ALBANY SURGICAL v. DEPARTMENT OF COMMUNITY

• Decision Date: 27 September 2002
• Docket Number: No. A02A1836.,A02A1836.
• Citation: 257 Ga. App. 636,572 S.E.2d 638
• Parties: ALBANY SURGICAL, P.C. v. DEPARTMENT OF COMMUNITY HEALTH.
• Court: Georgia Court of Appeals

572 S.E.2d 638

257 Ga. App. 636

ALBANY SURGICAL, P.C. v. DEPARTMENT OF COMMUNITY HEALTH.

No. A02A1836.

Court of Appeals of Georgia.

September 27, 2002.

Certiorari Denied January 13, 2003.

Phears & Moldovan, Victor L. Moldovan, Norcross, for appellant.

Thurbert E. Baker, Atty. Gen., Robert S. Bomar, Deputy Atty. Gen., Harold D. Melton, Senior Asst. Atty. Gen., Sidney R. Barrett, Jr., Asst. Atty. Gen., Perry & Walters, James E. Reynolds, Jr., Albany, Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., Thomas D. Watry, Atlanta, for appellee.

Bondurant, Mixson & Elmore, Michael B. Terry, Corey F. Hirokawa, Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, Atlanta, amici curiae. ELDRIDGE, Judge.

This is an appeal from the grant of summary judgment for the Department of Community Health, Division of Health Planning, in a declaratory judgment action brought by Albany Surgical, P.C. seeking to declare invalid Ga. Comp. R. & Regs. Rules 272-2.01(19)(h) 3 and 272-2-.09(1)(b) 10 ("DHP Rule"), which provides that an ambulatory surgery center engaged only in the practice of "general surgery" does not qualify for the single specialty exemption for the Certificate of Need ("CON"). In its trial brief in opposition to such motion, Albany Surgical raised for the first time Georgia constitutional issues, which the trial court did not pass upon. In transferring this appeal to this Court, the Supreme Court held: "[a]s the issue on appeal concerns the validity of an administrative regulation adopted by the defendants and does not appear that the trial court ruled on any constitutional issues, this Court does not have jurisdiction over the appeal and it is hereby transferred to the Court of Appeals." Finding no merit to the legal issues before us, we affirm and remand to the trial court for determination of the constitutional issues raised but not ruled upon by the trial court and such other pending motions as remain relevant to the determination of such constitutional issues.

The General Assembly passed and later amended the Certificate of Need Act to create a system for planning new health service institutions to avoid costly duplication of services where insufficient need existed. OCGA § 31-6-2 et seq. The legislative intent expressed in the Act is:

The policy of this state and the purposes of this chapter are to ensure that adequate health care services and facilities are developed in an orderly and economical manner and are made available to all citizens and that only those health care services found to be in the public interest shall be provided in this state. To achieve this public policy and purpose, it is essential that appropriate health planning activities be undertaken and implemented and that a system of mandatory review of new institutional health services be provided. Health care services and facilities should be 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.

Ga.L.1983, p. 1566, § 1 (OCGA § 31-6-1). Before commencing operations with a new health care service within DHP's jurisdiction, the provider must apply to and obtain permission through the grant of a CON unless exempted. OCGA §§ 31-6-40(b); 31-6-42; 31-6-43. The physician-owned single-specialty surgery centers have exemption from obtaining a CON. See OCGA § 31-6-2(14)(G)(iii).

Albany Surgical consists of five general surgeons in private practice in Albany. Albany Surgical contends that general surgery is a single specialty, a term of art, entitled to exemption and is not a multi-specialty as defined in the regulations promulgated by DHP Rule 272-2-.09(1)(b) 10. Under DHP Rule 272-2-.01(19)(h) 3, it provides that an ambulatory surgery center engaged in the practice of a single specialty and having a total capital expenditure of less than $1 million for construction, development, and other establishment does qualify for the exemption from a CON. Albany Surgical contends such regulations are inconsistent with OCGA § 31-6-2(14)(G)(iii), and thus, are invalid.

Both DHP Rules 272-2-.01(19)(h) 3 and 272-2-.09(1)(b) 10 were released for public comment, hearing, and legislative objection under OCGA §§ 31-6-21.1 and 50-13-4, and no comment or legislative objection was made to either regulation as then proposed.

The Georgia Alliance of Community Hospitals, Inc. was allowed to intervene, because, if a general surgery practice was permitted exemption from a CON, then surgeons would set up many ambulatory surgical centers that would duplicate hospital surgical suites, taking away centers of profit by paying patients and leaving indigent surgical patients to the hospitals. See OCGA § 31-6-1.

1. Albany Surgical contends that the trial court erred in granting DHP's motion for summary judgment and denying its motion, because DHP Rule 272-2-.09(1)(b)10 is not authorized under the plain language of OCGA § 31-6-2(14)(G)(iii). We do not agree.

The test for the validity of administrative regulations is based upon a two-part analysis: (1) is the regulation authorized by statute; and (2) is the regulation reasonable? Ga. Real Estate Comm. v. Accelerated Courses in Real Estate, 234 Ga. 30, 32(2), 214 S.E.2d 495 (1975); TEC America v. DeKalb County Bd. of Tax Assessors, 170 Ga.App. 533, 536(1), 317 S.E.2d 637 (1984).

(a) The authority of DHP to promulgate regulations in implementing CON was delegated under OCGA § 31-6-21(b)(4), which grants such power, and both DHP Rules 272-2-.01(19)(h) 3 and 272-2-.09(1)(b) 10 were properly promulgated. Such broad delegation of rule-making authority is sufficient to permit the promulgation of regulations defining what is or is not a single specialty within the CON process under OCGA § 31-6-2(14)(G)(iii).

All duly enacted regulations carry a presumption of validity. Quattlebaum v. Ga. Power Co., 165 Ga.App. 510(1), 301 S.E.2d 677 (1983). Courts should defer to the agency in matters involving the interpretation of the statutes which it is empowered to enforce. Blue Cross &c. of Ga. v. Deal, 244 Ga.App. 700, 703-704(1), 536 S.E.2d 590 (2000); Commr. of Ins. v. Stryker, 218 Ga. App. 716, 717(1), 463 S.E.2d 163 (1995); Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga.App. 407, 408(2), 438 S.E.2d 912 (1993). The courts give great deference to executive agencies' policy decisions, because executive agencies provide a "high level of expertise and an opportunity for specialization unavailable in the judicial or legislative branches" that enables such agencies to "make rules and enforce them in fashioning solutions to very complex problems." Bentley v. Chastain, 242 Ga. 348, 350-351(1), 249 S.E.2d 38 (1978). Such is the practical application of the separation of powers doctrine between the executive and judicial branches inherent in the Georgia Constitution. Id. at 352, 249 S.E.2d 38. Such judicial deference ends only when the executive branch agency's action is contrary to the plain language of the statute empowering such agency to act by the General Assembly. Sawnee Elec. Membership Corp. v. Ga. Public Svc. Comm., 273 Ga. 702, 705-706, 544 S.E.2d 158 (2001). "Therefore, the only review authorized is that inherent in the power of the judiciary: Whether the agency acted beyond [its discretion], or acted arbitrarily or capriciously with regard to an individual's constitutional rights." Bentley v. Chastain, supra at 352, 249 S.E.2d 38.

DHP has been limited by the General Assembly in exempting any provider from CON review except where the legislature has clearly and expressly provided exceptions, and the courts have consistently held that DHP lacks authority to expand or create new exceptions. See North Fulton Med. Center v. Stephenson, 269 Ga. 540, 543-544, 501 S.E.2d 798 (1998); Phoebe Putney Mem. Hosp. v. Roach, 267 Ga. 619, 620-621(1), 480 S.E.2d 595 (1997); North Fulton Med. Center v. Roach, 263 Ga. 814(1), 440 S.E.2d 18 (1994); HCA Health Svcs. v. Roach, 263 Ga. 798, 800-801(3), 439 S.E.2d 494 (1994). "All doubts should be resolved in favor of the general statutory rule, rather than in favor of the exemption." Sawnee Elec. Membership Corp. v. Ga. Public Svs. Comm., supra at 704, 544 S.E.2d 158.

When the General Assembly passed OCGA § 31-6-2(14)(G)(iii), it was presumed that it was "enacted by the legislature with full knowledge of the existing condition of the law with reference to it." (Punctuation omitted.) Allison v. Domain, 158 Ga.App. 542, 544, 281 S.E.2d 299 (1981). Thus, when the "single specialty exemption" was enacted in 1991 in Ga. L.1991, p. 1871, DHP had in existence a regulation which excluded "general surgery" from the definition of "limited purpose ambulatory surgery program," which was the equivalent of "single specialty." See former DHP Rules 272-2-.09(1)(a)(7) and (b)(8)(111). Therefore, the legislature did not intend to include "general surgery" as a "single specialty" or "limited purpose" within the meaning of the "single specialty exemption." See generally Mason v. Svc. Loan &c. Co., 128 Ga.App. 828, 832(3), 198 S.E.2d 391 (1973).

Further, when promulgating its regulations, DHP must send all proposed regulations to legislative counsel, who, in turn, sends the proposed regulations to the legislative committees and members with oversight. OCGA § 31-6-21.1(b). If there is no objection to the proposed regulation from any legislator within 30 days of the distribution, then DHP can adopt the proposed regulation. In 1998, when the multi-specialty rule was submitted to the General Assembly, no objection by any legislator was made to either DHP Rule 272-2-.01(19)(h)3 or 272-2-.09(1)(b)10, which are read together. Such acquiescence by the General Assembly is evidence that such regulation came within the intent of the legislature in enacting OCGA § 31-6-2(14)(G)(iii). See OCGA § 31-6-21.1(b); United States v. Rutherford, ...