C-O-N Rule Change Spawns Lawsuit

(12/31/07) A state agency’s decision to change the Certificate of Need rules without a go-ahead from the Legislature has landed in court.

The Georgia Alliance of Community Hospitals and its 59 member hospitals filed suit Monday in Dougherty County Superior Court seeking to invalidate the new rule, which allows general surgeons to establish free-standing ambulatory surgical centers without going through the Certificate of Need process.

The rule was approved Dec. 13 by the State Board of Community Health, reclassifying general surgeons from their current “multi-specialty” status to a “single-specialty” status.

The significance of that is that under Department of Community Health rules, multi-specialty practices must secure a CON from DCH and commit to providing a minimum level of indigent care; single-specialty practices can usually bypass the CON process and avoid an indigent care commitment.

In previous cases originating in Albany, the superior court, the Court of Appeals and the state Supreme Court all have held that the General Assembly had reserved to itself the right to reclassify general surgery as a single specialty. CON reform was a major issue in the 2007 legislative session, and ultimately the House voted 112-55 to send back to committee a bill that, among other things, would have reclassified general surgery as a single specialty.

Monty Veazy, president of the Georgia Alliance of Community Hospitals, said: “As the Department of Community Health and its board members know full well, the new general surgery rule flies in the face of multiple court decisions and is a naked and illegal attempt to override the will of the General Assembly of Georgia … It is, in short, both a stunning abuse of governmental authority and a reckless attempt to cater to a power special interest at the clear expense of the health care needs of Georgia’s nine million citizens.”

The lawsuit was filed against DCH and Albany Surgical P.C., an Albany-based general surgery practice that has, according to the lawsuit, made clear it plans to build a free-standing ambulatory surgery center under the new rule.