COBB HOSPITAL, INC. D/B/A WELLSTAR COBB HOSPITAL v. GEORGIA DEPARTMENT OF COMMUNITY HEALTH ( 2019 )

THIRD DIVISION
GOBEIL, J.,
COOMER and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 13, 2019
In the Court of Appeals of Georgia
A18A2009. COBB HOSPITAL, INC. d/b/a WELLSTAR COBB
HOSPITAL et al. v. GEORGIA DEPARTMENT OF
COMMUNITY HEALTH et al.
HODGES, Judge.
In March 2016, Emory University d/b/a Emory University Hospital Smyrna
(“EUHS”) filed an application with the Georgia Department of Community Health
(“DCH”) for a new certificate of need (“CON”) to undertake improvements and
renovations totaling approximately $33.8 million at the former Emory-Adventist
Hospital. Cobb Hospital, Inc. d/b/a Wellstar Cobb Hospital and Kennestone Hospital,
Inc., d/b/a Wellstar Kennestone Hospital (collectively, “Wellstar”) objected to EUHS’
application, arguing that the application “seeks to develop a new hospital” rather than
reopening and renovating the former Emory-Adventist Hospital. The DCH granted
EUHS’ application and awarded it a new CON for the proposed improvements and
renovations. Wellstar appealed to the Certificate of Need Appeal Panel (OCGA § 31-
6-44) (“CON Appeal Panel”), and a panel hearing officer affirmed the DCH’s
decision. Wellstar objected to the panel hearing officer’s judgment and appealed to
the DCH commissioner, arguing, in part, that the panel hearing officer erroneously
concluded that “[i]t is not the function of the CON Appeal Panel to consider questions
of CON and licensure status. . . .” The DCH commissioner affirmed the panel hearing
officer’s decision, and the Superior Court of Cobb County denied Wellstar’s petition
for judicial review.
In this appeal, we are asked to decide whether the CON Appeal Panel, in an
appeal from a decision by the DCH on a health care facility’s application for a new
certificate of need, has the authority to independently review the status of the
facility’s existing certificate of need.1 We conclude that the plain language of OCGA
§ 31-6-44 and Ga. Comp. R. & Regs. r. 274-1-.09 precludes the CON Appeal Panel
from reviewing the DCH’s initial determination regarding a health care facility’s
existing CON status; rather, any such challenges to the DCH’s initial determination
1
The CON Appeal Panel “consists of a panel of independent hearing officers
[that] is an agency separate from DCH and serves to review DCH’s initial decision
to grant or deny a CON application. OCGA § 31-6-44 (a).” Kennestone Hosp. v.
Dept. of Community Health, 346 Ga. App. 70, 72, n. 5 (815 SE2d 266) (2018).
2
must be brought through a different process. Because there is no dispute that
substantial evidence supported the panel hearing officer’s findings of fact and that the
officer’s conclusions of law that EUHS was entitled to a new CON based on those
facts were sound, we affirm the superior court’s judgment denying Wellstar’s petition
for judicial review.
The record reveals that Smyrna Hospital, Inc., an 88-bed community hospital,
opened on South Cobb Drive in Smyrna in 1974. Adventist Health System acquired
the hospital in 1976. In 1995, Emory Healthcare entered a joint venture agreement
with Adventist Health System and obtained a 35% share ownership in the hospital;
thereafter, the hospital was renamed Emory-Adventist Hospital. Due to declining
revenues, Emory-Adventist ceased operations on October 31, 2014. In April 2015,
Emory University acquired sole ownership of the hospital, which was renamed Emory
University Hospital Smyrna and reopened on October 20, 2015.2
Since it first opened as Smyrna Hospital in 1974, the hospital had never had a
major improvement, renovation, or upgrade. As a result, EUHS applied for a
certificate of need in March 2016 in order to proceed with improvements and
2
Emory Healthcare purchased the remaining interest in the hospital from
Emory-Adventist, Inc. On the same date, Emory Healthcare quitclaimed its interest
to Emory University.
3
renovations totaling approximately $33.8 million.3 Wellstar objected to EUHS’
application, arguing that the application “seeks to develop a new hospital” rather than
reopening and renovating the former Emory-Adventist Hospital. Although it listed
eight reasons for its objection to EUHS’ application, Wellstar’s primary argument
was that “[t]he CON authority of the former Emory-Adventist Hospital has lapsed.”
As a result, Wellstar asserted that EUHS never obtained CON authority to offer
hospital services and that EUHS’ application “must be reviewed as a new hospital
requiring new CON approval.”4
In its evaluation of EUHS’ application, the DCH noted that EUHS filed its
application “to renovate and upgrade its current hospital facility.” In addition, the
DCH determined that
3
The proposed improvements include adding two operating rooms, increasing
the size of the existing operating rooms, reconfiguring and renovating the first floor
to permit “efficient and safe patient flow throughout the facility,” renovating the
second and third floors, improving the IT infrastructure, and other renovations to
bring the hospital up to current and accepted standards.
4
Specifcially, Wellstar argued that: (1) Emory Healthcare’s failure to seek
approval of its purchase of Emory-Adventist under the Hospital Acquisition Act
(OCGA § 31-7-400 et seq.) rendered the transaction null and void and invalidated the
existing CON; (2) the lack of a valid license to operate a hospital meant Emory-
Adventist’s CON could not be transferred to EUHS; and (3) even if Emory-
Adventist’s CON transferred to EUHS, EUHS’ failure to offer inpatient services
within 12 months of Emory-Adventist’s closure caused the CON to lapse.
4
EUHS, formerly known as Emory Adventist Hospital (EAH), closed on
October 31, 2014 and re-opened October 20, 2015, according to
Department records. In April 2015, Emory University acquired full title
to EAH, and renamed it EUHS. As such, EUHS maintains an active
CON status.[5]
Following its review, the DCH granted EUHS’ application and issued EUHS a CON
for the proposed improvements and renovations.
Wellstar appealed the DCH’s award to the CON Appeal Panel. In a motion for
summary adjudication, Wellstar argued, in part, that the DCH erred in awarding a
CON to EUHS “to ‘renovate and upgrade’ the former Emory-Adventist Hospital . .
. facility despite the fact that [EUHS] has no CON authorization to operate a hospital
there.” As a result, Wellstar asserted that EUHS “must obtain new CON authority to
operate a hospital[,]” which applies more extensive and rigorous guidelines.6 EUHS
replied that the DCH has the sole authority to determine whether an applicant
maintained a proper CON and, as a result, EUHS filed its own motion for summary
5
Further supporting the panel hearing officer’s conclusion was an email from
the DCH commissioner confirming that the buyer of a closed hospital “steps into [the]
shoes of [the] seller’s authorizations. . . .”
6
Wellstar presented the same substantive arguments to the CON Appeal Panel
that it raised in its objection to the DCH’s initial decision. See n. 4, supra.
5
determination seeking to exclude any evidence concerning the validity of EUHS’
CON.
The panel hearing officer first noted that Wellstar raised “[its] arguments in the
wrong forum.” In fact, the panel hearing officer found that “[i]t is not the function of
the CON Appeal Panel to consider questions of CON and licensure status. . . .” The
panel hearing officer observed that the Attorney General’s Office had the sole
authority to oversee Emory Healthcare’s purchase of Emory-Adventist under the
Hospital Acquisition Act (OCGA § 31-7-400 et seq.) and that the DCH had the sole
authority to ascertain the validity of EUHS’ CON to operate a health care facility.7
See OCGA § 31-6-21. As a result, the panel hearing officer granted EUHS’ motion
to exclude “Wellstar’s arguments respecting CON status, Attorney General Review,
and licensure status from the scope of the hearing in that the Hearing Officer does not
have the authority to decide these questions.”
Following an evidentiary hearing, the panel hearing officer affirmed the DCH’s
decision granting EUHS’ application and issuing the CON.8 Wellstar objected to the
7
After its review, the Attorney General’s Office determined that the transaction
was not subject to the Hospital Acquisition Act.
8
Relevant to this appeal, the panel hearing officer found that, despite
Wellstar’s argument that the DCH “should have applied the service-specific short-
6
panel hearing officer’s decision and appealed the decision to the DCH commissioner,
who affirmed the panel hearing officer’s judgment.9
Wellstar then petitioned for judicial review of the commissioner’s decision in
the Superior Court of Cobb County. The superior court denied judicial review of the
Commissioner’s decision,10 and we granted Wellstar’s application for discretionary
appeal. This appeal followed.
1. First, Wellstar contends that the CON Appeal Panel hearing officer
erroneously concluded that he “lacked authority to independently decide if [EUHS]
is a CON-authorized hospital.” For the following reasons, we find no error.
stay acute-care hospital rules” to EUHS’ CON application, “EUHS has a valid
hospital permit, has CON authorization from the [DCH], and is not seeking to add
beds to the hospital.” (Footnote omitted.) As a result, the panel hearing officer
determined that “the applicable review considerations for [EUHS’ CON application],
which includes an existing facility applying for a renovation CON, are the General
Review Considerations. . . .” See OCGA § 31-6-42 (a); Ga. Comp. R & Regs. r. 111-
2-2-.09 (1).
9
The decision by the DCH commissioner “shall be the final department
decision for purposes of Chapter 13 of Title 50, the ‘Georgia Administrative
Procedure Act.’” OCGA § 31-6-44 (m).
10
Of note, the superior court found that “under the controlling statutes, the
jurisdiction to determine whether EUHS has validly maintained the former Emory
Adventist Hospital’s CON authority is squarely vested in the [DCH]. The [DCH] has
said that EUHS maintains an active CON status. . . . The CON Appeal Panel does not
have the authority to reverse the [DCH] on this issue.”
7
(a) Certificate of Need Requirement.
Under Georgia law, “any new institutional health service [is] required to obtain
a certificate of need. . . .” OCGA § 31-6-40 (a). “The CON program, which is
administered by [the] DCH, establishes a system of mandatory review requiring that,
before new institutional health services and facilities can be developed, the developer
must apply for and receive a CON from the DCH. OCGA §§ 31-6-1; 31-6-40 (a),
(b).” (Citation and punctuation omitted.) Kennestone Hosp. v. Dept. of Community
Health, 346 Ga. App. 70 (815 SE2d 266) (2018).
The legislature cedes this authority to the [DCH] because the public is
better served by having experts in the complexities of health care
planning make these decisions. The issues are complicated, and the
applicable laws, rules, regulations, and precedents require much study,
especially for a decision-maker who is not already familiar with them.
Dept. of Community Health v. Gwinnett County Hosp. Sys., 262 Ga. App. 879, 881-
882 (586 SE2d 762) (2003). Pursuant to OCGA § 31-6-42 (a), the DCH “shall issue
a certificate of need to each applicant whose application is consistent with [the
considerations set forth in OCGA § 31-6-42] and such rules deemed applicable to a
project.” To that end, “[t]he DCH reviews CON applications and issues decisions
granting or denying a CON under statutory considerations in OCGA § 31-6-42 and
8
under general and specific review considerations in rules and regulations promulgated
by the DCH as set forth in Ga. Comp. R. & Regs. [r.] 111-2-1-.01 and 111-2-2-.01
through 111-2-2-.43.” ASMC, LLC v. Northside Hosp., Inc., 344 Ga. App. 576, 577
(810 SE2d 663) (2018).
Pertinent to this case, a certificate of need is required for: “(1) [t]he
construction, development, or other establishment of a new health care facility; [and]
(2) [a]ny expenditure by or on behalf of a health care facility in excess of $2.5 million
which, under generally accepted accounting principles consistently applied, is a
capital expenditure. . . .” OCGA §§ 31-6-40 (a) (1), (2). A CON application for a
capital expenditure is reviewed only under the DCH’s general review considerations,
see OCGA § 31-6-42 (a) and Ga. Comp. R. & Regs. r. 111-2-2-.09 (1),11 while an
application for construction or development of a “new health care facility” is
reviewed under both general and service-specific requirements and review
considerations. See Ga. Comp. R. & Regs. r. 111-2-2-.11 (1) (a) (1), 111-2-2-.20 (1)
(a), (3). Accord Dept. of Community Health v. Northside Hosp., Inc., 295 Ga. 446,
11
OCGA § 31-6-42 (a) contains a listing of 17 factors which the DCH must
consider when reviewing a CON application. The considerations listed in Ga. Comp.
R. & Regs. r. 111-2-2-.09 (1) (a) - (q) offer more detail than the considerations
codified at OCGA § 31-6-42 (a), but are otherwise identical.
9
446-447, n. 4 (761 SE2d 74) (2014) (“more stringent service-specific review
considerations” apply to applications for new CON for “ambulatory surgery
services”; if the additional services are “part of a hospital” and do not increase the
number of ambulatory operating rooms, however, only general considerations need
be reviewed) (citing Ga. Comp. R. & Regs. r. 111-2-2-.40 (1) (a) and (d)).
(b) Scope of Review of the DCH’s Certificate of Need Decision.
Following the DCH’s initial decision granting or denying an application for a
new CON,
[a]ny applicant for a project [or] any competing health care facility that
has notified the [DCH] prior to its decision that such facility is opposed
to the application before the [DCH] . . . who is aggrieved by a decision
of the [DCH] shall have the right to an initial administrative appeal
hearing before an appeal panel hearing officer or to intervene in such
hearing. . . .
OCGA § 31-6-44 (d). The CON Appeal Panel hearing officer’s role is defined in
OCGA § 31-6-44 (f), which provides, in relevant part:
The issue for the decision by the hearing officer shall be whether, and
the hearing officer shall order the issuance of a certificate of need if, in
the hearing officer’s judgment, the application is consistent with the
considerations as set forth in Code Section 31-6-42 and the [DCH]’s
10
rules, as the hearing officer deems such considerations and rules
applicable to the review of the project.[12]
See also Dept. of Community Health v. Satilla Health Servs., Inc., 266 Ga. App. 880,
884 (1) (c) (598 SE2d 514) (2004). OCGA § 31-6-44 (f) (1) further provides that the
panel hearing officer may consider “whether the [DCH] committed prejudicial
procedural error in its consideration of the application. . . .”13
Moreover, the DCH also mandated that certain issues “shall not be considered
at an initial administrative appeal hearing and are immaterial to the hearing[,]”
including “the correctness . . . of the considerations, rules, or standards by which the
proposed project was reviewed by the [DCH]” and “the determination of whether a
proposed project is subject to review under OCGA § 31-6-1 et seq. and the [DCH]’s
Rules.” (Emphasis supplied.) Ga. Comp. R. & Regs. r. 274-1-.09 (2) (a), (b). “The
appointed hearing officer conducts a full evidentiary hearing, OCGA § 31-6-44 (e),
and the appeal hearing conducted by the appeal panel hearing officer shall be a de
novo review of the decision of the [DCH]. OCGA § 31-6-44 (f).” (Punctuation
12
Ga. Comp. R. & Regs. r. 274-1-.09 (1) (a) contains an identical provision.
13
See also Ga. Comp. R. & Regs. r. 274-1-.09 (1) (b) (same).
11
omitted.) Kennestone Hosp., supra, 346 Ga. App. at 72, n. 5.; see also Ga. Comp. R.
& Regs. r. 274-1-.09 (3).
Thereafter, an aggrieved party may petition the DCH commissioner for review
of the panel hearing officer’s decision. See OCGA § 31-6-44 (i), (k). Finally, a party
may seek judicial review of the DCH commissioner’s decision in superior court.14 See
OCGA §§ 31-6-44.1, 50-13-19 (a), (b).
(c) Review of EUHS’ Application for a Certificate of Need.
Here, the DCH found that EUHS applied for a CON “to renovate and upgrade
its current hospital facility.” As a result, the DCH reviewed EUHS’ application
“according to the relevant Certificate of Need rules outlined in the General Review
Considerations.” See OCGA § 31-6-40 (a) (2); Ga. Comp. R. & Regs. r. 111-2-2-.09.
(i) Generally, our standard of review requires that we determine “whether
‘substantial evidence’ supports the [DCH]’s findings of fact, and whether the
14
A superior court “may reverse or modify the final decision only if substantial
rights of the appellant have been prejudiced because the procedures followed by the
[DCH], the hearing officer, or the commissioner or the administrative findings,
inferences, and conclusions contained in the final decision are: (1) [i]n violation of
constitutional or statutory provisions; (2) [i]n excess of the statutory authority of the
[DCH]; (3) [m]ade upon unlawful procedures; (4) [a]ffected by other error of law; (5)
[n]ot supported by substantial evidence . . .; or (6) [a]rbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of discretion.”
OCGA § 31-6-44.1 (a).
12
conclusions of law drawn from those findings of fact are sound.” (Citation omitted.)
Palmyra Park Hosp. v. Phoebe Sumter Med. Center, 310 Ga. App. 487, 488 (714
SE2d 71) (2011). In this case, the parties do not dispute that, to the extent EUHS’
application is reviewed as an application for a new CON for a capital expenditure, the
DCH’s decision is supported by the panel hearing officer’s findings of fact and that
its conclusions of law were sound. Because there is no argument that the DCH’s
decision to issue EUHS a new CON for a capital expenditure was not supported by
the evidence or was legally unsound, we affirm the superior court’s denial of
Wellstar’s petition for judicial review.
(ii) Nevertheless, in what it describes as an “outcome determinative”
issue of its appeal from the DCH commissioner’s order affirming the panel hearing
officer’s determination of the scope of review, Wellstar contends that the DCH’s
initial determination of EUHS’ existing CON status was erroneous and should have
been reviewed by the panel hearing officer. However, Wellstar’s argument is not
proper within the limited framework of the CON Appeal Panel. Accordingly, this
provides no basis for reversal and Wellstar must avail itself of other remedies.
To resolve this issue, we turn first to the governing statutes and agency rules
and regulations. When examining statutory provisions,
13
we apply the fundamental rules of statutory construction that require us
to construe the statute according to its terms, to give words their plain
and ordinary meaning, and to avoid a construction that makes some
language mere surplusage. Thus, a statute should be read according to
its natural and most obvious import of the language without resorting to
subtle and forced constructions for the purpose of either limiting or
extending its operation.
(Citations and punctuation omitted.) Lakeview Behavioral Health Sys. v. UHS
Peachford, LP, 321 Ga. App. 820, 822 (1) (743 SE2d 492) (2013). Similarly, “[i]n
construing agency regulations, we employ the basic rules of statutory construction
and look to the plain meaning of the regulation to determine its meaning.” (Citation
omitted.) Walker v. Dept. of Transp., 279 Ga. App. 287, 292 (2) (a) (630 SE2d 878)
(2006). Accordingly,
[w]hen an administrative agency decision is the subject of judicial
review, judicial deference is to be afforded the agency’s interpretation
of rules and regulations it has enacted to fulfill the function given it by
the legislative branch. And in construing administrative rules, the
ultimate criterion is the administrative interpretation, which becomes of
controlling weight unless it is plainly erroneous or inconsistent with the
rule.
(Citation and punctuation omitted.) ASMC, supra, 344 Ga. App. at 582.
14
In short, we “must defer to the [DCH]’s decisions regarding policy, as well as
to the [DCH]’s interpretation and enforcement of its own rules.”15 Satilla Health
Servs., supra, 266 Ga. App. at 887 (1) (c); see also Walker, supra, 279 Ga. App. at 292
(2) (a). This is so because
[a]gencies provide a high level of expertise and an opportunity for
specialization unavailable in the judicial or legislative branches. They
are able to use these skills, along with the policy mandate and discretion
entrusted to them by the legislature, to make rules and enforce them in
fashioning solutions to very complex problems. Thus, their decisions are
not to be taken lightly or minimized by the judiciary. Review overbroad
in scope would have the effect of substituting the judgment of a judge
or jury for that of the agency, thereby nullifying the benefits of
legislative delegation to a specialized body.
Bentley v. Chastain, 242 Ga. 348, 350-351 (1) (249 SE2d 38) (1978). In the context
of the DCH,
15
Nothing in this opinion should be read to suggest that our history of agency
deference is wholly without boundaries. To the contrary, agency deference is
naturally limited to the authority granted the agency by the General Assembly and
must be applied in a manner consistent with the Georgia constitution. Here, for the
reasons explained infra, we simply hold that the DCH decision on an application for
a new CON is entitled to deference because it falls within the DCH’s exclusive
authority.
15
[t]he administration of the CON program requires a particularly high
level of expertise and specialization. The DCH rules promulgated to
administer the program are detailed and lengthy. See, e.g., Ga. Comp. R.
& Regs. r. 111-2-2-.07, which describes the review procedures for CON
applications. Both the hospital seeking a CON and the hospitals
opposing it gather and organize vast amounts of data, expert testimony,
and other evidence which are presented to the agency staff, which then
interprets and synthesizes the evidence and applies it to the agency rules.
See OCGA § 31-6-43. The initial staff decision must be issued within
a relatively short period of time, at most 150 days after the CON
application is complete. OCGA § 31-6-43 (d), (i).
Further administrative review is also highly specialized. The hearing
officer who reviews the initial DCH staff decision is one of five
members of the CON Panel, all of whom are appointed by the Governor
and are attorneys “who are familiar with the health care industry but
who do not have a financial interest in or represent or have any
compensation arrangement with any health care facility.” OCGA §
31-6-44 (a), (b).
Palmyra Park Hosp., Inc., supra, 310 Ga. App. at 491-492 (1). Ultimately, “our duty
is not to review whether the record supports the superior court’s decision but whether
the record supports the final decision of the administrative agency.” (Citation and
punctuation omitted.) Satilla Health Servs., supra, 266 Ga. App. at 885 (1) (c).
16
Wellstar’s argument that the panel hearing officer should “independently
decide” whether EUHS maintained an active CON status to operate a health care
facility is flawed for two reasons. First, the plain language of OCGA § 31-6-44
precludes the panel hearing officer from considering a challenge to a CON applicant’s
existing CON status. Second, the exclusive authority to determine whether a health
care facility maintains an active CON has been legislatively relegated to other
divisions of the DCH.
(A) Plain Language of OCGA § 31-6-44.
On appeal from the DCH’s decision on a CON application, the scope of the
panel hearing officer’s review is limited to “whether, . . . in the hearing officer’s
judgment, the application is consistent with the considerations as set forth in Code
Section 31-6-42 and the [DCH]’s rules, as the hearing officer deems such
considerations and rules applicable to the review of the project.” OCGA § 31-6-44
(f); see also Ga. Com. R. & Regs. r. 274-1-.09 (same). Accordingly, the plain
language of the statute mandates that the panel hearing officer may only review
whether a CON application is consistent with: (1) the 17 general considerations set
forth in OCGA § 31-6-42 (a); (2) the 17 general considerations set forth in Ga. Comp.
R & Regs. r. 111-2-2-.09 (1) (a) - (q); and (3) any additional service-specific
17
considerations, promulgated by the DCH and listed in Ga. Comp. R. & Regs. r. 111-
2-2-.11 (1), that may apply to the CON application under review.16 In addition, Ga.
Comp. R. & Regs. r. 274-1-.09 (2) (b) directs that the panel hearing officer is
specifically precluded from considering “the determination of whether a proposed
project is subject to review under OCGA § 31-6-1 et seq. and the [DCH]’s Rules.”
In that regard, none of the considerations under either OCGA § 31-6-42 or Ga.
Comp. R. & Regs. r. 111-2-2 address a health care facility’s existing CON status.
Rather, the panel hearing officer simply reviews whether the CON application at
issue, which has been reviewed and either granted or denied by the DCH, is
consistent with these enumerated considerations. See OCGA § 31-6-44 (f). The
General Assembly, in enacting OCGA § 31-6-44, did not endow the panel hearing
officer with any other authority. Accordingly, under the plain language of both
OCGA § 31-6-42 and Ga. Comp. R. & Reg. 274-1-.09 (1) (a) and (b), a CON Appeal
Panel hearing officer does not have the authority to examine the DCH’s initial
16
Here, the words “consideration” and “rule” are terms of art which specifically
refer to the provisions of OCGA § 31-6-42 and Ga. Comp. R. & Regs. r. 111-2-2-.09
and 111-2-2-.11, respectively. See generally AgSouth Farm Credit, ACA v. Gowen
Timber Co., 336 Ga. App. 581, 589 (2) (b) (i) (784 SE2d 913) (2016) (“if a statute is
plain and unambiguous, its words (except for terms of art or those with a particular
meaning in connection with a specific trade or subject matter) must be assigned their
common and ordinary meaning”) (citation omitted).
18
determination of a health care facility’s existing CON status. See, e.g., Lakeview,
supra, 321 Ga. App. at 822 (1); Walker, supra, 279 Ga. App. at 292 (2) (a).
Wellstar relies principally on Floyd County Bd. of Commrs v. Floyd County
Merit Sys. Bd. for the proposition that “incidental powers reasonably necessary to
carry out . . . express powers are included by implication.” 246 Ga. 44, 45 (1) (268
SE2d 651) (1980). In Floyd County, our Supreme Court noted that an act creating the
Merit System Board placed “broad responsibilities on that body in regard to the
hiring, firing, promotion, etc., of county employees coming under its provisions.” Id.
at 45 (2). As a result, the Court observed that “[i]t would strain the mind to think that
such a body could function without personnel.” Id. Accordingly, the Court concluded
that the Merit System Board, rather than the county board of commissioners, “had
implied powers to hire and discharge employees in keeping with its annual budget,
the same being reasonably necessary to execute the powers conferred.” Id. In this
case, there is no such need to search for incidental powers because the CON Appeal
Panel’s express powers, as described above, fully define its limited authority. See
OCGA § 31-6-44; Ga. Comp. R. & Regs. r. 274-1-.09. As a result, Wellstar’s
argument is unavailing.
19
Nor is Wellstar rescued by provisions stating that the panel hearing officer
conducts “a de novo review of the decision of the [DCH].” OCGA § 31-6-44 (f); see
also Ga. Comp. R. & Regs. r. 274-1-.09 (3). To the contrary, de novo is a standard of
review, rather than a description of what is reviewable pursuant to a regulatory and
statutory review scheme. See, e.g., Wash. State Dept. of Corrections v. Wash. State
Personnel Appeals Bd., 967 P2d 6, 9 (C) (Wash. App. 1998) (“We review an
administrative agency action de novo. But the scope of review is limited. . . .”)
(emphasis supplied; citations omitted). Stated differently, the CON Appeal Panel
hearing officer conducts a de novo review only of the considerations identified in
OCGA § 31-6-42 (a) and Ga. Comp. R & Regs. r. 111-2-2-.09 (1) (a) - (q), and any
additional service-specific considerations listed in Ga. Comp. R. & Regs. r. 111-2-2-
.11 (1), that may apply, rather than a wholesale review of the DCH’s entire decision-
making process.
In this regard, Wellstar’s reliance upon Longleaf Energy Assocs., LLC v.
Friends of the Chattahoochee, Inc. for an expansive definition of “de novo” is
misplaced. 298 Ga. App. 753, 768 (7) (681 SE2d 203) (2009). In Longleaf, we quoted
an administrative rule of the Environmental Protection Division of the Department
of Natural Resources providing that an administrative review hearing “‘shall be de
20
novo in nature and the evidence on the issues in any hearing is not limited to the
evidence presented to or considered by the Referring Agency prior to its decision.’
Ga. Comp. R. & Regs. r. 616-1-2-.21 (1), (3).” (Emphasis supplied; punctuation
omitted.) Id. In contrast to the rule at issue in Longleaf, the rules and regulations
governing the CON Appeal Panel do not authorize such a broad scope of review. See
Ga. Comp. R. & Regs. r. 274-1-.09 (2) (identifying issues that “shall not be
considered at an initial administrative appeal hearing and are immaterial to the
hearing”), (3) (“The appeal hearing conducted by the Appeal Panel hearing officer
shall be a de novo review of the decision of the [DCH].”). Accordingly, Longleaf is
inapposite.
(B) Companion Statutes to OCGA § 31-6-44.
Our conclusion is buttressed by other statutes which must be read in pari materi
with OCGA § 31-6-44. See generally Jordan v. Marriott Intl., Inc., 346 Ga. App. 706,
712 (1) (b) (816 SE2d 822) (2018) (three coordinating statutes “must be read in pari
materia, which means simply that they must be harmonized, and may not be read in
a vacuum”) (citation and punctuation omitted).
The General Assembly granted the DCH exclusive authority to administer the
CON program. See OCGA § 31-6-21 (a). To that end, the DCH has the authority to,
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among other things: (1) “adopt, promulgate, and implement rules and regulations
sufficient to administer . . . the certificate of need program;” (2) “define, by rule, the
form, content, schedules, and procedure for submission of applications for certificates
of need;” and (3) “grant, deny, or revoke a certificate of need as applied for or
amended[.]” OCGA § 31-6-21 (b) (4), (5), and (10).
Similarly, Article 3 of Title 31, Chapter 6 provides the DCH with authority to
“to revoke a certificate of need, in whole or in part” for a varitety of reasons (OCGA
§ 31-6-45 (a)), fine a health care facility for violations of the certificate of need
requirement (OCGA § 31-6-45 (c)), file an action for injunctive relief to enforce the
requirements of the CON program (OCGA § 31-6-45 (d)), and conduct investigations
into alleged violation of the CON program (OCGA § 31-6-45 (e)). In addition, the
DCH may deny a license to operate to “[a]ny 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. . . .” OCGA § 31-6-45 (b).
With the exception of the DCH’s decision to grant or deny an application for a CON,
see OCGA § 31-6-44 (a), none of these actions by DCH would be reviewable by the
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CON Appeal Panel.17 Therefore, a review of these statutes confirms that the sole
authority to review a health care facility’s existing CON status rests with the DCH.18
In sum, we conclude that Wellstar’s argument — that the CON Appeal Panel
hearing officer may independently review the existing CON status of a health care
facility in an appeal from a DCH decision on the facility’s application for a new
CON — is foreclosed by the plain language of OCGA § 31-6-44 and Ga. Comp. R.
& Regs. r. 274-1-.09. Rather, issues concerning a facility’s existing CON status must
be addressed by the remedies codified in OCGA § 31-6-45. Were we to accept
Wellstar’s expansive view of the panel hearing officer’s role to allow review of a
limitless universe of issues not related to the CON application, we would necessarily
bestow authority upon the panel hearing officer not supplied by the General
Assembly. This, we will not do. We therefore affirm the superior court’s denial of
Wellstar’s petition for judicial review.
17
See OCGA § 31-6-44 (a) (“The purpose of the appeal panel shall be to serve
as a panel of independent hearing officers to review the [DCH]’s initial decision to
grant or deny a certificate of need application.”).
18
Similarly, issues concerning whether a hospital transaction must be reviewed
pursuant to the Hospital Acquisition Act (OCGA § 31-7-400 et seq.) are subject to
the provisions of that statute, which is administered exclusively by the Attorney
General’s Office. See OCGA § 31-7-401 et seq.
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2. In its second enumeration of error, Wellstar argues that the panel hearing
officer’s decision was “made upon unlawful procedures” and that the decision
violated Wellstar’s due process rights under the United States and Georgia
constitutions. Pretermitting whether Wellstar properly raised this issue before the
CON Appeal Panel, a review of the decisions by the panel hearing officer and the
DCH commissioner reveals that neither official ruled on that distinct issue.
“Constitutional issues must be raised at the earliest opportunity in the trial court and
ruled upon to be preserved.” (Citations omitted.) Singleton v. Dept. of Human
Resources, 263 Ga. App. 653, 654 (1) (a) (588 SE2d 757) (2003). As a result, “unless
ruled upon by the trial court, constitutional issues cannot be reviewed on appeal,
because the appellate court lacks jurisdiction to consider a constitutional issue not
ruled upon by the trial court.” (Citation omitted.) Id. See also John Hardy Group, Inc.
v. Cayo Largo Hotel Assoc., 286 Ga. App. 588, 589 (1) (649 SE2d 826) (2007) (“A
constitutional issue is waived by the failure of the trial court to rule upon it.”)
(citation and punctuation omitted). Accordingly, this enumeration presents nothing
for our review.
In conclusion, neither OCGA § 31-6-44 nor Ga. Comp. R. & Regs. r. 274-1-.09
provide the CON Appeal Panel with authority to review the existing CON status of
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a health care facility in an appeal from the DCH’s decision on an application for a
new certificate of need. Because the CON Appeal Panel hearing officer correctly
concluded that “[i]t is not the function of the CON Appeal Panel to consider questions
of CON and licensure status,” and in the absence of argument that the panel hearing
officer’s findings of fact were unsupported or the officer’s conclusions of law were
unsound, we affirm the superior court’s judgment denying Wellstar’s petition for
judicial review.
Judgment affirmed. Gobeil and Coomer, JJ., concur.
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