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New Grant of Petition for Certiorari in Civil Case

September 27, 2011

The Supreme Court of Georgia has granted one new petition for certiorari in the last two weeks in a civil case. Below is a brief summary of the case and issues.

S11G1201. Georgia Department of Community Health et al. v. Georgia Society of Ambulatory Surgery Centers

This case involves the authority of the Department of Community Health (DCH) to oversee the operations of ambulatory surgery centers (ASCs) in the state. As part of the exemption that many ASCs receive from Georgia’s Certificate of Need (CON) requirements, DCH collects data from ASCs each year for health planning purposes through an annual survey. Based on changes in the law in 2008, ASCs that are are exempt from the CON program must now provide the same survey information to DCH as facilities operating under CONs. When DCH issued its 2009 annual survey in early 2010, the Georgia Association of Ambulatory Surgery Centers (GSASC) filed this case, seeking a declaratory judgment that the survey went beyond the requirements of Georgia law and injunctive relief preventing DCH from penalizing ASCs that did not respond to the disputed items. The trial court denied GSASC’s request for an interlocutory injunction and GSASC appealed.

The Court of Appeals reversed the trial court’s decision in a split 4-3 decision (Barnes, Smith, Mikell, Adams; Blackwell, Andrews, Dillard, dissenting). Writing for the majority, Judge Barnes found the trial court abused its discretion in denying the injunction because the disputed items in the survey were not authorized by Georgia law. The majority further found that the GSASC was not required to exhaust its administrative remedies because those remedies would be futile and the case challenges the agency’s power to act. Writing in dissent, Judge Blackwell argued the trial court and the Court of Appeals lack jurisdiction and both the appeal and the case below should be dismissed. Judge Blackwell would not have reached the merits and instead found that an effective and available administrative remedy exists, preventing a court from hearing the case.

The DCH petitioned for a writ of certiorari, arguing that DCH is entitled to request the information and that GSASC was required to exhaust its administrative remedies. GSASC responded, arguing the Court of Appeals was correct in its findings.

On September 12, 2011, the Supreme Court unanimously granted the petition to consider the following issue:

  1. Did the Court of Appeals err in its determination that the Georgia Society of Ambulatory Service Centers and its members were not required to exhaust administrative remedies?

The case has been assigned to the January 2012 oral argument calendar.


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