GEORGIA SOCIETY OF AMBULATORY SURGERY CENTERS v. GEORGIA DEPARTMENT OF COMMUNITY HEALTH et al.
A10A2167
Court of Appeals of Georgia
MARCH 30, 2011
710 SE2d 183
BARNES, Presiding Judge.
Judgment affirmed in part and reversed in part. Miller, P. J., and McFadden, J., concur.
DECIDED MARCH 30, 2011.
Brown & Gill, Angela B. Dillon, for appellant.
Daniel J. Porter, District Attorney, Tandrea B. Beasley, Assistant District Attorney, for appellee.
BARNES, Presiding Judge.
This case arises out of a complaint for a declaratory judgment and injunctive relief filed by the Georgia Society of Ambulatory Surgery 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
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
The Certificate of Need Program. DCH is the “lead planning agency for all health issues” in Georgia.
Certain healthcare providers are exempt from the CON program.
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
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
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
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
1. “Generally, the trial court has broad discretion to decide whether to grant or deny an interlocutory injunction.
“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 SE2d 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 SE2d 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. See also North Fulton Medical Center v. Stephenson, 269 Ga. 540, 543 (1) (501 SE2d 798) (1998); Albany Surgical, 257 Ga. App. at 638 (1) (a). 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
(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.
GSASC contends that the Disputed Requests exceeded the scope of information that DCH was authorized to obtain under
It is a cardinal rule of statutory construction that “the literal meaning of the statute prevails unless such a construction would produce unreasonable or absurd consequences not contemplated by the legislature.” Johnson v. State, 267 Ga. 77, 78 (475 SE2d 595) (1996). “Moreover, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.” (Citation and punctuation omitted.) Beacon Medical Products v. Travelers Cas. &c. of America, 292 Ga. App. 617, 619 (665 SE2d 710) (2008). Statutes also should be construed in a manner that gives all of the words meaning. See
Nevertheless, DCH argues that it is generally empowered to request information from ASCs under
DCH also points to
The functions of the department shall be . . . [t]o establish, by rule, need methodologies for new institutional health services and health facilities. In developing such need methodologies, the department shall, at a minimum, consider the demographic characteristics of the population, the health status of the population, service use patterns, standards and trends, financial and geographic accessibility, and market economics. . . .
Additionally, while DCH cites to its own administrative rules and regulations to support its contention that it had general authority to seek information from ASCs, “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. Thus, DCH‘s rules and regulations could not empower it to issue an annual survey seeking information beyond what was authorized in
For these reasons, the trial court erred by concluding that DCH had statutory authority to include the Disputed Requests in the 2009 annual survey issued to ASCs. Accordingly, the trial court‘s denial of GSASC‘s request for an interlocutory injunction was based on an erroneous interpretation of the law and must be reversed.
2. DCH argues that we should affirm the trial court‘s denial of GSASC‘s request for an interlocutory injunction on the alternative basis that GSASC failed to exhaust its administrative remedies. DCH notes that if an ASC is fined, sanctioned, or has its exemption status revoked for failure to fully respond to an annual survey, the ASC is entitled to notice and an administrative hearing under the Georgia Administrative Procedure Act,
It is true that “[l]ong-standing Georgia law requires that a party aggrieved by a state agency‘s decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency‘s decision.” Cerulean Co. v. Tiller, 271 Ga. 65, 66 (1) (516 SE2d 522) (1999). But exhaustion of administrative remedies is not required where resorting to the remedy would be futile. See Hall v. Nelson, 282 Ga. 441, 443 (3) (651 SE2d 72) (2007); Powell v. City of Snellville, 266 Ga. 315, 316 (467 SE2d 540) (1996). Nor is exhaustion required where an agency‘s power to act is challenged in a declaratory judgment action. See City of Atlanta v. Hotels.com, LP, 285 Ga. 231, 233-234 (674 SE2d 898) (2009).
(a) Futility. Our Supreme Court applied the futility exception in
The instant case is controlled by Lane. Here, the issue is whether DCH had statutory authority to include the Disputed Requests in the 2009 annual survey issued to ASCs; as in Lane, the sole issue is whether an administrative agency‘s conduct was inconsistent with plain and unambiguous statutory language, and the case turns purely on a question of statutory construction rather than on factual matters. DCH and its Commissioner have repeatedly made clear their position that the agency had statutory authorization to request the disputed information and would now have to abandon that position, and thus conclude that the agency‘s conduct was illegal, for ASCs to prevail before the agency. This, to say the least, seems highly implausible. Similar to Lane, it would serve no purpose, and would only lead to a repeat of the present litigation after further delay and cost, if ASCs were required to participate in an administrative hearing “before [DCH] on the question of its own conduct.” 261 Ga. at 546 (1). Consequently, GSASC and its members were not required to exhaust administrative remedies because doing so would be a futile and useless act under the reasoning of our Supreme Court‘s decision in Lane.
The dissent argues that Lane is distinguishable because ASCs are entitled to a hearing before an administrative law judge (“ALJ“), which is then appealable to the Commissioner of DCH, and “nothing in the record suggests that the ALJ that might be assigned to hear the matter or the Commissioner personally has prejudged the issue.” But the Commissioner of the DCH is named as a party in this case,
(b) Agency‘s Power to Act. In Hotels.com, our Supreme Court explained that administrative exhaustion is not required where the plaintiff brings a declaratory judgment action challenging the agency‘s authority or power to act:
This Court has recognized that the exhaustion doctrine “does not apply where the defect urged by the complaining party goes to the jurisdiction or power of the [involved] agency. . . . [Cits.]” Cravey v. Southeastern Underwriters Assn., 214 Ga. 450, 457 (3) (105 SE2d 497) (1958). See generally City of Waycross v. Reid Rental Co., 186 Ga. App. 452, 454 (367 SE2d 305) (1988) (adopting rationale in Cravey, supra, in sustaining claim for declaratory judgment). The Court of Appeals has likewise recognized that a failure to exhaust administrative remedies does not preclude a declaratory ruling to determine a party‘s authority to act. See DBL, Inc. v. Carson, 284 Ga. App. 898 (2) (645 SE2d 56) (2007) (declaratory judgment properly granted despite failure to exhaust administrative remedies where claimant challenged commission‘s authority to issue water bottom lease); AT&T Wireless PCS v. Leafmore Forest Condominium Assn., 235 Ga. App. 319 (2) (509 SE2d 374) (1998) (declaratory judgment properly granted despite failure to exhaust administrative remedies where claimant challenged department‘s authority to issue building permit).
Judgment reversed. Smith, P. J., Mikell and Adams, JJ., concur. Andrews, Blackwell and Dillard, JJ., dissent.
BLACKWELL, Judge, dissenting.
In this case, the Georgia Society of Ambulatory Surgery Centers represents the interests of members that appear to have adequate administrative remedies, and it is undisputed that these members have not exhausted their administrative remedies. Consequently, I conclude that both this Court and the trial court lack jurisdiction of the subject matter, and for this reason, we ought to dismiss this appeal and remand with instructions to dismiss the case below. Because the majority instead proceeds to address the merits, I dissent.
As our Supreme Court has explained,
Georgia law requires that a party aggrieved by a state agency‘s decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency‘s decision. As long as there is an effective and available administrative remedy, a party is required to pursue that remedy before seeking equitable relief in the superior court.
Cerulean Companies v. Tiller, 271 Ga. 65, 66 (1) (516 SE2d 522) (1999). This requirement respects the constitutional prerogatives of the executive branch and its agencies, permits an agency to apply its expertise to the resolution of disputes, promotes a more efficient resolution of disputes, and encourages the uniform and consistent resolution of disputes of a similar nature. See id. at 67 (1). When a person aggrieved by agency action has adequate administrative remedies, but files a lawsuit before exhausting his administrative remedies, the courts cannot entertain the suit. See Northeast Georgia Cancer Care v. Blue Cross & Blue Shield of Georgia, 297 Ga. App. 28, 32 (1) (676 SE2d 428) (2009); see also Cerulean Companies, 271 Ga. at 68-69 (2). “When an adequate administrative remedy exists that has not been taken, dismissal of any declaratory judgment or equitable action is appropriate.” USA Payday Cash Advance Centers v. Oxendine, 262 Ga. App. 632, 635 (585 SE2d 924) (2003).
Citing City of Atlanta v. Hotels.com, LP, 285 Ga. 231 (674 SE2d 898) (2009), the majority says that the exhaustion requirement does not
I turn now to the adequacy of the administrative remedies available to the Society and its members. The Society is bothered, of course, not so much by the fact that the Department has asked certain questions of its members, but instead by the prospect that the Department might penalize them—by imposing fines or by revoking their exemptions from certificate of need requirements6—if they fail to answer these specific questions. At this time, no such sanctions have been imposed against any member. But if the Department were to seek to impose such sanctions, the members against whom sanctions were sought would be entitled to notice, a hearing before an administrative law judge (“ALJ“) pursuant to the Administrative Procedure Act, an opportunity to appeal the decision of the
The majority does not dispute that these administrative remedies are facially adequate, but the majority, relying on Glynn County Bd. of Ed. v. Lane, 261 Ga. 544, 545-546 (1) (407 SE2d 754) (1991), says that requiring the members of the Society to exhaust these administrative remedies would be futile because the Department already has prejudged its authority to sanction the members for failing to answer the survey. I disagree. Lane stands for the proposition that, when the available administrative remedy consists of a hearing before a particular judicial decision maker, but the judicial decision maker already has prejudged the issue, it would be futile to require the aggrieved person to exhaust his remedy. See 261 Ga. at 545-546 (1).8 “Exhaustion of administrative remedies is futile only where further administrative review would result in a decision on the same issue by the same body.” Little v. City of Lawrenceville, 272 Ga. 340, 342 (3) (528 SE2d 515) (2000) (citation and punctuation omitted).
Here, the administrative remedies available to members of the Society are a hearing before an ALJ and an appeal to the Commissioner. Although some of the Department staff may have prejudged the issue and determined that the Department can sanction members of the Society for failing to complete the questionnaire, nothing
We should view with grave concern the interference with the executive branch that would follow if courts, including this Court on appeal, exercised jurisdiction to make decisions that are committed by law in the first instance to the jurisdiction of administrative bodies. See George v. Dept. of Natural Resources, 250 Ga. 491, 492 (299 SE2d 556) (1983). And we should defer to an agency in matters involving the interpretation of the statutes that it is authorized to enforce. See Albany Surgical v. Dept. of Community Health, 257 Ga. App. 636, 638 (1) (a) (572 SE2d 638) (2002). Because the members of the Society have available administrative remedies that they failed to exhaust, and because the Society has failed to show that these remedies are inadequate or that their exhaustion would be futile, we must, I think, dismiss this appeal. Because the majority does not, I dissent.
I am authorized to state that Judge Andrews and Judge Dillard join in this dissent.
DECIDED MARCH 30, 2011.
McGuire Woods, Victor L. Moldovan, Kevin C. Watters, for appellant.
Thurbert E. Baker, Attorney General, Sidney R. Barrett, Jr.,