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...
...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...
...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 25 times | Published | Supreme Court of Georgia | May 26, 1998 | 269 Ga. 540
...of Savannah,
267 Ga. 619, 621,
480 S.E.2d 595 (1997). [9] HCA Health Serv.,
265 Ga. at 502,
458 S.E.2d 118. [10] Id.; See Department of Transp. v. Del-Cook Timber Co.,
248 Ga. 734, 738,
285 S.E.2d 913 (1982). SHPA's legislative grant of authority is set forth in OCGA §
31-6-21(b)(4), which provides that it is authorized "to adopt, promulgate, and implement rules and regulations sufficient to administer the provisions of [the Act] including the [CON] program." [11] HCA Health Serv., 265 Ga....
...482, 483,
216 S.E.2d 332 (1975)). [13] 73 CJS, Public Administration Law & Procedure, § 32 (1983 & Supp.1997). [14] Id.; see Colgate-Palmolive-Peet Co. v. National Labor Relations Board,
338 U.S. 355,
70 S.Ct. 166,
94 L.Ed. 161 (1949). [15] See note 10, supra; OCGA §
31-6-21(b)(4)....
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....
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
....
CopyCited 6 times | Published | Supreme Court of Georgia | Sep 13, 2004 | 602 S.E.2d 648, 2004 Fulton County D. Rep. 2937
...Accordingly, when Albany Surgical first appealed to this Court, we transferred the appeal to the Court of Appeals. See Senase v. State,
258 Ga. 592 (372 SE2d 813) (1988).
The Court of Appeals affirmed the grant of summary judgment to defendants, ruling that the regulations were authorized by statute, OCGA §
31-6-21 (b) (4), and that they were reasonable....
...To promulgate a regulation, the Department of Community Health sends the proposed regulation to legislative counsel, who forwards it to the legislative health committees. If both committees object within 30 days, the proposed regulation cannot be adopted. OCGA §
31-6-21.1 (c). If, on the other hand, both committees do not object, the regulation may be adopted. OCGA §
31-6-21.1 (b)....
...If only one committee objects, the legislature may, by resolution, override the regulation by two-thirds of the votes of each house. If a majority, but less than two-thirds, approves the resolution, it is submitted to the governor for his approval or veto. If the governor approves the resolution, the rule is void. OCGA §
31-6-21.1 (d).
Albany Surgical argues that this procedure is unconstitutional because it permits a proposed regulation to become effective by “legislative acquiescence.”2In this regard, Albany Surgical posits that the silence of the health co...
...and then delegate to administrative officers or agencies the authority to make rules and regulations necessary to effectuate such laws. [Cits.]” Dept. of Transp. v. Del-Cook Timber Co.,
248 Ga. at 737 (3), supra. Thus, it cannot be said that OCGA §
31-6-21.1 violates the separation of powers doctrine simply because it enables the Department of Community Health to promulgate and adopt regulations pursuant to a delegated power....
...Daughdrill, for appellant.
Thurbert E. Baker, Attorney General, Sidney R. Barrett, Jr., Assistant Attorney General, Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., Thomas D. Watry, Leo E. Reichert, Perry & Walters, James E. Reynolds, Jr., for appellees.
OCGA §
31-6-21.1 is not unconstitutional for any of the reasons assigned.
Judgment affirmed.
All the Justices concur.
This paragraph provides: “The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.”
In its opinion, the Court of Appeals described the procedure set forth in OCGA §
31-6-21.1 and correctly found that it created a presumption that a proposed regulation correctly expresses the legislative intent....
Published | Supreme Court of Georgia | Jun 30, 2014
...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 ....
