Ga. Soc'y of Ambulatory Surgery Centers v. Ga. Dep't of Cmty. Health

• Decision Date: 12 September 2011
• Docket Number: No. A10A2167.,A10A2167.
• Parties: GEORGIA SOCIETY OF AMBULATORY SURGERY CENTERSv.GEORGIA DEPARTMENT OF COMMUNITY HEALTH et al.
• Court: Georgia Court of Appeals

309 Ga.App. 31

710 S.E.2d 183

11 FCDR 1096

GEORGIA SOCIETY OF AMBULATORY SURGERY CENTERS

v.GEORGIA DEPARTMENT OF COMMUNITY HEALTH et al.

No. A10A2167.

Court of Appeals of Georgia.

March 30, 2011.Certiorari Granted Sept. 12, 2011.

McGuire Woods, Victor L. Moldovan, Kevin Christopher Watters, Atlanta, for appellant.Thurbert E. Baker, Atty. Gen., Sidney R. Barrett, Jr., Senior Asst. Atty. Gen., Alex Fredrick Sponseller, Asst. Atty. Gen., for appellees.BARNES, Presiding Judge.

This case arises out of a complaint for a declaratory judgment and injunctive relief filed by the Georgia Society of Ambulatory Surgical Centers (“GSASC”) against the Georgia Department of Community Health and its Commissioner (collectively, “DCH”). GSASC contended that a 2009 annual survey issued by DCH to ambulatory surgery centers sought information beyond the scope of OCGA § 31–6–70, and requested an interlocutory injunction to prevent its members from having to provide the information during the pendency of the litigation. The trial court denied GSASC's request for an interlocutory injunction on the ground that the information requested in the survey was authorized under Georgia law.¹ GSASC now appeals the trial court's denial of its request for interlocutory injunctive relief. Because the survey sought information beyond what was permitted under OCGA § 31–6–70, we reverse.

GSASC and Its Members. The relevant facts are undisputed. GSASC is an organization whose members own and operate licensed ambulatory surgery centers throughout Georgia. An ambulatory surgery center (“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 hospitalization.” OCGA § 31–6–2(1). GSASC's members are primarily physician-owned ASCs that offer outpatient surgery in a single medical specialty, such as orthopedics, ophthalmology, or urology.

The Certificate of Need Program. DCH is the “lead planning agency for all health issues” in Georgia. OCGA § 31–2–1(1). The heart of DCH's health planning duties is contained in the “certificate of need” (“CON”) program codified at OCGA § 31–6–40 et seq. The CON program was adopted “to create a system for planning new health service institutions to avoid costly duplication of services where insufficient need existed.” Albany Surgical v. Dept. of Community Health, 257 Ga.App. 636, 572 S.E.2d 638 (2002). Under the program, those wishing to provide institutional health services must obtain a CON from DCH. OCGA § 31–6–40(a). A CON is “an official determination by [DCH], evidenced by certification issued pursuant to an application, that the action proposed in the application satisfies and complies with the criteria [of the CON program] and rules promulgated pursuant [thereto].” OCGA § 31–6–2(6).

Certain healthcare providers are exempt from the CON program. OCGA § 31–6–47(a). These exemptions include single-specialty ASCs. OCGA § 31–6–47(a)(18). ASCs must document their exemption from the CON program by obtaining a “letter of non-reviewability” (“LNR”) from DCH. OCGA § 31–6–47.1; Ga. Comp. R. & Regs. r. 111–2–2–.10. A majority of GSASC's members operate pursuant to LNRs rather than CONs.

The Annual Reporting Requirement. One of DCH's duties in administering the CON program is to collect data for health planning purposes through annual reports submitted by healthcare providers. See OCGA §§ 31–6–21(b)(5); 31–6–70(a). To effectuate this duty, DCH each year prepares an annual survey that must be filled out by healthcare providers for the prior year. See OCGA § 31–6–70(a); Ga. Comp. R. & Regs. r. 111–2–2–.04.

Based upon 2008 amendments to the CON program, ASCs operating under LNRs are now required to provide the same information to DCH annually as healthcare facilities operating under CONs. See OCGA § 31–6–40(c)(2)(B); Ga. L. 2008, p. 12, § 1–1. Specifically, under OCGA § 31–6–70 as amended, ASCs operating under LNRs must now respond to the annual survey issued by DCH requesting information about their operations. See OCGA § 31–6–70(a). If an ASC fails to submit a survey that is both complete and timely, DCH can impose a fine of up to $500 a day for the first 30 days of noncompliance and $1,000 a day thereafter. OCGA § 31–6–70(e)(1); Ga. Comp. R. & Regs. r. 111–2–2–.04(1)(c). For repeated failures to provide the information requested in a survey, an ASC also is subject to possible revocation of its exemption from the CON program. OCGA § 31–6–47(a)(18).

The 2009 Annual Survey. In early 2010, DCH issued its 2009 annual survey for single-specialty, physician-owned ASCs. Among other things, the survey requested that all ASCs reveal the following information: (1) the number of rooms, procedures, and patients surgically treated by the ASC; (2) the number of patients that were admitted to a hospital before the completion of or immediately following surgery; (3) the race and ethnicity of all patients; (4) the gender of all patients; (5) the top ten procedures performed by the ASC, broken down by CPT code, procedure name, number of procedures, and average charge; (6) the number of patients and procedures by payer source (such as Medicare, Medicaid, self-pay, etc.); (7) total expenses; and (8) the origin of all patients by county (collectively, “the Disputed Requests”). The instructions for the survey stated: “Providing false or inaccurate information may result in adverse regulatory action pursuant to DCH Rules 111–2–2–.04(1)(b), 111–2–2–.05(1)(a)(1), and 111–2–2–.05(1)(a)(7), other regulations and statutes, and may constitute a crime under OCGA §§ 16–10–20 and 16–14–1.” ² Responses to the survey were due by March 12, 2010.

The Instant Lawsuit. On March 4, 2010, GSASC filed the instant lawsuit seeking a declaration that the Disputed Requests went beyond the scope of what DCH could seek in an annual survey under OCGA § 31–6–70.³ GSASC also sought interlocutory and permanent injunctive relief preventing DCH from requiring its members to respond to the Disputed Requests. On March 9, 2010, GSASC filed its request for an interlocutory injunction, and two days later the trial court conducted a hearing on the matter. Following the hearing, the trial court denied GSASC's request for an interlocutory injunction based upon its conclusion that DCH was “authorized to request the information at issue under applicable law.” This appeal followed.

1. “Generally, the trial court has broad discretion to decide whether to grant or deny an interlocutory injunction. OCGA § 9–5–8.” Madonna v. Satilla Health Svcs., 290 Ga.App. 148, 150, 658 S.E.2d 858 (2008). But a trial court abuses its discretion in granting or denying injunctive relief if its ruling is based on an erroneous interpretation of the law. Id. We conclude that the trial court abused its discretion in the present case because its decision to deny interlocutory injunctive relief to GSASC was based on the erroneous legal conclusion that the Disputed Requests were statutorily authorized.

“The test of the validity of an administrative rule is twofold: whether it is authorized by statute and whether it is reasonable.” (Citation and punctuation omitted.) Dept. of Human Resources v. Anderson, 218 Ga.App. 528, 529, 462 S.E.2d 439 (1995). In applying this test, we have explained that “the interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.” (Citation and punctuation omitted.) Dept. of Community Health v. Gwinnett Hosp. System, 262 Ga.App. 879, 882, 586 S.E.2d 762 (2003). “However, an administrative rule which exceeds the scope of or is inconsistent with the authority of the statute upon which it is predicated is invalid.” Anderson, 218 Ga.App. at 529, 462 S.E.2d 439. See also North Fulton Medical Center v. Stephenson, 269 Ga. 540, 543(1), 501 S.E.2d 798 (1998); Albany Surgical, 257 Ga.App. at 638(1)(a), 572 S.E.2d 638. Mindful of these principles, we turn to the statute at issue here.

As previously noted, DCH's authority to request information from ASCs in an annual survey is found in OCGA § 31–6–70. That statute provides in relevant part:

(a) There shall be required from each health care facility in this state requiring a certificate of need and all ambulatory surgical centers and imaging centers, whether or not exempt from obtaining a certificate of need under this chapter, an annual report of certain health care information to be submitted to the department....

(b) The report required under subsection (a) of this Code section shall contain the following information:

(1) Total gross revenues;

(2) Bad debts;

(3) Amounts of free care extended, excluding bad debts;

(4) Contractual adjustments;

(5) Amounts of care provided under a Hill–Burton commitment;

(6) Amounts of charity care provided to indigent persons;

(7) Amounts of outside sources of funding from governmental entities, philanthropic groups, or any other source, including the proportion of any such funding dedicated to the care of indigent persons; and

(8) For cases involving indigent persons:

(A) The number of persons treated;

(B) The number of inpatients and outpatients;

(C) Total patient days;

(D) The number of patients categorized by county of residence; and

(E) The indigent care costs incurred by the health care facility by county of residence.

(c) As used in subsection (b) of this Code section, “indigent persons” means persons having as a maximum allowable income level an amount corresponding to 125 percent of the federal poverty guideline.

(d) The department shall provide a form for the report required by subsection (a) of this Code section and may provide in said form for further categorical divisions of the information listed in subsection (b) of this Code section.

OCGA § 31–6–70(a)-(d).

GSASC contends that the Disputed Requests exceeded the scope of...