CopyCited 36 times | Published | Supreme Court of Georgia | Oct 5, 2020 | 310 Ga. 32
...The Court of Appeals acknowledged that
“OCGA §
31-6-40 (a) does not specifically include the expansion of
existing programs in its list of ‘new institutional health services’
that are required to obtain a CON,” but concluded that the “list is
not exclusive.” Id. And it reasoned that based on OCGA §
31-6-21
(pertaining to Department’s rulemaking authority), “the
Department saw fit to require by its Rules that the expansion of an
existing psychiatric and/or substance abuse facility requires a
CON,” and that “[t]his rul...
...care facilities which are covered by this chapter;
2 “Bed capacity” is defined as “space used exclusively for inpatient care,
including space designed or remodeled for inpatient beds even though
temporarily not used for such purposes.” OCGA §
31-6-2 (4).
OCGA §
31-6-47 provides a list of exemptions for which Chapter 6 of Title
31, and thus the CON requirements, do not apply....
...ce requiring CON approval: “(8) The
conversion of a destination cancer hospital to a general cancer hospital.”
OCGA §
31-6-40 (a) (8).
the General Assembly removed the language expressly requiring
CON approval for bed redistribution, see OCGA §
31-6-2 (14) (1983),
and it did not add that language back into the CON statute when it
amended and moved the provision defining “new institutional
health services” from the Article’s general definition statute, OCGA
§
31-6-2, to its current home in OCGA §
31-6-40 (a).
OCGA §
31-6-40 (b) provides that “[a]ny person proposing to
develop or offer a new institutional health service or health care
facility shall, before commencing such activity, ....
...certificate of need program[,]” to “establish, by
rule, need methodologies for new institutional health services and
health care facilities[,]” and to “establish service-specific need
methodologies and criteria for . . . psychiatric and substance abuse
inpatient programs[.]” OCGA §
31-6-21 (a), (b) (4) & (8).
As noted above, the rule relevant to this case is the Psychiatric
Rule, which provides that a “Certificate of Need shall be required
prior to the establishment of a new or the expansion of an existing
acute c...
...Crescent’s assertions that a change from a prior version of the CON
statute indicates that the current OCGA §
31-6-40 (a) is not
exhaustive. Specifically, they point to prior versions of the CON
statute, see Ga. Code Ann. § 88-3302 (s) (1979); OCGA §
31-6-2 (14)
(1983) — provisions that were updated and re-codified in 2008 as
OCGA §
31-6-40 (a) — which provided that “‘new institutional
health service’ means,” followed by six specific acts or services, see
id....
...Code Ann. § 88-
3302 (s) (1979) (emphasis supplied). The General Assembly
removed the italicized language from the CON statute by
amendment in 1983, thus eliminating any reference to bed
“redistribut[ion]” requiring CON approval. See OCGA §
31-6-2 (14)
(1983); Ga....
...15 Citing dicta from Albany Surgical, P.C. v. Ga. Dept. of Community
Health,
278 Ga. 366, 368 (602 SE2d 648) (2004), Southern Crescent argues that
the General Assembly acquiesced to the Psychiatric Rule when the Rule was
submitted to legislative counsel pursuant to OCGA §
31-6-21.1 (b) and the
General Assembly did not object to it. See OCGA §
31-6-21.1 (b) (providing
that “[t]he department shall transmit” copies of a rule notice “to the legislative
counsel,” which “the legislative counsel shall furnish [to] the presiding officer
of each house” of the General Assembly and ...
...And because one of the two potentially plausible
interpretations here — that “include” is a limiting term that sets out
an exhaustive list of statutorily defined new institutional health
services requiring a CON — also avoids an interpretation of OCGA
§
31-6-21 that could raise serious questions about the
constitutionality of the General Assembly’s delegation of
rulemaking authority to the Department, the canon of constitutional
doubt tip...
...501 (458 SE2d 118) (1995), this Court
examined an agency rule that authorized a health care facility’s
relocation without any CON approval under OCGA §
31-6-40 (a)’s
But the guidance the General Assembly provided the Department in
OCGA §
31-6-21 (a) (8), which provides a number of factors the Department
must consider in developing methodologies, does not provide the guidance
necessary for the Psychiatric Rule to avoid non-delegation concerns....
...and in Stephenson, and the Department’s usurpation by effectively adding a
service requiring CON approval here.
23 Indeed, the Department itself now disclaims such a reading of the
Psychiatric Rule. See footnote 4, above.
the Department under OCGA §
31-6-21 in this context that we
should avoid such an interpretation....
CopyCited 14 times | Published | Supreme Court of Georgia | Feb 7, 1994 | 263 Ga. 798, 94 Fulton County D. Rep. 479
...American Cyanamid Co.,
239 Ga. 740, 743 (238 SE2d 886) (1977). Under the State Health Planning and Development Act (the Act), SHPA is authorized and required to administer the CON program, and is directed to make rules in order to administer that program. OCGA §
31-6-21 (a) and (b) (4). The detailed procedures for rulemaking by SHPA generally follow those of the Georgia Administrative Procedure Act and include notice and consideration by committees of both branches of a legislature. OCGA §
31-6-21.1....
...Healthmaster, Inc.,
191 Ga. App. 42, 44 (2) (381 SE2d 56) (1989). However, the parties disagree about whether the facility was operated as SHPA determined, as an "ambulatory surgical center" (ASC) an out-patient center where all types of surgery are performed (OCGA §
31-6-2 (1)) prior to the CON program, and, therefore, whether SHPA properly exempted it from CON requirements....
CopyCited 13 times | Published | Supreme Court of Georgia | Jun 30, 2014 | 761 S.E.2d 74
...Selective HR Solutions, Inc.,
289 Ga. 753 , 756 (1) (“It is within the purview
of this Court to consider the validity of an agency rule by determining whether
it comports with the legislative enactment which authorizes the rule”) (citation
omitted). See also OCGA §
31-6-21.1 (a) (“Rules of the [DCH] shall be
5
It is this final sentence of the Rule that the Court of Appeals determined
to be unconstitutionally vague.
4
adopted, promulgated, and implemented as provided in this Code section and in
....
...injured, disabled, or sick persons or rehabilitation services for the
rehabilitation of injured, disabled, or sick persons. Such term
includes public, private, psychiatric, rehabilitative, geriatric,
osteopathic, and other specialty hospitals.
OCGA §
31-6-2 (21). Furthermore, an entity that provides ambulatory surgery
services and that is not part of a hospital is an “ambulatory surgical center”
(ASC). OCGA §
31-6-2 (1) (An ASC is “a public or private facility, not a part
of a hospital, which provides surgical or obstetrical treatment performed under
general or regional anesthesia in an operating room environment to patients not
requiring hospital...
...injured, disabled, or sick persons or rehabilitation services for the
rehabilitation of injured, disabled, or sick persons. Such term
includes public, private, psychiatric, rehabilitative, geriatric,
osteopathic, and other specialty hospitals.
See OCGA §§
31-6-2 (1) and (21), and the Rule.
We must also bear in mind that “all presumptions are in favor of the
constitutionality of [a statute or regulation].” (Citation and punctuation omitted.)
JIG Real Estate, LLC v....
...requirements of subparts (a) and (b).
Accordingly, the Rule at issue in this case must be reasonably read to
mean that an ambulatory surgery service is “part of a hospital” where (1) it is
part of an entity defined as a “hospital” under OCGA §
31-6-2 (21), and (2) the
10
DCH makes an independent determination that the ambulatory surgery service
is part of that “hospital” after considering factors including, but not limited to,
the location...
CopyCited 9 times | Published | Supreme Court of Georgia | Feb 17, 1997 | 267 Ga. 619, 97 Fulton County D. Rep. 517
...Putney are moot. Judgment reversed in Case No. S96A1513. Case No. S96A1487 and Case No. S96A1512 are dismissed. All the Justices concur. NOTES [1] A mobile cardiac catheterization unit is a DTR (diagnostic, treatment or rehabilitation) center. OCGA §
31-6-2(14)(G)(iv). A DTR center offers clinical health services in a setting that is not part of a hospital. OCGA §
31-6-2(7.1). In 1991, the legislature amended the certificate of need statute to include the regulation of DTR centers which offer cardiac catheterization services. OCGA §
31-6-40; OCGA §
31-6-2(14)(G)(iv)....
Published | Supreme Court of Georgia | Jun 30, 2014 | 255 Ga. 164
...753, 756 (1) (716 SE2d 150) (2011) (“It
is within the purview of this Court to consider the validity of an agency rule by
determining whether it comports with the legislative enactment which authorizes
the rule”) (citation omitted). See also OCGA §
31-6-21.1 (a) (“Rules of the
[DCH] shall be adopted, promulgated, and implemented as provided in this Code
section and in ....
...ces for the
rehabilitation of injured, disabled, or sick persons. Such term
includes public, private, psychiatric, rehabilitative, geriatric,
osteopathic, and other specialty hospitals.
4
OCGA §
31-6-2 (21). Furthermore, an entity that provides ambulatory surgery
services and that is not part of a hospital is an “ambulatory surgical center”
(ASC). OCGA §
31-6-2 (1) (An ASC is “a public or private facility, not a part
of a hospital, which provides surgical or obstetrical treatment performed under
general or regional anesthesia in an operating room environment to patients not
requiring hospital...
...injured, disabled, or sick persons or rehabilitation services for the
rehabilitation of injured, disabled, or sick persons. Such term
includes public, private, psychiatric, rehabilitative, geriatric,
osteopathic, and other specialty hospitals.
See OCGA §
31-6-2 (1) and (21) and the Rule.
We must also bear in mind that “all presumptions are in favor of the
constitutionality of [a statute or regulation].” (Citation and punctuation omitted.)
JIG Real Estate, LLC v....
...requirements of subparts (a) and (b).
Accordingly, the Rule at issue in this case must be reasonably read to mean
that an ambulatory surgery service is “part of a hospital” where (1) it is part of
an entity defined as a “hospital” under OCGA §
31-6-2 (21), and (2) the DCH
makes an independent determination that the ambulatory surgery service is part
of that “hospital” after considering factors including, but not limited to, the
location of the proposed surgery service in relation...
