FIRST DIVISION

BARNES, P. J.,

BROWN 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.

https://www.gaappeals.us/rules

June 29, 2022

In the Court of Appeals of Georgia

A22A0111. EMORY UNIVERSITY d/b/a EMORY UNIVERSITY

HOSPITAL SMYRNA et al. v. KENNESTONE HOSPITAL,

INC. d/b/a WELLSTAR WINDY HILL HOSPITAL.

A22A0112. GEORGIA DEPARTMENT OF COMMUNITY

HEALTH v. KENNESTONE HOSPITAL, INC. d/b/a

WELLSTAR WINDY HILL HOSPITAL.

HODGES, Judge.

In this appeal, we are asked to determine whether an authorized long-term care

hospital may convert its beds and available servicesto operate as a short-stay general

acute care hospital without first obtaining a new certificate of need (“CON”). See

OCGA § 31-6-40 et seq. In 2019, Kennestone Hospital, Inc. d/b/a WellStar Windy

Hill Hospital (“WellStar”) sought confirmation from the Georgia Department of

CommunityHealth (“the DCH”) that itslong-termcare hospital beds at its WindyHill

Hospital facility “would revert to their previous status as . . . short-stay acute care
beds” without obtaining a CON once the facility relinquished its Medicare long-term

care hospital certification. EmoryUniversityd/b/aEmoryUniversityHospital Smyrna

and Saint Joseph’s Hospital of Atlanta, Inc. d/b/a Emory Saint Joseph’s Hospital

(collectively, “Emory”) objected toWellStar’s proposal, arguing thatWellStar sought

to create a new short-stay acute care general hospital, which required prior CON

authorization. The DCH agreed with Emory, finding that WellStar had operated as a

long-termcare hospitalsince 1996 and, as a result, had obtained variousCONs during

that span which did not involve short-stay hospital beds. Thus, the DCH determined

that WellStar’s proposed transition of Windy Hill Hospital to a 115-bed short-stay

hospital constituted a “new institutional health service,” which required CON

approval. See OCGA § 31-6-40 (a). 

WellStar appealed to the CON Appeal Panel, and a hearing officer affirmed the

DCH’s decision. WellStar next appealed to the DCH commissioner, who affirmed the

hearing officer. However, the Superior Court of Cobb County granted WellStar’s

petition for judicial review and reversed the DCH commissioner’s decision, finding

that WellStar “is entitled to revert its beds to their previous short-stay status without

prior CON review and approval.” 

2
We granted Emory and the DCH’s applications for discretionary appeal, and

now conclude that, based upon the plain language of OCGA § 31-6-40 et seq., Ga.

Comp. R. & Regs.r. 111-2-2-.20 (1) (d) and 111-2-2-.36 (2) (d), WellStar’s proposed

conversion of its long-term care hospital beds to short-term acute care hospital beds

requires a new CON. Therefore, we reverse the superior court’s judgment granting

WellStar’s petition for judicial review in Case No. A22A0111 and dismiss Case No.

A22A0112, filed by the DCH, as moot.

1. At the outset, we determine “whether ‘substantial evidence’ supports the

agency’sfindings of fact[.]” Palmyra Park Hosp. v. Phoebe Sumter Med. Center, 310

Ga. App. 487, 488 (714 SE2d 71) (2011). In this case, the operative facts are

undisputed.

1 So viewed, the record demonstrates that WellStar Windy Hill Hospital

(“Windy Hill”) opened in 1973 as a general acute care short-stay hospital before

Georgia enacted its CON program.

2 See OCGA § 31-6-40 etseq. In 1983, Windy Hill

1 The parties executed a “Joint Stipulation of Undisputed Facts” during

WellStar’s appeal before the CON Appeal Panel. The hearing officer included the

facts in the officer’s order affirming the DCH’sinitial agency decision and noted that

the parties “agree that there are no contested issues of fact[,]” and the DCH

commissioner specifically incorporated the stipulation in hisfinal order affirming the

panel decision. 

2 The CON Program became effective in 1979. See Ga. Code Ann. §§ 88-3301,

88-3306 (a) (1983). “The CON [P]rogram establishes a comprehensive system of

3
reduced its short-stay bed capacity from 165 to 115. In 1996, WellStar contacted the

State Health Planning Agency (“the SHPA”), the predecessor agency to the DCH,

inquiring whether a CON to convert Windy Hill from a short-stay general acute care

hospital to a long-term care hospital would be required. In addition to providing

long-term care, WellStar represented that it would provide outpatient surgical

services and convert the emergency roominto a minor emergency, or immediate care,

facility.

Based on WellStar’s representations, the SHPA issued a determination letter

stating that WellStar would “not need to obtain CON approval in order to implement

its proposal” because the operation of Windy Hill “as a long-term acute care hospital

is within the original scope of Windy Hill’s CON authorization as a general acute

care hospital.” Thereafter, Windy Hill surrendered its original permit, which had

authorized Windy Hill to operate as a “General Hospital,” and the SHPA marked the

permit as “Void.” WellStar obtained a new permit in 1997 authorizing it to operate

as a “Specialized Long Term Acute Care Hospital,” and it began operating as a longterm care hospital. Windy Hill initially had 42 beds, but in 2007, WellStar obtained

planning for the orderly development of adequate health care servicesthroughout the

state.” Palmyra Park Hosp., 310 Ga. App. at 488.

4
a new CON to renovate the hospital in order to add 5 additional beds.

3 Thereafter,

although WellStar only operated 47 beds at Windy Hill, the hospital retained a

licensed bed capacity of 115 beds. 

In 2019, WellStar sought a determination from the DCH that its complement

of 115 long-term beds would revert to short-stay beds without going through CON

approval, and that it would then have authorization to operate as a short-stay general

acute care hospital, if it relinquished its Medicare long-term care hospital

certification. In support of its application, WellStar cited Ga. Comp. R. & Regs. r.

111-2-2-.20 (1) (d) and 111-2-2-.36 (2) (d), which allow for the automatic conversion,

or reversion, of certain long-term beds to short-stay beds for hospitalsthat have been

approved through the CON process. 

Emory objected to WellStar’s proposal, arguing that WellStar sought to create

a new short-stay hospital, which constituted a “new institutional health service” and

required prior CON approval. In its initial agency determination, the DCH agreed

3

Importantly, the distinction between short-stay acute care general hospitals

and long-term care hospitals, which is discussed in greater detail infra, was

highlighted by the promulgation of Ga. Comp. R. & Regs. r. 111-2-2-.20 (“Specific

Review Considerations for Short-stay General Hospital Beds”) and 111-2-2-.36

(“Specific Review Considerations for Long Term Care Hospitals”), each of which

became effective in 2005.

5
with Emory, finding that WellStar had operated as a long-term care facility since

1996 and, as such, had obtained various CONs which did not involve short-stay

hospital beds. In addition, the DCH’s determination noted that the SHPA determined

in 1996 “that Windy Hill’s operating as a [long-term care hospital] was not subject

to prior CON review and approval.” Thus, the DCH determined that WellStar’s

proposed transition to a 115-bed short-stay hospital constituted a new institutional

health service, which required CON review and approval. 

WellStar appealed the DCH’s initial decision to the CON Appeal Panel, and

a hearing officer affirmed the agency’s decision. The hearing officer, citing Ga.

Comp. R. & Regs. r. 111-2-2-.20 (1) (d) and 111-2-2-.36 (2) (d), upon which

WellStar also relied, rejected WellStar’s argument that it was “an existing general

acute care hospital that was approved through the CON processto operate as a [longterm care hospital.]” The hearing officer concluded that WellStar had not gone

through the CON process in converting to a long-term care hospital, instead finding

that “Windy Hill permissibly avoided rather than underwent, much less was

‘approved through,’ a CON process.” The hearing officer also determined that Windy

Hill had not “offered inpatient short-stay acute care services since it converted to a

[long-term care hospital] . . . 23 years ago” and that “[o]perating a short-stay acute

6
care facility offering such services where none were offered on a regular basis within

the previous 12 months would make it a ‘new institutional health service’” that

required CON review and approval. Finally, the hearing officer rejected WellStar’s

argument that refusing to allow Windy Hill to convert its beds into short-stay acute

care beds violated equal protection by treating it differently than other long-term care

hospitals that could revert beds to short-term care beds. WellStar appealed to the

DCH commissioner, who affirmed the hearing officer. The commissioner concluded

that Windy Hill’s proposed conversion “would result in the offering of a reviewable

new health service” that required CON review and approval, and that accepting

WellStar’s argument “would result in a hospital’s being able to flip back and forth[,]”

thereby undermining the purpose of the CON program.

WellStar then petitioned for judicial review in the superior court. Following a

hearing, the superior court reversed the DCH commissioner’s decision, concluding

that: (1) WellStar was entitled to automatically revert its beds from long-term care to

short-stay beds under Ga. Comp. R. & Regs. r. 111-2-2-.20 (1) (d) and 11-2-2-.36 (2)

(d) because the 1996 letter from SHPA acknowledging WellStar’s right to change

from a short-stay hospital to a long-term care hospital constituted a determination

under the “CON process” referenced in the Rules; (2) WellStar was not offering a

7
new institutional health service requiring compliance with the CON procedure; and

(3) WellStar was authorized to operate either short-stay or long-termbeds, and to take

away one of those vested rights would be unconstitutional. From that order, we

granted Emory and the DCH’s applications for discretionary appeal. We consider

each appeal in turn, starting with Emory’s appeal.

No. A22A0111

2. Considering Emory’s fourth enumeration first,

4 Emory contends that the

superior court erred in finding that WellStar went through the CON process in 1996

when it converted to a long-term care hospital from a short-stay general acute care

hospital and that it could, therefore, take advantage of certain CON reversion

procedures. We agree.

(i) GeneralPrinciples. “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.” (Citation and punctuation omitted.) Cobb Hosp., Inc.

4 See Browne & Price, P.A. v. Innovative Equity Corp., 361 Ga. App. 521, 523

(1), n. 7 (864 SE2d 686) (2021) (“For convenience of discussion, we have taken the

enumerated errors out of the order in which appellant has listed them.”) (citation and

punctuation omitted).

8
v. Dept. of Community Health, 349 Ga. App. 452, 456 (1) (a) (825 SE2d 886) (2019),

reversed in part on other grounds, 307 Ga. 578 (837 SE2d 371) (2019); see also

OCGA § 31-6-1.

5 The DCH is also authorized to promulgate rules for the

administration of the CON program. See OCGA § 31-6-21 (a).

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.

(Citation omitted.) Cobb Hosp., 349 Ga. App. at 456 (1) (a). 

As a result, “on appeal to this Court, our duty is not to review whether the

record supportsthe superior court’s decision but whether the record supportsthe final

decision of the administrative agency.” (Citation and punctuation omitted.) Ga. Dept.

5

“The policy of this state and the purposes of this chapter are to ensure access

to quality health care services and to ensure that health care services and facilities are

developed in an orderly and economical manner and are made available to all citizens

and that only those health care services found to be in the public interest shall be

provided in this state. To achieve such public policy and purposes, it is essential that

appropriate health planning activities be undertaken and implemented and that a

system of mandatory review of new institutional health services be provided. Health

care services and facilities should be provided in a manner that avoids unnecessary

duplication of services, that is cost effective, that provides quality health care

services, and that is compatible with the health care needs of the various areas and

populations of the state.” OCGA § 31-6-1.

9
of Community Health v. Satilla Health Svcs., 266 Ga. App. 880, 885 (1) (c) (598

SE2d 514) (2004). To that end, we may reverse or modify the agency’s decision only

if the decision is:

(1) [i]n violation of constitutional or statutory provisions;(2) [i]n excess

of the statutory authority of the department; (3) [m]ade upon unlawful

procedures; (4) [a]ffected by other error of law; (5) [n]ot supported by

substantial evidence, which shall mean that the record does not contain

such relevant evidence as a reasonable mind might accept as adequate

to support such findings, inferences, conclusions, or decisions, which

such evidentiary standard shall be in excess of the “any evidence”

standard contained in other statutory provisions; or (6) [a]rbitrary or

capricious or characterized by abuse of discretion or clearly unwarranted

exercise of discretion.

OCGA § 31-6-44.1 (a).

(ii) Analysis. For the following reasons, we conclude that the plain language

of the relevant rules and statutes confirms that Windy Hill is not “a hospital that has

been approved through the certificate of need process. . . .”

In its initial determination letter, the DCH broadly stated that “Windy Hill’s

[Long-Term Acute Care] Beds Were not Approved through the CON Process.” The

CON Appeal Panel hearing officer agreed, finding that Windy Hill “permissibly

avoided rather than underwent, much less was ‘approved through,’ a CON process”

10
in 1996. As a result, the hearing officer concluded that Windy Hill’s long-term care

hospital beds did not revert to short-stay beds under Ga. Comp. R. & Regs. r. 111-2-

2-.20 (1) (d) and 111-2-2-.36 (2) (d) because Windy Hill had not been “approved

through a CON process[.]” The DCH commissioner agreed and “reject[ed] Windy

Hill’s arguments that it is entitled to avail itself of the ‘reversion exception.’” 

In contrast, the superior court found that WellStar was entitled to have itslongterm care hospital beds automatically revert to short-stay beds under Ga. Comp. R.

& Regs. r. 111-2-2-.20 (1) (d) and 111-2-2-.36 (2) (d). In support of its judgment, the

superior court found that Windy Hill was “approved through the [CON] process” in

1996 when it obtained approval from the DCH to change from a general care hospital

to a long-term health facility without obtaining a CON. 

(A) Relevant Rules Applicable to this Case. At the outset, we note that when

examining statutory provisions,

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.

11
(Citation omitted.) Cobb Hosp., 349 Ga. App. at 459 (1) (c) (ii). “Similarly, in

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

and punctuation omitted.) Id. at 459-460 (1) (c) (ii).

Accordingly,

when an administrative agency decision isthe subject of judicialreview,

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, LLC v. Northside Hosp., 344 Ga. App.

576, 582 (810 SE2d 663) (2018). In short, we “defer to the DCH’s decisions

regarding policy, as well as to the DCH’s interpretation and enforcement of its own

rules.” (Citations, punctuation, and footnote omitted.) Cobb Hosp., 349 Ga. App. at

460 (1) (c) (ii). This is so because

agencies 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

12
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.

(Citation and punctuation omitted.) Id. at 460 (1) (c) (ii). “In the context of the DCH,

the administration of the CON program requires a particularly high level of expertise

and specialization [because] [t]he DCH rules promulgated to administer the program

are detailed and lengthy.” (Citation and punctuation omitted.) Id. at 460-461 (1) (c)

(ii).

(B) “Certificate of Need Process.” Against this backdrop, we turn to the

relevant rules governing, and a basic overview of, the CON process. 

(1) Ga. Comp. R. & Regs. r. 111-2-2-.20 (1) (d) provides that

a hospital that has been approved through the Certificate of Need

processto use a certain number of short-stay hospital bedsfor long-term

acute care (“LTAC”) bedsshall have such LTAC bedsremoved fromthe

official inventory of available short-stay beds once the LTAC is certified

by Medicare; provided, however, that such beds will revert to the

hospital’s official inventory of available short-stay beds at any point

that the LTAC ceases operation or is no longer certified by Medicare.

13
(Emphasissupplied.) Similarly, Ga. Comp. R. & Regs. r. 111-2-2-.36 (2) (d) provides

that a “Long Term Care Hospital, or “LTCH” is: 

a hospital that has been approved through the Certificate of Need

process to use all of its short-stay beds for a Freestanding LTCH shall

have such beds removed from the official inventory of available

short-stay beds when the LTCH is certified by Medicare; provided,

however, that the hospital’s beds will revert to the official inventory of

available short-stay beds at any point that the facility ceases to be

certified by Medicare as an LTCH.

(Emphasis supplied.) Accordingly, these provisions, which the DCH commissioner

and the parties dubbed collectively as the “reversion exceptions,” are available only

to those hospitals that have been “approved through the certificate of need process”

to use short-stay hospital bedsin a long-termcare hospital. Our authorities make clear

that Windy Hill has not been so approved.

(2) We have described the CON process as “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.” ASMC, 344 Ga.

App. at 577. As part of its evaluation, 

[t]he DCH reviews CON applications and issues decisions granting or

denying a CON under statutory considerations in OCGA § 31-6-42 and

14
under general and specific review considerationsin 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. Under OCGA §

31-6-42 (a), “[t]he [DCH] shall issue a certificate of need to each

applicant whose application is consistent with the [considerations set

forth in the statute] and such rules deemed applicable to a project,”

including the establishment of a need for the services.

(Footnote omitted.) ASMC, 344 Ga. App. at 577. And as we have noted,

the administration of the CON programrequires 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 describesthe review proceduresfor 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. . . .

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).

15
(Citation and punctuation omitted; emphasissupplied.) Cobb Hosp., 349 Ga. App. at

460-461 (1) (c) (ii). Therefore, to enforce Georgia’sstated policy directives, the CON

processrequiresthe DCH to thoroughly evaluate a party’s CON application to ensure

that “[h]ealth care services and facilities [are] provided in a manner that avoids

unnecessary duplication of services, that is cost effective, that provides quality health

care services, and that is compatible with the health care needs of the various areas

and populations of the state.” OCGA § 31-6-1.

At a bare minimum, then, review under the CON process first requires an

application. See OCGA § 31-6-43 (b). Here, the parties have not included a record

citation to, and our review of the record has not revealed, any such application filed

by Windy Hill for its evaluation, as either a short-stay general acute care hospital or

a long-term care hospital, at any point in its history6prior to the 2019 application at

issue in this case.

7 And even were we to generously construe WellStar’s June 11,

6 As a result, WellStar’s argument that it availed itself of the CON process in

1996 is unpersuasive. We further discuss Windy Hill’s “grandfathering” in Division

4 infra.

7

Indeed, the record does include at least two prior certificate of need

evaluations for Windy Hill — one for a change in ownership of Windy Hill in 1993

and one for the renovation of the third floor of its facility to “to set-up and staff

thirteen (13) additional long-term acute care . . . beds. . . .” 

16
1996 letter to SHPA in which it sought to operate Windy Hill as a long-term care

hospital as an “application,” there is no ensuing review in which “[b]oth 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 synthesizesthe evidence and appliesit to the agency rules.”

Cobb Hosp., 349 Ga. App. at 461 (1) (c) (ii). To the contrary, SHPA stated in 1996

that Windy Hill need not participate in the CON process at that time. This cursory

statement hardly passes as the equivalent of the “detailed and lengthy” review we

have outlined above, which would satisfy the plain language requirement that a

hospital be “approved through the certificate of need process. . . .”

Moreover, we defer to an agency’s interpretation of its rules and regulations

so long as that interpretation is consistent with the CON statute. See Medical Center

of Central Ga. v. Hosp. Auth. of Monroe County, 340 Ga. App. 499, 504 (3) (798

SE2d 42) (2017) (“While reviewing courts defer to agency interpretations of the

statutes they are charged with administering, that deference applies only as far as the

agency interpretation is consistent with the statute.”) (citation omitted). In this case,

for the reasons outlined above, we conclude that the DCH’s “interpretation correctly

reflects the plain language of the statute and comports with the legislative intent.” Id.

17
(B) Effect of Lack of Certificate of Need Process. Because we conclude that

Windy Hill has not been “approved through the certificate of need process,” it

necessarily follows that Windy Hill is not entitled to the benefits of the “reversion

exception” in either Ga. Comp. R. & Regs. r. 111-2-2-.20 (1) (d) or 111-2-2-.36 (2)

(d). As a result, we conclude that the record supports the DCH commissioner’s

decision that Windy Hill’s proposed conversion from a long-term care hospital to a

short-stay general acute care hospital “would require prior CON review and

approval.” Therefore, in the absence of any basis codified in OCGA § 31-6-44.1 (a),

we further conclude that the superior court erred in reversing the DCH

commissioner’s decision and in finding that “Windy Hill is entitled to automatic

reversion of its bedsto short-stay status under [Ga. Comp. R. & Regs. r.] 111-2-2-.36

(2) (d).”

3. Next, Emory argues that the superior court erred in finding that a long-term

care hospital and a short-stay general acute care hospital are legally the same “clinical

health service,” see OCGA § 31-6-2 (8), and that a new CON is not required to switch

from one category of hospital to the other. In effect, the superior court found that

Windy Hill was authorized to operate either a short-stay general acute care hospital

or a long-term care hospital under its 1996 authorization. This was error.

18
In its initial determination, the DCH cited OCGA § 31-6-40 (a) (5) and (6) and

found that Windy Hill had not “offered inpatient short-stay acute care services since

it converted to a [long-term care hospital] . . . 23 years ago” and that, as a result,

“Windy Hill’s offering of short-stay acute care services where none were offered

within the past . . . 12 months constitutes a reviewable new institutional health

service.” Accordingly, the DCH concluded that Windy Hill’s proposed reversion of

its long-term care hospital beds to short-stay beds under Ga. Comp. R. & Regs. r.

111-2-2-.20 (1) (d) and 111-2-2-.36 (2) (d) constituted “the development of a new

short-stay hospital where one currently does not exist [and] would constitute a

reviewable new short-stay hospital and would require prior CON review and

approval.” On appeal, the hearing officer agreed, noting that it was “undisputed that

Windy Hill has not offered inpatient short-stay acute care services since it converted

to a [long-term care hospital] . . . 23 years ago” and that “[o]perating a short-stay

acute care facility offering such services where none were offered on a regular basis

within the previous 12 months would make it a ‘new institutional health service’” that

required CON review and approval. The DCH commissioner likewise agreed. 

The superior court noted that OCGA § 31-6-2 (8) defines “clinical health

services” as including “medical-surgical care,” but that it does not otherwise

19
distinguish between short-stay and long-term care. The superior court reasoned that,

regardless of whether the beds were short-stay or long-term, WellStar offered such

medical-surgical care both before and since the 1996 letter. The superior court thus

concluded that WellStar was not creating a “new institutional health service” that

required CON approval.

OCGA § 31-6-40 (a) establishes when a new institutional health service

requires a CON and provides, in relevant part:

(a) On and after July 1, 2008, any new institutional health service shall

be required to obtain a certificate of need pursuant to this chapter. New

institutional health services include:

. . . 

(5) Clinical health services which are offered in or through a health care

facility, which were not offered on a regular basis in or through such

health care facility within the 12 month period prior to the time such

services would be offered; [and]

(6) Any conversion or upgrading of any general acute care hospital to a

specialty hospital or of a facility such that it is converted from a type of

facility not covered by this chapter to any of the types of health care

facilities which are covered by this chapter[.]

20
See also Premier Health Care Investments v. UHS of Anchor, 310 Ga. 32, 35-36 (2)

(a) (849 SE2d 441) (2020).

The superior court’s conclusion ignores additionalstatutory language and rules

that reflect a clear intent to treat short-stay and long-term beds differently. First,

OCGA § 31-6-21 (b) (8) requires the DCH to

establish, by rule, need methodologies for new institutional health

services and health care facilities. . . . The [DCH] shall establish

service-specific need methodologies and criteria for at least the

following clinical health services: short stay hospital beds[.]”

(Emphasis supplied.) To that end, the DCH promulgated “Specific Review

Considerations for Short-Stay General Hospital Beds” (see Ga. Comp. R. & Regs. r.

111-2-2-.20) and “Specific Review Considerations for Long Term Care Hospitals”

(see Ga. Comp. R. & Regs. r. 111-2-2-.36). Accordingly, the CON process evaluates

each category of hospital differently.

Second, the two types of hospitals are defined differently based upon the

services they provide. A “‘[s]hort stay hospital’ or ‘hospital’ is defined as a facility

with an average length of stay of less than thirty (30) days.” Ga. Comp. R. & Regs.

r. 111-2-2-.20 (2) (n).

21
“Long Term Care Hospital” or “LTCH” or “Long Term Acute Care

Hospital” or “LTACH” means a hospital that is classified as a long term

hospital by the Medicare program pursuant to 42 CFR 412.23(e). These

hospitalstypically provide extended medical and rehabilitative care for

patients who are clinically complex and may suffer from multiple acute

or chronic conditions. Services typically include comprehensive

rehabilitation, respiratory therapy, head trauma treatment, and pain

management.

(Emphasis supplied.) Ga. Comp. R. & Regs. r. 111-2-2-.36 (2) (d). Moreover,

according to federal regulations, to be so classified, long-term care hospitals “must

have an average Medicare inpatient length of stay of greater than 25 days (which

includes all covered and noncovered days of stay of Medicare patients)[.]” 42 CFR

412.23 (e) (2) (i).

Third, this distinction is represented in the evidence provided to the hearing

officer duringWellStar’s appealfromthe DCH’sinitial determination. Between 1973

and 1996, it is undisputed that Windy Hill operated as a short-term general acute care

hospital. When it contacted SHPA in 1996, Windy Hill specifically stated that it

wanted to operate “a long-term acute care hospital pursuant to 42 CFR 412.23 (e) (1)

and (2).” Windy Hill also indicated it would “convert its emergency roomdepartment

to a minor emergency facility (“Immediate Care Department”).” After the SHPA

22
notified Windy Hill that it would not need CON approval in order to convert the

hospital to a long-term care hospital, Windy Hill received a permit to operate a

“Specialized Long Term Acute Care Hospital.” Thereafter, Windy Hill operated as

a long-term care hospital for the next 23 years. In its Annual Hospital Questionnaire

sent to DCH each year from 2015 to 2018 inclusive, Windy Hill noted that it

maintained a permit to operate a “Specialized Long-Term Acute Care Hospital” and

that it had no emergency room or any beds other than long-term care hospital beds —

including no short-stay hospital beds. 

These factorsindicate a clear legal distinction between short-stay general acute

care hospitals and long-term care hospitals, and demonstrate that Windy Hill was

being operated as a long-term care hospital. That there may be a minimal level of

overlap between the two categories does not alter the fact that the categories are

defined differently, evaluated differently, reported differently, and provide different

levels of care.8 According to Windy Hill’s own evidence, it maintained 47 long-term

8

 Moreover, despite any overlap in the manner of care provided by short-stay

general acute care hospitals and long-term care hospitals, the regulations lawfully

promulgated by the DCH note that a long-term care hospital generally provides

“extended medical and rehabilitative care for patients who are clinically complex and

may suffer from multiple acute or chronic conditions[,]” including “comprehensive

rehabilitation,respiratory therapy, head trauma treatment, and painmanagement.”Ga.

Comp. R. & Regs. r. 111-2-2-.36 (2) (d). There are no such limitations on the role of

23
care hospital beds, and only long-term care beds, when it sought to convert its entire

complement of 115 beds to short-stay beds in 2019, after having operated as a longterm care hospital for more than 20 years. As a result, Windy Hill’s annual reporting

confirmed that it did not maintain any beds for pediatric care, gynecological care,

general medicine, general surgery, or medical/surgical care.9 Under these facts, the

DCH commissioner was authorized to find that Windy Hill’s proposed conversion

constituted a “new institutional health service” that required prior CON review and

approval. See OCGA § 31-6-40 (a) (5) (stating that a new institutional health service

includes “[c]linical health services which are offered in or through a health care

facility, which were not offered on a regular basis in or through such health care

facility within the 12 month period prior to the time such services would be

offered”).10 Because the superior court impermissibly equated the two categories to

a short-stay general acute care hospital.

9 For this reason, coupled with WellStar’s 1996 surrender of its “General

Hospital” permit, WellStar’s arguments—thatshort-stay care and long-termcare are

essentially the same and encompassed under a broad “clinical health service” or

“medical-surgical care” umbrella — are unavailing.

10 Furthermore, we find unpersuasive WellStar’s argument, based upon OCGA

§ 31-6-40 (a) (6), that it is entitled to forego the CON process because a CON would

only be required for “the conversion or upgrading of any general acute care hospital

to a specialty hospital but not the converse” in view of the application of OCGA § 31-

24
hold that Windy Hill did not need prior CON approval, and finding no basis to

reverse the DCH commissioner’s decision under OCGA § 31-6-44.1, we again

conclude that the superior court erred in reversing the final agency decision.

4. Finally, in two interrelated enumerations of error, Emory asserts that the

superior court erred in finding that WellStar had a “vested right” to “provide [longterm care hospital]services while retaining itsstatus as a general acute care hospital”

and that reversing the DCH commissioner’s decision “avoids an unconstitutional

result,” which, Emory argues, itself results in an unconstitutional application of the

rules and statutes governing the CON program.

11 We conclude that WellStar did not

6-40 (a) (5).

11 The Supreme Court of Georgia “has exclusive jurisdiction over all cases

involving construction of the Constitution of the State of Georgia and of the United

States and all cases in which the constitutionality of a law, ordinance, or

constitutional provision has been called into question.” Atlanta Independent School

System v. Lane, 266 Ga. 657 (1) (469 SE2d 22) (1996); accord Ga. Const. of 1983,

Art. VI, Sec. VI, Par. II (1). However, this Court has “limited jurisdiction to review

constitutional questions.” City of Decatur v. DeKalb County, 284 Ga. 434, 436 (2)

(668 SE2d 247) (2008). As a result, we have jurisdiction over cases that “involve the

application, in a general sense, of unquestioned and unambiguous provisions of the

Constitution to a given state of facts and that do not involve construction of some

constitutional provision directly in question and doubtful either under its own terms

or under the decisions of the Supreme Court of Georgia or the Supreme Court of the

United States.” Id. (punctuation omitted). Here, it is not clear that a constitutional

question was squarely raised below. Furthermore, the resolution of the question

appears to involve the application of settled constitutional law. Under these

25
have a vested right to remain a general acute care hospital throughout its operation

as a long-term care hospital.

In its order, the superior court tacitly found that Windy Hill had a vested right

to operate as a short-stay general acute care hospital based upon the 1996 letter from

SHPA.12 As a result, the superior court concluded that

[e]ven if “short-stay beds” and “long-term beds” were distinct clinical

health services, [the] DCH cannot interpret its later-adopted rules to

retroactively take away Windy Hill’s vested right to provide both

short-stay and long-termmedical-surgical care. Asreflected by the 1996

[SHPA letter], Windy Hill had a right to provide [long-term care

hospital] services while retaining its status as a general acute care

hospital. That right — expressly recognized in a ruling from the state

CON agency — has never been relinquished. Thus, even if [the] DCH’s

subsequent adoption of separate rules for Short-Stay Hospital Beds and

Long Term Care Hospitals created distinct clinical health services,

Windy Hill had already vested its right to offer long-term beds while

circumstances, jurisdiction is proper in this Court.

12 The superior court’s order does not make an express finding that Windy Hill

has a vested right. Even to the extent it made such a finding, the order contains no

analysis explaining how the superior court determined that Windy Hill’s prior

operation as a short-stay general acute care hospital qualified as a vested right.

Rather, it simply refers to the Georgia Constitution’s prohibition against applying

laws “retroactively so as to impair vested rights.” 

26
retaining its general acute care CON authorization, including offering

medical-surgical care. 

Our Supreme Court “has said that the term vested rights meansinterests which

it is proper for the state to recognize and protect and of which the individual cannot

be deprived arbitrarily without injustice.” (Citation and punctuation omitted.) Deal

v. Coleman, 294 Ga. 170, 177 (2) (a) (751 SE2d 337) (2013). However, “‘vested

rights’ must be private rights, and public rights — those rights that belong to the

People in common — can be modified by the elected representatives of the People

prospectively or retroactively, asthey see fit.” (Emphasis supplied.) Id. at 181 (2) (a).

Furthermore, like the Open Records Act at issue in Deal, the CON laws were

“enacted for the protection of the public, and not for the benefit of any particular

individual or calling.” (Citation and punctuation omitted.) See id. at 180 (2) (a); see

also OCGA § 31-6-1 (stating that public policy supporting CON laws is “to ensure

access to quality health care services and to ensure that health care services and

facilities are developed in an orderly and economical manner and are made available

to all citizens and that only those health care services found to be in the public

interest shall be provided in this state”) (emphasis supplied); Cobb Hosp., 349 Ga.

27
App. at 456 (1) (a) (finding that “the public is better served by having experts in the

complexities of health care planning make . . . decisions”).

Here, the superior court concluded, in effect, that Windy Hill is free to operate

either long-term beds or short-stay beds because Windy Hill was grandfathered into

the CON program. This was error. It is true that, when the CON regulation was

enacted, it did not apply to those facilities that pre-existed the legislation. See HCA

Health Svcs. v. Roach, 263 Ga. 798, 800 (3) (a) (439 SE2d 494) (1994), overruled on

other grounds by Marsh v. Clarke County School District, 292 Ga. 28 (732 SE2d 443)

(2012). Such “grandfathering” applies to facilities that “existed and performed the

same services prior to the CON program in 1979.” (Emphasissupplied.) Id. at 801 (3)

(a). In other words, facilities were allowed to continue operating in the same manner

asthey had operated prior to the enactment of the CON laws. See also OCGA § 31-6-

40 (c) (1) (“Any person who had a valid exemption granted or approved by the former

Health Planning Agency or the department prior to July 1, 2008, shall not be required

to obtain a certificate of need in order to continue to offer those previously offered

services.”).

28
Prior to 1979, WindyHill operated as a short-termgeneral acute care hospital.

13

Therefore, due to the ability to be “grandfathered” in, Windy Hill continued to

operate as a short-stay general acute care hospital after the CON laws became

effective in 1979. In 1996, Windy Hill transformed from a short-stay hospital to a

long-term care hospital and thus no longer provided the same services it provided

prior to the CON programin 1979. Under these circumstances, WellStar relinquished

any right it had obtained by operation of being grandfathered to operate as a shortstay hospital.

14

13

In its initial determination, the DCH noted that Windy Hill “originally

operated as a short-stay hospital with 165 beds. The Georgia CON statute became

effective in 1979[;] as a result Windy Hill’s operation of its short-stay hospital was

grandfathered under the law.” Indeed, Windy Hill acknowledged as much, stating in

its CON application that “[s]ince its founding in 1973, WellStar Windy Hill had

operated as a general acute care short-stay hospital.” 

14

In fact, to the extent the 1996 letter conveyed any right at all, it granted

Windy Hill the right to operate as a long-term care hospital — just as Windy Hill

sought. See Ga. Comp. R. & Regs. r. 111-2-2-.10 (1) (a) (“Determinations are

conclusions of the Department that are based on specific facts and are limited to the

specific issues addressed in the request for determination, as applicable. Therefore,

the conclusions of a specific determination shall have no binding precedent in relation

to parties notsubject to the request and to other facts or factual situations that are not

presented in the request.”). As we have noted, after the SHPA issued its 1996 letter,

Windy Hill received a new permit authorizing it to operate as a “Specialized Long

Term Acute Care Hospital,” and returned its former permit, which had authorized

Windy Hill to operate as a “General Hospital” and which the SHPA marked as

“Void.” 

29
Furthermore, as the DCH commissioner found, and contrary to WellStar’s

argument, concluding that a facility is entitled to switch back and forth between

operating short-stay and long-termbeds underminesthe purpose of the CON program.

As a matter of express public policy, OCGA § 31-6-1 requiresthe DCH to ensure that

health care services and facilities are provided in a manner that is cost-effective and

that avoids the unnecessary duplication of services. If Windy Hill, or any other

facility, retains a purported right to unilaterally change the nature of the services it

offers, the DCH would be precluded from fulfilling its legislatively-mandated

regulatory role, and the codified public policy underlying the CON process would be

rendered meaningless. We cannot read the relevant rules and statutes in such a way.

See generally Langley v. Langley, 279 Ga. 374, 376 (1) (613 SE2d 614) (2005)

(holding that, in case where enforcement of an agreement was a matter of public

policy, “considerations of public policy cannot be ignored”).

Finally, having failed to demonstrate a vested right to operate as a short-stay

general acute care hospital, it necessarily follows that WellStar cannot show a

violation of its constitutionalrights.15 The superior court erred in holding otherwise.16

15

In its motion for summary adjudication before the CON Appeal Panel,

WellStar argued that Emory’s proposed reading of certain CON regulations “would

cause an unconstitutional retroactive impairment of WellStar Windy Hill’s vested

30
Case No. A22A0112

5. In Case No, A22A0112, the DCH asserts that the superior court: (1) relied

upon an unreasonable interpretation of the facts; (2) misinterpreted the rules

governing CONs; (3) misinterpreted the term “clinical health services”; (4)

erroneously found thatreversing the DCH’s determination avoids an unconstitutional

result; and (5) erred in finding that the DCH’s determination was arbitrary and

capricious.

However, in view of our decision in Case No. A22A0111 reversing the

superior court’s order granting WellStar’s petition for judicial review, we need not

consider the DCH’s enumerations of error. Accordingly, Case No. A22A0112 is

rights to remain a general acute care hospital throughout operation as [a long-term

care hospital.]” Therefore, WellStar properly raised the argument during the agency

proceedings, and the superior court was authorized to consider WellStar’s argument.

See Cobb Hosp. v. Dept. of Community Health, 357 Ga. App. 358, 360 (850 SE2d

831) (2020) (“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.”) (citation and punctuation omitted).

16 We need not consider Emory’sremaining enumeration that the superior court

failed to address its argument that WellStar’s proposal resulted in a new short-stay

general acute care hospital without obtaining a new CON. See OCGA § 31-6-40 (a)

(1).

31
dismissed asmoot. See generallyTurner Outdoor Advertising v. Werco, 194 Ga. App.

14, 15 (2) (389 SE2d 778) (1989). 

In sum, we conclude that the superior court erred in finding that: (1) “Windy

Hill is entitled to automatic reversion of its bedsto short-stay status under [Ga. Comp.

R. & Regs. r.] 111-2-2-.36 (2) (d)[;] because Windy Hill was not a ‘[a] hospital that

[had] been approved through the Certificate of Need process[;]’” (2) a long-term care

hospital and a short-stay general acute care hospital are legally the same “clinical

health service,” such that a new CON is not required to switch from one category of

hospital to the other; and (3) WellStar had a “vested right” to “provide [long-term

care hospital] services while retaining its status as a general acute care hospital” and

thatreversing theDCHcommissioner’s decision “avoids an unconstitutionalresult[.]”

Therefore, we reverse the superior court’s judgment in Case No. A22A0111 and

dismiss Case No. A22A0112 as moot.

Judgment reversed in Case No. A22A0111. Appeal dismissed as moot in Case

No. A22A0112. Barnes, P. J., and Brown, J., concur.

32