1 Kennestone is a private, not-f or-profi t corporat ion that is a wholly-owned subsidiary of WellStar Health Sys tem, Inc. FINAL C OPY 295 Ga. 446 S14G0341. G EORGI A DEPAR TMENT OF COMM

UNITY HEALT H v. NORTHSIDE HOSPITAL, INC. S14G034 6. KENNESTONE HOSPITAL, INC. v . NORTHSIDE HOSPITAL, INC.
MELTON, Justice. The se consolidated appeals arise f rom the Georgia Department of Community

Health’s (“DCH’s”) gr

anting of an application

for a Certificate of Need (“CON”) to develop an outpatient ambulatory

surgery service

in East Cobb County to Kennes tone Hos

pital, Inc. (“Kennestone”)

. 1 Kennestone’s application

was eventually approved by the DCH after the service was determined to b e “part of a hospital” pursuan t to Ga. Comp. R. & Regs. r. 111- 2-2-.40 (1) (a ), which is th e regul a tion at issue in this case. Northside Hos pital, Inc. (“Northside”) opposed the CON and sought administrative review of the DCH’s initial decision. After the appeal was unsuccessful, Norths ide then filed a petition for judicial review in the Superior Court of Fulton County. See O CGA § 31-6-44.1. The superior cour t reversed the DCH’s de cisionto grant the CON on the basis that the “case-by- case” provision in Ga. Comp. R. & Regs. r. 111-2-2-- .40 (1) (a) was unco nstitutionally vague. The Court of Appealsupheld the2 The Cou rt o f Appea ls has jur

isdiction over c onstitutio nal chal lenges to administrative regulations. Brosnan v. Undercofler , 220 Ga. 239 (138 SE2d 31 4) (1964).

3 Because the central question t o be answ ered in both Cas e Nos. S14G0341 and S14G034 6 is the s ame , the arguments from both appea ls will b e consolida ted for pur

poses of t his opinion.

4 Under the

DCH’s r ules, t he fifte en mor e stringe

nt service- specific review conside rations of Ga. Comp. R. & Regs. r. 11 1-2-2- .40 (3) (a)-(o ) must be applied to all CON

projec ts involvin g “ambu latory surgery servic es” unl ess suc h services will be (a) “part of a hospital” and (b) th e appli cant w ill not inc rease the number of operating rooms that are associated with the hospital . See G a. Com p. R. & Regs. r. 111-2 -2-.40 (1 ) (a) and (d). I f the project is “part of a hospital,” it is not subject to servic e-spec ific re view, but only r eview under the more l enient General Considerations of Ga. Comp. R. & Regs. r. 111-2-2 -.09. Howeve r, not 2 superior court’s determina

tion, Ga. Dept. of Community Health v. Northside Hosp. , 324 Ga. App. 326 (750 SE2d 401) (2013) , 2 and this Court granted certiorari to deter

mine wheth er the C ourt of Appealserred

in deter minin g th at Ga. Comp. R. & Regs. r. 111-2 -2-.40 (1 ) (a) was unconstit utionall y vague . 3 For the reasons that follow, we rev erse. The recor d revea ls that Kennestone operates two ho spitals in the service area, WellSt ar Kenn estone Hospital a nd WellS tar Wind

y Hill Hosp ital. Kennestone’s application was approved after the surgery service was determined to be “part of a hosp ital” pursuant to Ga. Comp. R. & Regs. r. 111-2- 2-.40 (1) (a) (hereinafter

referred to as “ the Rule”), which pr ovides, in part, that if an ambulatory

surge ry ser

vice is o r will be pro vided as part of a hosp ital, 4 it is notall “ambul atory s urgery s ervice s” propose d by hospit als wil l be con s ider ed “part

of a hospital.” To be a fforded special treatment as “part of a hospital”(i.e. to avoi d the m ore stri ngent se rvice- specif ic cons iderat

ions of Ga. Comp. R

. & Regs. r. 111-2-2-.40 (3 ) (a)-(o) and have one’s CON application con sidered under the more lenie nt G enera l Con sidera tions of Ga. Comp. R. & Regs. r. 111-2-2-.09 ), a

proposed a

mbula tory surge ry serv ice m

ust sati sfy Ga . Com

p. R. & Regs. r. 111-2-2- .40 (1) (a ) (the “R ule”).

5 It is this final sentence

of the Rule that the Cou rt of Appeals d etermined to be uncons titution ally vague. 3 subject to more s tringen

t servic e-spe cific CON

review b y the DCH. An ambulatory

surgery service

is part of a hospital “a) if the service is locate d within

a hospital; or, b) if the service is located in a building on the hospital’s primary campus and tha

t building , or re levant portion th ereof, is included within the hos pital’s permit . . . .” However, for situations that do not fall squarely u nde r subpar ts (a) and (b) of

the Rule, the Rule’s final sentence prov ides that “[t]he [DCH] also will

make a determination of

reviewa bility on a

case- by-cas e basis in other situations involving hospitals.” 5 Here, Kennestone sought to cre ate an ambulatory surger y s ervice seven miles from the main WellStar Kennestone Hospital campus and eight miles from WellStar’s Windy Hill Hospital; Kennestone stated that the service would be hospital-based, operat e as a d epartment of Win dy Hill Hos pital, and result in the decommission

and transfer of three operating rooms f rom Windy

Hill Hospital to the new a

mbulator y surg ery se rvice lo cation. Pursua nt to the final sentence4

of the Rule, the DCH conducted “case-b y-case” review and concluded that the ambulatory surgery se

rvice was “part of a h ospital.” In ord er to r esolve the ques tion wheth er the R ule at issue here

is unconstitutiona lly va gue, we must bear in mind that the Rule can not be read indepen dently

of the statutory framework upon which it is based. See Mulligan

v. Selective HR Solutions, Inc. , 289 Ga. 753, 756 (1) (716 SE2d 150) (2011) (“It is within the purview of this Court to consider the validity of an agency rule by determining whether

it compor ts with the legis lative enactment which authorizes t he rule”) (citation omitted). See also OCGA § 31- 6-21.1 (a) (“Rules of the [DCH] shall be

adopted , promulgated, a

nd impleme

nted as provid ed in this Code section and in

. . . the ‘ Georgia

Administr

ative Pr ocedur e Act’”) ; OCGA § 31-6-4 2 (a) ( The decision “with respect to the [DCH’ s] grant or denial of a certific ate of need[ ] shall be b ased on the applicable cons iderations specified in this Code section and reas onable rules promulgated by the department interpretive thereof.”). In this co nnection, the DCH is bound by the statutor y definitions included in the Georgia statutes gov erning t he issuance of CONs. These definition s make c lear tha t a “hospital” is

an institution

which is primarily

engage d in

providing to inpatients, byor under the super

vision of physicians, diagnos tic servi ces and therape utic services for medical diag nosis, trea

tm ent, and care of injured, disabled, or sick pers ons o r reh abilitation services for the rehabil it ation of injured, disabled, or s ick persons. Such ter m inc ludes public, private, psychiatric, reha bilitative, geriatri c , osteopathic, and other spe cialty hospitals.5

OCGA § 31-6-2 (21). Fu

rthermore, an entity that provides ambulatory surgery services and tha

t is not pa

rt of a h ospital isan “amb ulat ory surgical center” (ASC). OCGA § 31-6-2 (1) (A n ASC is “ a public or priv ate facility, not a part of a hospital , which provides surgical or obstetrical treatment performed u nder general or regional anesthesia in an operating room environment to patients not requiring hospitalization.”) (emphas is supplied). Thus, an ambulatory surgery service may be prov ided as part of a hosp ital, but the ser vice will only be considered to be

“part of” that hospital (and not its own independent ASC) if the fac ility is part of

an institution which is primarily engaged in providing to inpatients, byor under the super

vision of physicians, diagnos tic services and therape uti c services for medical diagn osis, treatment, and care of injured, disa

bled, or sick persons o r rehabilitation services for the rehabil itatio n of injured, disabled, or sick persons. Such term in cludes public, p rivate, psychia tric, rehabilitativ e, geria tr ic , osteopathic, and other spe cialty hospitals. See OCGA § 31-6-2 (1) and (21) and the Rule. We must als o bear in mind tha t “all pre sumptio ns are in favor of the constitu tionality of [a statute or regulation].” (Citation and pu nctuation omitted.) JIG Real Estate, LLC v. Countrywide Home Loan s, Inc. , 289 Ga. 488, 490 (2) ( 712 SE2d 820) (2011) . In this regard, “eve ry reasonable cons truction must be resorted to, in order to save a s tatute [or re gulat ion] from unconstitutionality.” (Citations and punctuation omitted.) Haley v. State , 289 Ga. 515, 522 (2) (b)6 It is worth noting that Nor thside c oncede s that th e phrase “part of a hospital,” as used

in the Rule a

nd authori zing statutes, is not unconstitutionally vague. So, it c ould be said that, essentially , Northsi d e is con tending t hat the Rule, which is desig ned to give more context to the cle ar phrase “part of a hospital,” is somehow having the opposite effec t and m aking the mea ning of the 6 (712 SE2d 838) (2 011). Where, ashere, the challenge to the reg ulation has not been made in a

First Amendment o verbreadth co ntext, No rthside can onl y succeed on its facial vagueness c hallenge to the Rule “by establish(ing) that no set of circumstances exists unde r which the [Rule] would be valid, i.e., tha tthe law is unconstitutional in all of its applications, or at least that the [re gulation] lacks a plainly legitimate sweep.” (Citation and punctuation omitted.) Blevins

v. Dade County Bd. of Tax Ass essors , 288 Ga. 113, 118 (3) (7 02 SE2d 14 5) (2010). In this connection, “[t]o withstand an attack of vagueness or indefiniteness, a civil statute must provide fair notice to those to whom t he statute is directed and it s provisions must enable them to determine the legi slative intent.” (Citation omitted.) Jekyll Island State Park Auth. v. Jek yl l Island Citizens Assn. , 266 Ga. 152, 153 (2) (464 SE2d 808) ( 1996). N orthsi de argues

that the la st sentence of the Rule i s uncon stitutiona lly vague because it does not pro vide fair notice to tho se to who m the Rule is directed inorder to allow them to determine when an ambulatory surgery se rvice will be consid ered to be “par t of a ho spital” u

nder ca se-by -case

review by th e DCH. 6 See the Rule, supra (“ [t]he [DCH] also will make a determination ofphrase unclear to the point o f it becoming un constituti onally vague. 7 revi ewa bility on a case-by-ca se basis in other situations involving ho spitals”). We disagree. Again, the Rule states: If [an] ambulatory surg ery service is or will be pro vided as “part of a hospital”, the hospital’s provision of such service is not subject to [service-specific] Certificate of Need (CON) review under this ru le. For purposes of this rule, the following are always considered to be “part of a ho spital”: a

) if the ser vice is lo cated withina hospital; or, b) if the service is located in a building on t he hospital’s primary campus and tha

t building , or re levant po rtion thereof, is in clu ded within the hospital's permit issued by the State’s licensing agency, subject to determination

by the [DCH]. The [DCH] alsowill make a determin ation of

reviewa bil ity o n a case-by-cas e basis in other situations involving hospitals. The gist of the Rule is to afford a less stringent review for a mbulatory surg ery servic e propo sals tha

t are “p art of a

hospital.” It sh ould be n oted th at , without more, a

rule tha t simply s tated thisgeneral princip le would n ecess arily involve some fo rm o f “cas e-by- case” review e ven if th e rule d id not ex plicitly state as much. The Rule here, however , goes on to attempt to narrow the scope of what it means to be “part of a ho spital” for these purposes. Indeed , by its p lain terms, the Rule provides sp ecific circumstances under which an ambulatory surgery servic e will alway s be co nsidered to be “part o f a hospital” pursuant to subpar ts (a) and (b), and provides the DCH with the ability to make “case- bycase” determinations about whether a su rgery service is “par

t of a ho spital” in8

“other situation s involv ing hos pitals” th at do not fall squ arely

under subpar

ts (a) and (b). The Rule acknowledge s that subparts (a) and (b) do not iden tify the f ull rang e of pos sibilities for wha t it means to be “p art of a hospital.” All othe r circumstances continue to be r eviewed on a “case-b y-case” basis. Furthermore, the final sentence of the Rule cannot be read in isolation f rom the other language contained in it. Slakman v. Continental Cas. Co. , 277 Ga. 189, 191 (587 SE2d 24) (2003) (Fundamen tal rules of statut ory construction “require us to construe a statute accor ding to itsterms, to

give wor ds their plain and ordinary meaning, and to a void a construction that makes so me language

mere surplu sage”) (citation s omitted) ; Schwartz v. Black , 200 Ga. App. 735, 736 (409 SE2d 681) (1991) (looking to rules of statutory inter pretation in construing administrative rules and

regulations). Subparts ( a) and (b) of the R ule make clear thatfactors such as the location of a proposed ambulatory surgery se rvice and whether or not th e propo sed se rvice wo uld be in cluded within the hosp ital’s permit can be important, and sometimes ev en dispositive, factors in the determination

of whether

an ambulatory

surgery service

is “part of a hospital.” Where the proposed a

mbulator y surg ery se rvice f

ails to str

ic tly m eet the requirements of subparts (a) and (b), th e serv ice might s till be suf ficiently connected

to the hospital. For example, although a n ambulatory surgery s ervice mightnot be “located within” a particular hosp ital or be “located in a bui lding

on t he hospital ’s primary campus,” it could still be sufficiently close to that9

hospital or connected to that hospital in order for the DCH

to reac h a rea sonable conclu sion

that the s ervice is still “p art of” that hospital. In

this con necti on , subpar ts (a) and ( b) of the Rule operate to give context, not only to when an ambulatory

surgery service

would “always” be consider ed to be “part of a hospital,” but also to give c ontext to the manner in which “case- by-case” review must be employed to determine whether a proposed ambulatory s

urgery service is indeed still “part of a hospital” even though it do es not strictly satisfy the requirements of subpa

rts (a) and (b). Accordingly, the Rule at issue in this case must be reasonably read to mean thatan ambulatory surgery service is “part

of a ho spital” wh ere (1 ) it is part of

an entity defined as a “hospital” und er OCGA § 31-6-2 ( 21), and (2) the DCH makes an independent determination that the ambulatory surgery service

is part of that “ho spital” a fter co nsider ing fac to rs i ncluding, but not limited to, the location of the proposed

surgery service

in relation to the hospital and whether

or not the p ropos ed surgery ser vice would be included within the hospital’s permit. We con clude tha

t this straightforward construction of the Rule provides “fair n otice to th ose to whom [it] is directed and its provisions

. . . enable them to determine the legislative intent.” Jekyll Island State Park Auth. , supra. See also ProfessionalStandards Commission v. Albers on , 273 Ga. App. 1 (2) (614 SE2d 132) (2005) (P rofessional Standards Commission

ethics rule authorizing teacher disciplin e for “ any othe

r good and suf

ficient c ause” i

nthe Commission’s7 While we conclude that the Rule i s not un constitu tionally v ague on

its face, we must e mphasiz e that wedo not r each an y issue relating to whether the DCH abused its discretion under the Rule by awarding a CON to Ke nnestone under the circumstanc es pre sented here. A lthough t he tr ial court ruled against Northside on its cl a im that the DCH applied the Rule in an arbitrary and capricious manner under the facts of this case, Northside d id not appeal that adverse ruling. We ther

efore do not address any issue relating to the manner in which the DCH applied t he Rule under the pres ent facts. Indeed, the qu estion whether the DCH abused its discre tion pur suant to the Rule is a sep arate question from constitutionality of the Rule itself.

10 discretion was not u nconsti tutio nally vag

ue). Indeed, anyone

applying for a C ON is put on notice by the Ru le itself and by the statutory frame work of which the Rule is a part

that (1) a hospital is a certain type of en tity, and (2) an ambulatory surgery service can be deemed to be part of that specific entity through the DCH’s consideratio n of several factors — s ome of w hich will au

tomatically showthat the ambulatory surgery s ervice is “par t of a hospi tal.” In

short, it cannot be said that “no set of circu mstances exist[ ] under which the [ Rule] would be valid . . . or at least th at the [r egulati on] lacks a pl ainly leg itimate sweep” ( Blevins , supra), as the Rule merely provides a nec essary means fo r the DCH to consider whether an ambulatory surgery ser vice may still be “part of a hospital” even

where the surgery service does not fall within the spec ific, nonexclusive language of subpar ts (a) and (b ) of the R

ule. Thu s, contr

ary to Northside’s contenti ons, the Rule is not unconstitutionally vague on its face, and the Court of Appeals was incor rect to conclude otherwise. 711

Judgments reversed. Thompso n, C. J, Hines, P . J., Benha m, Hu nstein, Nahm ias, JJ., a

nd Judge R

on nie Joe La

ne conc ur. Bla ckwel l, J., not partic ipating.

Decid ed June 3 0, 2014. Certiorari to t he Court of Ap peals of Georgi a. Samuel S. Olens, Attorn ey General, Isaac Byrd, De puty Attorney Genera l, Daniel S. Walsh, Senior Assistant Attorney General, A lex F. Sp onselle r, LaRonica K. Lig

htfoot, B rittany

N. Jone s, Assis tant At

torne ys Gen eral , for Georgia Depar tment of Comm

unity He alth. McKenna, Long & Aldrid ge, Kathlynn B. P o lvino, R obert M. Rozie r, George Darden , for Northside Hospital. Parker, Hudson, R

anier & Dobb s, Ashley F. Hoffman, Armando L. Basar rate I I , for Kennestone Hospital.