October 31, 2013
In Georgia Dept. of Comm. Health v. Northside Hosp., Inc., 2013 WL 5763236 (Oct. 25, 2013), the Georgia Court of Appeals ruled that a Georgia Department of Community Health regulation was unconstitutionally vague because it gave DCH unfettered discretion in how to apply the regulation. Rule 111-2-.40(1) provides that an ambulance surgery service is not required to seek a certificate of need if it is “part of a hospital.” The regulation offered two examples of situations in which an ambulance surgery service is part of a hospital, and then stated that DCH would address all other situations on case-by-case basis without supplying any guidance as to which factors would be considered in that case-by-case analysis. The Court held: “We are sympathetic to the fact that a specialized agency may need to make determinations on a case-by-case basis because it will often not confront special problems or considerations that require a flexible approach to a resolution. The agency, however, must set identifiable standards to guide its judgment when operating under a case-by-case determination.” Otherwise, the agency has absolute discretion in how it applies the rule, which violates the due process rights of those subjected to the rule. S.J.T., Inc. v. Richmond Cnty., 263 Ga. 267, 269-70, 430 S.E.2d 726, 729 (1993).