute, the federal statute, and the statutes of those states ádopt-ing vicarious consent; (3) the protections against parental abuse provided by the. doctrine; (4) our conclusion a minor’s right' to privacy is not violated when a parent or guardian vicariously consents for that minor consistent with the protections provid-

      address a minor’s right to privacy. See Daniel R. Dinger, Should Parents be Allowed to Record a Child’s Telephone Conversations, when they Believe the Child is in Danger?:, An Examination of the Federal Wiretap Statute and the Doctrine of Vicarious Consent in the Context of a Criminal Prosecution, 28 Seattle U.L.Rev. 955, 992 (2005) (discussing critics’ concerns about a minor’s right to privacy under the vicarious consent doctrine). However, even though minors have a right to privacy, that right must be considered in the context of society’s concern for children. Bellotti v. Baird, 443 U.S. 622, 635-39, 99 S.Ct. 3035, 3043-46, 61 L.Ed.2d 797, 808-11 (1979). Society’s concern for minors may be constitutionally reflected, in our statutes to account for: (1) minors’ peculiar vulnerabilities and their need for concern, sympathy, and paternal attention; (2) minors’ inability to make sound judgments about their own conduct; and (3) our deference to the guiding role of parents. Id.; City of Panora v. Simmons, 445 N.W.2d 363, 368 (1989).
    [18] The Supreme Court and this efeurt have held it is “the fundamental rjght of parents to make decisions concerning the care, custody, and control of $&eir children.” Troxel v. Granville, 580 U.S. 57, 65, 120 S.Ct. 2054, 2060, 1474.Ed.2d 49, 56 (2000); Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001). Further; parents have a duty to protect their children because children “often lack the experience, perspective, and judgment to recognize and avoid choices that could fyé detrimental to them.” Bellotti 443 U.S. it 635, 99 S.Ct. at 3044, 61 L.Ed.2d at 808. Thus, in the context of section 808B.2(2)(c), we conclude a minor child’s right to privacy is not violated when a parent or guardian vicariously consents for that minor consistent with the protections provided by the Pollock test.
    State courts have also examined the vicarious consent doctrine as applied tai either the federal interception of communications act or its state’s own act. Lake the federal courts, many states that/have applied the vicarious consent doctrine have done so in the context of custody battles, one parent recording the Qbnversation of the child and the other parent. See Silas v. Silas, 680 So.2d 368, ,-371 (Ala.Civ.App. 1996) (applying the vicarious consent doctrine to the state interception of communications act where one parent recorded a conversation betwfeen the minor child and the other parent); Smith v. Smith, 923 So.2d 732, 740 (La.Ct.App.2005); (same); Cacciarelli A Boniface, 325 NJ.Super. 133, 737 A.2d 1170, 1176 (1999); (same); Kroh Vy/Kroh, 152 N.C.App. 347, 567 S.E.2d/760, 764 (2002) (same). However, some/state courts have examined the vicarious^ consent doctrine in a criminal case jth facts similar to those presented here.
    In a case involving a mother tape recording sexually explicit telephone conversations between her twelve-year-old daughter and the defendant, the Texas court found the federal interception of communications act to be “substantively the same” as its statute. Alameda v. Texas, — S.W.3d-,-(Tex.Crim.App. 2007). Even though the Texas statute did not explicitly state whether consent could be given vicariously by a parent, the court found it was not adding a new exception to its interception of cdmmunications statute. Id. at-. Rather, the court explained, it was applying the vicarious consent doctrine to the existing consent exception in the Texas statute. Id. at-. Further, the court stated the vicarious .consent doctrine does not unlawfully violate a minor’s right to privacy because parents have the right to consent for their child. Id. at -. Therefore, the court applied the vicarious consent doctrine to hold ' the

      tapes were properly entered into evidence. ' 'Id. at-.
    ■babysitter was indict-e aggravated assault sndangering the wel-the parents secretly itter abusing their in-Super. 504, 706 A.2d er finding the federal unications act consent ually identical to the consent exception within the New Jersey statute, the New Jersey Superior Court adopted the Pollock test^nd allowed recorded statements of the babysitter and the infant-child’s verbal reaction into evidence. Id. at 269-70. \
    Nevertheless, not all state courts have adopted the vicarious consent doctrinte^ In State v. Christensen, the Washington Supreme Court declined to adopt the viearh ous consent doctrine where a mother lis- ^ tened to a conversation between her/ daughter and her daughter’s boyfriend ió which a crime was discussed. 1⅞3 Wash.2d 186, 102 P.3d 789, 796 (2004). However, Christensen is distinguishable from the present case because, unlike the Iowa and federal statutes, which only require one party to consent to/the recording, Washington’s statute requires all parties to the conversation to/consent to the recording. Wash. Rev.Code § 9.73.030. Further, the Washington Supreme Court found its statute extends considerably greater protections to its citizens than do comparable federal statutes and rulings and its “statute, ünlike similar statutes in thirty-eight other states, tips the balance in favor of individual privacy.” Id. at 795-96. •!

    The Michigan Court of Appeals applied the Pollock test to the federal interception of communications act, but declined to apply the Pollock test to its statute in a case involving a father recording conversations
    between his minor child and the child’s mother. Williams v. Williams, 237 Mich. App. 426, 603 N.W.2d 114, 116 (1999) (per curium). However, Williams,is distinguishable from our case because Michigan law requires the consent of/both parties when a third party records^ conversation. Sullivan v. Gray, 117 hJiclnApp. 476, 324 N.W.2d 58, 60-61 (1982)1
    The West Virginia Supreme Court of Appeals declined ,tb adopt the vicarious consent doctrine/under its statute, which only requires one party to consent, when it held a father did not have the authority to consent on /behalf of his children to the interception of conversations between his children and their mother. W. Va. Dep’t of Health & Human Res. ex rel. Wright v. DaviÁ L„ 192 W.Va. 663, 453 S.E.2d 646, 648' (1994). However, the facts of David L/Í are distinguishable from the present v/case. There, the father, who claimed to xhave given vicarious consent, had the recording device placed in the mother’s home, rather than in his own home. Id. In a later., case, the West Virginia court had the opportunity to revisit vicarious consent. In that case, the court refused to adopt the vicarious consent doctrine finding there was no statutory basis to do so. State v. Williams, 215 W.Va. 201, 599 S.E.2d 624, 630 (20Q4). However, in that case the court allowed the tape recording into evidence, finding 'the minor herself consented to the recording'.. Id.

    After considering (1) the weight of authority behind the adoption ofithe vicarious consent doctrine; (2) the ‘‘similarity between the Iowa statute, the federal statute, and the statutes of those states ádopt-ing vicarious consent; (3) the protections against parental abuse provided by the. doctrine; (4) our conclusion a minor’s right' to privacy is not violated when a parent or guardian vicariously consents for that minor consistent with the protections provid-


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    BIRCHANSKY REAL ESTATE, L.C., and Fox Eye Surgery, L.L.C., Appellees, v. IOWA DEPARTMENT OF PUBLIC HEALTH, STATE HEALTH FACILITIES COUNCIL, Respondent, St. Luke’s Hospital and Mercy Medical Center, Appellants.
    No. 05-2019.
    Supreme Court of Iowa.
    Aug. 10, 2007.

      Michael A. Dee and Rebecca A. Brom-mel 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.
    Douglas A. Fulton of Brick, Gentry, Bowers, Swartz, Stoltze & Levis, P.C., West Des Moines, for appellees.
    Maureen Keehnle, Des Moines, for ami-cus curiae Iowa Hospital Association.
   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 Birchan-sky’s efforts to establish an outpatient surgical facility in Cedar Rapids. Under Iowa law, the Department must first issue a CON before an outpatient surgical facility can be developed. Iowa Code §§ 135.61(14)-(15), .63 (2005); see Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 831-32 (Iowa 2002) (providing an overview of Iowa’s CON law); Lauretta Higgins Wolfson, State Regulation of Health Facility Planning: The Economic Theory and Political Realities of Certificates of Need, 4 DePaul J. Health Care L. 261 (2001) (providing historical background for the enactment of CON laws across the country). Dr. Birchansky initially sought to obtain a CON for a proposed facility on H Avenue in 1996. The Department denied his application. Thereafter, in 1998, Dr. Birchansky, through Birchansky Real Estate, L.C., entered into a business arrangement with St. Luke’s Hospital whereby the latter would create a surgery center at the H Avenue location and operate it as an off-campus department of the hospital. St. Luke’s was not required to obtain a CON because the facility was considered an extension of St. Luke’s hospital license. Under the arrangement, St. Luke’s rented the H Avenue facility from Birehansky Real Estate for five years and provided the support staff and equipment. Dr. Birehansky was the medical director. Dr. Birehansky and his partner, Dr. Richard Stangler, who comprised Fox Eye Laser & Cosmetic Institute, P.C., performed the vast majority of surgeries at the facility. Four other doctors (three podiatrists and a hand surgeon) utilized the facility on occasion.

The initial lease agreement expired in 2003 and the parties were unable to agree to a new contract. Nevertheless, the facility remained in operation with St. Luke’s occupying the space on a month-to-month basis.

Dr. Birehansky recognized the uncertainty of his arrangement with St. Luke’s. He created Fox Eye Surgery, L.L.C. (“Fox Eye”). On August 24, 2004, Fox Eye submitted an application for a CON in the event the arrangement with St. Luke’s ended. Fox Eye’s application sought to obtain a CON for what it described as the “continued operation” of the facility. It noted it “will negotiate to purchase” from St. Luke’s the equipment currently in place and employ any current staff not retained by St. Luke’s.

The Department responded by sending Fox Eye a letter stating it had determined “the project proposed in the application does not require a Certificate of Need to proceed.” (Emphasis added.) The Department explained Fox Eye’s proposal fell within one of the exemptions to the CON requirement. See Iowa Code § 135.63(2)(o). On November 19, 2004, the Department issued a memorandum to “All Affected and Interested Parties” regarding the Department’s determination of nonreviewability.

St. Luke’s disagreed -with the Department’s determination. On December 6, 2004, St. Luke’s ceased operations at the facility and requested the removal of the H Avenue location from its hospital license. In its letter to the Department of Inspections and Appeals, St. Luke’s stated “[a]ll equipment and personnel at this site will be relocated to St. Luke’s main location at 1026 A Avenue NE at the close of business on December 6.” At a hearing before the Department, St. Luke’s admitted it pulled out of the H Avenue facility in order “to create a break in service” and cause the Department to reconsider its decision not to require Fox Eye to obtain a CON.

St. Luke’s plan worked. Two days later, the Department informed Fox Eye its CON application was reviewable. The Department reasoned the exemption for a CON was no longer applicable because St. Luke’s had ceased to provide services at the H Avenue facility and Fox Eye would not be performing surgeries at this location for at least forty-five days. On February 26, 2005, the Department denied Fox Eye’s CON application, finding the additional surgery suites were not needed in the Cedar Rapids area.

Fox Eye and Birehansky Real Estate filed a petition for judicial review in the Polk County District Court. They argued (1) Fox Eye’s application was non-reviewable under Iowa Code § 135.63(2)(o); and (2) if the application was reviewable, the Department arbitrarily and unreasonably denied Fox Eye’s CON application. St. Luke’s and Mercy were allowed to intervene. The district court ruled the Department’s “determination that the exemption found at Iowa Code § 135.63(2)(o) was no longer applicable under the circumstances of this proceeding was wholly unjustifiable.” The district court reversed the Department’s determination and remanded the matter to the Department “for such proceedings as may be required to complete the process started when it was initially determined that a certificate of need was not necessary.” St Luke’s and Mercy appeal. They argue Fox Eye’s proposal required a CON and contend the Department properly denied Fox Eye’s application.

II. Scope of Review.

We review the district court’s decision for errors at law. Iowa R.App. P. 6.4. The Iowa Administrative Procedure Act provides specific judicial review provisions for appeals concerning agency action. See Iowa Code § 17A.19. The Department is a government agency.

The first question we must address is whether the Department’s interpretation of the statute at issue, Iowa Code § 185.63(2)(o), is entitled to deference. The answer depends on whether the interpretation of the statute is “clearly ... vested by a provision of law in the discretion of the agency.” Id. § 17A.19(10)(e), (,l). If the interpretation is so vested, then the court may reverse only upon a finding the agency’s interpretation was “irrational, illogical, or wholly unjustifiable.” Id. § 17A.19(10) (l). “If the legislature has not clearly vested the interpretation of the statute at issue with the agency, we are free to substitute our judgment de novo for the agency’s interpretation and determine if the interpretation is erroneous.” Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 589-90 (Iowa 2004) (citing Iowa Code § 17A.19(10)(c)).

In order for an interpretation to be clearly vested with an agency, we “ ‘must have a firm conviction from reviewing the precise language of the statute, its context, the purpose of the statute, and the practical considerations involved, that the legislature actually intended (or would have intended had it thought about the question) to delegate to the agency interpretive power with the binding force of law over the elaboration of the provision in question.’ ” Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 509 (Iowa 2003) (quoting Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 63 (1998)). The Department was expressly created by the legislature to, among other things, make the final decision on all CON applications. Iowa Code § 135.62(2)(d). The Department is also statutorily mandated with the responsibility for adopting all rules “necessary to enable [the Department] to implement this division,” including procedures and criteria for reviewing CON applications. Id. § 135.72(1); see also id. § 135.62(2)(d )(5). We have found similar statutory language sufficient to conclude the matter under consideration was vested in the discretion of the agency. ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 602 (Iowa 2004); Auen, 679 N.W.2d at 590; City of Marion v. Dep’t of Revenue & Fin., 643 N.W.2d 205, 207 (Iowa 2002). Thus, the district court correctly concluded the interpretation of the statutory exemption for a CON, Iowa Code § 135.63(2)(o), was clearly vested in the discretion of the Department. Consequently, we may only reverse the Department’s interpretation if we find it to be “irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(Z )•

Although we give weight to the Department’s interpretation, the meaning of any statute is always a matter of law to be determined by the court. City of Mar ion, 643 N.W.2d at 206. The goal in interpreting a statute “is to determine the legislature’s intent when it enacted the statute.” ABC Disposal Sys., 681 N.W.2d at 603 (citing State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004)). “If the statute’s language is clear and unambiguous, we apply a plain and rational meaning consistent with the subject matter of the statute.” Id. (citing City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa 1999)).

III. Merits.

A. Whether Fox Eye’s Proposal Required a CON.

The crux of this case concerns the Department’s interpretation of Iowa Code § 135.63(2)(o). This section provides a CON is not required in the event of a

change in ownership, licensure, organizational structure, or designation of the type of institutional health facility [as long as] the health services offered by the successor institutional health facility are unchanged.

When Fox Eye applied for a CON in 2004, the Department initially determined a CON was not required under section 135.63(2)(o). However, after St. Luke’s pulled out of the facility, the Department notified Fox Eye a CON was necessary. The Department reasoned:

In construing section 135.63(2) “o” in the past, the Department has approved this exemption only in those circumstances in which the change in the designation of type of institutional health facility (from hospital to outpatient surgical facility) was a seamless change in which the cessation of hospital outpatient surgical services occurred simultaneously with the offering of the surgical services by the outpatient surgical facility. In this situation, ... the hospital has removed this location from its license and is no longer offering these services in this setting. In addition, the providers of these outpatient surgical services are not currently, and will not in the immediate future, be in a position to offer these services at this location [due to the need to purchase equipment and hire support staff]. Hence there will clearly be a significant gap in time during which no outpatient surgical services will be offered by Fox Eye ... at this location. For this reason, the Department has determined that the exemption previously cited is no longer applicable.

(Emphasis added.)

The district court found the Department’s interpretation of section 135.63(2)(o) “wholly unjustifiable” because “the [temporal] gap in services relied upon by the agency is not a factor to be considered under the exemption at issue and the defined terms found therein.” We agree. Although the statute may contemplate a seamless transition or change in ownership, it does not expressly state or imply any temporal aspect to the change in ownership. The Department may not, under the guise of interpretation, add lack of “a significant gap in time” between services to the requirements for the exemption.

Nevertheless, we find Fox Eye’s proposal required a CON for a different reason: there was no “change in ownership, licensure, organizational structure, or designation of the type of institutional health facility.” Iowa Code § 135.63(2)(o). Instead, St. Luke’s simply moved its surgery center back to the hospital’s main campus. It maintained the ownership, li-censure, organizational structure, and designation of the type of facility. The only thing that changed was the facility’s location. The exemption with its use of the term “successor” contemplates a transfer of operations between parties. See id. § 135.63(2)(o); Black’s Law Dictionary 1473 (8th ed.2004) (defining successor as “[a] corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation”). Nothing was transferred here. As St. Luke’s employee and landlord, Dr. Birehansky did not gain the right to operate a similar surgery center at the H Avenue location without obtaining a CON. See Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 709 A.2d 749 (1998).

The Department’s confusion on whether a CON was required may have stemmed from the application itself. Fox Eye’s application implied the facility was going to be transferred from St. Luke’s to Fox Eye. The application indicated Fox Eye planned to purchase St. Luke’s equipment and planned to hire any of the support staff St. Luke’s did not retain. Neither proposal occurred. After St. Luke’s informed the Department it had no intention of transferring its H Avenue operations to Fox Eye, the Department ruled a CON was required based on the temporal gap in services. It never specifically addressed whether it believed Fox Eye’s proposal still constituted a “change in ownership, licensure, organizational structure, or designation of the type of institutional health facility.” We find it does not. Thus, a CON was required.

B. Whether the Department’s Decision to Deny Fox Eye’s CON Application was Unreasonable.

Alternatively, Fox Eye argues the Department’s decision to deny Fox Eye’s CON application was unreasonable. On review, we will reverse the Department’s decision to deny a CON only if the decision was “unreasonable, arbitrary, capricious, or an abuse of discretion.” Iowa Code § 17A.19(10)(w); Greenwood Manor, 641 N.W.2d at 831.

Iowa Code section 135.64(1) provides a list of eighteen factors the Department shall consider when reviewing a CON application. Additionally, the Department shall grant a CON for a new or changed institutional health service only if it finds:

a. Less costly, more efficient, or more appropriate alternatives to the proposed institutional health service are not available and the development of such alternatives is not practicable;
b. Any existing facilities providing institutional health services similar to those proposed are being used in an appropriate and efficient manner;
c. In the case of new construction, alternatives including but not limited to modernization or sharing arrangements have been considered and have been implemented to the maximum extent practicable;
d. Patients will experience serious problems in obtaining care of the type which will be furnished by the proposed new institutional health service or changed institutional health service, in the absence of that proposed new service.

Iowa Code § 135.64(2). The Department found none of these four criteria existed in the Cedar Rapids area. It concluded two local hospitals and an existing surgery center (Surgery Center of Cedar Rapids) had sufficient operating room capacity to accommodate the procedures that had been performed at the H Avenue location for the past six years. Specifically, it found patients would not be affected by a denial of Fox Eye’s CON application because the Surgery Center of Cedar Rapids provided a similar atmosphere to Fox Eye’s proposed facility at similar costs.

Fox Eye does not dispute these findings. Instead, Fox Eye argues the Department should not have based its decision in part on the existence of the Surgery Center of Cedar Rapids because that facility came into existence after St. Luke’s opened its surgery center on H Avenue. Even more offputting to Fox Eye is the fact the Surgery Center of Cedar Rapids was a joint venture between St. Luke’s and approximately eighty medical practitioners. It did not require a CON. Fox Eye argues St. Luke’s should not be able to block competitors by “artificially munipulat[ing] the market.” While we understand Fox Eye’s frustration, there is nothing unlawful about St. Luke’s participating in the Surgery Center of Cedar Rapids. Based on the aforementioned criteria, the Department acted reasonably when it denied Fox Eye’s CON application.

IY. Conclusion.

We agree with the district court the exemption for a CON does not require a successor entity to offer services concurrently with its predecessor. Nevertheless, we find the exemption was not applicable to Fox Eye’s proposal because there was no “change in ownership” of the facility. Rather, St. Luke’s simply moved its surgery center back to the hospital’s main campus. Consequently, Iowa law required Fox Eye to obtain a CON for its proposed outpatient surgical facility and the Department did not act unreasonably in denying Fox Eye’s application.

REVERSED.

All justices concur except TERNUS, C.J., who takes no part.

      . An “outpatient surgical facility” is "a facility which as its primary function provides, through an organized medical staff and on an outpatient basis to patients who are generally ambulatory, surgical procedures not ordinarily performed in a private physician’s office, but not requiring twenty-four hour hospitalization, and which is neither a part of a hospital nor the private office of a health care provider....” Iowa Code § 135.61(21) (2005).

      . The State Health Facilities Council, a division of the Iowa Department of Public Health, is charged with reviewing CON applications and deciding when a CON should be issued. Iowa Code § 135.62(2)(d). For simplicity, we will not distinguish the actions of the Council from the actions of the Department.

      . Neither the Iowa Department of Public Health nor the State Health Facilities Council appealed.

      . We note our ruling is largely confined to this case because during the pendency of this appeal the legislature amended section 135.63(2)(o) by adding the following language:
      This exclusion is applicable only if the institutional health facility consents to the change in ownership, licensure, organizational structure, or designation of the type of institutional health facility and ceases offering the health services simultaneously with the initiation of the offering of health services by the successor institutional health facility.
      2006 Iowa Acts ch. 1184, § 78.


text:
    SECOND INJURY FUND OF IOWA, Appellant, v. Jackie GEORGE, Appellee.
    No. 05-1957.
    Supreme Court of Iowa.
    Aug. 10, 2007.

      Thomas J. Miller, Attorney General, and Shirley A. Steffe, Assistant Attorney General, for appellant.
    Corey J.L. Walker of Walker & Billings-ley, Newton, for appellee.
   WIGGINS, Justice.

On further review the Second Injury Fund asks us to decide whether a prior injury to a left leg qualifies as a first loss under Iowa Code section 85.64 (1999). The Fund also asks us to decide whether a bilateral injury will qualify as a second loss under section 85.64. Because the claimant’s loss in May 1996 qualifies as first loss under section 85.64, and the claimant’s injury to her right leg in a subsequent bilateral injury qualifies as a second loss under section 85.64, we agree with the decision of the workers’ compensation commissioner that Fund liability is involved.

I. Background Facts and Proceedings.

The facts relevant to this further review proceeding are as follows. On December 12, 2001, Jackie George filed a petition against her employer, Xerox Company, and its insurance carrier claiming she was entitled to benefits due to leg and knee injuries sustained in both her legs. George claimed these injuries occurred on June 21, 2000, while she was employed at Xerox repairing copy machines as an associate customer service engineer. Within this petition George also made a claim against the Second Injury Fund. George claimed she could receive benefits from the Fund because of three prior injuries.

Before the hearing George voluntarily dismissed her employer and its insurance company without prejudice, leaving only the Fund as the defendant to the action. At the hearing George testified she had not entered into any settlement agreement with Xerox. However, after the hearing the Fund provided the deputy commissioner with documentation detailing Xerox’s settlement with George. The deputy commissioner took official notice of the settlement. The settlement demonstrates Xerox made twenty weeks of payments to George for a four percent permanent partial disability due to her June 21, 2000, bilateral lower extremity impairment.

Also before the hearing George and the Fund stipulated an employer/employee relationship existed between George and Xerox at the time of her bilateral injury, and George did sustain an injury on June 21, 2000, arising out of and in the course of her employment with Xerox.

At the hearing George testified about a previous injury. She testified that on May 3, 1996, while working for Xerox, she tore her left meniscus and pinched a nerve in the groin of her left leg. A doctor performed a left knee scope with partial medial meniscectomy and medial femoral chondral shaving. After her surgery the doctor placed George on light-duty work, restricting her ability to squat. The doctor’s notes indicate three months after the surgery George progressed enough for her to return to full-time work. However, the doctor noted George continued to have meralgia paresthetica— numbness in the lateral aspect of her thigh. Without considering the meralgia paresthetica, George’s doctor gave her a four percent impairment rating to the lower extremity. George then obtained an additional impairment rating of three percent from another doctor for a total impairment of seven percent to her left leg. George provided documentation from the workers’ compensation commissioner that due to the May 3, 1996, injury she was paid permanent partial disability for a seven percent impairment to her left knee.

Concerning her June 21, 2000, injury George testified she sustained a bilateral knee injury when she knelt in front of a copy machine to begin a repair. George saw her family doctor that day. She later saw an orthopedic surgeon who immediately placed her on restricted light-duty work. On August 18 the orthopedic surgeon performed arthoscopic surgery on her left knee. Six weeks after the left knee artho-scopic surgery the doctor performed the identical procedure on George’s right knee. George reported that neither surgery helped her symptoms and she continued to have “constant pain in [her] knees.” George testified her knees were worse after the surgeries than before.

George was diagnosed with patella inala-da femoral. The orthopedic surgeon suggested a total knee replacement; however, the other consulting physicians disagreed. A more experimental procedure was also suggested by the orthopedic surgeon, and likewise not endorsed by any of the other physicians. At the time of the hearing no further medical care was scheduled for George’s knees. George testified she took Advil for pain, but at that time was under no other type of treatment for her knees.

After her 2000 bilateral knee injury and subsequent treatment, George’s physicians placed permanent restrictions on her movement. They recommended no lifting over thirty pounds, no kneeling, no squatting, no stairs, and no ladders. One physician recommended sedentary work only.

The consulting physicians gave George impairment ratings for her bilateral injury. George was given a five percent impairment rating of the lower extremity, applied to each of her knees by one physician. Another physician gave George a two percent whole body impairment rating for each knee. A third physician found George suffered from a five percent impairment of each of the lower extremities, translating to a two percent impairment of the whole body for each knee. This doctor also found George suffered an additional two percent impairment due to her pain levels.

Taking all the above facts into consideration, the workers’ compensation commissioner found the May 3, 1996, left knee injury qualified as a first loss under section 85.64. The commissioner also held the bilateral nature of the second injury did not disqualify the second injury as a second loss under section 85.64 because “[i]n the present injury [Georgej’s right leg was also damaged and constitutes a qualifying loss.”

The Fund sought judicial review of the commissioner’s decision and a stay of the enforcement of agency action. The district court stayed enforcement of the commissioner’s decision pending its judicial review. On judicial review, the district court concluded substantial evidence supported the agency determination that the May 1996 injury was a qualifying first loss. Additionally, the court agreed the bilateral injury qualified as a second loss under section 85.64. In reaching this conclusion the district court used a different analysis of section 85.64 than that of the commissioner. In other words, the court affirmed the decision of the commissioner for different reasons than those used by the commissioner.

The Fund appealed. At the Fund’s request the district court stayed enforcement of its decision without bond pending the Fund’s appeal to our court. George cross-appealed the stay. We transferred the appeals to the court of appeals. The court of appeals affirmed the district court’s judicial review determination on the same grounds as the district court. The court of appeals also affirmed the stay order. The Fund sought further review.

II. Issues.

In its application for further review the Fund claims the commissioner erred in concluding George’s May 1996 injury was a qualifying first loss under section 85.64. The Fund also claims the commissioner erred in determining that a bilateral injury will not disqualify the second injury as a second loss under section 85.64.

In our discretion we can review any issue raised on appeal regardless of whether a party seeks further review of that issue. In re Marriage of Ricklefs, 726 N.W.2d 359, 361-62 (Iowa 2007). George did not request further review of the court of appeals’ decision regarding the stay. Accordingly, we find it unnecessary to address the stay issue because on remand we are ordering the district court to lift the stay and enforce the commissioner’s decision.

III. Scope of Review.

When a district court reviews agency action, it must do so pursuant to the Iowa Administrative Procedure Act. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). This court reviews a district court’s judicial review of agency action “to determine if we would reach the same result as the district court in our application of the Act.” Arndt v. City of Le Claire, 728 N.W.2d 389, 393 (Iowa 2007).

This court may reverse, modify, affirm, or remand to the agency for further proceedings if the agency’s action is erroneous under a ground specified in the Act and a party’s substantial rights have been prejudiced. Iowa Code § 17A.19(10). This court “broadly and liberally construed the commissioner’s findings to uphold, rather than defeat the commissioner’s decision.” Second Injury Fund v. Bergeson, 526 N.W.2d 543, 546 (Iowa 1995). Evidence should not be considered “insubstantial merely because the court may draw different conclusions from the record.” Arndt, 728 N.W.2d at 393.

IV. Analysis.

A. The Second Injury Fund. The legislature established the Fund in order to encourage the employment of disabled persons “by making the current employer responsible only for the disability the current employer causes.” Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994).

The Second Injury Compensation Act is found at Iowa Code sections 85.63 through 85.69. Section 85.64 outlines the liability of the Fund. It states:

If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently disabled by a com-pensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no preexisting disability. In addition to such compensation, and after the expiration of the full period provided by law for the payments thereof by the employer, the employee shall be paid out of the “Second Injury Fund ” created by this division the remainder of such compensation as would be payable for the degree of permanent disability involved after first deducting from such remainder the com-pensable value of the previously lost member Or organ.
Any benefits received by any such employee, or to which the employee may be entitled, by reason of such increased disability from any state or federal fund or agency, to which said employee has not directly contributed, shall be regarded as a credit to any award made against said second injury fund as aforesaid.

Iowa Code § 85.64.

In order for George to prove section 85.64 is applicable to her loss, she must establish:

(1) she has either lost, or lost the use of a hand, arm, foot, leg, or eye;
(2) she sustained the loss, or loss of use of another such member or organ through a work related — that is, com-pensable — injury; and
(3) there is some permanent disability from the injuries.

Shank, 516 N.W.2d at 812-13 (citing Anderson v. Second Injury Fund, 262 N.W.2d 789, 790 (Iowa 1978)).

B. Whether George’s May 1996 injury was a qualifying first loss under section 85.61. To qualify as a first loss for purposes of section 85.64, the first loss does not need to be work-related. Shank, 516 N.W.2d at 812. Additionally, the first loss need not be a total loss or loss of use. Irish v. McCreary Saw Mill, 175 N.W.2d 364, 368 (Iowa 1970). In 1990 the Fund again asked this court to hold that the first loss must be “at minimum, ‘a substantial loss that acts as a handicap to one’s em-ployability.’ ” Second Injury Fund v. Braden, 459 N.W.2d 467, 469 (Iowa 1990). In Braden we decided not to retreat from our prior position and held that a scheduled injury under section 85.34(2) affecting a hand, arm, foot, leg, or eye is a qualifying first loss. Id. at 469-70. The reason for allowing a scheduled injury affecting a hand, arm, foot, leg, or eye to be a qualifying first loss is because a scheduled injury evaluates an injured person’s permanent partial disability by determining the loss of physiological capacity of the affected body part. Bergeson, 526 N.W.2d at 547. We see no reason to retreat from our longstanding law that a scheduled injury under section 85.34(2) affecting a hand, arm, foot, leg, or eye is a qualifying loss.

The record clearly establishes the May 1996 injury to George’s left leg was a scheduled injury. The doctor rated it as a scheduled injury and the employer paid it as a scheduled injury. Accordingly, the commissioner was correct in holding the injury to the left leg qualified as a first loss under section 85.64.

C. Whether a bilateral injury will qualify as a second loss under section 85.61. In his decision, the commissioner held that the bilateral nature of a second injury will not disqualify the claimant from recovery under section 85.64. To decide this issue we must interpret the phrase “which has resulted in the loss of or loss of use of another such member or organ” contained in section 85.64. The legislature did not vest discretion with the agency to interpret this section. Accordingly, we must determine if we will defer to the agency’s interpretation pursuant to section 17A.19 (11) (b). If a statute is clear, detailed, does not need special expertise for adequate comprehension, and is not highly technical, we will not defer to the agency’s interpretation of a statute. Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 510-11 (Iowa 2003). “Our goal in interpreting the workers’ compensation act ‘is to determine and effectuate the intent of the legislature.’ ” United Fire & Cas. Co. v. St. Paul Fire & Marine Ins. Co., mi N.W.2d 755, 759 (Iowa 2004) (citation omitted). We accomplish this goal by looking to the language the legislature has chosen. Id. We also place “a reasonable or liberal construction which will best effect, rather than defeat, the legislature’s purpose.” Id.

A plain reading of the statute requires us to interpret the phrase “which has resulted in the loss of or loss of use of another such member or organ” to mean a loss to another such member regardless if the second loss includes other injuries. This interpretation furthers the statute’s legislative intent by imposing liability on the current employer only for the degree of disability caused by the current loss, and if the employee has previously been disabled, shifting the remaining liability for any remaining compensable disability to the Second Injury Fund. Consequently, we agree with the commissioner’s decision, but disagree with the district court and court of appeals analysis. We hold the bilateral nature of a second injury will not disqualify the claimant from recovery under section 85.64.

V. Disposition.

Because the claimant’s loss in May 1996 qualifies as first loss under section 85.64 and we agree with the commissioner’s decision holding the bilateral nature of a second injury will not disqualify the second injury as a second loss under section 85.64, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case to the district court. On remand the district court should enter a judgment affirming the decision of the commissioner on the grounds used by the commissioner to reach his decision, lift its stay of the agency action, and enter judgment for George on the workers’ compensation commissioner’s decision.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.