O.C.G.A.

O.C.G.A. § 31-6-45 (2019)

Revocation of certificate of need; enforcement of chapter; regulatory investigations and examinations

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) The department may revoke a certificate of need, in whole or in part, after notice to the holder of the certificate and a fair hearing pursuant to Chapter 13 of Title 50, the ‘‘Georgia Administrative Procedure Act,’’ for the following reasons: (1) Failure to comply with the provisions of Code Section 31-6-41; (2) The intentional provision of false information to the department by an applicant in that applicant’s application; (3) Repeated failure to pay any fines or moneys due to the department; (4) Failure to maintain minimum quality of care standards that may be established by the department; (5) Failure to participate as a provider of medical assistance for Medicaid purposes pursuant to Code Section 31-6-45.2 or any other applicable Code section;

(6) The failure to submit a timely or complete report within 180 days following the date the report is due pursuant to Code Section 31-6-70; or (7) Failure of a destination cancer hospital to meet an annual patient base composed of a minimum of 65 percent of patients who reside outside this state for three calendar years in any five-year period. The department may not, however, revoke a certificate of need if the applicant changes the defined location of the project within the same county less than three miles from the location specified in the certificate of need for financial reasons or other reasons beyond its control, including, but not limited to, failure to obtain any required approval from zoning or other governmental agencies or entities, provided such change in location is otherwise consistent with the considerations and rules applied in the evaluation of the project. (a.1) The department may revoke a certificate of need, in whole or in part, after notice to the holder of the certificate and a fair hearing pursuant to Chapter 13 of Title 50, the ‘‘Georgia Administrative Procedure Act,’’ if the services or units of services for which the certificate of need was issued are not implemented in a timely manner, as established by the department in its rules. This subsection shall apply only to certificates of need issued on or after July 1, 2008. (b) Any health care facility offering a new institutional health service without having obtained a certificate of need and which has not been previously licensed as a health care facility shall be denied a license to operate. (c) In the event that a new institutional health service is knowingly offered or developed without having obtained a certificate of need as required by this chapter, or the certificate of need for such service is revoked according to the provisions of this Code section, a facility or applicant may be fined an amount of $5,000.00 per day up to 30 days, $10,000.00 per day from 31 days through 60 days, and $25,000.00 per day after 60 days for each day that the violation of this chapter has existed and knowingly and willingly continues; provided, however, that the expenditure or commitment of or incurring an obligation for the expenditure of funds to take or perform actions not subject to this chapter or to acquire, develop, or prepare a health care facility site for which a certificate of need application is denied shall not be a violation of this chapter and shall not be subject to such a fine. The commissioner shall determine, after notice and a hearing, whether the fines provided in this Code section shall be levied. (d) In addition, for purposes of this Code section, the State of Georgia, acting by and through the department, or any other interested

person, shall have standing in any court of competent jurisdiction to maintain an action for injunctive relief to enforce the provisions of this chapter. (e) The department shall have the authority to make public or private investigations or examinations inside or outside of this state to determine whether all provisions of this Code section or any other law, rule, regulation, or formal order relating to the provisions of Code Section 31-6-40 has been violated. Such investigations may be initiated at any time in the discretion of the department and may continue during the pendency of any action initiated by the department pursuant to subsection (a) of this Code section. For the purpose of conducting any investigation or inspection pursuant to this subsection, the department shall have the authority, upon providing reasonable notice, to require the production of any books, records, papers, or other information related to any certificate of need issue.

History

Code 1981, § 31-6-45, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1991, p. 1871, § 7; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46.

Annotations

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, a comma was deleted following ‘‘denied’’ near the end of the first sentence of subsection (c). Pursuant to Code Section 28-9-5, in 1999, ‘‘commissioner’’ was substituted for

‘‘executive director’’ in the last sentence of subsection (c). Editor’s notes. - Ga. L. 2008, p. 12, § 3-1/SB 433, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to applications submitted on or after July 1, 2008. Law reviews. - For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017).

JUDICIAL DECISIONS Enforcement. - Prior to the 1983 reenactment, the health planning agency was authorized to bring an action to enforce provisions of O.C.G.A. T. 31, Ch. 6, but a competitor of a health service provider was not. Executive Comm. v. Metro Ambulance Servs., Inc., 250 Ga. 61, 296 S.E.2d 547 (1982). Competing health care provider is not entitled to bring an enforcement action for injunctive relief against another provider of health care services violating the Certificate of Need Program. Diversified Health Mgt. Servs., Inc. v. Visiting Nurses Ass’n, 254 Ga. 500, 330 S.E.2d 885 (1985). Competing health care provider has standing to bring a mandamus action to compel the State Health Planning and Development Agency (now Department of Community Health) to institute proceedings against another provider of health care services who is violating the statu-

tory law governing certificates of need. Diversified Health Mgt. Servs., Inc. v. Visiting Nurses Ass’n, 254 Ga. 500, 330 S.E.2d 885 (1985). Cancellation of certificate of need proper. - Trial court properly affirmed an administrative decision cancelling a nursing home’s certificate of need as the nursing home failed to comply with applicable statutory and regulatory requirements with regard to completing the project timely and providing documentation that ongoing construction was being undertaken. Further, several site inspections established that, in fact, no construction was being undertaken for the project. Southern Crescent Rehab. & Ret. Ctr., Inc. v. Ga. Dep’t of Cmty. Health, 290 Ga. App. 863, 660 S.E.2d 792 (2008), cert. denied, 2008 Ga. LEXIS 679 (2008). Cited in HCA Health Servs. of Ga., Inc. v. Roach, 265 Ga. 501, 458 S.E.2d 118

(1995); Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).

Notes of Decisions

Cited in 15 cases (2 in the last 5 years), 1983–2024 · leading case: Diversified Health Mgmt. Servs., Inc. v. Visiting Nurses Ass'n of Cordele, Inc., 330 S.E.2d 885 (Ga. 1985).

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Diversified Health Mgmt. Servs., Inc. v. Visiting Nurses Ass'n of Cordele, Inc., 330 S.E.2d 885 (Ga. 1985). · cites it 10× “As to standing, OCGA § 31-6-45 (d) now provides, "In addition, for purposes of this Code section, the State of Georgia, acting by and through the planning agency, or any other interested person, shall have standing in any court of competent jurisdiction to maintain an action for…”

Kennestone Hosp., Inc. v. Emory Univ., 318 Ga. 169 (Ga. 2024). · cites it 8× “See OCGA § 31-6-45 (a). Several different kinds of health care services are considered “new” and therefore require a CON.”

Uhs of Anchor, L.P. v. Dep't of Cmty. Health Et Al., 830 S.E.2d 413 (Ga. Ct. App. 2019). · cites it 6× “[t]he intentional provision of false information to the department by an applicant in that applicant's application[.”

The Med. Ctr. of Cent. Georgia, Inc. v. Hosp. Auth. of Monroe Cnty., 798 S.E.2d 42 (Ga. Ct. App. 2017). · cites it 4× “The Department has the authority to make public or private investigations or examinations to determine whether the provisions of Chapter 6 of Title 31 have been violated, and interested persons may bring an action for injunctive relief to enforce the provisions of the chapter.”

North Fulton Cmty. Hosp., Inc. v. State Health Plan. & Dev. Agency, 310 S.E.2d 764 (Ga. Ct. App. 1983). · cites it 10× “§ 88-3318) states in part: “The five-member panel shall base its decision upon the considerations set forth in Code Section 31-6-45 (former Code Ann. § 88-3316).” OCGA § 31-6-43 (former Code Ann.”

North Fulton &C. Hosp. v. STATE HEALTH &C., 310 S.E.2d 764 (Ga. Ct. App. 1983). · cites it 10× “§ 88-3318) states in part: "The five-member panel shall base its decision upon the considerations set forth in Code Section 31-6-45 (former Code Ann. § 88-3316)." OCGA § 31-6-43 (former Code Ann.”

Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 743 S.E.2d 492 (Ga. Ct. App. 2013). · cites it 2× “Code section”); OCGA § 31-6-42 (c) (granting the DCH “the authority to vary or modify strict adherence to the provisions of this chapter and the rules enacted pursuant hereto in considering the special needs of such facility and its population served and to avoid an adverse…”

HCA Health Servs. of Georgia, Inc. v. Roach, 458 S.E.2d 118 (Ga. 1995). · cites it 2× “HCA urges that the facility could not have been an ASC, because it had not obtained an ASC permit pursuant to OCGA §§ 31-7-1 (1) (D) and 31-7-3 (a) before seeking a CON exemption.”

HCA Health Servs., Inc. v. Roach, 439 S.E.2d 494 (Ga. 1994). · cites it 2× “We note that the only part of the Act pertaining to relocations of health care facilities is contained in OCGA § 31-6-45, which allows a change in location from that initially approved for a facility which has not yet been built in certain circumstances, including where the…”

Chattahoochee Valley Home Health Care, Inc. v. Healthmaster, Inc., 381 S.E.2d 56 (Ga. Ct. App. 1989). · cites it 2× “[are] provided in a manner that avoids unnecessary duplication of services, that is cost effective, and that is compatible with the health care needs of the various areas and populations of the state.”

S. Crescent Rehab. & Ret. Ctr., Inc. v. Georgia Departmet of Cmty. Health, 660 S.E.2d 792 (Ga. Ct. App. 2008). · cites it 8× “Specifically, Southern Crescent argues that DCH improperly revoked the CON under OCGA § 31-6-45. This statute provides, in pertinent part, that DCH “may revoke a [CON] after notice to the holder of the certificate and a fair hearing.”

North Atlanta Scan Assocs., Inc. v. Dep't of Cmty. Health, 627 S.E.2d 67 (Ga. Ct. App. 2006). · cites it 2× “OCGA§ 31-6-45 (a). On the other hand, nothing in the Act or related regulations requires a person who is developing a health care project or offering a health care service which is not subject to CON review to obtain an LNR or any other type of approval from the *590 Department.”

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