Section 6. State Health Planning and Development, 31-6-1 through 31-6-95.
ARTICLE 3
CERTIFICATE OF NEED PROGRAM
31-6-47. Exemptions from chapter.
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Notwithstanding the other provisions of this chapter, this chapter shall not apply to:
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Infirmaries operated by educational institutions for the sole and exclusive benefit of students, faculty members, officers, or employees thereof;
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Infirmaries or facilities operated by businesses for the sole and exclusive benefit of officers or employees thereof, provided that such infirmaries or facilities make no provision for overnight stay by persons receiving their services;
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Institutions operated exclusively by the federal government or by any of its agencies;
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Offices of private physicians or dentists whether for individual or group practice, except as otherwise provided in paragraph (3) or (7) of subsection (a) of Code Section 31-6-40;
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Religious, nonmedical health care institutions as defined in 42 U.S.C. § 1395x(ss)(1), listed and certified by a national accrediting organization;
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Site acquisitions for health care facilities or preparation or development costs for such sites prior to the decision to file a certificate of need application;
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Expenditures related to adequate preparation and development of an application for a certificate of need;
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The commitment of funds conditioned upon the obtaining of a certificate of need;
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Expenditures for the acquisition of existing health care facilities by stock or asset purchase, merger, consolidation, or other lawful means unless the facilities are owned or operated by or on behalf of a:
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Political subdivision of this state;
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Combination of such political subdivisions; or
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Hospital authority, as defined in Article 4 of Chapter 7 of this title;
(9.1) Expenditures for the restructuring of or for the acquisition by stock or asset purchase, merger, consolidation, or other lawful means of an existing health care facility which is owned or operated by or on behalf of any entity described in subparagraph (A), (B), or (C) of paragraph (9) of this subsection only if such restructuring or acquisition is made by any entity described in subparagraph (A), (B), or (C) of paragraph (9) of this subsection;
(9.2) The purchase of a closing hospital or of a hospital that has been closed for no more than 12 months by a hospital in a contiguous county to repurpose the facility as a micro-hospital;
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Expenditures of less than $870,000.00 for any minor or major repair or replacement of equipment by a health care facility that is not owned by a group practice of physicians or a hospital and that provides diagnostic imaging services if such facility received a letter of nonreviewability from the department prior to July 1, 2008. This paragraph shall not apply to such facilities in rural counties;
(10.1) Except as provided in paragraph (10) of this subsection, expenditures for the minor or major repair of a health care facility or a facility that is exempt from the requirements of this chapter, parts thereof or services provided or equipment used therein; or the replacement of equipment, including but not limited to CT scanners previously approved for a certificate of need;
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Capital expenditures otherwise covered by this chapter required solely to eliminate or prevent safety hazards as defined by federal, state, or local fire, building, environmental, occupational health, or life safety codes or regulations, to comply with licensing requirements of the department, or to comply with accreditation standards of a nationally recognized health care accreditation body;
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Cost overruns whose percentage of the cost of a project is equal to or less than the cumulative annual rate of increase in the composite construction index, published by the Bureau of the Census of the Department of Commerce, of the United States government, calculated from the date of approval of the project;
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Transfers from one health care facility to another such facility of major medical equipment previously approved under or exempted from certificate of need review, except where such transfer results in the institution of a new clinical health service for which a certificate of need is required in the facility acquiring said equipment, provided that such transfers are recorded at net book value of the medical equipment as recorded on the books of the transferring facility;
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New institutional health services provided by or on behalf of health maintenance organizations or related health care facilities in circumstances defined by the department pursuant to federal law;
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Increases in the bed capacity of a hospital up to ten beds or 10 percent of capacity, whichever is greater, in any consecutive two-year period, in a hospital that has maintained an overall occupancy rate greater than 75 percent for the previous 12 month period;
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Expenditures for nonclinical projects, including parking lots, parking decks, and other parking facilities; computer systems, software, and other information technology; medical office buildings; and state mental health facilities;
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Continuing care retirement communities, provided that the skilled nursing component of the facility is for the exclusive use of residents of the continuing care retirement community and that a written exemption is obtained from the department; provided, however, that new sheltered nursing home beds may be used on a limited basis by persons who are not residents of the continuing care retirement community for a period up to five years after the date of issuance of the initial nursing home license, but such beds shall not be eligible for Medicaid reimbursement. For the first year, the continuing care retirement community sheltered nursing facility may utilize not more than 50 percent of its licensed beds for patients who are not residents of the continuing care retirement community. In the second year of operation, the continuing care retirement community shall allow not more than 40 percent of its licensed beds for new patients who are not residents of the continuing care retirement community. In the third year of operation, the continuing care retirement community shall allow not more than 30 percent of its licensed beds for new patients who are not residents of the continuing care retirement community. In the fourth year of operation, the continuing care retirement community shall allow not more than 20 percent of its licensed beds for new patients who are not residents of the continuing care retirement community. In the fifth year of operation, the continuing care retirement community shall allow not more than 10 percent of its licensed beds for new patients who are not residents of the continuing care retirement community. At no time during the first five years shall the continuing care retirement community sheltered nursing facility occupy more than 50 percent of its licensed beds with patients who are not residents under contract with the continuing care retirement community. At the end of the five-year period, the continuing care retirement community sheltered nursing facility shall be utilized exclusively by residents of the continuing care retirement community, and at no time shall a resident of a continuing care retirement community be denied access to the sheltered nursing facility. At no time shall any existing patient be forced to leave the continuing care retirement community to comply with this paragraph. The department is authorized to promulgate rules and regulations regarding the use and definition of "sheltered nursing facility" in a manner consistent with this Code section. Agreements to provide continuing care include agreements to provide care for any duration, including agreements that are terminable by either party;
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Any single specialty ambulatory surgical center that:
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Has capital expenditures associated with the construction, development, or other establishment of the clinical health service which do not exceed $2.5 million; or
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Is the only single specialty ambulatory surgical center in the county owned by the group practice and has two or fewer operating rooms; provided, however, that a center exempt pursuant to this division shall be required to obtain a certificate of need in order to add any additional operating rooms;
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Has a hospital affiliation agreement with a hospital within a reasonable distance from the facility or the medical staff at the center has admitting privileges or other acceptable documented arrangements with such hospital to ensure the necessary backup for the center for medical complications. The center shall have the capability to transfer a patient immediately to a hospital within a reasonable distance from the facility with adequate emergency room services. Hospitals shall not unreasonably deny a transfer agreement or affiliation agreement to the center;
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Provides care to Medicaid beneficiaries and, if the facility provides medical care and treatment to children, to PeachCare for Kids beneficiaries and provides uncompensated indigent and charity care in an amount equal to or greater than 2 percent of its adjusted gross revenue; or
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If the center is not a participant in Medicaid or the PeachCare for Kids Program, provides uncompensated care to Medicaid beneficiaries and, if the facility provides medical care and treatment to children, to PeachCare for Kids beneficiaries, uncompensated indigent and charity care, or both in an amount equal to or greater than 4 percent of its adjusted gross revenue;
provided, however, single specialty ambulatory surgical centers owned by physicians in the practice of ophthalmology shall not be required to comply with this subparagraph; and
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Provides annual reports in the same manner and in accordance with Code Section 31-6-70.
Noncompliance with any condition of this paragraph shall result in a monetary penalty in the amount of the difference between the services which the center is required to provide and the amount actually provided and may be subject to revocation of its exemption status by the department for repeated failure to pay any fines or moneys due to the department or for repeated failure to produce data as required by Code Section 31-6-70 after notice to the exemption holder and a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The dollar amount specified in this paragraph shall be adjusted annually by an amount calculated by multiplying such dollar amount (as adjusted for the preceding year) by the annual percentage of change in the composite index of construction material prices, or its successor or appropriate replacement index, if any, published by the United States Department of Commerce for the preceding calendar year, commencing on July 1, 2009, and on each anniversary thereafter of publication of the index. The department shall immediately institute rule-making procedures to adopt such adjusted dollar amounts. In calculating the dollar amounts of a proposed project for purposes of this paragraph, the costs of all items subject to review by this chapter and items not subject to review by this chapter associated with and simultaneously developed or proposed with the project shall be counted, except for the expenditure or commitment of or incurring an obligation for the expenditure of funds to develop certificate of need applications, studies, reports, schematics, preliminary plans and specifications or working drawings, or to acquire sites;
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Any joint venture ambulatory surgical center that:
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Has capital expenditures associated with the construction, development, or other establishment of the clinical health service which do not exceed $5 million;
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Provides care to Medicaid beneficiaries and, if the facility provides medical care and treatment to children, to PeachCare for Kids beneficiaries and provides uncompensated indigent and charity care in an amount equal to or greater than 2 percent of its adjusted gross revenue; or
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If the center is not a participant in Medicaid or the PeachCare for Kids Program, provides uncompensated care to Medicaid beneficiaries and, if the facility provides medical care and treatment to children, to PeachCare for Kids beneficiaries, uncompensated indigent and charity care, or both in an amount equal to or greater than 4 percent of its adjusted gross revenue; and
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Provides annual reports in the same manner and in accordance with Code Section 31-6-70.
Noncompliance with any condition of this paragraph shall result in a monetary penalty in the amount of the difference between the services which the center is required to provide and the amount actually provided and may be subject to revocation of its exemption status by the department for repeated failure to pay any fines or moneys due to the department or for repeated failure to produce data as required by Code Section 31-6-70 after notice to the exemption holder and a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The dollar amount specified in this paragraph shall be adjusted annually by an amount calculated by multiplying such dollar amount (as adjusted for the preceding year) by the annual percentage of change in the composite index of construction material prices, or its successor or appropriate replacement index, if any, published by the United States Department of Commerce for the preceding calendar year, commencing on July 1, 2009, and on each anniversary thereafter of publication of the index. The department shall immediately institute rule-making procedures to adopt such adjusted dollar amounts. In calculating the dollar amounts of a proposed project for purposes of this paragraph, the costs of all items subject to review by this chapter and items not subject to review by this chapter associated with and simultaneously developed or proposed with the project shall be counted, except for the expenditure or commitment of or incurring an obligation for the expenditure of funds to develop certificate of need applications, studies, reports, schematics, preliminary plans and specifications or working drawings, or to acquire sites;
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Expansion of services by an imaging center based on a population needs methodology taking into consideration whether the population residing in the area served by the imaging center has a need for expanded services, as determined by the department in accordance with its rules and regulations, if such imaging center:
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Was in existence and operational in this state on January 1, 2008;
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Is owned by a hospital or by a physician or a group of physicians comprising at least 80 percent ownership who are currently board certified in radiology;
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Provides three or more diagnostic and other imaging services;
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Accepts all patients regardless of ability to pay; and
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Provides uncompensated indigent and charity care in an amount equal to or greater than the amount of such care provided by the geographically closest general acute care hospital; provided, however, this paragraph shall not apply to an imaging center in a rural county;
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Diagnostic cardiac catheterization in a hospital setting on patients 15 years of age and older;
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Therapeutic cardiac catheterization in hospitals selected by the department prior to July 1, 2008, to participate in the Atlantic Cardiovascular Patient Outcomes Research Team (C-PORT) Study and therapeutic cardiac catheterization in hospitals that, as determined by the department on an annual basis, meet the criteria to participate in the C-PORT Study but have not been selected for participation; provided, however, that if the criteria requires a transfer agreement to another hospital, no hospital shall unreasonably deny a transfer agreement to another hospital;
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Infirmaries or facilities operated by, on behalf of, or under contract with the Department of Corrections or the Department of Juvenile Justice for the sole and exclusive purpose of providing health care services in a secure environment to prisoners within a penal institution, penitentiary, prison, detention center, or other secure correctional institution, including correctional institutions operated by private entities in this state which house inmates under the Department of Corrections or the Department of Juvenile Justice;
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The relocation of any skilled nursing facility, intermediate care facility, or micro-hospital within the same county, any other health care facility in a rural county within the same county, and any other health care facility in an urban county within a three-mile radius of the existing facility so long as the facility does not propose to offer any new or expanded clinical health services at the new location;
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Facilities which are devoted to the provision of treatment and rehabilitative care for periods continuing for 24 hours or longer for persons who have traumatic brain injury, as defined in Code Section 37-3-1; and
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Capital expenditures for a project otherwise requiring a certificate of need if those expenditures are for a project to remodel, renovate, replace, or any combination thereof, a medical-surgical hospital and:
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That hospital:
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Has a bed capacity of not more than 50 beds;
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Is located in a county in which no other medical-surgical hospital is located;
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Has at any time been designated as a disproportionate share hospital by the department; and
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Has at least 45 percent of its patient revenues derived from medicare, Medicaid, or any combination thereof, for the immediately preceding three years; and
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That project:
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Does not result in any of the following:
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The offering of any new clinical health services;
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Any increase in bed capacity;
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Any redistribution of existing beds among existing clinical health services; or
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Any increase in capacity of existing clinical health services;
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Has at least 80 percent of its capital expenditures financed by the proceeds of a special purpose county sales and use tax imposed pursuant to Article 3 of Chapter 8 of Title 48; and
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Is located within a three-mile radius of and within the same county as the hospital's existing facility.
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By rule, the department shall establish a procedure for expediting or waiving reviews of certain projects the nonreview of which it deems compatible with the purposes of this chapter, in addition to expenditures exempted from review by this Code section.
(Code 1981, §31-6-47, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1984, p. 22, § 31; Ga. L. 1989, p. 393, § 1; Ga. L. 1991, p. 1419, § 2; Ga. L. 1991, p. 1871, § 8; Ga. L. 1999, p. 296, §§ 22, 24; Ga. L. 2008, p. 9, § 2/HB 967; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46; Ga. L. 2009, p. 453, § 1-24/HB 228; Ga. L. 2012, p. 337, § 1/SB 361; Ga. L. 2018, p. 132, § 5/HB 769.)
The 2012 amendment,
effective July 1, 2012, substituted "a nationally recognized health care accreditation body" for "the Joint Commission on Accreditation of Hospitals" at the end of paragraph (a)(11).
The 2018 amendment,
effective July 1, 2018, added paragraph (a)(9.2); and inserted ", or micro-hospital" near the middle of paragraph (a)(24).
Code Commission notes.
- The amendment of this Code section by Ga. L. 2008, p. 9,
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2, irreconcilably conflicted with and was treated as superseded by Ga. L. 2008, p. 12,
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1-1. See County of Butts v. Strahan, 151 Ga. 417 (1921).
Editor's notes.
- Ga. L. 2008, p. 12,
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3-1/SB 433, not codified by the General Assembly, provides that the amendment to this Code section by that Act shall only apply to applications submitted on or after July 1, 2008.
JUDICIAL DECISIONS
Rule-making authority of planning agency.
- Relocation rule of the planning agency that purported to exempt certain relocations from compliance with statutory certificate of need requirements, thereby denying opposing parties the opportunity to obtain review by the review board and the courts, was invalid as an unconstitutional attempt to exercise legislative power. HCA Health Servs. of Ga., Inc. v. Roach, 265 Ga. 501, 458 S.E.2d 118 (1995).
Mobile cardiac catherization unit which was "grandfathered"
and exempt from obtaining a certificate of need when the unit began operating was required to obtain a certificate of need when the unit was relocated. Phoebe Putney Mem. Hosp. v. Roach, 267 Ga. 619, 480 S.E.2d 595 (1997).
Replacement equipment.
- Healthcare provider did not show that the Department of Community Health committed an error of law in ordering the healthcare provider to cease operations until the healthcare provider obtained a certificate of need; the healthcare provider was not using replacement equipment at the time it moved and, thus, whether the Department of Community Health earlier issued a correct letter of nonreviewability was not at issue at the time the healthcare provider relocated to a new center with new equipment. N. Atlanta Scan Assocs. v. Dep't of Cmty. Health, 277 Ga. App. 583, 627 S.E.2d 67 (2006).
Exhaustion of administrative remedies.
- Court of appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A.
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50-13-19(a), in the society's action seeking to prevent the Georgia Department of Community Health and the Department's Commissioner from requiring the Department's members to respond to certain disputed requests in an annual survey because the futility exception to the exhaustion requirement was inapplicable; the Commissioner's position in the lawsuit did not establish futility because actions taken to defend a lawsuit could not establish futility. Ga. Dep't of Cmty. Health v. Ga. Soc'y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012).
Court of appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A.
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50-13-19(a), in the society's action seeking to prevent the Georgia Department of Community Health (DCH) and the Department's Commissioner from requiring the Department's members to respond to certain disputed requests in an annual survey because the "acting outside statutory authority" exception to the exhaustion requirement did not apply; the society did not allege that DCH was acting wholly outside the Department's jurisdiction under O.C.G.A.
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31-6-70 to conduct surveys, but instead, the society claimed that the manner in which the survey was being conducted did not fully comply with the procedural requirements of the statute. Ga. Dep't of Cmty. Health v. Ga. Soc'y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012).
Because the Georgia Society of Ambulatory Surgical Centers represented the interests of members that had adequate administrative remedies, and those members had not exhausted those remedies, the trial court was required to dismiss its case alleging that an annual survey the Georgia Department of Community Health (DCH) issued to ambulatory surgery centers (ASC) sought information beyond the scope of O.C.G.A.
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31-6-70. Furthermore, the procedures set forth in the Georgia Administrative Procedure Act, O.C.G.A.
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50-13-19 and O.C.G.A.
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31-6-40(c), and31-6-47(18), and Ga. Comp. R. & Regs. 111-2-2-.05(2)(e) were available to ASCs before DCH took any final adverse action against them for failing to provide the required survey information, the procedures afforded adequate administrative remedies to aggrieved ASCs. Ga. Soc'y of Ambulatory Surgery Ctrs. v. Ga. Dep't of Cmty. Health, 316 Ga. App. 433, 729 S.E.2d 565 (2012).
Cited in
HCA Health Servs., Inc. v. Roach, 263 Ga. 798, 439 S.E.2d 494 (1994); Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).
OPINIONS OF THE ATTORNEY GENERAL
Increase of ten beds or 10 percent of bed capacity requires certificate where new service created.
- Though an increase of the lesser of ten beds or 10 percent of bed capacity would be excluded from review generally under paragraph (a)(15) of O.C.G.A.
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31-6-47, it is likely that such increases would require a certificate of need if the new beds were used to create new institutional health services. 1983 Op. Att'y Gen. No. 83-34.
State Health Planning and Development Agency rules under former
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31-6-50 given effect under O.C.G.A.
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31-6-47. - To the extent that the exclusions in O.C.G.A.
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31-6-47 are identical to or essentially the same as those in former
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31-6-50, those State Health Planning and Development Agency (now Department of Community Health) rules in effect on June 30, 1983, as to such exclusions will remain effective on or after July 1, 1983, and until new rules are adopted. 1983 Op. Att'y Gen. No. 83-34.
Any State Health Planning and Development Agency (now Department of Community Health) rules in effect on June 30, 1983, which require a certificate of need for expenditures which increase the bed capacity of a hospital by up to ten beds or 10 percent of capacity, whichever is less, are "inconsistent with this chapter" under O.C.G.A.
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31-6-49 and therefore not controlling after July 1, 1983. 1983 Op. Att'y Gen. No. 83-34.
