GA Code § 31-6-43 (2021)
2021 Georgia Code|Title 31 - Health|Chapter 6 - State Health Planning and Development|Article 3 - Certificate of Need Program|§ 31-6-43. Acceptance or Rejection of Application for Certificate

  At least 30 days prior to submitting an application for a certificate of need for clinical health services, a person shall submit a letter of intent to the department. The department shall provide by rule a process for submitting letters of intent and a mechanism by which applications may be filed to compete with and be reviewed comparatively with proposals described in submitted letters of intent.   Each application for a certificate of need shall be reviewed by the department and within ten working days after the date of its receipt a determination shall be made as to whether the application complies with the rules governing the preparation and submission of applications. If the application complies with the rules governing the preparation and submission of applications, the department shall declare the application complete for review, shall accept and date the application, and shall notify the applicant of the timetable for its review. The department shall also notify a newspaper of general circulation in the county in which the project shall be developed that the application has been deemed complete. The department shall also notify the appropriate regional commission and the chief elected official of the county and municipal governments, if any, in whose boundaries the proposed project will be located that the application is complete for review. If the application does not comply with the rules governing the preparation and submission of applications, the department shall notify the applicant in writing and provide a list of all deficiencies. The applicant shall be afforded an opportunity to correct such deficiencies, and upon such correction, the application shall then be declared complete for review within ten days of the correction of such deficiencies, and notice given to a newspaper of general circulation in the county in which the project shall be developed that the application has been so declared. The department shall also notify the appropriate regional commission and the chief elected official of the county and municipal governments, if any, in whose boundaries the proposed project will be located that the application is complete for review or when in the determination of the department a significant amendment is filed.   The department shall specify by rule the time within which an applicant may amend its application. The department may request an applicant to make amendments. The department decision shall be made on an application as amended, if at all, by the applicant.     There shall be a time limit of 120 days for review of a project, beginning on the day the department declares the application complete for review or in the case of applications joined for comparative review, beginning on the day the department declares the final application complete. The department may adopt rules for determining when it is not practicable to complete a review in 120 days and may extend the review period upon written notice to the applicant but only for an extended period of not longer than an additional 30 days. The department shall adopt rules governing the submission of additional information by the applicant and for opposing an application.   No party may oppose an application for a certificate of need for a proposed project unless:   Such party offers substantially similar services as proposed within a 35 mile radius of the proposed project or has a service area that overlaps the applicant's proposed service area; or   Such party has submitted a competing application in the same batching cycle and is proposing to establish the same type of facility proposed or offers substantially similar services as proposed and has a service area that overlaps the applicant's proposed service area.       To allow the opportunity for comparative review of applications, the department may provide by rule for applications for a certificate of need to be submitted on a timetable or batching cycle basis no less often than two times per calendar year for each clinical health service. Applications for services, facilities, or expenditures for which there is no specified batching cycle may be filed at any time.   The department may order the joinder of an application which is determined to be complete by the department for comparative review with one or more subsequently filed applications declared complete for review during the same batching cycle when:   The first and subsequent applications involve similar clinical health service projects in the same service area or overlapping service areas; and   The subsequent applications are filed and are declared complete for review within 30 days of the date the first application was declared complete for review.  Following joinder of the first application with subsequent applications, none of the subsequent applications so joined may be considered as a first application for the purposes of future joinder. The department shall notify the applicant to whose application a joinder is ordered and all other applicants previously joined to such application of the fact of each joinder pursuant to this subsection. In the event one or more applications have been joined pursuant to this subsection, the time limits for department action for all of the applicants shall run from the latest date that any one of the joined applications was declared complete for review. In the event of the consideration of one or more applications joined pursuant to this subsection, the department may award no certificate of need or one or more certificates of need to the application or applications, if any, which are consistent with the considerations contained in Code Section 31-6-42, the department's applicable rules, and the award of which will best satisfy the purposes of this chapter.      The department shall review the application and all written information submitted by the applicant in support of the application and all information submitted in opposition to the application to determine the extent to which the proposed project is consistent with the applicable considerations stated in Code Section 31-6-42 and in the department's applicable rules. During the course of the review, the department staff may request additional information from the applicant as deemed appropriate. Pursuant to rules adopted by the department, a public hearing on applications covered by those regulations may be held prior to the date of the department's decision thereon. Such rules shall provide that when good cause has been shown, a public hearing shall be held by the department. Any interested person may submit information to the department concerning an application, and an applicant shall be entitled to notice of and to respond to any such submission.   The department shall provide the applicant an opportunity to meet with the department to discuss the application and to provide an opportunity to submit additional information. Such additional information shall be submitted within the time limits adopted by the department. The department shall also provide an opportunity for any party that is permitted to oppose an application pursuant to paragraph (2) of subsection (d) of this Code section to meet with the department and to provide additional information to the department. In order for any such opposing party to have standing to appeal an adverse decision pursuant to Code Section 31-6-44, such party must attend and participate in an opposition meeting.   Unless extended by the department for an additional period of up to 30 days pursuant to subsection (d) of this Code section, the department shall, no later than 120 days after an application is determined to be complete for review, or, in the event of joined applications, 120 days after the last application is declared complete for review, provide written notification to an applicant of the department's decision to issue or to deny issuance of a certificate of need for the proposed project. Such notice shall contain the department's written findings of fact and decision as to each applicable consideration or rule and a detailed statement of the reasons and evidentiary support for issuing or denying a certificate of need for the action proposed by each applicant. The department shall also mail such notification to the appropriate regional commission and the chief elected official of the county and municipal governments, if any, in whose boundaries the proposed project will be located. In the event such decision is to issue a certificate of need, the certificate of need shall be effective on the day of the decision unless the decision is appealed to the Certificate of Need Appeal Panel in accordance with this chapter. Within seven days of the decision, the department shall publish notice of its decision to grant or deny an application in the same manner as it publishes notice of the filing of an application.   Should the department fail to provide written notification of the decision within the time limitations set forth in this Code section, an application shall be deemed to have been approved as of the one hundred twenty-first day following notice from the department that an application, or the last of any applications joined pursuant to subsection (f) of this Code section, is declared "complete for review."   Notwithstanding other provisions of this article, when the Governor has declared a state of emergency in a region of the state, existing health care facilities in the affected region may seek emergency approval from the department to make expenditures in excess of the capital expenditure threshold or to offer services that may otherwise require a certificate of need. The department shall give special expedited consideration to such requests and may authorize such requests for good cause. Once the state of emergency has been lifted, any services offered by an affected health care facility under this subsection shall cease to be offered until such time as the health care facility that received the emergency authorization has requested and received a certificate of need. For purposes of this subsection, "good cause" means that authorization of the request shall directly resolve a situation posing an immediate threat to the health and safety of the public. The department shall establish, by rule, procedures whereby requirements for the process of review and issuance of a certificate of need may be modified and expedited as a result of emergency situations.     (Code 1981, §31-6-43, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1984, p. 22, § 31; Ga. L. 1989, p. 1317, §§ 6.15, 6.16; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2008, p. 181, § 15/HB 1216; Ga. L. 2012, p. 775, § 31/HB 942; Ga. L. 2019, p. 148, § 1-8/HB 186.)    The 2019 amendment,  effective July 1, 2019, designated the existing provisions of subsection (d) as paragraph (d)(1); added paragraph (d)(2); and, in subsection (h), substituted "permitted to oppose an application pursuant to paragraph (2) of subsection (d) of this Code section" for "opposed to an application" in the third sentence and substituted "any such" for "an" near the beginning of the fourth sentence.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2008, subsection (g), as enacted by Ga. L. 2008, p. 12, § 1-1, was redesignated as subsection (k).   Editor's notes.   - Ga. L. 2008, p. 12, § 3-1/SB 433, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to applications submitted on or after July 1, 2008.   JUDICIAL DECISIONS   Certificate of need properly denied.    - Given the ability of an area's patients to secure adult open-heart surgery service at a significant rate, the Georgia Health Planning Review Board (now Certificate of Need Appeal Panel) did not exceed the board's authority, abuse the board's discretion, act arbitrarily or without substantial evidence, or otherwise err by rejecting the hearing officer's determination that a certificate of need (CON) should be issued to the area's medical center under a geographical barrier exception to the Georgia Department of Community Health's CON regulations. The Board determined that neither the use of out-of-state services, nor the reluctance of the area's physicians to refer patients to in-state facilities, created a geographical barrier warranting an exception. Ga. Dep't of Cmty. Health v. Satilla Health Servs., 266 Ga. App. 880, 598 S.E.2d 514 (2004).    Appellate court reinstated the agency denial of a Certificate of Need to establish an inpatient psychiatric hospital because the agency's conclusion that the applicant did not meet the applicant's burden of establishing no adverse impact on similar existing programs was supported by substantial evidence, in particular, expert testimony and exhibits regarding the applicant's unrealistic projections, overinflated market share, and failure to account for an existing facility's additional 30 pediatric beds. Tanner Med. Ctr., Inc. v. Vest Newnan, LLC, 337 Ga. App. 884, 789 S.E.2d 258 (2016).   Date time begins.    - Date an agency made the determination that a reapplication was complete was the day the 90-day time limit of subsection (c) of O.C.G.A. § 31-6-43 for ruling on the reapplication began to run. State Health Planning Agency v. Cribb Indus., Inc., 204 Ga. App. 285, 419 S.E.2d 123 (1992).   Opposing hospitals failed to show harm from alleged deficiencies in hearing officer's decision.    - Two hospitals that opposed an application for a certificate of need for perinatal services failed to show any harm resulting from alleged deficiencies in the initial decision issued by a hearing officer of the Department of Community Health which prejudiced the hospitals' ability to present their case to the hearing officer. The hospitals could have, but did not, present additional evidence pursuant to O.C.G.A. § 31-6-44. Palmyra Park Hosp., Inc. v. Phoebe Sumter Med. Ctr., 310 Ga. App. 487, 714 S.E.2d 71 (2011).   Timely review of reapplication.    - State Health Planning Agency's (now Department of Community Health) extension of the time for review of a nursing home application beyond the 90 day time limit set forth in subsection (c) of O.C.G.A. § 31-6-43 was warranted since the agency had offered to provide the applicant with an opportunity to meet and discuss the application and to submit additional evidence, but the applicant requested a delay of the meeting that made a decision within the 90 day time limit impracticable. State Health Planning Agency v. Cribb Indus., Inc., 204 Ga. App. 285, 419 S.E.2d 123 (1992).   Department decisions entitled to deference.    - Appellate court must defer to decisions on the issuance of certificates of need of the Georgia Department of Community Health, which is charged with balancing numerous factors in determining the need for additional medical facilities, as it is not feasible to have comprehensive medical facilities in every Georgia town, and the judiciary is ill-equipped to resolve the complex issues inherent in state health planning. Ga. Dep't of Cmty. Health v. Satilla Health Servs., 266 Ga. App. 880, 598 S.E.2d 514 (2004).    Cited in ASMC, LLC v. Northside Hosp., Inc., 344 Ga. App. 576, 810 S.E.2d 663 (2018), cert. denied, 2018 Ga. LEXIS 610 (Ga. 2018).