GA Code § 31-6-44.1 (2021)
2021 Georgia Code|Title 31 - Health|Chapter 6 - State Health Planning and Development|Article 3 - Certificate of Need Program|§ 31-6-44.1. Judicial Review

  Any party to the initial administrative appeal hearing conducted by the appointed appeal panel hearing officer, excluding the department, may seek judicial review of the final decision in accordance with the method set forth in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except as otherwise modified by this Code section; provided, however, that in conducting such review, the court may reverse or modify the final decision only if substantial rights of the appellant have been prejudiced because the procedures followed by the department, the hearing officer, or the commissioner or the administrative findings, inferences, and conclusions contained in the final decision are:   In violation of constitutional or statutory provisions;   In excess of the statutory authority of the department;   Made upon unlawful procedures;   Affected by other error of law;   Not 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   Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.     In the event a party seeks judicial review, the department shall, within 30 days of the filing of the notice of appeal with the superior court, transmit certified copies of all documents and papers in its file together with a transcript of the testimony taken and its findings of fact and decision to the clerk of the superior court to which the case has been appealed. The case so appealed may then be brought by either party upon ten days' written notice to the other before the superior court for a hearing upon such record, subject to an assignment of the case for hearing by the court; provided, however, if the court does not hear the case within 120 days of the date of docketing in the superior court, the decision of the department shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 120 days has been continued to a date certain by order of the court. In the event a hearing is held later than 90 days after the date of docketing in the superior court because same has been continued to a date certain by order of the court, the decision of the department shall be considered affirmed by operation of law if no order of the court disposing of the issues on appeal has been entered within 30 days after the date of the continued hearing. If a case is heard within 120 days from the date of docketing in the superior court, the decision of the department shall be considered affirmed by operation of law if no order of the court dispositive of the issues on appeal has been entered within 30 days of the date of the hearing.   A party responding to an appeal to the superior court shall be entitled to reasonable attorney's fees and costs if such party is the prevailing party of such appeal as decided by final order; provided, however, the department shall not be required to pay attorney's fees or costs. This subsection shall not apply to the portion of attorney's fees accrued on behalf of a party responding to or bringing a challenge to the department's authority to enact a rule or regulation or the department's jurisdiction or another challenge that could not have been raised in the administrative proceeding.     (Code 1981, §31-6-44.1, enacted by Ga. L. 2008, p. 12, § 1-1/SB 433.)   Editor's notes.   - Ga. L. 2008, p. 12, § 3-1/SB 433, not codified by the General Assembly, provides that the enactment of this Code section shall only apply to applications submitted on or after July 1, 2008.   Law reviews.   - For annual survey on administrative law, see 65 Mercer L. Rev. 41 (2013). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For annual survey on administrative law, see 70 Mercer L. Rev. 1 (2018).   JUDICIAL DECISIONS   Construction.    - Georgia Court of Appeals finds that the Georgia legislature uses the term "jurisdiction" under O.C.G.A. § 31-6-44.1(c) with regard to attorney fees because the legislature intends to refer to something other than a challenge asserting that the Georgia Department of Community Health (DCH) exceeded the department's statutory authority or acted ultra vires in issuing a particular decision with regard to a Certificate of Need; rather, the Court of Appeals concludes that the legislature intends the second exception to encompass challenges to the DCH's jurisdiction as a whole. Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).    Georgia Court of Appeals concludes that the Georgia legislature uses the term "jurisdiction" in O.C.G.A. § 31-6-44.1(c) to refer to the Georgia Department of Community Health's general power to act and not to the department's authority to act with regard to a particular Certificate of Need. Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).   DCH order affirmed by operation of law.    - In an appeal from a decision of the Georgia Department of Community Health (DCH) granting a certificate of need to a surgical facility, when the trial court failed to enter the court's order until 48 days after the hearing, under O.C.G.A. § 31-6-44.1, the final decision of the DCH was affirmed by operation of law, making the trial court's order void. Kennestone Hosp., Inc. v. Cartersville Med. Ctr., Inc., 341 Ga. App. 28, 798 S.E.2d 381 (2017).   Attorney's fees.    - When the Department of Community Health's denial of a certificate of need was affirmed, the appellants' motion for attorney fees was improperly denied because the superior court's order on remand denied the appellee's petition, thus establishing that the appellants were the prevailing parties of the appeal to the superior court as decided by a final order of that court; the appellate court's previous order noted that a fee award in favor of the appellants would be issued following the return of the remittitur to the trial court; and the appellate court's previous decision affirmed the denial of the certificate on grounds independent of the appellee's constitutional challenge to the need rule, thus mooting those issues. Tanner Medical Center, Inc. v. Vest Newnan, LLC, 344 Ga. App. 901, 811 S.E.2d 527 (2018).   Requirements met.    - In a dispute by a hospital challenging the grant of a certificate of need to a competitor, because the trial court held a hearing on the Department of Community Health's and the competitor's motion to dismiss within 120 days and its order granting dismissal was entered less than 30 days later, the requirements of O.C.G.A. § 31-6-44.1(b) were fulfilled. Doctors Hosp. of Augusta, LLC v. Dep't of Cmty. Health, 344 Ga. App. 583, 811 S.E.2d 64 (2018).   Judicial review of agency decisions.    - Reversal of the agency and denial of a Certificate of Need (CON) was affirmed because the atypical barrier exception did not support the agency's grant of the CON as the agency's interpretation of the atypical barrier exception in the rule was inconsistent with the plain language of the rule, clearly erroneous, and prejudiced the substantial rights of the challenging hospitals who already provided the same services. ASMC, LLC v. Northside Hosp., Inc., 344 Ga. App. 576, 810 S.E.2d 663 (2018), cert. denied, 2018 Ga. LEXIS 610 (Ga. 2018).   Application.    - Trial court erred by denying a health system's motion for attorney fees pursuant to O.C.G.A. § 31-6-44.1(c) with regard to its successful defense to a certificate of need challenge determination of the Georgia Department of Community Health (DCH) because the challenging hospital did not assert a jurisdictional challenge to the DCH's determination, thus, the challenge did not fall into the exception to fees under § 31-6-44.1(c). Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).