Lead Opinion
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 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.
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. 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,
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
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.”
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.
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.,
“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,
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
*35 (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 information that DCH was authorized to obtain under OCGA § 31-6-70 (b) and (d). In this regard, GSASC emphasizes that the Disputed Requests did not limit any of the types of information being sought to “indigent persons” as defined by OCGA § 31-6-70 (c), and thus could not be reasonably construed as seeking information that fell within OCGA § 31-6-70 (b) (8). GSASC further maintains that none of the disputed information could reasonably be construed as falling within OCGA § 31-6-70 (b) (l)-(7), the statutory subsections applicable to nonindigent persons.
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,
Nevertheless, DCH argues that it is generally empowered to request information from ASCs under OCGA § 31-6-21 (b) (5), which states: “The functions of the department shall be[ ] . . . [t]o define, by rule, the form, content, schedules, and procedures for submission of applications for certificates of need and periodic reports.” But it is axiomatic that the terms of a specific statute govern over those of a more general statute, see Glinton v. And R, Inc.,
DCH also points to OCGA § 31-6-21 (b) (8) as a source of general authority to request information from ASCs. That subsection provides in relevant part:
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. ...
OCGA § 31-6-21 (b) (8). By its plain and literal terms, OCGA § 31-6-21 (b) (8) discusses DCH’s responsibility to develop certificate of need
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,
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, OCGA § 50-13-1 et seq., before any such fine or sanction is exacted. See OCGA §§ 31-6-40 (c) (2); 31-6-47 (a) (18). After an administrative hearing, the ASC may appeal to the Commissioner of DCH, and then petition for judicial review. See OCGA § 50-13-19; Ga. Comp. R. & Regs. r. 111-2-2-.05 (2) (e). According to DCH, these procedures provide an adequate administrative remedy such that the trial court lacked subject matter jurisdiction in this case. We are unpersuaded.
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,
(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.”
The dissent argues that Lane is distinguishable because ASCs are entitled to a hearing before an administrative law judge (“AU”), 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.
Notes
The trial court also temporarily enjoined any enforcement actions by DCH against the ambulatory surgery centers for failure to provide the requested survey information during the pendency of this appeal.
OCGA § 16-10-20 provides criminal penalties for a person who knowingly and willfully makes false statements to, or conceals material facts from, a government department or agency. Georgia’s Racketeer Influenced and Corrupt Organizations Act is codified at OCGA § 16-14-1 et seq.
GSASC did not challenge the contents of the 2009 annual survey beyond the Disputed Requests.
After conducting independent online research, the dissent notes that a new Commissioner has recently been appointed to DCH and speculates that he might at some point adopt a different position than that consistently asserted by the Commissioner and DCH throughout this litigation. Any change in the Commissioner at the DCH is not a part of the record, and neither party has asked this court to take judicial notice of any change in this respect. Furthermore, the new Commissioner has not moved to withdraw as an appellee to this appeal; has not filed a supplemental brief asserting a new position; has not moved to have this case remanded due to a change in position adopted by the Commissioner; and has not otherwise indicated that he is now taking a position contrary to that maintained throughout the trial and appellate proceedings in this case.
Dissenting Opinion
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,
Citing City of Atlanta v. Hotels.com,
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 requirements
The majority does not dispute that these administrative remedies are facially adequate, but the majority, relying on Glynn County Bd. of Ed. v. Lane,
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
I am authorized to state that Judge Andrews and Judge Dillard join in this dissent.
I do not think the majority’s characterization of this case is an unreasonable one, but I think mine is more accurate and faithful to the separation of powers that the exhaustion requirement is meant to safeguard. I readily admit, however, that properly characterizing a dispute like this one-determining whether it involves a challenge to the scope of power or a mere challenge to the exercise of power-is something about which reasonable people of good faith can disagree. Some disputes clearly should be characterized as one or the other, but in most disputes, like this one, a fair case can be made for characterizing the dispute in either way, and the question ultimately comes down to a matter of semantics.
The Society also claims that its members might be prosecuted for violations of the criminal law if they give false answers to these questions. But no one contends that the members of the Society have a right to give false information to the Department; the Society merely contends that its members have a right to give no information at all in response to these questions. So, I do not think the threat of criminal prosecution for giving false information has any bearing upon the effectiveness of administrative remedies in this case.
The Society points us to Thomas v. Georgia Bd. of Dentistry,
To the extent that the Society might be capable of making a showing of inadequacy if this case were remanded, I note that the Society does not ask us to remand this case or suggest that the record on the adequacy of administrative remedies is incomplete. Because the Society does not ask, I would not remand.
In Lane, the Supreme Court found that appealing a decision of a board of education to the same board of education would be futile.
The majority says that, because the Society sued both the Department and, in an official capacity only, the Commissioner, the briefs filed in this case by the Department necessarily reflect the views of the Commissioner personally, demonstrating that the Commissioner has prejudged the issue. I am not convinced that the requirement of exhaustion is so easily circumvented and that an aggrieved person can manufacture futility simply by naming the judicial decision makers for the agency as additional parties in a lawsuit. No party to this case has urged that the filing of papers in response to litigation is evidence of futility, and the majority cites no authority for its novel theory. Exhaustion, like other jurisdictional issues, must be assessed as of the time a lawsuit is filed. Consequently, developments occurring after the initiation of litigation cannot breathe life into a lawsuit of which the courts had no jurisdiction when it was filed. See McNeil v. United States,
Again, the Society does not ask us to remand or suggest that the record is not sufficiently developed to permit a decision on the question of futility. Because it does not ask, I would not remand.