Law reviews.

- For article, "The Aftermath of Baby Doe and the Evolution of Newborn Intensive Care," see 25 Ga. St. U. L. Rev. 835 (2009). For article, "The Problem of Non-Identity in Valuing Newborn Human Life," see 25 Ga. St. U. L. Rev. 865 (2009). For article, "Baby Doe: Does It Really Apply Now? Palliative Care of the Ill Neonate," see 25 Ga. St. U. L. Rev. 901 (2009). For article, "Why the Capta's Baby Doe Rules Should Be Rejected in Favor of the Best Interests Standard," see 25 Ga. St. U. L. Rev. 909 (2009). For article, "Personal Reflections on Extremely Premature Newborns: Vitalism, Treatment Decisions, and Ethical Permissibility," see 25 Ga. St. U. L. Rev. 931 (2009). For article, "Medical Futility," see 25 Ga. St. U. L. Rev. 985 (2009). For article, "The Baby Doe Regulations and Tragic Choices at the Bedside: Accepting the Limits of 'Good Process'," see 25 Ga. St. U. L. Rev. 1019 (2009). For article, "Rescuing Baby Doe," see 25 Ga. St. U. L. Rev. 1043 (2009). For article, "Playing God with Baby Doe: Quality of Life and Unpredictable Life Standards at the Start of Life," see 25 Ga. St. U. L. Rev. 1061 (2009). For article, "Baby Doe and Beyond: Examining the Practical and Philosophical Influences Impacting Medical Decision-Making on Behalf of Marginally-Viable Newborns," see 25 Ga. St. U. L. Rev. 1097 (2009). For article, "What Is (And Isn't) Healthism," see 50 Ga. L. Rev. 833 (2016). For article, "Tackling the Social Determinants of Health: A Central for Providers," see 33 Georgia St. U. L. Rev. 217 (2017). For note, "Baby Doe at Twenty-Five," see 25 Ga. St. U. L. Rev. 801 (2009). For note, "Phase Six Pandemic: A Call to Re-Evaluate Federal Quarantine Authority Before the Next Catastrophic Outbreak," see 44 Ga. L. Rev. 803 (2010). For comment, "How Will I Know? An Auditing Privilege and Health Care Compliance," see 65 Emory L.J. 1139 (2016).

JUDICIAL DECISIONS

Cited in Tuck v. State, 122 Ga. App. 649, 178 S.E.2d 305 (1970); Montega Corp. v. Grooms, 128 Ga. App. 333, 196 S.E.2d 459 (1973).

RESEARCH REFERENCES

ALR.

- Application of Clayton Act to mergers and acquisitions of hospitals and healthcare ssystems (15 U.S.C.A. §§ 12 to 27), 13 A.L.R. Fed. 3d 7.

CHAPTER 1 GENERAL PROVISIONS

Cross references.

- Inapplicability of implied warranties to injection, transfusion, or other transfer of blood, blood plasma, or transplanting of tissue, bones, or organs, §§ 11-2-316,51-1-28.

Examination and immunization of public school children, §§ 20-2-770,20-2-771.

Barbers and cosmetologists, T. 43, C. 10.

Anatomical gifts, § 44-5-140 et seq.

Liability for sale of unwholesome provisions of any kind or adulterated drugs, § 51-1-23 et seq.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2019, the article designations in this chapter were removed.

31-1-1. Definitions.

Except as specifically provided otherwise, as used in this title, the term:

  1. "Board" means the Board of Public Health.
  2. "Commissioner" means the commissioner of public health.
  3. "Department" means the Department of Public Health.

(Code 1981, §31-1-1; Ga. L. 2008, p. 12, § 2-7/SB 433; Ga. L. 2009, p. 453, § 1-2/HB 228; Ga. L. 2011, p. 705, § 3-5/HB 214.)

Editor's notes.

- This Code section was created as part of the Code revision and was thus enacted by Ga. L. 1981, Ex. Sess., p. 8 (Code enactment Act).

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

31-1-2. Use of flammable materials in eyeglass frames; delivery of completed work by offices, companies, or laboratories; penalty.

  1. No person shall distribute, sell, exchange, deliver, or have in his possession with intent to distribute, sell, exchange, or deliver in this state any prescription eyeglass frame or prescription sunglass frame containing any form of cellulose nitrate or other highly flammable material.
  2. Optical offices, manufacturing companies, or laboratories which prepare lenses for prescription eyeglasses or sunglasses, including industrial safety eyewear, and which perform mechanical work upon inert materials in the preparation of such eyeglasses or sunglasses shall in every case deliver the completed product of their efforts only to the physician, optometrist, or licensed dispensing optician who ordered the work performed.
  3. Any person who violates any provision of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as follows: the first offense shall be punished by a fine of not more than $200.00; each subsequent offense shall be punished by a fine of not more than $500.00.

(Code 1933, §§ 92A-1901, 92A-9931, enacted by Ga. L. 1970, p. 30, §§ 1, 2; Ga. L. 1973, p. 746, § 1; Ga. L. 1974, p. 515, §§ 1, 2.)

Cross references.

- Dispensing opticians, T. 43, C. 29.

Optometrists, T. 43, C. 30.

Physicians, § 43-34-20 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Statute applies only to prescription sunglass frames. 1971 Op. Att'y Gen. No. 71-156.

Noncorrective sunglasses.

- General Assembly did not intend that plain noncorrective sunglasses should have safety lenses. 1971 Op. Att'y Gen. No. 71-156.

RESEARCH REFERENCES

Am. Jur. 2d.

- 61 Am. Jur. 2d, Physicians and Surgeons, and Other Healers, §§ 250, 251.

C.J.S.

- 25 C.J.S., Customs and Usages, § 56 et seq.

31-1-3. Detection of hearing impairments in infants; evaluations.

  1. It shall be the public policy of this state that newborn infants in certain high-risk categories be evaluated for the detection of hearing impairments in order to prevent many of the consequences of these disorders.
  2. The department shall develop guidelines for evaluation and follow-up procedures for the detection of hearing impairments in infants determined by the department to be in those high-risk categories in which the likelihood of such impairments is greatest and shall develop rules and regulations to ensure that all such high-risk infants are evaluated within one year of their birth. No such evaluation shall be made as to any newborn infant if the parents or legal guardian of the child objects thereto on the grounds that such a test would conflict with their religious tenets or practices.

(Code 1933, §§ 88-3301a, 88-3302a, enacted by Ga. L. 1978, p. 1726, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 14, 15.

31-1-3.1. Reporting disabled newborn persons; referral to treatment and rehabilitative services.

  1. It is the intent of the General Assembly to ensure the registration by the department of disabled newborn persons in order that all such persons might obtain referral and other services provided by existing state agencies, departments, other organizations, and individuals.
  2. As used in this Code section, the term "disabled newborn person" means a person less than 12 months old who is deaf, blind, or has a serious congenital defect as defined by the department.
  3. Except as otherwise provided, every public and private health and social agency and every physician authorized to practice medicine in this state shall report to the department the name of any person such agency or physician has identified as being a disabled newborn person. The report shall be made within 48 hours after identification of that person and shall contain the name, age, address, type and extent of disability, social security number, if any, and such other information concerning that person as the department may require.
  4. The department shall establish procedures whereby a disabled newborn person for whom a report is made under this Code section shall be referred with informed consent to appropriate public or private departments or agencies for treatment and rehabilitative services.
  5. The department shall:
    1. Maintain records of reports, notifications, and referrals made under this chapter; and
    2. Maintain and update rosters of public and private departments or agencies which provide services to persons who have disabilities like those of disabled newborn persons and send copies of such rosters and an annual update thereof to each county board of health for those boards of health to make such rosters available to the public.
  6. Statistical information collected under this Code section shall be available to any other federal or state agency or private organization concerned with disabilities of newborn persons, but no names or addresses will be provided without the consent of the immediate family or guardian of the disabled newborn person.
  7. Any person or entity with whom the department enters into a contract after June 30, 1987, for services shall, as a condition of that contract, register with the department (formerly the Division of Public Health of the Department of Community Health) the various services that person or entity is capable of or is already providing to disabled newborn persons and persons having disabilities like those of disabled newborn persons for purposes of the roster of services the department maintains under paragraph (2) of subsection (e) of this Code section.
  8. A person or entity which in good faith makes a report required by subsection (c) of this Code section shall be immune from civil and criminal liability therefor.

(Code 1981, §31-1-3.1, enacted by Ga. L. 1987, p. 393, § 1; Ga. L. 1989, p. 14, § 31; Ga. L. 1995, p. 1302, §§ 13, 14; Ga. L. 1997, p. 1585, § 2; Ga. L. 2011, p. 705, § 5-9/HB 214.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2019, "chapter" was substituted for "article" near the end of paragraph (e)(1).

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

RESEARCH REFERENCES

Extent of Disability Under Social Security Act, 46 POF2d 97.

31-1-3.2. Hearing screenings for newborns.

  1. The General Assembly finds, determines, and declares:
    1. That hearing loss occurs in newborn infants more frequently than any other health condition for which newborn infant screening is required;
    2. That 80 percent of the language ability of a child is established by the time the child is 18 months of age and that hearing is vitally important to the healthy development of such language skills;
    3. That early detection of hearing loss in a child and early intervention and treatment has been demonstrated to be highly effective in facilitating a child's healthy development in a manner consistent with the child's age and cognitive ability;
    4. That children with hearing loss who do not receive such early intervention and treatment frequently require special educational services and that such services are publicly funded for the vast majority of children with hearing needs in the state;
    5. That appropriate testing and identification of newborn infants with hearing loss will facilitate early intervention and treatment and may therefore serve the public purposes of promoting the healthy development of children and reducing public expenditure;
    6. The American Academy of Pediatrics, the American Speech-Language-Hearing Association, the American Academy of Audiology, and the American Academy of Otolaryngology, Head and Neck Surgery have recently endorsed the implementation of universal newborn hearing screenings and recommended that such screenings be performed in all birthing hospitals and coordinated by state departments of public health; and
    7. That consumers should be entitled to know whether the hospital at which they choose to deliver their infant provides newborn hearing screening.
  2. As used in this Code section, the term "newborn infant" means an infant after delivery but before discharge from the hospital.
  3. For reasons specified in subsection (a) of this Code section, the General Assembly determines that it would be beneficial and in the best interests of the development of the children of the state that newborn infants' hearing be screened.
  4. Reserved.
  5. It is the intent of the General Assembly that, by July 1, 2002, newborn hearing screening be conducted on no fewer than 95 percent of all newborn infants born in hospitals in this state, using procedures established by rule and regulation of the Board of Public Health after review of any recommendations of the advisory committee on hearing in newborn infants, created in former subsection (d) of this Code section. Toward that end, on and after July 1, 2001, every licensed or certified hospital and physician shall educate the parents of newborn infants born in such hospitals of the importance of screening the hearing of newborn infants and follow-up care. Education shall not be considered a substitute for the hearing screening described in this subsection. Every licensed or permitted hospital shall report annually to the Department of Public Health concerning the following:
    1. The number of newborn infants born in the hospital;
    2. The number of newborn infants screened;
    3. The number of newborn infants who passed the screening, if administered; and
    4. The number of newborn infants who did not pass the screening, if administered.
  6. Reserved.
  7. Reserved.
  8. Reserved.
  9. A physician, registered professional nurse, including a certified nurse midwife, or other health professional attending a birth outside a hospital or institution shall provide information, as established by the department, to parents regarding places where the parents may have their infants' screening and the importance of such screening.
  10. The department shall encourage the cooperation of local health departments, health care clinics, school districts, health care providers, and any other appropriate resources to promote the screening of newborn infants' hearing and early identification and intervention for those determined to have hearing loss for those infants born outside a hospital or institution.

(Code 1981, §31-1-3.2, enacted by Ga. L. 1999, p. 266, § 1; Ga. L. 2009, p. 453, §§ 1-4, 1-5/HB 228; Ga. L. 2011, p. 705, §§ 6-3, 6-4/HB 214; Ga. L. 2012, p. 775, § 31/HB 942.)

Cross references.

- Hearing handicap, T. 30, C. 1.

Rights of persons with visual disabilities and deaf persons, T. 30, C. 4.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2000, in subsection (e), ", 2001" was substituted for "of the first year following the year this Code section first becomes effective" and ", 2002" was substituted for "of the second year following the year this Code section first becomes effective".

Pursuant to Code Section 28-9-5, in 2009, "former" was inserted preceding "subsection (d)" in subsection (e).

Editor's notes.

- Ga. L. 1999, p. 266, § 1 provided for the repeal of former subsection (d), effective July 1, 2005.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

31-1-4. Penalties for false representation, impersonation.

  1. Any person who shall make, utter, execute, or submit to the department or to any county board of health any oral or written representation, knowing the same to be false, for the purpose of obtaining anything of value, including any service, shall be guilty of a misdemeanor.
  2. Any person who shall impersonate or otherwise falsely hold himself out to any other person as an agent of the department or of any county board of health shall be guilty of a misdemeanor.

(Ga. L. 1950, p. 222, §§ 1, 2; Code 1933, §§ 88-9901, 88-9902, enacted by Ga. L. 1964, p. 499, § 1.)

Cross references.

- Impersonating public officers or employees generally, § 16-10-23.

JUDICIAL DECISIONS

Cited in Abel v. State, 190 Ga. 651, 10 S.E.2d 198 (1940).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 21.

31-1-5. Compensation of employees for damage to wearing apparel caused by patients.

  1. As used in this Code section, the term "wearing apparel" includes eyeglasses, hearing aids, clothing, and similar items worn on the person of the employee.
  2. When action by a patient in one of the institutions operated by the department results in damage to an item of wearing apparel of an employee of the institution, the department shall compensate the employee for the loss in the amount of either the repair cost or the replacement value or the cost of the item of wearing apparel, whichever is less. Such losses shall be compensated only in accordance with procedures to be established by the department, and no compensation shall be made by the department in excess of $500.00 per claim.

(Code 1933, § 88-2411, enacted by Ga. L. 1981, p. 854, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 279.

C.J.S.

- 67 C.J.S., Officers and Public Employees, § 386 et seq.

31-1-6. Reuse of heart pacemakers.

  1. As used in this Code section, the term:
    1. "Heart pacemaker" means any electrical device which stimulates the heart muscle so that it contracts at a certain or regular rate.
    2. "Medically acceptable" means conforming to prevailing medical standards of cleanliness and manufacturers' applicable standards for functional operation.
    3. "Person" includes the following:
      1. Any hospital, surgeon, or physician;
      2. Any accredited medical school, college, or university;
      3. Any licensed, accredited, or approved bank or storage facility of human bodies or parts; or
      4. Any specified individual needing implantation of a heart pacemaker.
  2. Any person, as defined in subsection (a) of this Code section, shall be authorized to receive and reuse a heart pacemaker, provided that such device is medically acceptable for its proposed reuse.
  3. This Code section shall not apply to the receipt and reuse of a nuclear-powered pacemaker.

(Code 1981, §31-1-6, enacted by Ga. L. 1984, p. 1034, § 1.)

Cross references.

- Anatomical gifts, § 44-5-140 et seq.

Disposition of heart pacemakers, § 53-4-73.

31-1-7. Marking of dentures and other removable dental prostheses for identification.

  1. Every complete upper and lower denture and removable permanent partial denture fabricated by a dentist licensed in Georgia shall be marked with the name or social security number of the patient for whom it is intended. The marking shall be done during fabrication and shall be permanent, legible, and cosmetically acceptable. The exact location of the marking and the methods used to apply or implant it shall be determined by the dentist.
  2. If, in the professional judgment of the dentist, this marking is not practicable, the marking shall be as follows:
    1. The initials of the patient may be shown if the use of the full name or social security number is impossible; or
    2. The marking may be omitted entirely if none of the markings so specified are practical or clinically safe.
  3. Any removable dental prosthesis in existence prior to July 1, 1988, shall be marked in accordance with this Code section at the time of any subsequent rebasing.
  4. It shall be the duty of the Georgia Board of Dentistry to notify each person licensed to practice dentistry in this state of the requirements of this Code section.Such notification shall be mailed to the address of record of each person licensed to practice dentistry in this state.

(Code 1981, §31-1-7, enacted by Ga. L. 1988, p. 742, § 1; Ga. L. 1991, p. 600, §§ 1, 2.)

31-1-8. Notice of proposed special facility.

  1. For the purposes of this Code section, the term "special facility" means any of the following facilities:
    1. A facility utilized for the diagnosis, care, treatment, or hospitalization of persons who are alcoholics, drug dependent individuals, or drug users as defined in paragraph (11) of Code Section 37-7-1; or
    2. A facility operated by the Department of Human Services and used for the treatment and residence of delinquent children, provided such facility affords secure custody.
  2. At least 30 days prior to the expenditure of state funds for any new or additional special facility by the Department of Behavioral Health and Developmental Disabilities or the Department of Human Services or an agency or board of health contracting with the Department of Behavioral Health and Developmental Disabilities or the Department of Human Services, such department or such agency or board shall notify the governing authority of the county and any municipality wherein the special facility is to be located and each member of the General Assembly whose Senate or House district includes any part of the property upon which the facility is to be located.Such notification shall include a description of the proposed special facility, including its proposed location, the category of patients or persons to be confined therein, and the maximum number of patients or persons to be so confined.The Department of Behavioral Health and Developmental Disabilities or the Department of Human Services shall include such requirements in all departmental contracts entered into with such boards or agencies.

(Code 1981, §31-1-8, enacted by Ga. L. 1992, p. 2120, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, in paragraph (a)(2), "Department of Human Services" was substituted for "department", and, in subsection (b), "Department of Behavioral Health and Developmental Disabilities or the Department of Human Services" was substituted for "Department of Human Resources" three times, and "such department" was substituted for "the department" in the first sentence.

31-1-9. Breast-feeding of baby.

The breast-feeding of a baby is an important and basic act of nurture which should be encouraged in the interests of maternal and child health. A mother may breast-feed her baby in any location where the mother and baby are otherwise authorized to be.

(Code 1981, §31-1-9, enacted by Ga. L. 1999, p. 464, § 1; Ga. L. 2002, p. 1139, § 1.)

Cross references.

- Newborn Baby and Mother Protection Act, § 33-24-58.

Employer obligation to provide time for women to express breast milk for infant child, § 34-1-6.

Law reviews.

- For note on the 2002 amendment of this Code section, see 19 Ga. St. U. L. Rev. 209 (2002).

31-1-10. State health officer; duties.

  1. The position of state health officer is created. The Governor may appoint the commissioner of public health to serve simultaneously as the state health officer or may appoint another individual to serve as state health officer. Such officer shall serve at the pleasure of the Governor. An individual appointed to serve as state health officer shall be licensed to practice medicine in this state.
  2. The state health officer shall:
    1. Perform such health emergency preparedness and response duties as assigned by the Governor; and
    2. Be authorized to issue a standing order prescribing an opioid antagonist, as such term is defined in Code Section 26-4-116.2, on a state-wide basis under conditions that he or she determines to be in the best interest of this state.

(Code 1981, §31-1-10, enacted by Ga. L. 2009, p. 453, § 1-3/HB 228; Ga. L. 2011, p. 705, § 3-6/HB 214; Ga. L. 2017, p. 22, § 5/SB 121; Ga. L. 2017, p. 319, § 3-2/HB 249.)

The 2017 amendments. The first 2017 amendment, effective May 18, 2017, added the fourth sentence of subsection (a), and substituted the present provisions of subsection (b) for the former provisions, which read: "The state health officer shall perform such health emergency preparedness and response duties as assigned by the Governor." The second 2017 amendment, effective July 1, 2017, made identical changes.

Editor's notes.

- Ga. L. 2017, p. 22, § 1/SB 121, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Jeffrey Dallas Gay, Jr., Act.'"

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 143 (2017).

31-1-11. No legal compulsion to participate in health care system; no legal prohibition on purchase or sale of health insurance in private health care systems.

  1. As used in this Code section, the term:
    1. "Compel" includes penalties or fines.
    2. "Direct payment" or "pay directly" means payment for lawful health care services without a public or private third party, not including an employer, paying for any portion of the service.
    3. "Health care system"' means any public or private entity whose function or purpose is the management of, processing of, enrollment of individuals for, or payment for, in full or in part, health care services or health care data or health care information for its participants.
    4. "Lawful health care services" means any health related service or treatment to the extent that the service or treatment is permitted or not prohibited by law or regulation that may be provided by persons or businesses otherwise permitted to offer such services.
    5. "Penalties or fines" means any civil or criminal penalty or fine, tax, salary or wage withholding or surcharge, or any named fee with a similar effect established by law or rule by a government established, created, or controlled agency that is used to punish or discourage the exercise of rights protected under this Code section.
  2. To preserve the freedom of citizens of this state to provide for their health care:
    1. No law or rule or regulation shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system; and
    2. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.
  3. Subject to reasonable and necessary rules and regulations that do not substantially limit a person's options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or by rule or regulation.
  4. This Code section shall not:
    1. Affect which health care services a health care provider or hospital is required to perform or provide;
    2. Affect which health care services are permitted by law;
    3. Prohibit care provided pursuant to any statutes enacted by the General Assembly relating to workers' compensation;
    4. Prohibit the imposition by the General Assembly of conditions and limitations on the use or applicability of exemptions and deductions with regard to income taxation;
    5. Affect laws or rules in effect as of January 1, 2009; or
    6. Affect the terms or conditions of any health care system to the extent that those terms and conditions do not have the effect of punishing a person or employer for paying directly for lawful health care services or a health care provider or hospital for accepting direct payment from a person or employer for lawful health care services.

(Code 1981, §31-1-11, enacted by Ga. L. 2010, p. 755, § 1/SB 411.)

31-1-12. Hospitals to provide educational information to parents of newborns regarding pertussis disease and availability of a vaccine.

  1. During the postpartum period and prior to discharge, each hospital shall provide parents of newborns educational information on pertussis disease and the availability of a vaccine to protect against such disease. Such educational information shall include, but not be limited to, information on the recommendation by the federal Centers for Disease Control and Prevention that parents of newborns receive the vaccination during the postpartum period to protect the newborns from the transmission of pertussis.
  2. Nothing in this Code section shall be construed to require any hospital to provide or pay for any vaccination against pertussis.

(Code 1981, §31-1-12, enacted by Ga. L. 2011, p. 704, § 1/HB 249.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2011, Code Section 31-1-12, as enacted by Ga. L. 2011, p. 705, § 2-1, was redesignated as Code Section 31-1-13.

Law reviews.

- For article on the 2011 enactment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article, "Health: Department of Public Health," see 28 Ga. St. U. L. Rev. 147 (2011).

31-1-13. Hemophilia Advisory Board.

  1. The commissioner of public health in conjunction with the commissioner of community health shall establish an independent advisory board known as the Hemophilia Advisory Board.
    1. The following persons shall serve as nonvoting members of the Hemophilia Advisory Board:
      1. The commissioner of public health or a designee; and
      2. The commissioner of community health or a designee.
    2. The following voting members shall be appointed by the commissioner of public health, in consultation with the commissioner of community health, and shall serve a three-year term:
      1. One member who is a board certified physician licensed, practicing, and currently treating individuals with hemophilia and other bleeding disorders and who specializes in the treatment of these individuals;
      2. One member who is a nurse licensed, practicing, and currently treating individuals with hemophilia and other bleeding disorders;
      3. One member who is a social worker licensed, practicing, and currently treating individuals with hemophilia and other bleeding disorders;
      4. One member who is a representative of a federally funded hemophilia treatment center in this state;
      5. One member who is a representative of a nonprofit organization that has, as its primary purpose, the provision of services to the population of this state with hemophilia and other bleeding disorders;
      6. One member who is a person who has hemophilia;
      7. One member who is a caregiver of a person who has hemophilia; and
      8. One member who is a person who has a bleeding disorder other than hemophilia or who is a caregiver of a person who has a bleeding disorder other than hemophilia.
    3. The Hemophilia Advisory Board may also have up to five additional nonvoting members as determined appropriate by the commissioner and the commissioner of community health. These nonvoting members may be persons with, or caregivers of a person with, hemophilia or other bleeding disorder or persons experienced in the diagnosis, treatment, care, and support of individuals with hemophilia or other bleeding disorders.
    1. Board members shall elect from among the voting board members a presiding officer. The presiding officer retains all voting rights.
    2. A majority of the members shall constitute a quorum at any meeting held by the Hemophilia Advisory Board.
    3. If there is a vacancy on the Hemophilia Advisory Board, such position shall be filled in the same manner as the original appointment.
    4. Members of the Hemophilia Advisory Board shall receive no compensation for service on the Hemophilia Advisory Board.
  2. The Hemophilia Advisory Board shall meet at least quarterly and at the call of the commissioner, the commissioner of community health, or the presiding officer and follow all policies and procedures of Chapter 14 of Title 50, relating to open and public meetings.
  3. The department shall provide reasonably necessary administrative support for Hemophilia Advisory Board activities.
  4. The Hemophilia Advisory Board shall review and make recommendations to the commissioner and the commissioner of community health with regard to issues that affect the health and wellness of persons living with hemophilia and other bleeding disorders, including, but not limited to, the following:
    1. Proposed legislative or administrative changes to policies and programs that are integral to the health and wellness of individuals with hemophilia and other bleeding disorders;
    2. Standards of care and treatment for persons living with hemophilia and other bleeding disorders, taking into consideration the federal and state standards of care guidelines developed by state and national organizations, including, but not limited to, the Medical and Scientific Advisory Council of the National Hemophilia Foundation;
    3. The development of community based initiatives to increase awareness of care and treatment for persons living with hemophilia and other bleeding disorders; and
    4. The coordination of public and private support networking systems.
  5. The Hemophilia Advisory Board shall, no later than October 1, 2019, and annually thereafter, submit to the Office of Health Strategy and Coordination a report of its findings and recommendations. Annually thereafter, the commissioner of public health, in consultation with the commissioner of community health, shall report to the Governor and the General Assembly on the status of implementing the recommendations as proposed by the Hemophilia Advisory Board. The reports shall be made public and shall be subject to public review and comment.

(Code 1981, §31-1-13, enacted by Ga. L. 2011, p. 705, § 2-1/HB 214; Ga. L. 2019, p. 148, § 2-3/HB 186.)

The 2019 amendment, effective July 1, 2019, substituted "October 1, 2019, and annually thereafter, submit to the Office of Health Strategy and Coordination" for "January, 2012, and annually thereafter, submit to the Governor and the General Assembly" in the first sentence of subsection (g).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2011, Code Section 31-1-12, as enacted by Ga. L. 2011, p. 705, § 2-1, was redesignated as Code Section 31-1-13.

Pursuant to Code Section 28-9-5, in 2011, "January 1, 2012" was substituted for "six months after the effective date of this Code section" in subsection (g).

Editor's notes.

- Ga. L. 2011, p. 705, § 1-1/HB 214, not codified by the General Assembly, provides that: "Parts I and II of this Act shall be known and may be cited as the 'Hemophilia Advisory Board Act.'"

Ga. L. 2011, p. 705, § 1-2/HB 214, not codified by the General Assembly, provides that: "The General Assembly finds that hemophilia and other bleeding disorders are devastating health conditions that can cause serious financial, social, and emotional hardships for patients and their families. Hemophilia and other bleeding disorders are incurable, so appropriate lifetime care and treatment are necessities for maintaining optimum health. Advancements in drug therapies are allowing individuals greater latitude in managing their conditions, fostering independence, and minimizing chronic complications. As a result, individuals are living longer and are healthier and more productive. However, the rarity of these disorders coupled with the delicate processes of producing clotting factor concentrates makes treating these disorders extremely costly. It is the intent of the General Assembly to establish an advisory board to provide expert advice to the state on health and insurance policies, plans, and programs that impact individuals with hemophilia and other bleeding disorders."

Ga. L. 2019, p. 148, § 2-1/HB 186, not codified by the General Assembly, provides: "This part shall be known and may be cited as 'The Health Act.'"

Law reviews.

- For article on Crimes and Offenses: Crimes Against the Person, see 35 Ga. St. U. L. Rev. 19 (2018).

31-1-14. Physician Orders for Life-Sustaining Treatment (POLST) forms.

  1. As used in this Code section, the term:
    1. "Attending physician" means the physician who has primary responsibility at the time of reference for the treatment and care of the patient.
    2. "Authorized person" shall have the same meaning as in Code Section 31-39-2.
    3. "Decision-making capacity" means the ability to understand and appreciate the nature and consequences of an order regarding end of life care decisions, including the benefits and disadvantages of such an order, and to reach an informed decision regarding the order.
    4. "Health care facility" shall have the same meaning as in Code Section 31-32-2.
    5. "Health care provider" shall have the same meaning as in Code Section 31-32-2.
    6. "Life-sustaining procedures" means medications, machines, or other medical procedures or interventions which, when applied to a patient in a terminal condition or in a state of permanent unconsciousness, could in reasonable medical judgment keep the patient alive but cannot cure the patient and where, in the judgment of the attending physician and a second physician, death will occur without such procedures or interventions. The term "life-sustaining procedures" shall not include the provision of nourishment or hydration, but a patient may direct the withholding or withdrawal of the provision of nourishment or hydration in a POLST form. The term "life-sustaining procedures" shall not include the administration of medication to alleviate pain or the performance of any medical procedure deemed necessary to alleviate pain.
    7. "Physician Orders for Life-Sustaining Treatment form" or "POLST form" means a form executed pursuant to this Code section which provides directions regarding the patient's end of life care.
    8. "Provision of nourishment or hydration" means the provision of nutrition or fluids by tube or other medical means.
    9. "State of permanent unconsciousness" means an incurable or irreversible condition in which the patient is not aware of himself or herself or his or her environment and in which the patient is showing no behavioral response to his or her environment.
    10. "Terminal condition" means an incurable or irreversible condition which would result in the patient's death in a relatively short period of time.
  2. The department shall develop and make available a Physician Orders for Life-Sustaining Treatment form. On and after July 1, 2016, the department shall notify the chairpersons and each member of the House Committee on Health and Human Services and the Senate Health and Human Services Committee at least 60 days prior to implementing any modification of the POLST form. Such form shall provide directions regarding the patient's end of life care and may be voluntarily executed by either a patient who has decision-making capacity and an attending physician or, if the patient does not have decision-making capacity, by the patient's authorized person and an attending physician; provided, however, that this shall not prevent a health care facility from imposing additional administrative or procedural requirements regarding a patient's end of life care decisions. A POLST form may be executed when a patient has a serious illness or condition and the attending physician's reasoned judgment is that the patient will die within the next 365 days; provided, however, that a POLST form may be executed at any time if a person has been diagnosed with dementia or another progressive, degenerative disease or condition that attacks the brain and results in impaired memory, thinking, and behavior. A POLST form, if signed by an authorized person, shall indicate the relationship of the authorized person to the patient pursuant to paragraph (3) of Code Section 31-39-2.
    1. A POLST form shall constitute a legally sufficient order that may be utilized by a health care provider or health care facility in accordance with its policies and procedures regarding end of life care. Such an order shall remain effective unless the order is revoked by the attending physician upon the consent of the patient or the patient's authorized person. An attending physician who has issued such an order and who transfers care of the patient to another physician shall inform the receiving physician and the health care facility, if applicable, of the order. Review of the POLST form is recommended at care transitions, and such review should be specified on the form.
    2. A POLST form signed by the patient and attending physician and indicating "allow natural death" or "do not resuscitate" or the equivalent may be implemented without restriction. If the POLST form (i) is signed by the attending physician and an authorized person instead of the patient and (ii) indicates "allow natural death" or "do not resuscitate" or the equivalent, in compliance with subsection (c) of Code Section 31-39-4, the POLST form may be implemented or become effective when the patient is a candidate for nonresuscitation, and such consent shall be based in good faith upon what such authorized person determines such candidate for nonresuscitation would have wanted had such candidate for nonresuscitation understood the circumstances under which such order is being considered.
    3. A POLST form addressing interventions other than resuscitation and signed by the patient and attending physician may be implemented without restriction. If the POLST form is signed by an authorized person who is the health care agent named by the patient in an advance directive for health care and the attending physician, in compliance with paragraph (1) of subsection (e) of Code Section 31-32-7, all treatment indications on the POLST form may be implemented. If the POLST form is signed by an authorized person who is not the health care agent named by the patient in an advance directive for health care, treatment indications on the POLST form may be implemented or become effective only when the patient is in a terminal condition or a state of permanent unconsciousness; provided, however, that a POLST form may become effective at any time if a person has been diagnosed with dementia or another progressive, degenerative disease or condition that attacks the brain and results in impaired memory, thinking, and behavior.
    4. A POLST form shall be portable with the patient across care settings and shall be valid in any health care facility in which the patient who is the subject of such form is being treated; provided, however, that this shall not prevent a health care facility from imposing additional requirements regarding a patient's end of life care decisions. A health care facility and a health care provider, in its discretion, may rely upon a POLST form as legally valid consent by the patient to the terms therein.
    5. A copy of a POLST form shall be valid and have the same meaning and effect as the original document.
    6. A physician orders for life-sustaining treatment form which was executed in another state, which is valid under the laws of such state and which is substantially similar to the Georgia POLST form, and contains signatures of (i) either the patient or an authorized person and (ii) the attending physician, shall be treated as a POLST form which complies with this Code section.
    1. Each health care provider, health care facility, and any other person who acts in good faith reliance on a POLST form shall be protected and released to the same extent as though such provider, facility, or other person had interacted directly with the patient as a fully competent person. Without limiting the generality of the foregoing, the following specific provisions shall also govern, protect, and validate the acts of an authorized person and each such health care provider, health care facility, and any other person acting in good faith reliance on such POLST form:
      1. No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for complying with a patient's end of life care decisions as provided in a POLST form, even if death or injury to the patient ensues;
      2. No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for failure to comply with a patient's end of life care decisions in a POLST form, so long as such health care provider, health care facility, or person promptly informs the patient or the patient's authorized person of such health care provider's, health care facility's, or person's refusal or failure to comply with such patient's end of life care decisions in a POLST form. The authorized person shall then be responsible for arranging the patient's transfer to another health care provider or health care facility. A health care provider, health care facility, or person who is unwilling to comply with a patient's end of life care decisions in a POLST form shall continue to provide reasonably necessary consultation and care in connection with the pending transfer;
      3. If the actions of a health care provider, health care facility, or person who fails to comply with a patient's end of life care decisions in a POLST form are substantially in accord with reasonable medical standards at the time of reference and such provider, facility, or person cooperates in the transfer of the patient, then the health care provider, health care facility, or person shall not be subject to civil or criminal liability or discipline for unprofessional conduct for failure to comply with such patient's end of life care decisions in a POLST form;
      4. No authorized person who, in good faith, acts with due care for the benefit of the patient and in accordance with a patient's end of life care decisions in a POLST form, or who fails to act, shall be subject to civil or criminal liability for such action or inaction; and
      5. If a POLST form is revoked, a person shall not be subject to criminal prosecution or civil liability for acting in good faith reliance upon a patient's end of life care decisions in a POLST form unless such person had actual knowledge of the revocation.
    2. No person shall be civilly liable for failing or refusing in good faith to effectuate a patient's end of life care decisions in a POLST form regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration.
    3. No physician or any person acting under a physician's direction and no health care facility or any agent or employee thereof who, acting in good faith in accordance with the requirements of this Code section, causes the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration from a patient or who otherwise participates in good faith therein shall be subject to any civil or criminal liability or guilty of unprofessional conduct therefor.
    4. Any person who participates in the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration pursuant to a patient's end of life care decisions in a POLST form and who has actual knowledge that such POLST form has been properly revoked shall not have any civil or criminal immunity otherwise granted under this subsection for such conduct.
  3. In the event there are any directions in a patient's previously executed living will, advance directive for health care, durable power of attorney for health care, do not resuscitate order, or other legally authorized instrument that conflict with the directions in a POLST form, the most recent instrument will take precedence to the extent of the conflict.
  4. Nothing in this Code section shall be construed to authorize any act prohibited by Code Section 16-5-5. Any health care provider, health care facility, or any other person who violates Code Section 16-5-5 shall not be entitled to any civil immunity provided pursuant to this Code section.

(Code 1981, §31-1-14, enacted by Ga. L. 2015, p. 305, § 1/SB 109; Ga. L. 2016, p. 757, § 1/SB 305; Ga. L. 2016, p. 864, § 31/HB 737.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2015, Code Section 31-1-14, as enacted by Ga. L. 2015, p. 312, § 2/SB 126, was redesignated as Code Section 31-1-15.

Law reviews.

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015).

31-1-15. Storage, maintenance, control, and oversight of auto-injectable epinephrine by certain authorized entities.

  1. As used in this Code section, the term:
    1. "Authorized entity" means any entity or organization, other than a school subject to Code Section 20-2-776.2, in connection with or at which allergens capable of causing anaphylaxis may be present, as identified by the department. The department shall, through rule or other guidance, identify the types of entities and organizations that are considered authorized entities no later than January 1, 2016, and shall review and update such rule or guidance at least annually thereafter. For purposes of illustration only, such entities may include, but are not limited to, restaurants, recreation camps, youth sports leagues, theme parks and resorts, and sports arenas.
    2. "Auto-injectable epinephrine" means a single-use device used for the automatic injection of a premeasured dose of epinephrine into the human body.
    3. "Health care practitioner" means a physician licensed to practice medicine in this state, an advanced practice registered nurse acting pursuant to the authority of Code Section 43-34-25, and a physician assistant acting pursuant to the authority of subsection (e.1) of Code Section 43-34-103.
  2. An authorized entity may acquire and stock a supply of auto-injectable epinephrine pursuant to a prescription issued in accordance with Code Section 26-4-116.1. Such auto-injectable epinephrine shall be stored in a location readily accessible in an emergency and in accordance with the auto-injectable epinephrine's instructions for use and any additional requirements that may be established by the department. An authorized entity shall designate employees or agents who have completed the training required by subsection (d) of this Code section to be responsible for the storage, maintenance, control, and general oversight of auto-injectable epinephrine acquired by the authorized entity.
  3. An employee or agent of an authorized entity, or any other individual, who has completed the training required by subsection (d) of this Code section may use auto-injectable epinephrine prescribed pursuant to Code Section 26-4-116.1 to:
    1. Provide auto-injectable epinephrine to any individual who the employee, agent, or other individual believes in good faith is experiencing anaphylaxis, or to the parent, guardian, or caregiver of such individual, for immediate administration, regardless of whether the individual has a prescription for auto-injectable epinephrine or has previously been diagnosed with an allergy; and
    2. Administer auto-injectable epinephrine to any individual who the employee, agent, or other individual believes in good faith is experiencing anaphylaxis, regardless of whether the individual has a prescription for auto-injectable epinephrine or has previously been diagnosed with an allergy.
  4. An employee, agent, or other individual described in subsection (b) or (c) of this Code section shall complete an anaphylaxis training program and repeat such training at least every two years following completion of the initial anaphylaxis training program. Such training shall be conducted by a nationally recognized organization experienced in training laypersons in emergency health treatment or an entity or individual approved by the department. Training may be conducted online or in person and, at a minimum, shall cover:
    1. How to recognize signs and symptoms of severe allergic reactions, including anaphylaxis;
    2. Standards and procedures for the storage and administration of auto-injectable epinephrine; and
    3. Emergency follow-up procedures.
  5. An authorized entity that possesses and makes available auto-injectable epinephrine and its employees, agents, and other individuals; a health care practitioner that prescribes or dispenses auto-injectable epinephrine to an authorized entity; a pharmacist or health care practitioner that dispenses auto-injectable epinephrine to an authorized entity; and an individual or entity that conducts the training described in subsection (d) of this Code section shall not be liable for any injuries or related damages that result from any act or omission taken pursuant to this Code section; provided, however, that this immunity does not apply to acts or omissions constituting willful or wanton misconduct. The administration of auto-injectable epinephrine in accordance with this Code section is not the practice of medicine or any other profession that otherwise requires licensure. This Code section does not eliminate, limit, or reduce any other immunity or defense that may be available under state law, including that provided under Code Section 51-1-29. An entity located in this state shall not be liable for any injuries or related damages that result from the provision or administration of auto-injectable epinephrine outside of this state if the entity:
    1. Would not have been liable for such injuries or related damages had the provision or administration occurred within this state; or
    2. Is not liable for such injuries or related damages under the law of the state in which such provision or administration occurred.
  6. An authorized entity that possesses and makes available auto-injectable epinephrine shall submit to the department, on a form developed by the department, a report including each incident on the authorized entity's premises that involves the administration of auto-injectable epinephrine pursuant to subsection (c) of this Code section and any other information deemed relevant by the department. The department shall annually publish a report that summarizes and analyzes all reports submitted to it under this subsection.
  7. The department shall establish requirements regarding the storage, maintenance, control, and oversight of the auto-injectable epinephrine, including but not limited to any temperature limitations and expiration of such auto-injectable epinephrine.

(Code 1981, §31-1-15, enacted by Ga. L. 2015, p. 312, § 2/SB 126.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2015, Code Section 31-1-14, as enacted by Ga. L. 2015, p. 312, § 2/SB 126, was redesignated as Code Section 31-1-15.

31-1-16. Reporting information concerning nurses holding multistate licenses.

The Board of Community Health shall require health care providers and entities that employ one or more nurses holding a multistate license pursuant to Article 4 of Chapter 26 of Title 43 for 30 days or more in a calendar year to report to such board the name, address, and duration of employment of each such nurse in a form and pursuant to a schedule established by such board. The Board of Community Health shall provide such information to the Georgia Board of Nursing.

(Code 1981, §31-1-16, enacted by Ga. L. 2019, p. 219, § 7/SB 168.)

Effective date.

- This Code section became effective April 25, 2019.

31-1-17. Notification of dense breast tissue.

  1. As used in this Code section, the term:
    1. "Dense breast tissue" means heterogeneously or extremely dense breast tissue based on nationally recognized guidelines or systems for breast imaging reporting of mammography including, but not limited to, the Breast Imaging Reporting and Data System established by the American College of Radiology.
    2. "Health care facility" means a hospital, outpatient department, clinic, radiology practice, or mobile unit; an office of a physician; or other medical facility.
  2. If a patient's mammogram demonstrates dense breast tissue, the health care facility that conducted the mammogram shall provide notification to the patient that includes, but is not limited to, the following information, in the summary of the results of a mammography examination that is sent directly to a patient pursuant to 42 U.S.C. Section 263b:

    "Your mammogram shows that your breast tissue is dense. Dense breast tissue is very common and is not abnormal. However, dense breast tissue can make it more difficult to detect cancer through a mammogram. Also, dense breast tissue may increase your risk for breast cancer. This information about the result of your mammogram is given to you to increase your awareness. Use this information to talk with your health care provider about whether other supplemental tests in addition to your mammogram may be appropriate for you, based on your individual risk. A report of your results was sent to your ordering physician. If you are self-referred, a report of your results was sent to you in addition to this summary."

(Code 1981, §31-1-17, enacted by Ga. L. 2019, p. 336, § 2/HB 62.)

Effective date.

- This Code section became effective July 1, 2019.

Cross references.

- Breast cancer patient care, § 33-24-70 et seq.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2019, this Code Section enacted as Code Section 31-1-16 was redesignated as Code Section 31-1-17.

Editor's notes.

- Ga. L. 2019, p. 336, § 1/HB 62, not codified by the General Assembly, provides: "This Act shall be known and may be cited as 'Margie's Law.'"

U.S. Code.

- Section 263b of 42 U.S.C., referred to in subsection (b), concerns the certification of mammography facilities.

31-1-20 through 31-1-22.

Reserved. Repealed by Ga. L. 2005, p. 692, § 1/SB 81, effective July 1, 2005.

Editor's notes.

- These Code sections were based on Ga. L. 1997, p. 1585, § 3; Ga. L. 1998, p. 128, § 31.

31-1-23. Blindness education, screening, and treatment program.

    1. Subject to availability of funds voluntarily donated and transmitted to the department for such purposes pursuant to subsection (e) of Code Section 40-5-25, the department shall develop a blindness education, screening, and treatment program to provide blindness prevention education and to provide screening and treatment for residents who do not have adequate coverage for such services under a health benefit plan.
    2. Funds voluntarily donated and transmitted to the department pursuant to subsection (e) of Code Section 40-5-25 shall be expended only for purposes of the program provided by this Code section.
  1. The program shall provide for:
    1. Public education about blindness and other eye conditions;
    2. Screenings and eye examinations to identify conditions that may cause blindness; and
    3. Treatment procedures necessary to prevent blindness.
  2. The department may contract for program development with any department approved nonprofit organization dealing with regional and community blindness education, eye donor, and vision treatment services.
  3. The department by regulation shall prescribe eligibility requirements for the program.

(Code 1981, §31-1-23, enacted by Ga. L. 1999, p. 537, § 1.)

Cross references.

- Funds for operation of schools for deaf and blind persons, § 20-2-302.

Georgia Industries for the Blind, T. 30, C. 2.

Aid to the blind, § 49-4-50 et seq.

31-1-40. Prohibition on expenditure or use of state resources to advocate for or intend to influence citizens in support of Medicaid expansion under the federal Affordable Care Act.

  1. Neither the state nor any department, agency, bureau, authority, office, or other unit of the state nor any political subdivision of the state shall expend or use moneys, human resources, or assets to advocate or intended to influence the citizens of this state in support of the voluntary expansion by the State of Georgia of eligibility for medical assistance in furtherance of the federal Patient Protection and Affordable Care Act, Public Law 111-148, beyond the eligibility criteria in effect on April 15, 2014, under the provisions of 42 U.S.C. Section 1396a(a)(10)(A)(i)(VIII) of the federal Social Security Act, as amended.
  2. The Attorney General shall enforce the provisions of this Code section in accordance with Article V, Section III, Paragraph IV of the Constitution of the State of Georgia.
  3. Nothing in this Code section shall be construed to prevent an officer or employee of the State of Georgia or of any department, agency, bureau, authority, office, unit, or political subdivision thereof from advocating or attempting to influence public policy:
    1. As part of such person's official duties;
    2. When acting on personal time without using state resources; or
    3. When providing bona fide educational instruction about the federal Patient Protection and Affordable Care Act of 2010 in institutions of higher learning or otherwise.
  4. Nothing in this Code section shall be construed to preclude the state from participating in any Medicaid program.

(Code 1981, §31-1-40, enacted by Ga. L. 2014, p. 243, § 1-2/HB 943; Ga. L. 2019, p. 1056, § 31/SB 52.)

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (a).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2014, "April 15, 2014," was substituted for "the effective date of this Code section" near the end of subsection (a).

Pursuant to Code Section 28-9-5, in 2019, "Medicaid" was substituted for "MEDICAID" near the end of subsection (d).

Editor's notes.

- Ga. L. 2014, p. 243, § 1-1/HB 943, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Health Care Freedom Act.' "

Law reviews.

- For article, "Georgia Health Care Freedom Act," see 31 Ga. St. U. L. Rev. 113 (2014). For note, "A Compelling Interest? Using Old Conceptions of Public Health Law to Challenge the Affordable Care Act's Contraceptive Mandate," see 31 Ga. St. U. L. Rev. 613 (2015). For note, "Charting the Middle Course: An Argument for Robust But Well-Tailored Health Care Discrimination Protection for the Transgender Community," see 52 Ga. L. Rev. 225 (2017).

CHAPTER 2 DEPARTMENT OF COMMUNITY HEALTH

Editor's notes.

- Ga. L. 2009, p. 453, § 1-1/HB 228, effective July 1, 2009, redesignated former Chapter 5A of Title 31 as present Chapter 2 of Title 31 and combined it with former Chapter 2 of Title 31.

Administrative Rules and Regulations.

- General licensing and enforcement requirements, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Healthcare Facility Regulation, Chapter 111-8-25.

Personal care homes, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Healthcare Facility Regulation, Chapter 111-8-62.

Law reviews.

- For article, "The Case for Streamlining Emergency Declaration Authorities and Adapting Legal Requirements to Ever-Changing Public Health Threats," see 67 Emory L.J. 397 (2018). For article, "Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine," see 67 Emory L.J. 491 (2018).

JUDICIAL DECISIONS

Cited in Porubiansky v. Emory Univ., 156 Ga. App. 602, 275 S.E.2d 163 (1980).

RESEARCH REFERENCES

ALR.

- Liability of governmental agency for emergency medical or surgical services rendered to poor person without its express authority, 30 A.L.R. 900.

31-2-1. Legislative intent; grant of authority.

Given the growing concern and complexities of health issues in this state, it is the intent of the General Assembly to create a Department of Community Health dedicated to health issues. Illustrating, without limiting, the foregoing grant of authority, the department is empowered to:

  1. Serve as the lead planning agency for all health issues in the state to remedy the current situation wherein the responsibility for health care policy, purchasing, planning, and regulation is spread among many different agencies and achieve determinations of Medicaid eligibility for inmates to attain services at long-term care facilities when he or she is being considered for parole;
  2. Permit the state to maximize its purchasing power and to administer its operations in a manner so as to receive the maximum amount of federal financial participation available in expenditures of the department;
  3. Minimize duplication and maximize administrative efficiency in the state's health care systems by removing overlapping functions and streamlining uncoordinated programs;
  4. Allow the state to develop a better health care infrastructure that is more responsive to the consumers it serves while improving access to and coverage for health care;
  5. Focus more attention and departmental procedures on the issue of wellness, including diet, exercise, and personal responsibility;
  6. Enter into or upon public or private property at reasonable times for the purpose of inspecting same to determine the presence of conditions deleterious to health or to determine compliance with applicable laws and rules, regulations, and standards thereunder; and
  7. Promulgate and enforce rules and regulations for the licensing of medical facilities wherein abortion procedures under subsections (b) and (c) of Code Section 16-12-141 are to be performed.

(Code 1981, §31-5A-1, enacted by Ga. L. 1999, p. 296, § 1; Code 1981, §31-2-1, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Ga. L. 2011, p. 705, § 4-1/HB 214; Ga. L. 2018, p. 550, § 3-1/SB 407.)

The 2018 amendment, effective July 1, 2018, added "and achieve determinations of Medicaid eligibility for inmates to attain services at long-term care facilities when he or she is being considered for parole" at the end of paragraph (1).

Editor's notes.

- The substance of the former Code section, pertaining to duty, functions, and powers of the former Department of Human Resources is now contained in the introductory language and paragraphs (6) through (18) of the present Code section. The former Code section was based on Code 1933, § 88-108, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1971, p. 669, § 1; Ga. L. 1973, p. 635, § 2; Ga. L. 1979, p. 823, §§ 1, 2, and was repealed by Ga. L. 2009, p. 453, § 1-1/HB 228, effective July 1, 2009.

Law reviews.

- For article, "Putting the Community Back into the 'Community Benefit' Standard," see 44 Ga. L. Rev. 375 (2010). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 31-2-1, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

No private right of action for failing to notify of sickle cell disease.

- Trial court properly granted the motion to dismiss or the motion for summary judgment filed by various defendants in a suit brought by plaintiff child, by and through the child's parent, which asserted negligence and negligence per se for failing to inform the plaintiff and the parent, at the time of the plaintiff's birth, that the plaintiff had sickle cell disease. The trial court properly ruled that no private right of action exists for a violation of O.C.G.A. § 31-12-7, and the appellate court clarified that there existed no statutory intent to impose strict liability for violating the notice requirement of § 31-12-7 and substantial compliance with the statute was all that was required, which was shown in that the defendants attempted to contact the plaintiff and the parent but were unable to locate them due to incorrect contact information. In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007).

Cited in Porubiansky v. Emory Univ., 156 Ga. App. 602, 275 S.E.2d 163 (1980); Ga. Dep't of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003); Live Oak Consulting, Inc. v. Dep't of Cmty. Health, 281 Ga. App. 791, 637 S.E.2d 455 (2006); Tanner Med. Ctr., Inc. v. Vest Newnan, LLC, 337 Ga. App. 884, 789 S.E.2d 258 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 88-112, 88-117, and former Code Section 31-2-1, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Regulation of quarantine and control of tuberculosis.

- Department of Human Resources (now the Department of Community Health for these purposes) has authority to make reasonable rules and regulations regarding quarantine and control of communicable tuberculosis. 1945-47 Op. Att'y Gen. p. 530 (decided under former Code 1933, §§ 88-112 and 88-117).

Phenylketonuria and other inborn errors of metabolism in infants are conditions which the legislature intended to cover under Ga. L. 1964, p. 499, § 1 (see O.C.G.A. § 31-2-9); the State Board of Health (now the Department of Community Health for these purposes) has authority to adopt and promulgate reasonable rules and regulations which will affect prevention, correction, and abatement of such situations and conditions so long as such rules do not violate constitutional or legal guarantees of any person and are within the purview of the powers and duties imposed upon the State Health Department (now the Department of Community Health for these purposes). 1965-66 Op. Att'y Gen. No. 65-81.

Adoption of rules and regulations concerning phenylketonuria would be for the purpose of detection and prevention of a condition which adversely affects the health of citizens of the state, and the State Board of Health (now the Department of Community Health for these purposes) is authorized to adopt such rules and regulations. 1965-66 Op. Att'y Gen. No. 65-81.

Regulation of septic tank construction outside city limits.

- Georgia Department of Public Health (now the Department of Community Health for these purposes) is authorized to adopt and enforce rules and regulations establishing standards for construction of septic tanks for housing located outside city limits. 1968 Op. Att'y Gen. No. 68-185.

Power to promulgate rules as to abortions.

- Board of Human Resources (now the Department of Community Health for these purposes) has power to promulgate rules and regulations governing abortions when the board finds such regulation appropriate to promote or safeguard the public health; the General Assembly not only gave authority to do this but actually directed that it be done. 1973 Op. Att'y Gen. No. 73-24.

Abortions in facilities under control of department.

- Abortions in facilities or institutions under supervision and administrative control of department may be regulated. 1973 Op. Att'y Gen. No. 73-24.

Scope of regulatory power over abortion clinics or other facilities.

- With respect to regulation of abortion clinics or other facilities which are not statutorily included in Ga. L. 1964, p. 499, § 1 et seq., or Ga. L. 1970, p. 531, § 1 et seq. (see O.C.G.A. Art. 1, Ch. 7, T. 31, or O.C.G.A. Ch. 22, T. 31), the board (now the Department of Community Health for these purposes) is empowered to regulate these facilities as well as the performance of abortions generally. 1973 Op. Att'y Gen. No. 73-24.

Authority to regulate abortion procedures subject to constitutional developments.

- Under its purposely broad statutory authority to safeguard public health, as well as under its statutory authority in specific areas of the public health field, the Board of Human Resources (now the Department of Community Health for these purposes) may regulate, for public health purposes, performance of abortion procedures, limited, however, by constitutional doctrines enunciated by the Supreme Court of the United States. 1973 Op. Att'y Gen. No. 73-24.

Scope of authority regarding Emergency Medical Services standard.

- Department of Public Health (now the Department of Community Health for these purposes) was authorized pursuant to its general powers to administer those portions of the Emergency Medical Services standard which pertain to gathering, compilation, and publishing of information regarding emergency medical services and injuries produced by motor vehicle accidents; however, there was no authority for the department to establish training and licensing requirements in various areas covered by Emergency Medical Services standard, nor did there exist any enforcement procedures to assure compliance with any such requirements if established. 1967 Op. Att'y Gen. No. 67-355 (see O.C.G.A. § 31-2-1).

Power to administer Title XIX of Social Security Act.

- State Department of Public Health (now the Department of Community Health for these purposes) is vested with ample legal authority to administer Title XIX of Social Security Act in Georgia. 1967 Op. Att'y Gen. No. 67-273.

Casualty insurance carried by regulated institutions not subject to department's regulation.

- As requirement of carrying adequate casualty insurance is a matter which does not pertain to protection of health and lives of patients in institutions nor to kind and quality of building, equipment, facilities, and institutional services that institutions shall have and use in order to properly care for patients, the Department of Human Resources (now the Department of Community Health for these purposes) cannot legally pass a valid rule requiring institutions to carry adequate casualty insurance. 1967 Op. Att'y Gen. No. 67-177.

Erection of highway signs stating local fluoridated water meets department approval.

- As installation of signs on United States and state highways stating that local fluoridated water supply system had been approved by Georgia Department of Public Health (now the Department of Community Health for these purposes) would not in reality affect prevention, correction, and abatement of situations and conditions, which, if not promptly checked, would militate against health of constituents of community, such installation is not within the purview of powers granted to the State Board of Health (now the Department of Community Health for these purposes). 1967 Op. Att'y Gen. No. 67-177.

Department's discretion to withhold state funds from a county.

- State Health Department (now Department of Human Resources) has power to withhold at the department's discretion state funds from a county on a variety of grounds, including refusal of county commissioners to approve budget submitted by the county board of health, and can refuse to increase salaries of board of health's staff in line with State Personnel Board rules. 1965-66 Op. Att'y Gen. No. 66-165.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 1, 8 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, § 1 et seq.

ALR.

- Right of one detained pursuant to quarantine to habeas corpus, 2 A.L.R. 1542.

General delegation of power to guard against spread of contagious disease, 8 A.L.R. 836.

Quarantine of typhoid carrier, 22 A.L.R. 845.

Legality of voluntary nontherapeutic sterilization, 35 A.L.R.3d 1444.

Validity and construction of statute or ordinance prohibiting commercial exhibition of malformed or disfigured persons, 62 A.L.R.3d 1237.

Regulation of business of tattooing, 81 A.L.R.3d 1212.

Propriety of state or local government health officer's warrantless search-post-Camara cases, 53 A.L.R.4th 1168.

31-2-2. Definitions.

As used in this chapter, the term:

  1. "Board" means the Board of Community Health established under Code Section 31-2-3.
  2. "Commissioner" means the commissioner of community health established under Code Section 31-2-6.
  3. "Department" means the Department of Community Health established under Code Section 31-2-4.
  4. "Predecessor agency or unit" means the Department of Community Health, the Division of Public Health of the Department of Human Resources, and the Office of Regulatory Services of the Department of Human Resources.
  5. "State health benefit plan" means the health insurance plan authorized under Article 1 of Chapter 18 of Title 45 and Part 6 of Article 17 of Chapter 2 of Title 20.
  6. "State Personnel Board" means the board established under Article IV, Section III of the Constitution.

(Code 1981, §31-5A-2, enacted by Ga. L. 1999, p. 296, § 1; Code 1981, §31-2-2, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228.)

Editor's notes.

- Ga. L. 2009, p. 453, § 1-1/HB 228, effective July 1, 2009, redesignated former Code Section 31-2-2 as present Code Section 31-2-7.

31-2-3. Board of Community Health reconstituted; powers, functions, and duties; terms of board members; vacancies; removal; chairperson; expenses.

  1. There is reconstituted the Board of Community Health, as of July 1, 2009, which shall establish the general policy to be followed by the Department of Community Health. The powers, functions, and duties of the Board of Community Health as they existed on June 30, 2009, are transferred to the reconstituted Board of Community Health effective July 1, 2009. The board shall consist of nine members appointed by the Governor and confirmed by the Senate.
  2. Board members in office on June 30, 2009, shall serve out the remainder of their respective terms and successors to these board seats shall be appointed in accordance with this Code section. Thereafter, all succeeding appointments shall be for three-year terms from the expiration of the previous term.
  3. Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position on the board which becomes vacant, and the appointment shall be submitted to the Senate for confirmation at the next session of the General Assembly. An appointment to fill a vacancy other than by expiration of a term of office shall be for the balance of the unexpired term.
  4. Members of the board may be removed from office under the same conditions for removal from office of members of professional licensing boards provided in Code Section 43-1-17.
  5. There shall be a chairperson of the board elected by and from the membership of the board who shall be the presiding officer of the board.
  6. The members of the board shall receive a per diem allowance and expenses as shall be set and approved by the Office of Planning and Budget in conformance with rates and allowances set for members of other state boards.

(Code 1981, §31-5A-3, enacted by Ga. L. 1999, p. 296, § 1; Ga. L. 2000, p. 1706, § 19; Code 1981, §31-2-3, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228.)

Cross references.

- Rules and regulations as to sanitary requirements; inspections; unsanitary condition as nuisance, § 43-10-6.

Creation of Board of Human Services, creation of position of commissioner of human services, and further provisions regarding general functions and powers of Department of Human Services, T. 49, C. 2.

Editor's notes.

- Ga. L. 2009, p. 453, § 1-1/HB 228, effective July 1, 2009, redesignated former Code Section 31-2-3 as present Code Section 31-2-8.

31-2-4. Department's powers, duties, functions, and responsibilities; divisions; directors; contracts for health benefits.

      1. The Department of Community Health is re-created and established to perform the functions and assume the duties and powers exercised on June 30, 2009, by the Department of Community Health, the Division of Public Health of the Department of Human Resources, and the Office of Regulatory Services of the Department of Human Resources, unless specifically transferred to the Department of Human Services, and such department, division, and office shall be reconstituted as the Department of Community Health effective July 1, 2009. The department shall retain powers and responsibility with respect to the expenditure of any funds appropriated to the department including, without being limited to, funds received by the state pursuant to the settlement of the lawsuit filed by the state against certain tobacco companies, State of Georgia, et al. v. Philip Morris, Inc., et al., Civil Action #E-61692, V19/246 (Fulton County Superior Court, December 9, 1998).
      2. On and after July 1, 2011, the functions, duties, and powers of the Department of Community Health relating to the former Division of Public Health of the Department of Human Resources shall be performed and exercised by the Department of Public Health pursuant to Code Section 31-2A-2. No power, function, responsibility, duty, or similar authority held by the Department of Community Health as of June 30, 2009, shall be diminished or lost due to the creation of the Department of Public Health.
    1. The director of the Division of Public Health in office on June 30, 2009, and the director of the Office of Regulatory Services in office on June 30, 2009, shall become directors of the respective division or office which those predecessor agencies or units have become on and after July 1, 2009, and until such time as the commissioner appoints other directors of such divisions or units. The position of director of the Division of Public Health shall be abolished effective July 1, 2011.
  1. Reserved.
  2. The Board of Regents of the University System of Georgia is authorized to contract with the department for health benefits for members, employees, and retirees of the board of regents and the dependents of such members, employees, and retirees and for the administration of such health benefits. The department is also authorized to contract with the board of regents for such purposes.
  3. In addition to its other powers, duties, and functions, the department:
    1. Shall be the lead agency in coordinating and purchasing health care benefit plans for state and public employees, dependents, and retirees and may also coordinate with the board of regents for the purchase and administration of such health care benefit plans for its members, employees, dependents, and retirees;
    2. Is authorized to plan and coordinate medical education and physician work force issues;
    3. Shall investigate the lack of availability of health insurance coverage and the issues associated with the uninsured population of this state. In particular, the department is authorized to investigate the feasibility of creating and administering insurance programs for small businesses and political subdivisions of the state and to propose cost-effective solutions to reducing the numbers of uninsured in this state;
    4. Is authorized to appoint a health care work force policy advisory committee to oversee and coordinate work force planning activities;
    5. Is authorized to solicit and accept donations, contributions, and gifts and receive, hold, and use grants, devises, and bequests of real, personal, and mixed property on behalf of the state to enable the department to carry out its functions and purposes;
    6. Is authorized to award grants, as funds are available, to hospital authorities, hospitals, and medical-legal partnerships for public health purposes, pursuant to Code Sections 31-7-94 and 31-7-94.1 and paragraph (11) of this subsection;
    7. Shall make provision for meeting the cost of hospital care of persons eligible for public assistance to the extent that federal matching funds are available for such expenditures for hospital care. To accomplish this purpose, the department is authorized to pay from funds appropriated for such purposes the amount required under this paragraph into a trust fund account which shall be available for disbursement for the cost of hospital care of public assistance recipients. The commissioner, subject to the approval of the Office of Planning and Budget, on the basis of the funds appropriated in any year, shall estimate the scope of hospital care available to public assistance recipients and the approximate per capita cost of such care. Monthly payments into the trust fund for hospital care shall be made on behalf of each public assistance recipient and such payments shall be deemed encumbered for assistance payable. Ledger accounts reflecting payments into and out of the hospital care fund shall be maintained for each of the categories of public assistance established under Code Section 49-4-3. The balance of state funds in such trust fund for the payment of hospital costs in an amount not to exceed the amount of federal funds held in the trust fund by the department available for expenditure under this paragraph shall be deemed encumbered and held in trust for the payment of the costs of hospital care and shall be rebudgeted for this purpose on each quarterly budget required under the laws governing the expenditure of state funds. The state auditor shall audit the funds in the trust fund established under this paragraph in the same manner that any other funds disbursed by the department are audited;
    8. Shall classify and license community living arrangements in accordance with the rules and regulations promulgated by the department for the licensing and enforcement of licensing requirements for persons whose services are financially supported, in whole or in part, by funds authorized through the Department of Behavioral Health and Developmental Disabilities. To be eligible for licensing as a community living arrangement, the residence and services provided must be integrated within the local community. All community living arrangements licensed by the department shall be subject to the provisions of Code Sections 31-2-8 and 31-7-2.2. No person, business entity, corporation, or association, whether operated for profit or not for profit, may operate a community living arrangement without first obtaining a license or provisional license from the department. A license issued pursuant to this paragraph is not assignable or transferable. As used in this paragraph, the term "community living arrangement" means any residence, whether operated for profit or not, which undertakes through its ownership or management to provide or arrange for the provision of housing, food, one or more personal services, support, care, or treatment exclusively for two or more persons who are not related to the owner or administrator of the residence by blood or marriage;
    9. Shall establish, by rule adopted pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," a schedule of fees for licensure activities for institutions and other health care related entities required to be licensed, permitted, registered, or commissioned by the department pursuant to Chapter 7, 13, 23, or 44 of this title, Chapter 5 of Title 26, paragraph (8) of this subsection, or Article 7 of Chapter 6 of Title 49. Such schedules shall be determined in a manner so as to help defray the costs incurred by the department, but in no event to exceed such costs, both direct and indirect, in providing such licensure activities. Such fees may be annually adjusted by the department but shall not be increased by more than the annual rate of inflation as measured by the Consumer Price Index, as reported by the Bureau of Labor Statistics of the United States Department of Labor. All fees paid thereunder shall be paid into the general funds of the State of Georgia. It is the intent of the General Assembly that the proceeds from all fees imposed pursuant to this paragraph be used to support and improve the quality of licensing services provided by the department;
      1. May accept the certification or accreditation of an entity or program by a certification or accreditation body, in accordance with specific standards, as evidence of compliance by the entity or program with the substantially equivalent departmental requirements for issuance or renewal of a permit or provisional permit, provided that such certification or accreditation is established prior to the issuance or renewal of such permits. The department may not require an additional departmental inspection of any entity or program whose certification or accreditation has been accepted by the department, except to the extent that such specific standards are less rigorous or less comprehensive than departmental requirements. Nothing in this Code section shall prohibit either departmental inspections for violations of such standards or requirements or the revocation of or refusal to issue or renew permits, as authorized by applicable law, or for violation of any other applicable law or regulation pursuant thereto.
      2. For purposes of this paragraph, the term:
        1. "Entity or program" means an agency, center, facility, institution, community living arrangement, drug abuse treatment and education program, or entity subject to regulation by the department under Chapters 7, 13, 22, 23, and 44 of this title; Chapter 5 of Title 26; paragraph (8) of this subsection; and Article 7 of Chapter 6 of Title 49.
        2. "Permit" means any license, permit, registration, or commission issued by the department pursuant to the provisions of the law cited in division (i) of this subparagraph;
      1. Is authorized to approve medical-legal partnerships that comply with standards and guidelines established for such programs for purposes of determining eligibility for grants. The department shall seek input from legal services organizations, community health advocacy organizations, hospitals, diagnostic and treatment centers, and other primary and specialty health care providers in establishing such standards and guidelines.
      2. For purposes of this paragraph, the term "medical-legal partnership" means a program conducted or established by a nonprofit entity through a collaboration pursuant to a written agreement between one or more medical service providers and one or more legal services programs, including those based within a law school, to provide legal services without charge to assist income-eligible individuals and their families in resolving legal matters or other needs that have an impact on the health of such individuals and families. Written agreements may include a memorandum of understanding or other agreement relating to the operations of the partnership and encompassing the rights and responsibilities of each party thereto. The medical service provider or providers may provide referrals of its patients to the legal services program or programs on matters that may potentially impact the health, health care, or the health care costs of a patient.
      3. A medical-legal partnership that complies with the standards and guidelines established pursuant to this paragraph and has demonstrated the ability and experience to provide high quality patient centered legal services regarding legal matters or other needs that have an impact on the health of individuals and families shall be approved by the department.
      4. This paragraph shall not be construed to require any medical-legal partnership or similar entity to seek or attain approval pursuant to this paragraph in order to operate;
    10. In cooperation with the Department of Corrections and the State Board of Pardons and Paroles, shall establish and implement a Medicaid eligibility determination procedure so that inmates being considered for parole who are eligible for long-term care services may apply for Medicaid; and
    11. Shall request federal approval for and facilitate the application of certificates of need for facilities capable of providing long-term care services, with Medicaid as the primary funding source, to inmates who are eligible for such services and funding upon his or her release from a public institution, as such term is defined in Code Section 49-4-31.

(Code 1981, §31-5A-4, enacted by Ga. L. 1999, p. 296, § 1; Ga. L. 2001, p. 1240, § 1; Ga. L. 2002, p. 1132, § 1; Ga. L. 2002, p. 1324, § 1-4; Code 1981 §31-2-4, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2010, p. 1014, § 1/HB 994; Ga. L. 2011, p. 705, § 4-2/HB 214; Ga. L. 2014, p. 397, § 1/SB 352; Ga. L. 2018, p. 550, § 3-2/SB 407; Ga. L. 2019, p. 1056, § 31/SB 52.)

The 2018 amendment, effective July 1, 2018, deleted "and" at the end of division (d)(10)(B)(ii), substituted "; and" for the period at the end of subparagraph (d)(11)(D), and added paragraphs (d)(12) and (d)(13).

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, deleted "and" at the end of subparagraph (d)(11)(D).

Cross references.

- Georgia Commission on Women, T. 50, C. 12, A. 5.

Code Commission notes.

- Ga. L. 2009, p. 745, § 2(14)/SB 97, effective July 1, 2009, purported to substitute "State Personnel Administration" for "State Merit System of Personnel Administration" in former Code Section 31-5A-4, but that amendment was not given effect due to the redesignation and amendment by Ga. L. 2009, p. 453, § 1-1/HB 228, effective July 1, 2009.

Pursuant to Code Section 28-9-5, in 2009, "work force" was substituted for "workforce" in paragraph (d)(2) and "of" was deleted preceding "the amount required" in the second sentence of paragraph (d)(7).

Editor's notes.

- Ga. L. 2009, p. 453, § 1-1/HB 228, effective July 1, 2009, redesignated former Code Section 31-2-4 as present Code Section 31-2-9.

Administrative Rules and Regulations.

- Hearings and petitions for rule-making, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Services, Administration, Chapter 290-1-1.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018).

JUDICIAL DECISIONS

Cited in Ga. Dep't of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003); Live Oak Consulting, Inc. v. Dep't of Cmty. Health, 281 Ga. App. 791, 637 S.E.2d 455 (2006).

31-2-5. Transfer of personnel and functions; conforming to federal standards of personnel administration; existing procedures, regulations, and agreements; rules adoption and implementation.

  1. All persons employed in a predecessor agency or unit on June 30, 2009, shall, on July 1, 2009, become employees of the department. Such employees shall be subject to the employment practices and policies of the department on and after July 1, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and who are transferred to the department shall retain all existing rights under such rules. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the department.
    1. The department shall conform to federal standards for a merit system of personnel administration in any respects necessary for receiving federal grants, and the board is authorized and empowered to effect such changes as may, from time to time, be necessary in order to comply with such standards.
    2. The department is authorized to employ, on a full-time or part-time basis, such medical, supervisory, institutional, and other professional personnel and such clerical and other employees as may be necessary to discharge the duties of the department under this chapter. The department is also authorized to contract for such professional services as may be necessary.
    3. Classified employees of the department under this chapter shall in all instances be employed and dismissed in accordance with rules of the State Personnel Board.
    4. All personnel of the department are authorized to be members of the Employees' Retirement System of Georgia as provided in Chapter 2 of Title 47. All rights, credits, and funds in that retirement system which are possessed by state personnel transferred by provisions of this chapter to the department, or otherwise had by persons at the time of employment with the department, are continued and preserved, it being the intention of the General Assembly that such persons shall not lose any rights, credits, or funds to which they may be entitled prior to becoming employees of the department.
  2. The department shall succeed to all rules, regulations, policies, procedures, and administrative orders of the predecessor agency or unit which were in effect on June 30, 2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the department by this chapter. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by proper authority or as otherwise provided by law. Rules of the department shall be adopted, promulgated, and implemented as provided in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except that only rules promulgated pursuant to Chapter 6 of this title shall be subject to the provisions of Code Section 31-6-21.1.
  3. The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July 1, 2009, by any predecessor agency or unit and which pertain to the functions transferred to the department by this chapter shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer of the functions to the department. In all such instances, the Department of Community Health shall be substituted for the predecessor agency or unit, and the Department of Community Health shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions.
  4. On July 1, 2009, the department shall receive custody of the state owned real property in the custody of the predecessor agency or unit on June 30, 2009, and which pertains to the functions transferred to the department by this chapter.

(Code 1981, §31-5A-5, enacted by Ga. L. 1999, p. 296, § 1; Ga. L. 2001, p. 1240, § 2; Code 1981, §31-2-5, as redesignated by Ga. L. 2009, p. 453 § 1-1/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-33/HB 642.)

Editor's notes.

- Ga. L. 2009, p. 453, § 1-1/HB 228, effective July 1, 2009, redesignated former Code Section 31-2-5 as present Code Section 31-2-10.

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

31-2-6. Commissioner of community health created; creation of divisions; allocation of functions.

  1. There is created the position of commissioner of community health. The commissioner shall be the chief administrative officer of the department and shall be subject to appointment and removal by the Governor. Subject to the general policy established by the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department.
  2. There shall be created in the department such divisions as may be found necessary for its effective operation. The commissioner shall have the power to allocate and reallocate functions among the divisions within the department.

(Code 1981, §31-5A-6, enacted by Ga. L. 1999, p. 296, § 1; Code 1981, §31-2-6, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Ga. L. 2011, p. 705, § 4-3/HB 214; Ga. L. 2011, p. 752, § 31/HB 142.)

Editor's notes.

- Ga. L. 2009, p. 453, § 1-1/HB 228, effective July 1, 2009, redesignated former Code Section 31-2-6 as present Code Section 31-2-11.

Ga. L. 2011, p. 752, § 54(e)/HB 142, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2011 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to subsection (b) of this Code section by Ga. L. 2011, p. 752, § 31(1)/HB 142, was not given effect.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article, "Health: Department of Public Health," see 28 Ga. St. U. L. Rev. 147 (2011).

31-2-7. (See Editor's notes.) Rules and regulations; variances and waivers to rules and regulations establishing licensure standards for facilities; exemption of classes of facilities from regulation.

  1. The department is authorized to adopt and promulgate rules and regulations to effect prevention, abatement, and correction of situations and conditions which, if not promptly checked, would militate against the health of the people of this state. Such rules and regulations shall be adapted to the purposes intended, within the purview of the powers and duties imposed upon the department by this chapter, and supersede conflicting rules, regulations, and orders adopted pursuant to the authority of Chapter 3 of this title.
  2. The department upon application or petition may grant variances and waivers to specific rules and regulations which establish standards for facilities or entities regulated by the department as follows:
    1. The department may authorize departure from the literal requirements of a rule or regulation by granting a variance upon a showing by the applicant or petitioner that the particular rule or regulation that is the subject of the variance request should not be applied as written because strict application would cause undue hardship. The applicant or petitioner additionally must show that adequate standards affording protection of health, safety, and care exist and will be met in lieu of the exact requirements of the rule or regulation in question;
    2. The department may dispense entirely with the enforcement of a rule or regulation by granting a waiver upon a showing by the applicant or petitioner that the purpose of the rule or regulation is met through equivalent standards affording equivalent protection of health, safety, and care;
    3. The department may grant waivers and variances to allow experimentation and demonstration of new and innovative approaches to delivery of services upon a showing by the applicant or petitioner that the intended protections afforded by the rule or regulation which is the subject of the request are met and that the innovative approach has the potential to improve service delivery;
    4. Waivers or variances which affect an entire class of facilities may only be approved by the Board of Community Health and shall be for a time certain, as determined by the board. A notice of the proposed variance or waiver affecting an entire class of facilities shall be made in accordance with the requirements for notice of rule making in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; or
    5. Variances or waivers which affect only one facility in a class may be approved or denied by the department and shall be for a time certain, as determined by the department. The department shall maintain a record of such action and shall make this information available to the board and all other persons who request it.

      This subsection shall not apply to rules adopted by the department pursuant to Code Section 31-6-21.1.

  3. The department may exempt classes of facilities from regulation when, in the department's judgment, regulation would not permit the purpose intended or the class of facilities is subject to similar requirements under other rules and regulations. Such exemptions shall be provided in rules and regulations promulgated by the board.

(Code 1933, § 88-110, enacted by Ga. L. 1964, p. 499, § 1; Code 1981, §31-2-4; Ga. L. 1982, p. 1592, §§ 1, 2; Ga. L. 1990, p. 791, § 1; Ga. L. 2003, p. 569, § 1; Code 1981, §31-2-9, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2-7, as redesignated by Ga. L. 2011, p. 705, § 4-4/HB 214.)

Editor's notes.

- Ga. L. 2009, p. 453, § 1-1, effective July 1, 2009, redesignated former Code Section 31-2-7 as present Code Section 31-2-12.

Ga. L. 2011, p. 705, § 3-2/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-7 as present Code Section 31-2A-8.

For application of this statute in 2020, see Executive Order 03.20.20.02.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 88-112 and 88-117, which were subsequently repealed but were succeeded by provisions of this Code section, are included in the annotations for this Code section.

Authority to regulate, quarantine, and control tuberculosis.

- Department of Human Resources (now the Department of Community Health for these purposes) has authority to make reasonable rules and regulations regarding quarantine and control of communicable tuberculosis. 1945-47 Op. Att'y Gen. p. 530 (decided under former Code 1933, §§ 88-112 and 88-117).

Power to promulgate rules as to abortions.

- Board of Human Resources (now the Department of Community Health for these purposes) has power to promulgate rules and regulations governing abortions when the board finds such regulation appropriate to promote or safeguard the public health; the General Assembly not only gave authority to do this but actually directed that it be done. 1973 Op. Att'y Gen. No. 73-24.

Phenylketonuria and other inborn errors of metabolism in infants are conditions which the legislature intended to cover; the State Board of Health (now the Department of Community Health for these purposes) has authority to adopt and promulgate reasonable rules and regulations which will affect prevention, correction, and abatement of such situations and conditions so long as such rules do not violate constitutional or legal guarantees of any person and are within the purview of the powers and duties imposed upon the State Health Department (now the Department of Community Health for these purposes). 1965-66 Op. Att'y Gen. No. 65-81.

Authority to adopt rules and regulations concerning phenylketonuria.

- Adoption of rules and regulations concerning phenylketonuria would be for purpose of detection and prevention of condition which adversely affects health of citizens of the state, and State Board of Health (now the Department of Community Health for these purposes) is authorized to adopt such rules and regulations. 1965-66 Op. Att'y Gen. No. 65-81.

Regulation of septic tank construction outside city limits.

- Georgia Department of Public Health (now the Department of Community Health for these purposes) is authorized to adopt and enforce rules and regulations establishing standards for construction of septic tanks for housing located outside city limits. 1968 Op. Att'y Gen. No. 68-185.

Authority to require licensees under Chapter 13 to notify employees of radiation.

- Ample statutory authority exists for Department of Public Health (now the Department of Community Health for these purposes) to require persons or firms licensed under Ga. L. 1964, p. 499 to notify an employee in writing when the employee has received radiation exposure in excess of prescribed limits. 1968 Op. Att'y Gen. No. 68-299.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 1 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, § 5.

31-2-8. Actions against certain applicants or licensees.

  1. This Code section shall be applicable to any agency, center, facility, institution, community living arrangement, drug abuse treatment and education program, or entity subject to regulation by the department under Chapters 7, 13, 22, 23, and 44 of this title; Chapter 5 of Title 26; paragraph (8) of subsection (d) of Code Section 31-2-4; and Article 7 of Chapter 6 of Title 49. For purposes of this Code section, the term "license" shall be used to refer to any license, permit, registration, or commission issued by the department pursuant to the provisions of the law cited in this subsection.
  2. The department shall have the authority to take any of the actions enumerated in subsection (c) of this Code section upon a finding that the applicant or licensee has:
    1. Knowingly made any false statement of material information in connection with the application for a license, or in statements made or on documents submitted to the department as part of an inspection, survey, or investigation, or in the alteration or falsification of records maintained by the agency, facility, institution, or entity;
    2. Failed or refused to provide the department with access to the premises subject to regulation or information pertinent to the initial or continued licensing of the agency, facility, institution, or entity;
    3. Failed to comply with the licensing requirements of this state; or
    4. Failed to comply with any provision of this Code section.
  3. When the department finds that any applicant or licensee has violated any provision of subsection (b) of this Code section or laws, rules, regulations, or formal orders related to the initial or continued licensing of the agency, facility, institution, or entity, the department, subject to notice and opportunity for hearing, may take any of the following actions:
    1. Refuse to grant a license; provided, however, that the department may refuse to grant a license without holding a hearing prior to taking such action;
    2. Administer a public reprimand;
    3. Suspend any license for a definite period or for an indefinite period in connection with any condition which may be attached to the restoration of said license;
    4. Prohibit any applicant or licensee from allowing a person who previously was involved in the management or control, as defined by rule, of any agency, facility, institution, or entity which has had its license or application revoked or denied within the past 12 months to be involved in the management or control of such agency, facility, institution, or entity;
    5. Revoke any license;
    6. Impose a fine, not to exceed a total of $25,000.00, of up to $1,000.00 per day for each violation of a law, rule, regulation, or formal order related to the initial or ongoing licensing of any agency, facility, institution, or entity, except that no fine may be imposed against any nursing facility, nursing home, or intermediate care facility which is subject to intermediate sanctions under the provisions of 42 U.S.C. Section 1396r(h)(2)(A), as amended, whether or not those sanctions are actually imposed; or
    7. Limit or restrict any license as the department deems necessary for the protection of the public, including, but not limited to, restricting some or all services of or admissions into an agency, facility, institution, or entity for a time certain.

      In taking any of the actions enumerated in this subsection, the department shall consider the seriousness of the violation, including the circumstances, extent, and gravity of the prohibited acts, and the hazard or potential hazard created to the health or safety of the public.

    1. With respect to any facility classified as a nursing facility, nursing home, or intermediate care home, the department may not take an action to fine or restrict the license of any such facility based on the same act, occurrence, or omission for which:
      1. The facility has received an intermediate sanction under the provisions of 42 U.S.C. Section 1396r(h)(2)(A), as amended, or 42 U.S.C. Section 1395i-3(h)(2)(B); or
      2. Such facility has been served formal notice of intent to take such a sanction which the department based on administrative review or any other appropriate body based on administrative or judicial review determines not to impose; provided, however, that nothing in this subsection shall prohibit the department from utilizing the provisions authorized under subsection (f) of this Code section.
    2. When any civil monetary penalty is recommended and imposed against such facility, and the department does not resurvey the facility within 48 hours after the date by which all items on a plan of correction submitted by the facility are to be completed, the accrual of any resulting civil monetary penalties shall be suspended until the facility is resurveyed by the department.
    3. If the department resurveys such facility beyond 48 hours after the final date for completion of all items on the plan of correction submitted by the facility, and the facility is not in substantial compliance with the applicable standards, any civil monetary penalties imposed shall relate back to the date on which such penalties were suspended.
    4. Notwithstanding the provisions of paragraphs (2) and (3) of this subsection, nothing contained in said paragraphs shall be construed as requiring the state survey agency to act in violation of applicable federal law, regulations, and guidelines.
  4. The department may deny a license or otherwise restrict a license for any applicant who has had a license denied, revoked, or suspended within one year of the date of an application or who has transferred ownership or governing authority of an agency, facility, institution, or entity subject to regulation by the department within one year of the date of a new application when such transfer was made in order to avert denial, revocation, or suspension of a license.
  5. With regard to any contested case instituted by the department pursuant to this Code section or other provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action, the department may, in its discretion, dispose of the action so instituted by settlement. In such cases, all parties, successors, and assigns to any settlement agreement shall be bound by the terms specified therein, and violation thereof by any applicant or licensee shall constitute grounds for any action enumerated in subsection (c) of this Code section.
  6. The department shall have the authority to make public or private investigations or examinations inside or outside of this state to determine whether the provisions of this Code section or any other law, rule, regulation, or formal order relating to the licensing of any agency, facility, institution, or entity has been violated. Such investigations may be initiated at any time, in the discretion of the department, and may continue during the pendency of any action initiated by the department pursuant to subsection (c) of this Code section.
  7. For the purpose of conducting any investigation, inspection, or survey, the department shall have the authority to require the production of any books, records, papers, or other information related to the initial or continued licensing of any agency, facility, institution, or entity.
  8. Pursuant to the investigation, inspection, and enforcement powers given to the department by this Code section and other applicable laws, the department may assess against an agency, facility, institution, or entity reasonable and necessary expenses incurred by the department pursuant to any administrative or legal action required by the failure of the agency, facility, institution, or entity to fully comply with the provisions of any law, rule, regulation, or formal order related to the initial or continued licensing. Assessments shall not include attorney's fees and expenses of litigation, shall not exceed other actual expenses, and shall only be assessed if such investigations, inspection, or enforcement actions result in adverse findings, as finally determined by the department, pursuant to administrative or legal action.
  9. For any action taken or any proceeding held under this Code section or under color of law, except for gross negligence or willful or wanton misconduct, the department, when acting in its official capacity, shall be immune from liability and suit to the same extent that any judge of any court of general jurisdiction in this state would be immune.
  10. In an administrative or legal proceeding under this Code section, a person or entity claiming an exemption or an exception granted by law, rule, regulation, or formal order has the burden of proving this exemption or exception.
  11. This Code section and all actions resulting from its provisions shall be administered in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  12. The provisions of this Code section shall be supplemental to and shall not operate to prohibit the department from acting pursuant to those provisions of law which may now or hereafter authorize remedial or disciplinary grounds and action for the department. In cases where those other provisions of law so authorize other disciplinary grounds and actions, but this Code section limits such grounds or actions, those other provisions shall apply.
  13. The department is authorized to promulgate rules and regulations to implement the provisions of this Code section.

(Code 1981, §31-2-6, enacted by Ga. L. 1991, p. 341, § 1; Ga. L. 1993, p. 1290, § 1; Ga. L. 1994, p. 1856, § 1; Ga. L. 1999, p. 296, § 24; Ga. L. 2000, p. 526, § 2; Ga. L. 2001, p. 1230, § 1; Ga. L. 2003, p. 298, § 2; Ga. L. 2003, p. 558, § 1; Code 1981, §31-2-11, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2-8, as redesignated by Ga. L. 2011, p. 705, § 4-4/HB 214.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1991, "42 U.S.C. Section 1396r(h)(2)(A)" was substituted for "42 U.S.C. Section 1396r(h)(2)(a)" in paragraph (c)(6).

Pursuant to Code Section 28-9-5, in 2000, "44" was substituted for "43" in subsection (a).

Pursuant to Code Section 28-9-5, in 2006, the substitution of "23, and 44" for "and 23" was retained in subsection (a) due to the elimination of the repeal of T. 31, Ch. 44, in accordance with Ga. L. 2005, p. 1194, § 1.

Editor's notes.

- Ga. L. 2003, p. 298, § 3(b), not codified by the General Assembly, provided that the first 2003 amendment became effective July 1 of the fiscal year following the year in which funds are specifically appropriated for the purposes of this Act in an appropriations Act making specific reference to this Act and shall become effective when funds so appropriated become available for expenditure. Funds were appropriated at the 2007 session of the General Assembly, and thus the first 2003 amendment became effective July 1, 2008.

Ga. L. 2005, p. 1194, § 1/SB 48, not codified by the General Assembly, provides: "(b) The following provision of law is repealed:

Section 4 of an Act amending Title 31 of the Official Code of Georgia Annotated, relating to health, approved April 20, 2000 (Ga. L. 2000, p. 526), which now repealed section would have provided for a future repeal or sunset of certain provisions relating to renal dialysis facilities." This 2005 law effectively repeals the automatic repeal provision of Ga. L. 2000, p. 526.

Ga. L. 2011, p. 705, § 3-2/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-8 as present Code Section 31-2A-9.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 158 (2001).

31-2-9. Records check requirement for certain health care facilities; definitions; use of information gathered in investigation; penalties for unauthorized release or disclosure; rules and regulations; retention of fingerprints.

Repealed by Ga. L. 2018, p. 611, § 1-1/SB 406, effective October 1, 2019.

Editor's notes.

- This Code section was based on Ga. L. 2009, p. 453, § 1-1/HB 228; Ga. L. 2010, p. 878, § 31/HB 1387; Ga. L. 2011, p. 227, § 10/SB 178; Code 1981, § 31-2-9, as redesignated by Ga. L. 2011, p. 705, § 4-4/HB 214; Ga. L. 2012, p. 351, § 2/HB 1110; Ga. L. 2013, p. 524, § 3-2/HB 78; Ga. L. 2014, p. 444, § 2-8/HB 271; Ga. L. 2015, p. 598, § 1-8/HB 72; Ga. L. 2018, p. 507, § 2-6/SB 336.

31-2-10. Information and comparisons regarding state-wide cost and quality of health care.

Performance and outcome data and pricing data for selected medical conditions, surgeries, and procedures in hospitals, ambulatory surgery centers, nursing homes, and rehabilitation centers in Georgia shall be reported to the Department of Community Health on a regular basis. The department shall provide for the establishment of a website for the purpose of providing consumers information on the cost and quality of health care in Georgia to include but not be limited to cost comparison information on certain prescription drugs at different pharmacies in Georgia, hospitals, ambulatory surgery centers, nursing homes, and rehabilitation centers and facilities in Georgia.

(Code 1981, §31-5A-7, enacted by Ga. L. 2007, p. 133, § 19/HB 24; Ga. L. 2008, p. 324, § 31/SB 455; Code 1981, §31-2-15, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2-10, as redesignated by Ga. L. 2011, p. 705, § 4-4/HB 214.)

Editor's notes.

- Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: "(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.

"(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.

"(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.

"(d) The General Assembly finds that the clear expression of an individual's decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care."

Ga. L. 2011, p. 705, § 3-2/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-10 as present Code Section 31-2A-10.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article, "Health: Department of Public Health," see 28 Ga. St. U. L. Rev. 147 (2011).

31-2-11. Biopharmaceuticals; expedited review for Georgia based companies.

  1. As used in this Code section, the term:
    1. "Biopharmaceutical" means the application of biotechnology to the development of pharmaceutical products that improve human health.
    2. "Biotechnology" means any technological application that uses biological systems, living organisms, or derivatives thereof to make or modify products or processes for specific use.
    3. "Georgia biotechnology, biopharmaceutical, or pharmaceutical company" means a biotechnology, biopharmaceutical, or pharmaceutical company, or a corporate division of such a company:
      1. The principal activity of which is research or development, manufacturing, or sales of health care products in this state; and
        1. That had a total economic impact in this state of not less than $60 million during the most recent taxable year;
        2. That has total capital investment in this state of not less than $100 million; and
        3. That employs at least 200 Georgia residents.

        Such term shall not mean a warehouse used to store health care products.

    4. "Pharmaceutical" means of or pertaining to the knowledge or art of pharmacy or to the art of preparing medicines according to the rules or formulas of pharmacy.
    5. "Research and development" means experimental or laboratory activity for the ultimate purpose of developing new products, improving existing products, developing new uses for existing products, or developing or improving methods for producing products.
    6. "Total economic impact" means the sum of total employee payroll, investment in external research and development, the value of prescription drug samples provided to physicians, and the value of prescription drugs donated to low-income individuals through patient assistance programs.
  2. The Department of Community Health shall expedite the review of any prescription drug or other health care product having an approved indication from the federal Food and Drug Administration for use with humans and that is produced by a Georgia biotechnology, biopharmaceutical, or pharmaceutical company for any health care coverage provided under the state health benefit plan under Article 1 of Chapter 18 of Title 45, the medical assistance program under Article 7 of Chapter 4 of Title 49, the PeachCare for Kids Program under Article 13 of Chapter 5 of Title 49, or any other health benefit plan or policy administered by or on behalf of the state. Such review shall take place as soon as practicable following the date that such drug or health care product becomes available for public consumption. This subsection shall apply to all contracts entered into or renewed by the Department of Community Health on or after July 1, 2008.
  3. In complying with the provisions of this Code section, the department shall consider the nexus of a biotechnology, biopharmaceutical, or pharmaceutical company in relation to the state along with the financial impact on the state, the quality of the product, and other relevant factors.

(Code 1981, §31-5A-8, enacted by Ga. L. 2008, p. 121, § 1/HB 180; Ga. L. 2009, p. 8, § 31/SB46; Code 1981, §31-2-16, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2-11, as redesignated by Ga. L. 2011, p. 705, § 4-4/HB 214; Ga. L. 2012, p. 775, § 31/HB 942.)

Editor's notes.

- Ga. L. 2011, p. 705, § 4-4/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-11 as present Code Section 31-2-8.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

31-2-12. Pilot program to provide coverage for bariatric surgical procedures for treatment of obesity and related conditions; definitions; eligibility; requirements; evaluation report on two-year pilot program.

Reserved. Repealed by Ga. L. 2014, p. 172, § 1/HB 511, effective December 31, 2018.

Editor's notes.

- This Code section was based on Code 1981, § 31-2-12, enacted by Ga. L. 2014, p. 172, § 1/HB 511.

Ga. L. 2019, p. 1056, § 31(3)/SB 52, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, designated this Code section as reserved.

31-2-13. Inspection warrant.

  1. As used in this Code section, the term "commissioner" means the commissioner of community health or his or her designee.
  2. Nothing in this Code section shall be construed to require an inspection warrant when a warrantless inspection is authorized by law or pursuant to a rule or regulation enacted pursuant to this title.
  3. An inspection warrant is an order, in writing, signed by a judicial officer, directed to the commissioner or any person authorized to make inspections for such commissioner and commanding him or her to conduct an inspection required or authorized by:
    1. This title;
    2. Any other law administered by the commissioner;
    3. Rules or regulations promulgated pursuant to this title; or
    4. Rules or regulations promulgated pursuant to any other law administered by the commissioner.
  4. The commissioner or any person authorized to make inspections for such commissioner shall make application for an inspection warrant to a person who is a judicial officer within the meaning of Code Section 17-5-21.
    1. An inspection warrant shall be issued only upon cause and when supported by an affidavit which:
      1. Particularly describes the place, dwelling, structure, premises, or vehicle to be inspected;
      2. Particularly describes the purpose for which the inspection is to be made; and
      3. Contains either a statement that consent to inspect has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent.
    2. Cause to support the issuance of an inspection warrant shall be deemed to exist if:
      1. Reasonable legislative or administrative standards for conducting a routine or area inspection are satisfied with respect to the particular place, dwelling, structure, premises, or vehicle; or
      2. There is reason to believe that a condition of nonconformity exists with respect to the particular place, dwelling, structure, premises, or vehicle.
  5. An inspection warrant shall be effective for the time specified therein, but not for a period of more than 14 days, unless extended or renewed by the judicial officer who signed and issued the original warrant, upon satisfaction that such extension or renewal is in the public interest. Such inspection warrant shall be executed and returned to the judicial officer by whom it was issued within the time specified in such warrant or within the extended or renewed time. After the expiration of such time, the inspection warrant, unless executed, shall be void.
  6. An inspection pursuant to an inspection warrant:
    1. May be executed at any time as deemed appropriate by the individual executing such warrant but whenever possible shall be made at any time during operating or regular business hours;
    2. Should not be performed in the absence of an owner or occupant of the particular place, dwelling, structure, premises, or vehicle being inspected unless specifically authorized by the judicial officer upon a showing that such authority is reasonably necessary to effectuate the purpose of the law, rule, or regulation being enforced; and
    3. Shall not be made by means of forcible entry, except that the judicial officer may expressly authorize a forcible entry when facts are shown:
      1. Which are sufficient to create a reasonable suspicion of a violation of this title or any other law, rule, or regulation administered by the commissioner or the department, which, if such violation existed, would be an immediate threat to health or safety; or
      2. Establishing that a reasonable attempt to serve a previous inspection warrant has been unsuccessful.
  7. When prior consent for an inspection has been sought and refused and an investigation warrant has been issued, an inspection warrant may be executed without further notice to the owner or occupant of the particular place, dwelling, structure, premises, or vehicle being inspected.
  8. It shall be unlawful for any owner, operator, or employee of the particular place, dwelling, structure, premises, or vehicle being inspected to refuse to allow an inspection pursuant to an inspection warrant issued as provided in this Code section. Any person violating this Code section shall be guilty of a misdemeanor.

(Code 1981, §31-2-13, enacted by Ga. L. 2015, p. 598, § 1-9/HB 72.)

Law reviews.

- For article on the 2015 enactment of this Code section, see 32 Ga. St. U. L. Rev. 63 (2015).

31-2-14. Nurse aide registry; complaint filing; public access.

  1. The nurse aide registry established and maintained by the department as required by 42 C.F.R. Section 483.156 shall include, in addition to nurse aides who work in licensed facilities, nurse aides who provide services in this state in temporary or permanent private residences.
  2. The registry shall provide a method for an inquiry or complaint to be submitted by the public regarding a nurse aide providing services in private residences. Any such inquiries or complaints shall be handled in the same manner as required for nurse aides who work in licensed facilities.
  3. The department shall ensure that the registry is posted or a link to it is provided in a prominent location on the department's website.

(Code 1981, §31-2-14, enacted by Ga. L. 2016, p. 201, § 1/HB 1037.)

Editor's notes.

- Ga. L. 2011, p. 705, § 4-4/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-14 as present Code Section 31-2-9.

31-2-15. Streamlining and expediting credentialing and billing processes.

  1. As used in this Code section, the term "state medical plan" means the state health benefit plan under Article 1 of Chapter 18 of Title 45, the medical assistance program under Article 7 of Chapter 4 of Title 49, the PeachCare for Kids Program under Article 13 of Chapter 5 of Title 49, and any other health benefit plan or policy administered by or on behalf of the state.
  2. The department shall take all reasonable steps to streamline and expedite the credentialing and billing processes for state medical plans, including but not limited to examining the potential for a uniform billing platform or portal; examining the potential for the standardization of billing codes among providers; posting billing criteria and codes on the department's website; enabling a dual track process for credentialing and contract negotiation for new providers; allowing billing for telehealth delivered care and allowing payment for both the on-site provider and off-site provider; and maximizing billing for multiple specialists and multiple encounters with one provider at a single visit in safety net settings, critical access settings, federally qualified health centers, and general practitioner settings.
  3. This Code section shall not be construed to require the department to act in violation of any federal law, rule, or regulation.

(Code 1981, §31-2-15, enacted by Ga. L. 2018, p. 132, § 3B/HB 769.)

Effective date.

- This Code section became effective July 1, 2018.

Editor's notes.

- Ga. L. 2011, p. 705, § 4-4/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-15 as present Code Section 31-2-10.

Ga. L. 2018, p. 132, § 8(c)/HB 769, not codified by the General Assembly, provides: "(c)(1) Section 3A of this Act shall become effective on July 1, 2018, only if SB 357 or another Act creating the Health Coordination and Innovation Council is enacted by the General Assembly and becomes law in 2018, in which event Section 3B of this Act shall not become effective and shall stand repealed on July 1, 2018.

"(2) If SB 357 or another Act creating the Health Coordination and Innovation Council does not become law in 2018, then Section 3B of this Act shall become effective on July 1, 2018, and Section 3A of this Act shall not become effective and shall stand repealed on July 1, 2018." SB 357 was passed by the General Assembly but was vetoed by the Governor on May 8, 2018, and did not become law.

31-2-16. Rural Health System Innovation Center created; purposes and duties; reporting.

  1. There is created and established the Rural Health System Innovation Center within the department's State Office of Rural Health to serve as a research organization that utilizes Georgia's academic, public health policy, data, and workforce resources to develop new approaches for financing and delivering health care in this state. The department shall release a request for proposals, no later than December 1, 2018, to identify a postsecondary institution within the state in which the center shall be located. Such postsecondary institution shall have a health program or college that focuses on rural and underserved areas of the state. The department shall reissue a request for proposal after seven years and every five years thereafter.
  2. The purposes and duties of the Rural Health System Innovation Center shall be to:
    1. Develop a research program to identify and analyze significant health system problems and to propose solutions and best practices to such problems;
    2. Focus on access improvement to affordable health care in rural Georgia;
    3. Synthesize existing studies, reports, and data to provide a baseline assessment and set measurable goals as part of Georgia's strategic reform plan;
    4. Incorporate recommendations from state reform efforts to build the state's reform plan;
    5. Evaluate and make recommendations for the fiscal stabilization of rural health care delivery systems and ensure their design is appropriate for the community served by such systems;
    6. Provide technical assistance and expertise to address immediate needs of rural communities;
    7. Develop state-wide pilot projects, identify innovative approaches to funding these projects, and track and evaluate the projects' performance;
    8. Connect to a central health data repository for collection and dissemination of health data and serve as a clearinghouse for data integration and analysis;
    9. Produce studies that address cost-drivers and duplication to eliminate barriers to health care and reduce costs;
    10. Monitor current and future health care workforce needs and advise the Georgia Board of Health Care Workforce of significant changes in need or demand;
    11. Participate in other state-wide health initiatives or programs affecting the entire state and nonrural areas of Georgia. The center shall cooperate with other health related state entities, including but not limited to the department, the Department of Public Health, the Department of Human Services, the Department of Behavioral Health and Developmental Disabilities, and the Office of Health Strategy and Coordination and all other health related state boards, commissions, committees, councils, offices, and other entities on state-wide health initiatives or programs; and
      1. In conjunction with the State Office of Rural Health, develop standards for education curriculum no later than January 1, 2019, which will be provided to leadership, including, but not limited to, hospital executive leadership, hospital board members, and hospital authority members of rural hospital organizations, as defined in Code Section 31-8-9.1, and to other rural health care facilities upon request. The curriculum shall include, at a minimum, legal, fiduciary, grant management, planning, and compliance training. The center shall approve education programs by any entity that the center determines to meet such standards.
      2. The chief executive officer, the chief financial officer, every board member, and every hospital authority member, if operated by a hospital authority pursuant to Article 4 of Chapter 7 of this title, of a rural hospital organization as defined in Code Section 31-8-9.1, shall be required to complete an education program approved by the center pursuant to this paragraph no later than December 31, 2020, or within 12 months of initial hiring or appointment and every two years thereafter.
      3. Any board member or hospital authority member who does not complete the education program as required pursuant to subparagraph (B) of this paragraph shall be ineligible to continue serving as a board member or hospital authority member. The center may provide for notice and a grace period for board members and hospital authority members to come into compliance with such requirement. A vacancy created pursuant to this subparagraph on the board of a hospital authority shall be filled in the same manner as provided in subsection (c) of Code Section 31-7-72 for the initial appointment of members of the hospital authority.
      4. At the discretion of the department, any rural hospital organization that fails to ensure compliance by the chief executive officer, the chief financial officer, every board member, and every hospital authority member with the education requirements contained in subparagraph (B) of this paragraph shall be deemed:
        1. Ineligible to receive contributions from the tax credit provided pursuant to Code Section 48-7-29.20;
        2. Ineligible to participate in any grant programs offered by the state; and
        3. Subject to a fine of $10,000.00 per violation.
  3. The center is authorized to make application for and receive funds and grants as may be necessary to, and utilize and disburse such funds for such purposes and projects as will, carry out the purposes of the center.
  4. The center is authorized to enter into contracts, agreements, and arrangements with colleges and universities to advance the work of the center. The center shall also be authorized to enter into contracts and agreements with the federal government; political subdivisions of this state; private firms, foundations, or institutions; or individuals for specific research on any aspects of rural health care as may be related to the purposes of this Code section. The center shall contract with a school of medicine in this state to provide clinical health care expertise to the center.
  5. On or before October 1 of each year, the center shall file a report to the Governor, the President of the Senate, the Speaker of the House of Representatives, and the chairpersons of the House Committee on Health and Human Services, the Senate Health and Human Services Committee, the House Committee on Appropriations, the Senate Appropriations Committee, and the Office of Health Strategy and Coordination. The report shall include a summary of the activities of the center during the calendar year, including but not limited to the total number of hospital executives, hospital board members, and hospital authority members who received training from the center; the status of rural health care in the state; and recommendations, if any, for legislation as may be necessary to improve the programs and services offered by the center.

(Code 1981, §31-2-16, enacted by Ga. L. 2018, p. 132, § 3B/HB 769; Ga. L. 2019, p. 148, § 2-4/HB 186; Ga. L. 2019, p. 224, § 2/SB 207; Ga. L. 2019, p. 1056, § 31/SB 52.)

Effective date.

- This Code section became effective July 1, 2018.

The 2019 amendments. The first 2019 amendment, effective July 1, 2019, deleted commas following "including" and "limited to" in the middle of the second sentences of paragraph (b)(11) and subsection (e); in paragraph (b)(11), in the second sentence, deleted "and" following "Department of Human Services" and inserted "and the Office of Health Strategy and Coordination" in the middle; and, in the first sentence of subsection (e), deleted "and" preceding "the Senate Appropriations Committee", and added ", and the Office of Health Strategy and Coordination" at the end. The second 2019 amendment, effective July 1, 2019, substituted "Georgia Board of Health Care Workforce" for "Georgia Board for Physician Workforce" in paragraph (b)(10). The third 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised punctuation in subparagraph (b)(12)(B).

Editor's notes.

- Ga. L. 2011, p. 705, § 4-4/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-16 as present Code Section 31-2-11.

Ga. L. 2018, p. 132, § 8(c)/HB 769, not codified by the General Assembly, provided: "(c)(1) Section 3A of this Act shall become effective on July 1, 2018, only if SB 357 or another Act creating the Health Coordination and Innovation Council is enacted by the General Assembly and becomes law in 2018, in which event Section 3B of this Act shall not become effective and shall stand repealed on July 1, 2018.

"(2) If SB 357 or another Act creating the Health Coordination and Innovation Council does not become law in 2018, then Section 3B of this Act shall become effective on July 1, 2018, and Section 3A of this Act shall not become effective and shall stand repealed on July 1, 2018." SB 357 was passed by the General Assembly but was vetoed by the Governor on May 8, 2018, and did not become law.

Ga. L. 2019, p. 148, § 2-1/HB 186, not codified by the General Assembly, provides: "This part shall be known and may be cited as 'The Health Act.'"

31-2-17. Redesignated.

Editor's notes.

- Ga. L. 2011, p. 705, § 3-2/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-17 as present Code Section 31-2A-13.

31-2-17.1. Redesignated.

Editor's notes.

- Ga. L. 2011, p. 705, § 3-2/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-17.1 as present Code Section 31-2A-14.

31-2-18. Redesignated.

Editor's notes.

- Ga. L. 2011, p. 705, § 3-2/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-18 as present Code Section 31-2A-15.

31-2-19. Advisory Council for Public Health; members; meetings.

Repealed by Ga. L. 2011, p. 705, § 4-5/HB 214, effective July 1, 2011.

Editor's notes.

- This Code section was based on Code 1981, § 31-2-19, enacted by Ga. L. 2009, p. 453, § 1-1/HB 228.

Law reviews.

- For article on the 2011 repeal of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

31-2-20. Public Health Commission; members; purpose; authority.

Repealed by Ga. L. 2009, p. 453, § 1-1/HB 228, effective December 31, 2010.

Editor's notes.

- This Code section was based on Code 1981, § 31-2-20, enacted by Ga. L. 2009, p. 453, § 1-1/HB 228.

CHAPTER 2A DEPARTMENT OF PUBLIC HEALTH

Article 1 General Provisions.
Article 2 Positive Alternatives for Pregnancy and Parenting Grant Program.
Article 3 Perinatal Facilities.
Law reviews.

- For article on the 2011 enactment of this chapter, see 28 Ga. St. U. L. Rev. 147 (2011). For article, "Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine," see 67 Emory L.J. 491 (2018).

ARTICLE 1 GENERAL PROVISIONS

Editor's notes.

- The existing provisions of Chapter 2A were designated as Article 1 of Chapter 2A by Ga. L. 2016, p. 214, § 1/SB 308, effective July 1, 2016.

31-2A-1. Creation of Board of Public Health; powers, duties, and functions of Board of Community Health transferred to the Board of Public Health; board composition and terms; vacancies, removal; chairperson; reimbursement of expenses.

  1. There is created the Board of Public Health which shall establish the general policy to be followed by the Department of Public Health. The powers, functions, and duties of the Board of Community Health as they existed on June 30, 2011, with regard to the Division of Public Health and the Office of Health Improvement, unless otherwise provided in this Act, are transferred to the Board of Public Health effective July 1, 2011. The board shall consist of nine members appointed by the Governor and confirmed by the Senate.
  2. The Governor shall designate the initial terms of the members of the board as follows: three members shall be appointed for one year; three members shall be appointed for two years; and three members shall be appointed for three years. Thereafter, all succeeding appointments shall be for three-year terms from the expiration of the previous term.
  3. Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position on the board which becomes vacant. An appointment to fill a vacancy other than by expiration of a term of office shall be for the balance of the unexpired term.
  4. Members of the board may be removed from office under the same conditions for removal from office of members of professional licensing boards provided in Code Section 43-1-17.
  5. There shall be a chairperson of the board elected by and from the membership of the board who shall be the presiding officer of the board.
  6. The members of the board shall receive the same daily expense allowance and reimbursement of expenses as provided in Code Section 45-7-21 for members of other state boards.

(Code 1981, §31-2A-1, enacted by Ga. L. 2011, p. 705, § 3-1/HB 214.)

Law reviews.

- For article, "Health: Department of Public Health," see 28 Ga. St. U. L. Rev. 147 (2011).

31-2A-2. Creation of Department of Public Health; transition of powers, function, and duties to new agency; commissioner of public health; creation of divisions.

  1. There is created a Department of Public Health. The powers, functions, and duties of the Division of Public Health and the Office of Health Improvement of the Department of Community Health as they existed on June 30, 2011, unless otherwise provided in this Act, are transferred to the Department of Public Health effective July 1, 2011.
  2. There is created the position of commissioner of public health. The commissioner shall be the chief administrative officer of the department and be both appointed and removed by the Governor. Subject to the general policy established by the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department.
  3. There shall be created in the department such divisions as may be found necessary for its effective operation. The commissioner shall have the power to allocate and reallocate functions among the divisions within the department.

(Code 1981, §31-2A-2, enacted by Ga. L. 2011, p. 705, § 3-1/HB 214.)

Law reviews.

- For article, "Health: Department of Public Health," see 28 Ga. St. U. L. Rev. 147 (2011).

31-2A-3. Department of Public Health successor to certain rules, regulations, policies, procedures, administrative orders, rights, interests, and obligations of Department of Community Health.

  1. The Department of Public Health shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Community Health that are in effect on June 30, 2011, or scheduled to go into effect on or after July 1, 2011, and which relate to the functions transferred to the Department of Public Health pursuant to Code Section 31-2A-2 and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Community Health that are in effect on June 30, 2011, which relate to the functions transferred to the Department of Public Health pursuant to Code Section 31-2A-2. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by the Department of Public Health by proper authority or as otherwise provided by law.
  2. The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions as identified by the Office of Planning and Budget entered into before July 1, 2011, by the Department of Community Health which relate to the functions transferred to the Department of Public Health pursuant to Code Section 31-2A-2 shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer of the functions to the Department of Public Health. In all such instances, the Department of Public Health shall be substituted for the Department of Community Health, and the Department of Public Health shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions.
  3. All persons employed by the Department of Community Health in capacities which relate to the functions transferred to the Department of Public Health pursuant to Code Section 31-2A-2 on June 30, 2011, shall, on July 1, 2011, become employees of the Department of Public Health in similar capacities, as determined by the commissioner of public health. Such employees shall be subject to the employment practices and policies of the Department of Public Health on and after July 1, 2011, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and who are transferred to the department shall retain all existing rights under such rules. Accrued annual and sick leave possessed by the transferred employees on June 30, 2011, shall be retained by such employees as employees of the Department of Public Health.
  4. On July 1, 2011, the Department of Public Health shall receive custody of the state owned real property in the custody of the Department of Community Health on June 30, 2011, and which pertains to the functions transferred to the Department of Public Health pursuant to Code Section 31-2A-2.

(Code 1981, §31-2A-3, enacted by Ga. L. 2011, p. 705, § 3-1/HB 214; Ga. L. 2012, p. 446, § 2-34/HB 642.)

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

31-2A-4. Obligation to safeguard and promote health of people of the state.

The Department of Public Health shall safeguard and promote the health of the people of this state and is empowered to employ all legal means appropriate to that end. Illustrating, without limiting, the foregoing grant of authority, the department is empowered to:

  1. Provide epidemiological investigations and laboratory facilities and services in the detection and control of disease, disorders, and disabilities and to provide research, conduct investigations, and disseminate information concerning reduction in the incidence and proper control of disease, disorders, and disabilities;
  2. Forestall and correct physical, chemical, and biological conditions that, if left to run their course, could be injurious to health;
  3. Regulate and require the use of sanitary facilities at construction sites and places of public assembly and to regulate persons, firms, and corporations engaged in the rental and service of portable chemical toilets;
  4. Isolate and treat persons afflicted with a communicable disease who are either unable or unwilling to observe the department's rules and regulations for the suppression of such disease and to establish, to that end, complete or modified quarantine, surveillance, or isolation of persons and animals exposed to a disease communicable to man;
  5. Procure and distribute drugs and biologicals and purchase services from clinics, laboratories, hospitals, and other health facilities and, when authorized by law, to acquire and operate such facilities;
  6. Cooperate with agencies and departments of the federal government and of the state by supplying consultant services in medical and hospital programs and in the health aspects of civil defense, emergency preparedness, and emergency response;
  7. Prevent, detect, and relieve physical defects and deformities;
  8. Promote the prevention, early detection, and control of problems affecting the dental and oral health of the citizens of Georgia;
  9. Contract with county boards of health to assist in the performance of services incumbent upon them under Chapter 3 of this title and, in the event of grave emergencies of more than local peril, to employ whatever means may be at its disposal to overcome such emergencies;
  10. Contract and execute releases for assistance in the performance of its functions and the exercise of its powers and to supply services which are within its purview to perform;
  11. Enter into or upon public or private property at reasonable times for the purpose of inspecting same to determine the presence of disease and conditions deleterious to health or to determine compliance with health laws and rules, regulations, and standards thereunder;
  12. Establish, by rule adopted pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," a schedule of fees for laboratory services provided, schedules to be determined in a manner so as to help defray the costs incurred by the department, but in no event to exceed such costs, both direct and indirect, in providing such laboratory services, provided no person shall be denied services on the basis of his or her inability to pay. All fees paid thereunder shall be paid into the general funds of the State of Georgia. The individual who requests the services authorized in this paragraph, or the individual for whom the laboratory services authorized in this paragraph are performed, shall be responsible for payment of the service fees. As used in this paragraph, the term "individual" means a natural person or his or her responsible health benefit policy or Title XVIII, XIX, or XXI of the federal Social Security Act of 1935;
  13. Exchange data with the Department of Community Health for purposes of health improvement and fraud prevention for programs operated by the Department of Community Health pursuant to mutually agreed upon data sharing agreements and in accordance with federal confidentiality laws relating to health care;
  14. Provide The Council of Superior Court Clerks of Georgia the data set forth in Code Section 15-12-40.1, without charge and in the electronic format requested; and
  15. Maintain and administer the electronic prescription drug monitoring program data base established under Code Section 16-13-57.

(Code 1981, §31-2A-4, enacted by Ga. L. 2011, p. 705, § 3-1/HB 214; Ga. L. 2014, p. 451, § 10/HB 776; Ga. L. 2017, p. 319, § 1-5/HB 249.)

The 2017 amendment, effective July 1, 2017, deleted "and" at the end of paragraph (13), substituted "; and" for the period at the end of paragraph (14), and added paragraph (15).

Law reviews.

- For note, "Don't Let the Bed Bugs Bill: Landlord Liability for Bed Bug Infestations," see 34 Ga. St. U. L. Rev. 479 (2018).

31-2A-5. Office of Women's Health; duties; reporting.

  1. There is created in the department the Office of Women's Health. Attached to the office shall be an 11 member advisory council. The members of the advisory council shall be appointed by the Governor and shall be representative of major public and private agencies and organizations in the state and shall be experienced in or have demonstrated particular interest in women's health issues. Each member shall be appointed for two years and until his or her successor is appointed. The members shall be eligible to succeed themselves. The council shall elect its chairperson from among the councilmembers for a term of two years. The Governor may name an honorary chairperson of the council.
  2. The Office of Women's Health shall serve in an advisory capacity to the Office of Health Strategy and Coordination. In particular, the office shall:
    1. Raise awareness of women's nonreproductive health issues;
    2. Inform and engage in prevention and education activities relating to women's nonreproductive health issues;
    3. Serve as a clearing-house for women's health information for purposes of planning and coordination;
    4. Issue reports of the office's activities and findings; and
    5. Develop and distribute a state comprehensive plan to address women's health issues.
  3. The council shall meet upon the call of its chairperson, the board, or the commissioner.
  4. The Office of Women's Health, no later than October 1, 2019, and annually thereafter, shall submit to the Office of Health Strategy and Coordination a report of its findings and recommendations.

(Code 1981, §31-2A-5, enacted by Ga. L. 2011, p. 705, § 3-1/HB 214; Ga. L. 2019, p. 148, § 2-5/HB 186.)

The 2019 amendment, effective July 1, 2019, substituted "Office of Health Strategy and Coordination" for "Governor, the General Assembly, the board, the department, and all other state agencies in matters relating to women's health" in the first sentence of subsection (b); and added subsection (d).

Editor's notes.

- Ga. L. 2019, p. 148, § 2-1/HB 186, not codified by the General Assembly, provides: "This part shall be known and may be cited as 'The Health Act.'"

31-2A-6. Rules and regulations.

  1. The department is authorized to adopt and promulgate rules and regulations to effect prevention, abatement, and correction of situations and conditions which, if not promptly checked, would militate against the health of the people of this state. Such rules and regulations shall be adapted to the purposes intended, within the purview of the powers and duties imposed upon the department by this chapter, and supersede conflicting rules, regulations, and orders adopted pursuant to the authority of Chapter 3 of this title.
  2. The department upon application or petition may grant variances and waivers to specific rules and regulations which establish standards for facilities or entities regulated by the department as follows:
    1. The department may authorize departure from the literal requirements of a rule or regulation by granting a variance upon a showing by the applicant or petitioner that the particular rule or regulation that is the subject of the variance request should not be applied as written because strict application would cause undue hardship. The applicant or petitioner additionally must show that adequate standards affording protection of health, safety, and care exist and will be met in lieu of the exact requirements of the rule or regulation in question;
    2. The department may dispense entirely with the enforcement of a rule or regulation by granting a waiver upon a showing by the applicant or petitioner that the purpose of the rule or regulation is met through equivalent standards affording equivalent protection of health, safety, and care;
    3. The department may grant waivers and variances to allow experimentation and demonstration of new and innovative approaches to delivery of services upon a showing by the applicant or petitioner that the intended protections afforded by the rule or regulation which is the subject of the request are met and that the innovative approach has the potential to improve service delivery;
    4. Waivers or variances which affect an entire class of facilities may only be approved by the Board of Public Health and shall be for a time certain, as determined by the board. A notice of the proposed variance or waiver affecting an entire class of facilities shall be made in accordance with the requirements for notice of rule making in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; or
    5. Variances or waivers which affect only one facility in a class may be approved or denied by the department and shall be for a time certain, as determined by the department. The department shall maintain a record of such action and shall make this information available to the board and all other persons who request it.
  3. The department may exempt classes of facilities from regulation when, in the department's judgment, regulation would not permit the purpose intended or the class of facilities is subject to similar requirements under other rules and regulations. Such exemptions shall be provided in rules and regulations promulgated by the board.

(Code 1981, §31-2A-6, enacted by Ga. L. 2011, p. 705, § 3-1/HB 214.)

31-2A-7. "Conviction data" defined; department authorized to receive data from law enforcement relevant to employment decisions; criminal history information; retention of fingerprints.

  1. As used in this Code section, the term "conviction data" means a record of a finding or verdict of guilty or a plea of guilty or a plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought.
  2. The department may receive from any law enforcement agency conviction data that is relevant to a person whom the department, its contractors, or a district or county health agency is considering as a final selectee for employment in a position the duties of which involve direct care, treatment, custodial responsibilities, or any combination thereof for its clients. The department may also receive conviction data which is relevant to a person whom the department, its contractors, or a district or county health agency is considering as a final selectee for employment in a position if, in the judgment of the department, a final employment decision regarding the selectee can only be made by a review of conviction data in relation to the particular duties of the position and the security and safety of clients, the general public, or other employees.
  3. The department shall establish a uniform method of obtaining conviction data under subsection (b) of this Code section which shall be applicable to the department and its contractors. Such uniform method shall require the submission to the Georgia Crime Information Center of fingerprints and the records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. After receiving the fingerprints and fee, the Georgia Crime Information Center shall notify the department in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check or if there is no such finding.
  4. All conviction data received shall be for the exclusive purpose of making employment decisions or decisions concerning individuals in the care of the department and shall be privileged and shall not be released or otherwise disclosed to any other person or agency. Immediately following the employment decisions or upon receipt of the conviction data, all such conviction data collected by the department or its agent shall be maintained by the department or agent pursuant to laws regarding and the rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable. Penalties for the unauthorized release or disclosure of any conviction data shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable. Nothing in this Code section shall be construed to allow criminal history information, including arrest and conviction data, to be released or disclosed to any individual, including members of county boards of health, who is not directly involved in the hiring process.
  5. The department may promulgate written rules and regulations to implement the provisions of this Code section.
  6. The department may receive from any law enforcement agency criminal history information, including arrest and conviction data, and any and all other information which it may be provided pursuant to state or federal law which is relevant to any person in the care of the department. The department shall establish a uniform method of obtaining criminal history information under this subsection. Such method shall require the submission to the Georgia Crime Information Center of fingerprints together with any required records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit the fingerprints submitted by the department to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. Such method shall also permit the submission of the names alone of such persons to the proper law enforcement agency for a name based check of such person's criminal history information as maintained by the Georgia Crime Information Center and the Federal Bureau of Investigation. In such circumstances, the department shall submit fingerprints of those persons together with any required records search fee to the Federal Bureau of Investigation within 15 calendar days of the date of the name based check on that person. The fingerprints shall be forwarded to the Federal Bureau of Investigation through the Georgia Crime Information Center in accordance with Code Section 35-3-35. Following the submission of such fingerprints, the department may receive the criminal history information, including arrest and conviction data, relevant to such person.
  7. The department shall be authorized to conduct a name or descriptor based check of any person's criminal history information, including arrest and conviction data, and other information from the Georgia Crime Information Center regarding any adult person who provides care or is in contact with persons under the care of the department without the consent of such person and without fingerprint comparison to the fullest extent permissible by federal and state law.
  8. If the department is participating in the program described in subparagraph (a)(1)(F) of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of Investigation shall be authorized to retain fingerprints obtained pursuant to this Code section for such program and the department shall notify the individual whose fingerprints were taken of the parameters of such retention.

(Code 1981, §31-2A-7, enacted by Ga. L. 2011, p. 705, § 3-1/HB 214; Ga. L. 2018, p. 507, § 2-7/SB 336.)

The 2018 amendment, effective July 1, 2018, added subsection (h).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2011, "data" was substituted for "date" in the last sentence of subsection (d).

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 119 (2018).

31-2A-8. Department as agency of state for receipt and administration of federal and other funds.

The department is designated and empowered as the agency of this state to apply for, receive, and administer grants and donations for health purposes from the federal government and from any of its departments, agencies, and instrumentalities; from appropriations of the state; and from any other sources in conformity with law. The department shall have the authority to prescribe the purposes for which such funds may be used in order to:

  1. Provide, extend, and improve maternal and child health services;
  2. Locate children already disabled or suffering from conditions leading to a disability and provide for such children medical, surgical, corrective, and other services and to provide for facilities for diagnosis, hospitalization, and aftercare;
  3. Advance the prevention and control of cancer and of venereal, tubercular, and other diseases;
  4. Forestall and correct conditions that, if left to run their course, could be injurious to health;
  5. Conduct programs which lie within the scope and the power of the department relating to industrial hygiene, control of ionizing radiation, occupational health, water quality, water pollution control, and planning and development of water resources;
  6. Administer grants-in-aid to assist in the construction of publicly owned and operated general and special medical facilities;
  7. Conduct programs:
    1. Relating to chronic illness;
    2. Relating to the dental and oral health of the people of this state which are appropriate to the purpose of the department; and
    3. Relating to the physical health of the people of this state which are appropriate to the purpose of the department; and
  8. Develop the health aspects of emergency preparedness and emergency response.

    When a plan is required to be approved by any department, agency, or instrumentality of the federal government as condition precedent to the making of grants for health purposes, the department, as agent of this state, is directed to formulate, submit, and secure approval of that plan and thereafter, upon its approval and the receipt of funds payable thereunder, to carry the plan into effect in accordance with its terms, applying thereto the funds so received as well as other applicable amounts from whatever source.

(Code 1933, § 88-111, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1972, p. 1069, § 3; Ga. L. 1978, p. 941, § 1; Code 1981, §31-2-2; Code 1981, §31-2-7, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2A-8, as redesignated by Ga. L. 2011, p. 705, § 3-2/HB 214.)

OPINIONS OF THE ATTORNEY GENERAL

Regulation of septic tank construction outside city limits.

- Georgia Department of Public Health (now the Department of Community Health for these purposes) is authorized to adopt and enforce rules and regulations establishing standards for construction of septic tanks for housing located outside city limits. 1968 Op. Att'y Gen. No. 68-185.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 2.

C.J.S.

- 39A C.J.S., Health and Environment, § 1 et seq.

ALR.

- Presumption as to gratuitous character of services of relative in caring for children of one not of same household, 24 A.L.R. 962.

Liability of one releasing institutionalized mental patient for harm he causes, 38 A.L.R.3d 699.

Right of medical patient to obtain, or physician to prescribe, laetrile for treatment of illness - state cases, 5 A.L.R.4th 219.

31-2A-9. Studies and surveys of programs.

The department, from time to time, shall make or cause to be made studies and surveys to determine the quality, scope, and reach of its programs.

(Code 1933, § 88-109, enacted by Ga. L. 1964, p. 499, § 1; Code 1981, §31-2-3; Code 1981, §31-2-8, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2A-9, as redesignated by Ga. L. 2011, p. 705, § 3-2/HB 214.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 50, 52, 58, 60, 66, 72, 73.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 28 et seq., 43.

31-2A-10. Venue of actions against department or board.

Actions at law and in equity against the department, the board, or any of its members predicated upon omissions or acts done in their official capacity or under color thereof shall be brought in the appropriate county; provided, however, that nothing in this Code section shall be construed as waiving the immunity of the state to be sued without its consent.

(Code 1933, § 88-118, enacted by Ga. L. 1964, p. 499, § 1; Code 1981, §31-2-5; Ga. L. 1991, p. 94, § 31; Code 1981, §31-2-10, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2A-10, as redesignated by Ga. L. 2011, p. 705, § 3-2/HB 214.)

JUDICIAL DECISIONS

"Appropriate county" means the county in which the cause of action originated. Newsome v. Department of Human Resources, 199 Ga. App. 419, 405 S.E.2d 61, cert. denied, 199 Ga. App. 906, 405 S.E.2d 61 (1991).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 33.

C.J.S.

- 39A C.J.S., Health and Environment, § 26.

ALR.

- Right of one detained pursuant to quarantine to habeas corpus, 2 A.L.R. 1542.

Tort liability of governmental unit for injury or damage resulting from insecticide and vermin eradication operations, 25 A.L.R.2d 1057.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

31-2A-11. Standards for sewage management systems.

  1. As used in this Code section, the term:
    1. "Chamber system" means a system of chambers with each chamber being a molded polyolefin plastic, arch shaped, hollow structure with an exposed bottom area and solid top and louvered sidewall for infiltration of effluent into adjoining bottom and sidewall soil areas. Chambers may be of different sizes and configurations to obtain desired surface areas.
    2. "Conventional system" means a system traditionally used composed of perforated pipe surrounded by gravel or stone masking for the infiltration of effluent into adjoining bottom and side soil areas.
    3. "On-site sewage management system" means a sewage management system other than a public or community sewage treatment system serving one or more buildings, mobile homes, recreational vehicles, residences, or other facilities designed or used for human occupancy or congregation. Such term shall include, without limitation, conventional and chamber septic tank systems, privies, and experimental and alternative on-site sewage management systems which are designed to be physically incapable of a surface discharge of effluent that may be approved by the department.
    4. "Prior approved system" means only a chamber system or conventional system or component of such system which is designed to be physically incapable of a surface discharge of effluent and which was properly approved pursuant to subparagraph (a)(2)(B) of this Code section, as such Code section became law on April 19, 1994, for use according to manufacturers' recommendations, prior to April 14, 1997.
    5. "Unsatisfactory service" means documented substandard performance as compared to other approved systems or components.
  2. The department shall have the authority as it deems necessary and proper to adopt state-wide regulations for on-site sewage management systems, including but not limited to experimental and alternative systems. The department is authorized to require that any such on-site sewage management system be examined and approved prior to allowing the use of such system in the state; provided, however, that any prior approved system shall continue to be approved for installation in every county of the state pursuant to the manufacturer's recommendations, including sizing of no less than 50 percent of trench length of a conventional system designed for equal flows in similar soil conditions. Upon written request of one-half or more of the health districts in the state, the department is authorized to require the reexamination of any such system or component thereof, provided that documentation is submitted indicating unsatisfactory service of such system or component thereof. Before any such examination or reexamination, the department may require the person, persons, or organization manufacturing or marketing the system to reimburse the department or its agent for the reasonable expenses of such examination.
    1. This subsection shall not be construed to prohibit the governing authority of any county or municipality in the state from adopting and enforcing codes at the local level; provided, however, that no county, municipality, or state agency may require any certified septic tank installer or certified septic tank pumper who has executed and deposited a bond as authorized in paragraph (2) of this subsection to give or furnish or execute any code compliance bond or similar bond for the purpose of ensuring that all construction, installation, or modifications are made or completed in compliance with the county or municipal ordinances or building and construction codes.
    2. In order to protect the public from damages arising from any work by a certified septic tank installer or certified septic tank pumper that fails to comply with any state construction codes or with the ordinances or building and construction codes adopted by any county or municipal corporation, any such certified septic tank installer or certified septic tank pumper may execute and deposit with the judge of the probate court in the county of his or her principal place of business a bond in the sum of $10,000.00. Such bond shall be a cash bond of $10,000.00 or executed by a surety authorized and qualified to write surety bonds in the State of Georgia and shall be approved by the local county or municipal health department. Such bond shall be conditioned upon all work done or supervised by such certificate holder complying with the provisions of any state construction codes or any ordinances or building and construction codes of any county or municipal corporation wherein the work is performed. Action on such bond may be brought against the principal and surety thereon in the name of and for the benefit of any person who suffers damages as a consequence of said certificate holder's work not conforming to the requirements of any ordinances or building and construction codes; provided, however, that the aggregate liability of the surety to all persons so damaged shall in no event exceed the sum of such bond.
    3. In any case where a bond is required under this subsection, the certified septic tank installer or certified septic tank pumper shall file a copy of the bond with the county or municipal health department in the political subdivision wherein the work is being performed.
    4. The provisions of this subsection shall not apply to or affect any bonding requirements involving contracts for public works as provided in Chapter 10 of Title 13.
  3. This Code section does not restrict the work of a plumber licensed by the State Construction Industry Licensing Board to access any on-site sewage management system for the purpose of servicing or repairing any plumbing system or connection to the on-site sewage management system.

(Code 1981, §31-2-7, enacted by Ga. L. 1992, p. 3308, § 1; Ga. L. 1994, p. 1777, § 1; Ga. L. 1997, p. 708, § 1; Ga. L. 2002, p. 850, § 1; Ga. L. 2006, p. 292, § 1/HB 724; Code 1981, §31-2-12, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2A-11, as redesignated by Ga. L. 2011, p. 705, § 3-2/HB 214.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1997, "April 14, 1997" was substituted for "the effective date of this Code section" at the end of paragraph (a)(4).

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

JUDICIAL DECISIONS

Constitutionality.

- Manufacturer of systems for on-site management of sewage was not unconstitutionally deprived of a vested right by the 1997 amendment to the statute, which did not include its systems in the definition of "prior approved systems." Jackson County Bd. of Health v. Fugett Constr., Inc., 270 Ga. 667, 514 S.E.2d 28 (1999).

31-2A-12. Rules and regulations governing operation of land disposal sites for septic tank waste from one business.

Reserved. Repealed by Ga. L. 2012, p. 843, § 1B/HB 1102, effective July 1, 2014.

Editor's notes.

- This Code section was based on Code 1981, § 31-2-8, enacted by Ga. L. 2002, p. 927, § 6A; Ga. L. 2007, p. 127, § 5/HB 463; Code 1981, § 31-2-13, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, § 31-2A-12, as redesignated by Ga. L. 2011, p. 705, § 3-2/HB 214; Ga. L. 2012, p. 843, § 1B/HB 1102; Ga. L. 2016, p. 864, § 31/HB 737 and was repealed by its own terms effective July 1, 2014.

31-2A-13. Diabetes coordinator; central repository for data related to prevention and treatment of diabetes.

The commissioner is authorized to appoint a diabetes coordinator within the department to coordinate with other state departments and agencies to ensure that all programs that impact the prevention and treatment of diabetes are coordinated, that duplication of efforts is minimized, and that the impact of such programs is maximized in an attempt to reduce the health consequences and complications of diabetes in Georgia. The department shall serve as the central repository for this state's departments and agencies for data related to the prevention and treatment of diabetes.

(Code 1981, §31-2-17, enacted by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2A-13, as redesignated by Ga. L. 2011, p. 705, § 3-2/HB 214.)

Cross references.

- Training school employees in caring for students with diabetes, § 20-2-779.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

31-2A-14. Georgia Diabetes Control Grant Program; advisory committee; administration of authorized grant programs; grant criteria.

  1. There is established within the Department of Public Health the Georgia Diabetes Control Grant Program. The purpose of the grant program shall be to develop, implement, and promote a state-wide effort to combat the proliferation of Type 2 diabetes and pre-diabetes.
  2. The program shall be under the direction of a seven-member advisory committee, appointed by the Governor. The Governor, in making such appointments, shall ensure to the greatest extent possible that the membership of the advisory committee is representative of this state's geographic and demographic composition, with appropriate attention to the representation of women, minorities, and rural Georgia. The appointments made by the Governor shall include one member who is:
    1. A physician licensed in this state;
    2. A registered nurse licensed in this state;
    3. A dietitian licensed in this state;
    4. A diabetes educator;
    5. A representative of the business community;
    6. A pharmacist licensed in this state; and
    7. A consumer who has diabetes.

      The commissioner, or his or her designee, shall serve as an ex officio, nonvoting member of the advisory committee. Appointed advisory committee members shall be named for five-year terms staggered so that one term will expire each year, except for the fourth and fifth year, when two terms will expire. Their successors shall be named for five-year terms.

  3. The Georgia Diabetes Control Grant Program shall be authorized to administer two grant programs targeted at new, expanded, or innovative approaches to address diabetes as follows:
    1. A program to provide grants to middle schools and high schools to promote the understanding and prevention of diabetes may be established by the program. Such grants shall be provided through the appropriate local board of education. Grant requests shall contain specific information regarding requirements as to how the grant should be spent and how such spending promotes the understanding and prevention of diabetes. Grant recipients shall be required to provide the advisory committee with quarterly reports of the results of the grant program; and
    2. A program to provide grants to health care providers for support of evidence based diabetes programs for education, screening, disease management, and self-management targeting populations at greatest risk for pre-diabetes, diabetes, and the complications of diabetes; and grants may also be awarded to address evidence based activities that focus on policy, systems, and environmental changes that support prevention, early detection, and treatment of diabetes. Eligible entities shall include community and faith based clinics and other organizations, federally qualified health centers, regional and county health departments, hospitals, and other public entities, and other health related service providers which are qualified as exempt from taxation under the provisions of Section 501(c)(3) of the Internal Revenue Code of 1986. Such entities shall have been in existence for at least three years, demonstrate financial stability, utilize evidence based practices, and show measurable results in their programs.
  4. The advisory committee shall work with the department to establish grant criteria and make award decisions, with the goal of creating a state-wide set of resources to assist residents of Georgia in their efforts to prevent or treat diabetes. Grants shall not be used for funding existing programs.
  5. The grant program shall be under the direction of the diabetes coordinator appointed pursuant to Code Section 31-2A-13. The department shall provide sufficient staff, administrative support, and such other resources as may be necessary for the diabetes coordinator to carry out the duties required by this Code section.
  6. This Code section shall be subject to appropriation from the General Assembly.

(Code 1981, §31-2-17.1, enacted by Ga. L. 2010, p. 548, § 1-3/SB 435; Code 1981, §31-2A-14, as redesignated by Ga. L. 2011, p. 705, § 3-2/HB 214; Ga. L. 2011, p. 752, § 31/HB 142.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2010, "dietitian" was substituted for "dietician" in paragraph (b)(3).

Editor's notes.

- Ga. L. 2010, p. 548, § 1-1/SB 435, not codified by the General Assembly, provides: "The General Assembly finds that:

"(1) Diabetes is a chronic disease caused by the inability of the pancreas to produce insulin or to use the insulin produced in the proper way;

"(2) If untreated and poorly managed, diabetes has been medically proven to lead to blindness, kidney failure, amputation, heart attack, and stroke;

"(3) Diabetes is the sixth leading cause of death in the United States, responsible for a similar number of deaths each year as HIV/AIDS;

"(4) In Georgia, the prevalence of diabetes is 8 percent higher than the nation as a whole;

"(5) One out of three people with diabetes are not aware that they have the disease;

"(6) Without aggressive societal action, the number of people living with diabetes in Georgia will more than double to 1,697,000 people in the next 20 years, cutting life short for these people by ten to 20 years; and

"(7) Without aggressive societal action, the economic burden of diabetes on the State of Georgia is expected to grow from $5 billion each year to about $11.9 billion in the next 20 years."

Ga. L. 2010, p. 548, § 1-2/SB 435, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Diabetes and Health Improvement Act of 2010.'"

Pursuant to the terms of subsection (f), funds were not appropriated at the 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, or 2019 sessions of the General Assembly.

Ga. L. 2011, p. 752, § 54(e)/HB 142, not codified by the General Assembly, provides that: "In the event of an irreconcilable conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2011 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to subsection (b) of this Code section by Ga. L. 2011, p. 752, § 31(2)/HB 142, was not given effect.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

31-2A-15. Additional duties of commissioner; authority to convene expert panels and consult with experts.

  1. In addition to other authority and duties granted in this title, the commissioner shall:
    1. Provide a written report of expenditures made for public health purposes in the prior fiscal year to the Governor, the Speaker of the House of Representatives, and the Lieutenant Governor no later than December 1 of each year beginning December 1, 2010; and
    2. Serve as the chief liaison to county boards of health through their directors on matters related to the operations and programmatic responsibilities of such county boards of health; provided, however, the commissioner may designate a person from within the department to serve as such chief liaison.
  2. The commissioner shall be authorized to convene one or more panels of experts to address various public health issues and may consult with experts on epidemiological and emergency preparedness issues.

(Code 1981, §31-2-18, enacted by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2A-15, as redesignated by Ga. L. 2011, p. 705, § 3-2/HB 214.)

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

31-2A-16. Maternal Mortality Review Committee established.

  1. The General Assembly finds that:
    1. Georgia currently ranks fiftieth in maternal deaths in the United States;
    2. Maternal deaths are a serious public health concern and have a tremendous family and societal impact;
    3. Maternal deaths are significantly underestimated and inadequately documented, preventing efforts to identify and reduce or eliminate the causes of death;
    4. No processes exist in this state for the confidential identification, investigation, or dissemination of findings regarding maternal deaths;
    5. The federal Centers for Disease Control and Prevention has determined that maternal deaths should be investigated through state based maternal mortality reviews in order to institute the systemic changes needed to decrease maternal mortality; and
    6. There is a need to establish a program to review maternal deaths and to develop strategies for the prevention of maternal deaths in Georgia.
  2. The Department of Public Health shall establish a Maternal Mortality Review Committee to review maternal deaths and to develop strategies for the prevention of maternal deaths. The committee shall be multidisciplinary and composed of members as deemed appropriate by the department. The department may contract with an external organization to assist in collecting, analyzing, and disseminating maternal mortality information, organizing and convening meetings of the committee, and other tasks as may be incident to these activities, including providing the necessary data, information, and resources to ensure successful completion of the ongoing review required by this Code section.
  3. The committee shall:
    1. Identify maternal death cases;
    2. Review medical records and other relevant data;
    3. Contact family members and other affected or involved persons to collect additional relevant data;
    4. Consult with relevant experts to evaluate the records and data;
    5. Make determinations regarding the preventability of maternal deaths;
    6. Develop recommendations for the prevention of maternal deaths; and
    7. Disseminate findings and recommendations to policy makers, health care providers, health care facilities, and the general public.
    1. Health care providers licensed pursuant to Title 43, health care facilities licensed pursuant to Chapter 7 of Title 31, and pharmacies licensed pursuant to Chapter 4 of Title 26 shall provide reasonable access to the committee to all relevant medical records associated with a case under review by the committee.
    2. A health care provider, health care facility, or pharmacy providing access to medical records pursuant to this Code section shall not be held liable for civil damages or be subject to any criminal or disciplinary action for good faith efforts in providing such records.
    1. Information, records, reports, statements, notes, memoranda, or other data collected pursuant to this Code section shall not be admissible as evidence in any action of any kind in any court or before any other tribunal, board, agency, or person. Such information, records, reports, statements, notes, memoranda, or other data shall not be exhibited nor their contents disclosed in any way, in whole or in part, by any officer or representative of the department or any other person, except as may be necessary for the purpose of furthering the review of the committee of the case to which they relate. No person participating in such review shall disclose, in any manner, the information so obtained except in strict conformity with such review project.
    2. All information, records of interviews, written reports, statements, notes, memoranda, or other data obtained by the department, the committee, and other persons, agencies, or organizations so authorized by the department pursuant to this Code section shall be confidential.
    1. All proceedings and activities of the committee under this Code section, opinions of members of such committee formed as a result of such proceedings and activities, and records obtained, created, or maintained pursuant to this Code section, including records of interviews, written reports, and statements procured by the department or any other person, agency, or organization acting jointly or under contract with the department in connection with the requirements of this Code section, shall be confidential and shall not be subject to Chapter 14 of Title 50, relating to open meetings, or Article 4 of Chapter 18 of Title 50, relating to open records, or subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding; provided, however, that nothing in this Code section shall be construed to limit or restrict the right to discover or use in any civil or criminal proceeding anything that is available from another source and entirely independent of the committee's proceedings.
    2. Members of the committee shall not be questioned in any civil or criminal proceeding regarding the information presented in or opinions formed as a result of a meeting or communication of the committee; provided, however, that nothing in this Code section shall be construed to prevent a member of the committee from testifying to information obtained independently of the committee or which is public information.
  4. Reports of aggregated nonindividually identifiable data shall be compiled on a routine basis for distribution in an effort to further study the causes and problems associated with maternal deaths. A detailed annual report shall be submitted no later than October 1 to the Office of Health Strategy and Coordination.

(Code 1981, §31-2A-16, enacted by Ga. L. 2014, p. 337, § 1/SB 273; Ga. L. 2019, p. 148, § 2-6/HB 186.)

The 2019 amendment, effective July 1, 2019, substituted the present provisions of the second sentence of subsection (g) for the former provisions, which read: "Reports shall be distributed to the General Assembly, health care providers and facilities, key government agencies, and others necessary to reduce the maternal death rate".

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2014, Code Section 31-2A-16, as enacted by Ga. L. 2014, p. 822, § 1/HB 966, was redesignated as Code Section 31-2A-17.

Editor's notes.

- Ga. L. 2019, p. 148, § 2-1/HB 186, not codified by the General Assembly, provides: "This part shall be known and may be cited as 'The Health Act.' "

Law reviews.

- For annual survey on administrative law, see 66 Mercer L. Rev. 1 (2014).

31-2A-17. Alzheimer's Disease Registry established; purpose; procedures; rules and regulations; confidentiality of data.

  1. There is established within the Department of Public Health the Alzheimer's Disease Registry.
  2. The purpose of the registry shall be to assist in the development of public policy and planning relative to Alzheimer's disease and related disorders. The registry shall provide a central data base of individuals with Alzheimer's disease or related disorders.
  3. The department shall establish procedures and promulgate rules and regulations for the establishment and operation of the registry. Such procedures, rules, and regulations shall provide for:
    1. Collecting and evaluating data regarding the prevalence of Alzheimer's disease and related disorders in Georgia, including who shall report the data to the registry;
    2. Determining what information shall be maintained in the registry and the length of time such data shall be available;
    3. Sharing of data for policy planning purposes;
    4. Disclosing nonidentifying data to support Alzheimer's and related disorder research;
    5. The methodology by which families and physicians of persons who are reported to the registry shall be contacted to gather additional data; and
    6. Information about public and private resources.
  4. The collected data in the registry shall be confidential, and all persons to whom the data is released shall maintain patient confidentiality. No publication of information, biotechnical research, or medical data shall be made that identifies any patient by name. The registry shall be established and regulated pursuant to the requirements of 42 U.S.C. Section 1301, et seq., and P.L. 104-191, the federal Health Insurance Portability and Accountability Act of 1996.

(Code 1981, §31-2A-17, enacted by Ga. L. 2014, p. 822, § 1/HB 966.)

Cross references.

- Alzheimer's and Related Dementias State Plan, T. 49, C. 6, Art. 8.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2014, Code Section 31-2A-16, as enacted by Ga. L. 2014, p. 822, § 1/HB 966, was redesignated as Code Section 31-2A-17.

Law reviews.

- For annual survey on administrative law, see 66 Mercer L. Rev. 1 (2014). For article on the 2014 enactment of this Code section, see 31 Ga. St. U. L. Rev. 129 (2014).

31-2A-18. Establishment of the Low THC Oil Patient Registry; definitions; purpose; registration cards; semiannual reports; waiver forms; annual review and recommendations.

  1. As used in this Code section, the term:
    1. "Board" means the Georgia Composite Medical Board.
    2. "Caregiver" means the parent, guardian, or legal custodian of an individual who is less than 18 years of age or the legal guardian of an adult.
    3. "Condition" means:
      1. Cancer, when such disease is diagnosed as end stage or the treatment produces related wasting illness or recalcitrant nausea and vomiting;
      2. Amyotrophic lateral sclerosis, when such disease is diagnosed as severe or end stage;
      3. Seizure disorders related to a diagnosis of epilepsy or trauma related head injuries;
      4. Multiple sclerosis, when such disease is diagnosed as severe or end stage;
      5. Crohn's disease;
      6. Mitochondrial disease;
      7. Parkinson's disease, when such disease is diagnosed as severe or end stage;
      8. Sickle cell disease, when such disease is diagnosed as severe or end stage;
      9. Tourette's syndrome, when such syndrome is diagnosed as severe;
      10. Autism spectrum disorder, when such disorder is diagnosed for a patient who is at least 18 years of age, or severe autism, when diagnosed for a patient who is less than 18 years of age;
      11. Epidermolysis bullosa;
      12. Alzheimer's disease, when such disease is diagnosed as severe or end stage;
      13. Acquired immune deficiency syndrome, when such syndrome is diagnosed as severe or end stage;
      14. Peripheral neuropathy, when such symptoms are diagnosed as severe or end stage;
      15. Post-traumatic stress disorder resulting from direct exposure to or the witnessing of a trauma for a patient who is at least 18 years of age; or
      16. Intractable pain.
    4. "Department" means the Department of Public Health.
    5. "Intractable pain" means pain that has a cause that cannot be removed and for which, according to generally accepted medical practice, the full range of pain management modalities appropriate for the patient has been used for a period of at least six months without adequate results or with intolerable side effects.
    6. "Low THC oil" shall have the same meaning as set forth in Code Section 16-12-190.
    7. "Physician" means an individual licensed to practice medicine pursuant to Article 2 of Chapter 34 of Title 43.
    8. "Registry" means the Low THC Oil Patient Registry.
  2. There is established within the department the Low THC Oil Patient Registry.
  3. The purpose of the registry is to provide a registration of individuals and caregivers who have been issued registration cards. The department shall establish procedures and promulgate rules and regulations for the establishment and operation of the registration process and dispensing of registry cards to individuals and caregivers.
  4. The department shall issue a registration card to individuals who have been certified to the department by his or her physician as being diagnosed with a condition or is an inpatient or outpatient in a hospice program and have been authorized by such physician to use low THC oil as treatment. The department shall issue a registration card to a caregiver when the circumstances warrant the issuance of such card.The board shall establish procedures and promulgate rules and regulations to assist physicians in providing required uniform information relating to certification and any other matter relating to the issuance of certifications.In promulgating such rules and regulations, the board shall require that physicians have a doctor-patient relationship when certifying an individual as needing low THC oil and physicians shall be required to be treating such individual for the specific condition requiring such treatment or be treating such individual in a hospice program.A physician shall seek and review information about a patient from the prescription drug monitoring program data base established pursuant to Code Section 16-13-57 prior to certifying such patient to the department as being diagnosed with a specific condition that requires the use of low THC oil as treatment.
  5. The board shall require physicians to issue semiannual reports to the board.Such reports shall require physicians to provide information, including, but not limited to, dosages recommended for a particular condition, patient clinical responses, levels of tetrahydrocannabinol or tetrahydrocannabinolic acid present in test results, compliance, responses to treatment, side effects, and drug interactions.Such reports shall be used for research purposes to determine the efficacy of the use of low THC oil as a treatment for conditions.
  6. Information received and records kept by the department for purposes of administering this Code section shall be confidential; provided, however, that such information shall be disclosed:
    1. Upon written request of an individual or caregiver registered pursuant to this Code section; and
    2. To peace officers and prosecuting attorneys for the purpose of:
      1. Verifying that an individual in possession of a registration card is registered pursuant to this Code section; or
      2. Determining that an individual in possession of low THC oil is registered pursuant to this Code section.
  7. The board shall develop a waiver form that will advise that the use of cannabinoids and THC containing products have not been approved by the FDA and the clinical benefits are unknown and may cause harm. Any patient or caregiver shall sign such waiver prior to his or her approval for registration.
  8. The board, in coordination with the Department of Public Health, shall annually review the conditions included in paragraph (3) of subsection (a) of this Code section and recommend additional conditions that have been shown through medical research to be effectively treated with low THC oil. Such recommendations shall include recommended dosages for a particular condition, patient responses to treatment with respect to the particular condition, and drug interactions with other drugs commonly taken by patients with the particular condition.Such recommendations shall be made jointly by the board and the Department of Public Health to the General Assembly no later than December 1 of each year.

(Code 1981, §31-2A-18, enacted by Ga. L. 2015, p. 49, § 2-1/HB 1; Ga. L. 2017, p. 611, § 2/SB 16; Ga. L. 2017, p. 774, § 31/HB 323; Ga. L. 2018, p. 148, § 2/HB 65; Ga. L. 2019, p. 43, § 6/HB 324.)

The 2017 amendments. The first 2017 amendment, effective July 1, 2017, substituted "disease is diagnosed as" for "diagnosis is" throughout paragraph (a)(3); substituted "illness or" for "illness," in subparagraph (a)(3)(A); inserted "a" in subparagraph (a)(3)(C); deleted "or" at the end of subparagraph (a)(3)(G); substituted a semicolon for a period at the end of subparagraph (a)(3)(H); added subparagraphs (a)(3)(I) through (a)(3)(N); deleted the former third and fourth sentences in subsection (c), which read: "Only individuals residing in this state for at least one year or a child born in this state less than one year old shall be eligible for registration under this Code section. Nothing in this Code section shall apply to any Georgia residents living temporarily in another state for the purpose of securing THC oil for treatment of any condition under this Code section."; in subsection (d), in the first sentence, substituted "individuals who have" for "individuals and caregivers as soon as practicable but no later than September 1, 2015, when an individual has" near the beginning, inserted "or is an inpatient or outpatient in a hospice program", substituted "have been authorized" for "has been authorized" near the middle, and deleted "for such condition" following "as treatment" at the end, added the second sentence, and, in the fourth sentence, substituted "treating such individual" for "treating an individual" near the middle, and added "or be treating such individual in a hospice program" at the end; in subsection (e), substituted "semiannual" for "quarterly" in the first sentence, in the second sentence, inserted "patient" and inserted "levels of tetrahydrocannabinol or tetrahydrocannabinolic acid present in test results,". The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in subparagraph (a)(3)(A).

The 2018 amendment, effective July 1, 2018, in subsection (a), deleted "or" at the end of subparagraph (a)(3)(M), substituted a semicolon for a period at the end of subparagraph (a)(3)(N), added subparagraphs (a)(3)(O) and (a)(3)(P), added paragraph (a)(5), redesignated former paragraphs (a)(5) through (a)(7) as present paragraphs (a)(6) through (a)(8), respectively; and added subsection (h).

The 2019 amendment, effective July 1, 2019, added the last sentence in subsection (d); added the last sentence in subsection (e); and, in subsection (h), inserted ", in coordination with the Department of Public Health," near the beginning of the first sentence and inserted "jointly by the board and the Department of Public Health" in the middle of the last sentence.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2017, a comma was deleted following "nausea" in subparagraph (a)(3)(A).

Editor's notes.

- Ga. L. 2015, p. 49, § 1-1/HB 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Haleigh's Hope Act.'"

Ga. L. 2019, p. 43, § 1/HB 324, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'Georgia's Hope Act.'"

Ga. L. 2019, p. 43, § 2/HB 324, not codified by the General Assembly, provides that: "(a) The General Assembly finds that the establishment of the Low THC Oil Patient Registry in 2015 allows Georgia patients to possess low THC oil but provides no way to access low THC oil. The General Assembly finds that thousands of Georgians have serious medical conditions that can be improved by the medically approved use of cannabis and that the law should not stand between them and treatment necessary for life and health. The General Assembly finds that the purpose of this Act is to allow the legitimate use of medical cannabis for health care, including palliative care. The General Assembly finds that this Act does not in any way diminish this state's strong public policy and laws against illegal drug use, nor should it be deemed in any manner to advocate, authorize, promote, or legally or socially accept the use of marijuana for children or adults for any nonmedical use.

"(b) The General Assembly further finds that:

"(1) Low THC oil can offer significant medical benefits to patients;

"(2) Low THC oil can only be derived from the cannabis plant;

"(3) A carefully constructed system of in-state cultivation to benefit only those patients authorized by Georgia law and approved by their physician would benefit patients within the State of Georgia;

"(4) The State of Georgia is deeply opposed to any recreational or nonmedical use of marijuana, and any system to help patients access low THC oil should be as limited in scope as possible;

"(5) Business opportunities resulting from a system of in-state cultivation should be inclusive of minority, women, and veteran owned businesses;

"(6) Businesses resulting from this Act should include at least 20 percent participation by minority, women, and veteran owned businesses as licensees, suppliers, and partners of businesses licensed under this Act; and

"(7) The State of Georgia should encourage active participation by minority, women, and veteran owned businesses, as well as take any steps necessary to ensure there is no discrimination in the issuance of licenses or participation in business activities resulting from this Act."

Law reviews.

- For article on the 2015 enactment of this Code section, see 32 Ga. St. U. L. Rev. 153 (2015). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 39 (2019).

RESEARCH REFERENCES

ALR.

- Propriety of employer's discharge of or failure to hire employee due to employee's use of medical marijuana, 57 A.L.R.6th 285.

31-2A-19. Creation of Joint Study Commission on Low THC Medical Oil Access; membership; operation; reporting; abolishment.

Reserved. Repealed by Ga. L. 2018, p. 148, § 1/HB 65, effective December 31, 2018.

Editor's notes.

- This Code section was based on Code 1981, § 31-2A-19, enacted by Ga. L. 2018, p. 148, § 1/HB 65.

ARTICLE 2 POSITIVE ALTERNATIVES FOR PREGNANCY AND PARENTING GRANT PROGRAM

31-2A-30. Legislative authority.

Reserved. Repealed by Ga. L. 2017, p. 764, § 2-1/SB 193, effective July 1, 2017.

Editor's notes.

- This Code section was based on Ga. L. 2016, p. 214, § 2/SB 308.

Ga. L. 2017, p. 764, § 1-1/SB 193, not codified by the General Assembly, provides that: "The General Assembly finds that:

"(1) Untreated chlamydial infection has been linked to problems during pregnancy, including preterm labor, premature rupture of membranes, and low birth weight. The newborn may also become infected during delivery as the baby passes through the birth canal. Exposed newborns can develop eye and lung infections; and

"(2) Untreated gonococcal infection in pregnancy has been linked to miscarriages, premature birth and low birth weight, premature rupture of membranes, and chorioamnionitis. Gonorrhea can also infect an infant during delivery as the infant passes through the birth canal. If untreated, infants can develop eye infections."

31-2A-31. Definitions.

As used in this article, the term:

  1. "Attending physician" means the physician who has primary responsibility at the time of reference for the treatment and care of the client.
  2. "Client" means a person seeking or receiving pregnancy support services.
  3. "Contract management agency" or "agency" means a nongovernmental charitable organization in this state which is a 501(c)(3) tax-exempt organization under the Internal Revenue Code of 1986 and whose mission and practice is to promote alternatives to abortion services at no cost.
  4. "Direct client service providers" or "providers" means nonprofit organizations with a contractual relationship with the contract management agency and that provide direct pregnancy support services to clients at no cost.
  5. Reserved.
  6. "Pregnancy support services" means those services that encourage childbirth instead of voluntary termination of pregnancy and which assist pregnant women or women who believe they may be pregnant to choose childbirth whether they intend to parent or select adoption for the child.
  7. "Program" means the Positive Alternatives for Pregnancy and Parenting Grant Program.

(Code 1981, §31-2A-31, enacted by Ga. L. 2016, p. 214, § 2/SB 308; Ga. L. 2017, p. 764, § 2-2/SB 193; Ga. L. 2018, p. 1112, § 31/SB 365.)

The 2017 amendment, effective July 1, 2017, near the end of paragraph (3), substituted "promote" for "provide" and deleted "to medically indigent women" following "services" near the end; substituted the present provisions of paragraph (5) for the former provisions, which read: "'Medically indigent' means a person who is without health insurance or who has health insurance that does not cover pregnancy or related conditions for which treatment and services are sought and whose family income does not exceed 200 percent of the federal poverty level as defined annually by the federal Office of Management and Budget."; and substituted the present provisions of paragraph (8) for the former provisions, which read: "'Trust fund' means the Indigent Care Trust Fund created by Code Section 31-8-152.".

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, repealed the reservation of paragraph (8).

Editor's notes.

- Ga. L. 2017, p. 764, § 1-1/SB 193, not codified by the General Assembly, provides that: "The General Assembly finds that:

"(1) Untreated chlamydial infection has been linked to problems during pregnancy, including preterm labor, premature rupture of membranes, and low birth weight. The newborn may also become infected during delivery as the baby passes through the birth canal. Exposed newborns can develop eye and lung infections; and

"(2) Untreated gonococcal infection in pregnancy has been linked to miscarriages, premature birth and low birth weight, premature rupture of membranes, and chorioamnionitis. Gonorrhea can also infect an infant during delivery as the infant passes through the birth canal. If untreated, infants can develop eye infections."

31-2A-32. Positive Alternatives for Pregnancy and Parenting Grant Program.

There is established within the department the Positive Alternatives for Pregnancy and Parenting Grant Program. The purpose of the program shall be to develop a state-wide effort that promotes healthy pregnancies and childbirth by awarding grants to nonprofit organizations that provide pregnancy support services.

(Code 1981, §31-2A-32, enacted by Ga. L. 2016, p. 214, § 2/SB 308; Ga. L. 2017, p. 764, § 2-3/SB 193; Ga. L. 2017, p. 774, § 31/HB 323.)

The 2017 amendments. The first 2017 amendment, effective July 1, 2017, in the second sentence, deleted "grant" preceding "program" and substituted "develop a state-wide effort that promotes healthy pregnancies and childbirth" for "promote healthy pregnancies and childbirth". The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, deleted "grant" preceding "program" at the beginning of the second sentence.

Editor's notes.

- Ga. L. 2017, p. 764, § 1-1/SB 193, not codified by the General Assembly, provides that: "The General Assembly finds that:

"(1) Untreated chlamydial infection has been linked to problems during pregnancy, including preterm labor, premature rupture of membranes, and low birth weight. The newborn may also become infected during delivery as the baby passes through the birth canal. Exposed newborns can develop eye and lung infections; and

"(2) Untreated gonococcal infection in pregnancy has been linked to miscarriages, premature birth and low birth weight, premature rupture of membranes, and chorioamnionitis. Gonorrhea can also infect an infant during delivery as the infant passes through the birth canal. If untreated, infants can develop eye infections."

31-2A-33. Administration and duties.

  1. The department shall oversee the program and is authorized to contract with a contract management agency to administer the program.
  2. The contract management agency selected by the department shall meet the definition of a contract management agency as defined in paragraph (3) of Code Section 31-2A-31 and shall:
    1. Create a grant application process;
    2. Evaluate grant applications and make recommendations to the department;
    3. Communicate acceptance or denial of grant applications to direct client service providers;
    4. Monitor compliance with the terms and conditions of the grant;
    5. Maintain records for each grant applicant and award; and
    6. Coordinate activities and correspondence between the department and direct client service providers.

(Code 1981, §31-2A-33, enacted by Ga. L. 2016, p. 214, § 2/SB 308; Ga. L. 2017, p. 764, § 2-4/SB 193.)

The 2017 amendment, effective July 1, 2017, added "meet the definition of a contract management agency as defined in paragraph (3) of Code Section 31-2A-31 and shall" at the end of subsection (b).

Editor's notes.

- Ga. L. 2017, p. 764, § 1-1/SB 193, not codified by the General Assembly, provides that: "The General Assembly finds that:

"(1) Untreated chlamydial infection has been linked to problems during pregnancy, including preterm labor, premature rupture of membranes, and low birth weight. The newborn may also become infected during delivery as the baby passes through the birth canal. Exposed newborns can develop eye and lung infections; and

"(2) Untreated gonococcal infection in pregnancy has been linked to miscarriages, premature birth and low birth weight, premature rupture of membranes, and chorioamnionitis. Gonorrhea can also infect an infant during delivery as the infant passes through the birth canal. If untreated, infants can develop eye infections."

31-2A-34. Services funded by program.

The services which shall be funded by the program include:

  1. Medical care and information, including but not limited to pregnancy tests, sexually transmitted infection tests, other health screenings, ultrasound service, prenatal care, and birth classes and planning;
  2. Nutritional services and education;
  3. Housing, education, and employment assistance during pregnancy and up to one year following a birth;
  4. Adoption education, planning, and services;
  5. Child care assistance if necessary for the client to receive pregnancy support services;
  6. Parenting education and support services for up to one year following a birth;
  7. Material items which are supportive of pregnancy and childbirth, including but not limited to cribs, car seats, clothing, formula, or other safety devices; and
  8. Information regarding health care benefits, including but not limited to available Medicaid coverage for the client for pregnancy care that provides health coverage for the client's child upon his or her birth.

(Code 1981, §31-2A-34, enacted by Ga. L. 2016, p. 214, § 2/SB 308; Ga. L. 2017, p. 774, § 31/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language and punctuation throughout this Code section.

31-2A-35. Grants.

  1. Grants shall be awarded annually on a competitive basis to direct client service providers who display competent experience in providing any of the services included in Code Section 31-2A-34 pursuant to guidelines and criteria established pursuant to this article.
  2. The department shall, with input from the agency, determine the maximum grant amount to be awarded to each direct client service provider, and such grant amount shall not exceed 85 percent of the annual revenue for the prior year of any provider.
  3. The grant agreement entered into between the agency and a direct client service provider shall stipulate that the grant shall be used to provide any or all pregnancy support services at the discretion of the service provider pursuant to Code Section 31-2A-34. The agreement shall further stipulate that a direct client service provider shall not perform, promote, or act as a referral for an abortion, except as otherwise provided in paragraph (9) of subsection (a) of Code Section 31-2A-36, and that grant funds shall not be used to promote or be otherwise expended for political or religious purposes, including, but not limited to, counseling or written material. Nothing in this article shall be construed to prohibit any direct client service provider from promoting or expending nongrant funds for a political or religious purpose.

(Code 1981, §31-2A-35, enacted by Ga. L. 2016, p. 214, § 2/SB 308; Ga. L. 2017, p. 764, § 2-5/SB 193.)

The 2017 amendment, effective July 1, 2017, inserted "any of" in the middle of subsection (a); and, in subsection (c), in the first sentence, inserted "any or all" and inserted "at the discretion of the service provider", and added the third sentence.

Editor's notes.

- Ga. L. 2017, p. 764, § 1-1/SB 193, not codified by the General Assembly, provides that: "The General Assembly finds that:

"(1) Untreated chlamydial infection has been linked to problems during pregnancy, including preterm labor, premature rupture of membranes, and low birth weight. The newborn may also become infected during delivery as the baby passes through the birth canal. Exposed newborns can develop eye and lung infections; and

"(2) Untreated gonococcal infection in pregnancy has been linked to miscarriages, premature birth and low birth weight, premature rupture of membranes, and chorioamnionitis. Gonorrhea can also infect an infant during delivery as the infant passes through the birth canal. If untreated, infants can develop eye infections."

31-2A-36. Criteria for grant consideration.

  1. In order to be considered for a grant under this article, each direct client service provider shall:
    1. Be a nonprofit organization incorporated in this state with a tax-exempt status pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986;
    2. Have a primary mission of promoting healthy pregnancy and childbirth;
    3. Have a system of financial accountability consistent with generally accepted accounting principles, including an annual budget;
    4. Have a board that hires and supervises a director who manages the organization's operations;
    5. Have provided pregnancy support services for a minimum of one year;
    6. Offer, at a minimum, pregnancy tests and counseling for women who are or may be experiencing unplanned pregnancies;
    7. Provide confidential and free pregnancy support services;
    8. Provide each pregnant client with accurate information on the developmental characteristics of babies and of unborn children, including offering the printed materials described in Code Section 31-9A-4 on fetal development and assistance available following a birth;
    9. Ensure that grant money is not used to encourage or affirmatively counsel a client to have an abortion unless the client's attending physician diagnoses a condition which makes such abortion necessary to prevent her death; to provide her an abortion; or to directly refer her to an abortion provider for an abortion; and
    10. Maintain confidentiality of all data, files, and records of clients related to the services provided and in compliance with state and federal laws.
  2. The department shall publish the direct client service provider criteria on its website.

(Code 1981, §31-2A-36, enacted by Ga. L. 2016, p. 214, § 2/SB 308.)

31-2A-37. Record maintenance and reporting.

Each direct client service provider shall maintain accurate records and report data to the agency annually on forms and in the manner required by the department. Reports shall include the number of clients who:

  1. Utilized pregnancy support services;
  2. Are pregnant;
  3. Chose childbirth after receiving pregnancy support services;
  4. Chose adoption after receiving pregnancy support services; and
  5. Chose abortion after receiving pregnancy support services.

    Each provider may be required to provide other information and data at the discretion of the department.

(Code 1981, §31-2A-37, enacted by Ga. L. 2016, p. 214, § 2/SB 308.)

31-2A-38. Confidentiality.

Confidentiality of all data, files, and records of clients related to the services provided under this article shall be maintained by the department, contract management agency, and direct client service providers pursuant to federal and state laws related to privacy of medical records, including requirements under the federal Health Insurance Portability and Accountability Act of 1996, P.L. 104-191.

(Code 1981, §31-2A-38, enacted by Ga. L. 2016, p. 214, § 2/SB 308.)

31-2A-39. Annual audit.

The agency shall conduct an annual audit of each direct client service provider by an independent certified public accountant within 120 days of the completion of its fiscal year verifying that it has complied with all requirements of this article and any other requirements of the department.

(Code 1981, §31-2A-39, enacted by Ga. L. 2016, p. 214, § 2/SB 308.)

31-2A-40. Reports to the General Assembly.

  1. The department shall annually report to the General Assembly on its use of trust funds appropriated to the department pursuant to this article.
  2. The department shall also provide an annual report no later than September 30 of each year beginning September 30, 2017, which shall provide the following information for the immediately preceding fiscal year:
    1. The amount of any contributions or other funding received;
    2. The total amount of expenses; and
    3. The amount of trust funds disbursed through the agency to direct client service providers.
  3. The reports required by this Code section shall be made available to the public free of charge by electronic means and in such other manner as the department deems appropriate.

(Code 1981, §31-2A-40, enacted by Ga. L. 2016, p. 214, § 2/SB 308.)

31-2A-41. Acceptance of donations, contributions, and gifts.

The department is authorized to accept donations, contributions, and gifts and receive, hold, and use grants, devises, and bequests of real, personal, and mixed property on behalf of the state to enable the department to carry out the functions and purposes of this article.

(Code 1981, §31-2A-41, enacted by Ga. L. 2016, p. 214, § 2/SB 308.)

ARTICLE 3 PERINATAL FACILITIES

Effective date.

- This article became effective July 1, 2018.

31-2A-50. Legislative findings.

The General Assembly finds and declares that:

  1. Georgia ranks as the forty-ninth worst in the nation for the number of maternal deaths occurring during and one year after pregnancy;
  2. Georgia ranks as the thirty-second worst in the nation for the number of infant deaths occurring before the first birthday;
  3. Georgia ranks as the forty-fifth worst in the nation for the percentage of premature births, a leading cause of infant deaths;
  4. Low birth weight or premature infants are more likely to survive if the birth takes place in a facility which is prepared to handle the risks associated with such deliveries;
  5. Several states have established programs to inspect and designate facilities that have developed the capacity to provide expanded levels of neonatal and maternal care; and
  6. Therefore, it is in the best interest of the residents of this state to establish a program that encourages the improvement of quality of care to create better maternal and neonatal outcomes.

(Code 1981, §31-2A-50, enacted by Ga. L. 2018, p. 344, § 1/HB 909; Ga. L. 2019, p. 1056, § 31/SB 52.)

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised language in paragraph (1).

31-2A-51. Definitions.

As used in this article, the term:

  1. "Designated facility" means a perinatal facility that has been inspected and approved by the department pursuant to this article as meeting its established criteria for a particular maternal or neonatal level of care.
  2. "Perinatal facility" means a hospital, clinic, or birthing center that provides maternal or neonatal health care services.

(Code 1981, §31-2A-51, enacted by Ga. L. 2018, p. 344, § 1/HB 909.)

31-2A-52. Approval as designated perinatal facility; establishing criteria for levels of maternal and neonatal care.

  1. The department shall establish a procedure by which a perinatal facility may request approval as a designated facility which has achieved a particular maternal or neonatal level of care.
    1. The department shall establish through rule making the criteria for levels of maternal and neonatal care, ranging from basic care to such additional levels of care as may be deemed appropriate for the protection of mothers and infants at elevated risk.
    2. The department shall establish separate criteria for levels of maternal care and neonatal care. Such criteria may include, without limitation, data collection and reporting, arrangements for patient transportation, and protocols for coordination with and referral of patients to and from other health care facilities.
    3. In establishing or revising the criteria for maternal and neonatal levels of care, the department shall conduct public comment hearings; solicit the views of hospitals, birthing centers, health care providers, and related professional associations; and give due consideration to the current recommendations of medical and scientific organizations in the field of perinatal medicine.

(Code 1981, §31-2A-52, enacted by Ga. L. 2018, p. 344, § 1/HB 909; Ga. L. 2019, p. 1056, § 31/SB 52.)

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised language in paragraph (b)(1).

31-2A-53. Application process; review and redesignation of facilities; failure to comply with criteria.

  1. A perinatal facility may apply to the department for designation through an application process to be determined by the department. The facility shall demonstrate to the satisfaction of the department that it meets the applicable criteria for the requested level of care. The application process may include an on-site inspection of the facility at the discretion of the department.
  2. The department may establish requirements for the periodic review and redesignation of designated facilities.
  3. The department may suspend or revoke the designation of a designated facility, after notice and hearing, if the department determines that the facility is no longer in compliance with the criteria established pursuant to this article.

(Code 1981, §31-2A-53, enacted by Ga. L. 2018, p. 344, § 1/HB 909.)

31-2A-54. Listing of designated facilities; self-assessment tool.

  1. On or before December 31, 2019, the department shall post and annually update a list of designated facilities on its website.
  2. The department shall adopt or develop a self-assessment tool for use by perinatal facilities that includes separate, minimum requirements for neonatal and maternal levels of care. The department shall post this assessment tool on its website no later than July 1, 2019.

(Code 1981, §31-2A-54, enacted by Ga. L. 2018, p. 344, § 1/HB 909.)

31-2A-55. Provisions are not medical care; individualized care and treatment.

This article, and any criteria developed by the department pursuant to this article, shall not be construed to be a medical practice guideline or to establish a standard of care for treatment and shall not be used to restrict or expand the authority of a hospital or other health care facility to provide services for which it has received a license under state law. The General Assembly intends that all patients be treated individually based on each patient's needs and circumstances.

(Code 1981, §31-2A-55, enacted by Ga. L. 2018, p. 344, § 1/HB 909.)

31-2A-56. Advertisement prohibited unless designated by department.

No person or facility may advertise to the public, by way of any medium whatsoever, that it is a designated facility or has achieved a particular level of maternal or neonatal care according to the criteria established pursuant to this article, unless it has been designated as such by the department.

(Code 1981, §31-2A-56, enacted by Ga. L. 2018, p.344, § 1/HB 909.)

31-2A-57. Regulatory authority.

The department shall be authorized to promulgate rules and regulations to carry out the purposes of this article.

(Code 1981, §31-2A-57, enacted by Ga. L. 2018, p. 344, § 1/HB 909.)

CHAPTER 3 COUNTY BOARDS OF HEALTH

JUDICIAL DECISIONS

Administrative Procedure Act does not apply to county boards of health.

- Administrative Procedure Act, O.C.G.A. T. 50, Ch. 13, does not apply to county boards of health as these boards are not included within the definition of "agency." Aldridge v. Georgia Hospitality & Travel Ass'n, 251 Ga. 234, 304 S.E.2d 708 (1983).

Choice of site for public health clinic subject to private rights.

- General power to establish and operate public health clinic does not include authority to ignore private rights in selecting location. Benton v. Pittard, 197 Ga. 843, 31 S.E.2d 6 (1944).

Cited in Brock v. Chappell, 196 Ga. 567, 27 S.E.2d 38 (1943); Georgia Dep't of Human Resources v. Demory, 138 Ga. App. 888, 227 S.E.2d 788 (1976).

OPINIONS OF THE ATTORNEY GENERAL

Power to implement and enforce state health laws and regulations vested in county boards.

- While county and district health agencies have enforcement responsibilities for state health laws and implementing regulations of Department of Human Resources (now the Department of Community Health for these purposes) the department itself has no direct statutory power over manner in which enforcement responsibility is met; instead that power is vested in county board of health. 1974 Op. Att'y Gen. No. 74-19.

Employees of county boards of health are county employees unless otherwise provided; therefore, for purposes of unemployment compensation, employees of various county boards of health are county employees, and county boards are accordingly responsible for all required reports and contributions for these employees. 1978 Op. Att'y Gen. No. 78-22.

County board of health employees are employees of county for workers' compensation purposes.

- County board of health exists as operating arm of county and the board's employees are for purposes of workmen's (now workers') compensation classified as county employees. 1960-61 Op. Att'y Gen. p. 590.

RESEARCH REFERENCES

ALR.

- Liability of governmental agency for emergency medical or surgical services rendered to poor person without its express authority, 93 A.L.R. 900.

Propriety of state or local government health officer's warrantless search - post-Camara cases, 53 A.L.R.4th 1168.

31-3-1. Creation.

There is established a county board of health in each and every county of this state.

(Ga. L. 1914, p. 124, § 2; Code 1933, § 88-201; Ga. L. 1941, p. 317, § 1; Ga. L. 1964, p. 499, § 1.)

JUDICIAL DECISIONS

Cited in Williams v. Board of Educ., 180 Ga. 85, 178 S.E. 148 (1935); Abel v. State, 190 Ga. 651, 10 S.E.2d 198 (1940); Hood v. Burson, 194 Ga. 30, 20 S.E.2d 755 (1942).

OPINIONS OF THE ATTORNEY GENERAL

Criteria for determining appointing authority for position.

- In determining whether commissioner, Department of Human Resources (now the Department of Community Health for these purposes), or district health director is appointing authority for any particular employee, it is necessary to consider the source of creation and funding of the position in question. 1974 Op. Att'y Gen. No. 74-89.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 8, 9.

C.J.S.

- 39A C.J.S., Health and Environment, § 9.

31-3-2. Composition; terms of members.

  1. Each county board of health shall be composed of seven members as follows:
    1. One member shall be the chief executive officer of the governing authority of the county, by whatever name called, or some member designated by said officer; in counties where the governing authority is the judge of the probate court of the county, he shall be the member so appointed;
    2. One member shall be the county superintendent of schools or other school personnel may be designated by said superintendent for such time period as determined by the superintendent but not to exceed such superintendent's contract term;
    3. Except as otherwise provided in this paragraph, one member to be appointed by the governing authority of the county shall be a physician actively practicing medicine in the county and licensed under Chapter 34 of Title 43. If there are fewer than four physicians actively practicing in the county or if there is no physician actively practicing in the county who is willing and able to serve, the governing authority may appoint a person licensed as a nurse or dentist under Chapter 26 or 11, respectively, of Title 43, and actively practicing such profession in the county or any other person having a familiarity with and concern for the provision of medical services in the county;
    4. One member to be appointed by the governing authority of the county shall be a consumer, a representative of a consumer, or a person from an advocacy agency or group, which member will represent on the board the county's consumers of health services;
    5. One member to be appointed by the governing authority of the largest municipality in the county shall be a person interested in promoting public health who is a consumer or a nurse licensed under Chapter 26 of Title 43;
    6. One member to be appointed by the governing authority of the county shall be a consumer member who will represent on the board the county's needy, underprivileged, or elderly community; and
    7. One member shall be the chief executive officer of the governing authority of the largest municipality of the county, by whatever name called, or some member designated by said officer; provided, however, that whenever the legal situs of such largest municipality lies within an adjoining county, the county governing authority may adopt an ordinance providing:
      1. For the selection by the county governing authority of the chief executive officer, by whatever name designated, of the governing authority of any municipality lying wholly or partially within the county to fill the position on the county board of health authorized by this paragraph;
      2. That the chief executive officer so selected may designate another member of the respective municipal governing authority, whose term of office is the same as that of the chief executive officer, to serve in the place of the chief executive officer;
      3. That the chief executive officer so selected or the chief executive officer's designee shall serve for a term of office as a member of the county board of health concurrent with the term of office as a member of the municipal governing authority;
      4. That a vacancy in the position on the county board of health which is held by the chief executive officer or the chief executive officer's designee shall be filled for the unexpired term by the county governing authority; and
      5. That the first member of the county board of health selected by the county governing authority under such ordinance may take office at any time on or after January 1, 1987, and that the term of office of the member of the county board of health holding office pursuant to this paragraph on December 31, 1986, shall expire on the day immediately preceding the day such first member selected under such ordinance takes office.
  2. No member appointed to the county board of health shall be an employee of the county board of health or of the department.
  3. The terms of the members of county boards of health serving as such on June 30, 1985, and who are serving in membership positions required to be filled by grand jury appointment, shall expire at the end of June 30, 1985, and upon the appointment and qualification of their successors.
  4. The initial term of the member first appointed pursuant to paragraph (3) of subsection (a) of this Code section shall begin July 1, 1985, and shall expire December 31, 1987; the initial term of the member first appointed pursuant to paragraph (4) of subsection (a) of this Code section shall begin July 1, 1985, and shall expire December 31, 1986; the initial term of the member first appointed pursuant to paragraph (6) of subsection (a) of this Code section shall begin July 1, 1984, and expire December 31, 1985; and the initial term of the member first appointed pursuant to paragraph (5) of subsection (a) of this Code section shall begin July 1, 1984, and shall expire December 31, 1986. After these initial terms, members appointed pursuant to paragraphs (3), (4), (5), and (6) of subsection (a) of this Code section shall take office the first day of January immediately following the expiration of the immediately preceding term of that office and serve terms of six years and until their successors are appointed and qualified. Vacancies in any such membership shall be filled, for the unexpired term and until a successor is appointed and qualified, in the same manner as the original appointment.
  5. Persons holding office as members pursuant to paragraph (1), (2), or (7) of subsection (a) of this Code section shall serve as members while holding their offices as chief executive officer of the governing authority of the county, county superintendent of schools, or chief executive officer of the largest municipality of the county, respectively.
  6. In each county having a population of not less than 400,000 and not more than 500,000 according to the United States decennial census of 1990 or any future such census, the superintendent of the largest municipal school system in the county shall serve in an ex officio capacity as an additional member of the county board of health.

(Ga. L. 1914, p. 124, § 2; Code 1933, § 88-201; Code 1933, § 88-202, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1967, p. 544, § 1; Ga. L. 1982, p. 506, § 1; Ga. L. 1984, p. 1325, § 1; Ga. L. 1985, p. 149, § 31; Ga. L. 1986, p. 1242, § 1; Ga. L. 1987, p. 185, § 1; Ga. L. 1992, p. 1217, § 1; Ga. L. 1993, p. 1445, § 1; Ga. L. 1998, p. 855, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, "who" was deleted preceding "shall" in paragraphs (a)(4) through (a)(6).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

JUDICIAL DECISIONS

Cited in Abel v. State, 190 Ga. 651, 10 S.E.2d 198 (1940).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under this Code section, prior to its 1984 amendment, are included in the annotations for this Code section.

Paragraph (a)(7) of O.C.G.A.

§ 31-3-2 construed. - One member of a county board of health must be the chief executive officer or a member of the governing authority of the largest municipality of the county. 1986 Op. Att'y Gen. No. U86-5.

County manager may not serve on board of health.

- Language of this section requires that either the head of the governing authority serve, or that some other member of the governing authority be designated to serve instead. The chairman of the county commissioners may not appoint a county manager, who is not a county commissioner, to serve on the county board of health. 1980 Op. Att'y Gen. No. 80-25.

Board member may not be county board of health member.

- Person may not serve simultaneously as a member of the Board of Human Resources and as a member of a county board of health. 1985 Op. Att'y Gen. No. 85-28.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 8, 9.

C.J.S.

- 39A C.J.S., Health and Environment, § 9.

31-3-2.1. Option for certain counties to create board of health and wellness by ordinance.

Repealed by Ga. L. 2016, p. 520, § 1/HB 885, effective April 27, 2016.

Editor's notes.

- This Code section was based on Code 1981, § 31-3-2.1, enacted by Ga. L. 1985, p. 384, § 1; Ga. L. 1987, p. 169, § 1; Ga. L. 1991, p. 94, § 31; Ga. L. 1998, p. 916, § 1; Ga. L. 2002, p. 1473, § 1.

Ga. L. 2016, p. 520, § 2/HB 885, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval; provided, however, that for any county board of health and wellness which was established by county ordinance pursuant to the former provisions of Code Section 31-3-2.1 and which is still in existence as of the effective date of this Act, the members of such board shall remain in office and such board shall remain in existence until a county board of health is constituted pursuant to Code Section 31-3-2 for such county or until June 30, 2017, whichever occurs first."

31-3-3. Duty to inform department of membership.

The county board of health shall keep the department informed of the names, addresses, and terms of office of its members.

(Code 1933, § 88-208, enacted by Ga. L. 1964, p. 499, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 8, 9.

C.J.S.

- 39A C.J.S., Health and Environment, § 9.

31-3-4. Powers.

  1. The county board of health is empowered to:
    1. Establish and adopt bylaws for its own governance. Meetings shall be held no less frequently than quarterly;
    2. Exercise responsibility and authority in all matters within the county pertaining to health unless the responsibility for enforcement of such is by law that of another agency;
    3. Take such steps as may be necessary to prevent and suppress disease and conditions deleterious to health and to determine compliance with health laws and rules, regulations, and standards adopted thereunder;
    4. Adopt and enforce rules and regulations appropriate to its functions and powers, provided such rules and regulations are not in conflict with the rules and regulations of the department. Such rules and regulations must be reasonably adapted to the purposes intended and must be within the purview of the powers and duties imposed upon the county board of health by this chapter;
    5. Receive and administer all grants, gifts, moneys, and donations for purposes pertaining to health pursuant to this chapter;
    6. Make contracts and establish fees for the provision of public health services provided by county boards of health, including but not limited to environmental health services, which fees may be charged to persons or to establishments and premises within the county for inspection of such establishments, premises, structures and appurtenances thereto, or for other county board of health services.All such fees may be used to defray costs of providing such local services and shall supplement but not replace state or federal funding.No person shall be denied services on the basis of that person's inability to pay.The scope of services, operating details, contracts, and fees approved by the county board of health shall also be approved by the district director of health.No fees for environmental health services may be charged unless the schedule of fees for such services has been approved by the county governing authority;
    7. Contract with the Department of Public Health or other agencies for assistance in the performance of its functions and the exercise of its powers and for supplying services which are within its purview to perform, provided that such contracts and amendments thereto shall have first been approved by the department. In entering into any contracts to perform its functions and to exercise its powers, and for supplying services which are within its purview to perform, any county board of health or any health district created under the authority of Code Section 31-3-15 shall be considered an agency and such agency shall have the authority to contract with any other county board of health; combination of county boards of health; any other health district; public or private hospitals; hospital authorities; medical schools; training and educational institutions; departments and agencies of the state; county or municipal governments; persons, partnerships, corporations, and associations, public or private; the United States government or the government of any other state; or any other legal entity; and
    8. The county board of health in each county of this state having a population of 400,000 or more according to the United States decennial census of 1990 or any future such census is authorized to develop and implement activities for the prevention of injuries and incorporate injury prevention measures in rules and regulations which are within the purview of the county board of health to promulgate which shall be effective when adopted by an ordinance of the county governing authority.
  2. Notwithstanding the provisions contained in subsection (a) of this Code section and Code Section 31-3-5, nothing contained in this Code section or Code Section 31-3-5 shall be construed to empower a county board of health to adopt any rules or regulations or provisions to enforce any rules or regulations pertaining to matters provided for or otherwise regulated pursuant to the provisions of Part 1 of Article 2 of Chapter 8 of Title 12, the "Georgia Comprehensive Solid Waste Management Act," as now or hereafter amended, or the rules and regulations promulgated pursuant to such part.

(Code 1933, § 88-204, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1966, p. 380, § 1; Ga. L. 1976, p. 1420, § 1; Ga. L. 1978, p. 2031, § 1; Ga. L. 1984, p. 1325, § 2; Ga. L. 1985, p. 419, § 1; Ga. L. 1988, p. 1757, § 1; Ga. L. 1992, p. 1204, § 1; Ga. L. 1992, p. 3308, § 1.1; Ga. L. 1993, p. 1445, § 2; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Cross references.

- Regulation of restaurants, taverns, and other establishments by county boards of health and Department of Public Health, § 26-2-370 et seq.

Inspection of funeral establishments by county boards of health, § 43-18-75.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, "such part" was substituted for "such Act" at the end of subsection (b).

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

JUDICIAL DECISIONS

County not "employer" within meaning of federal civil rights statute.

- Position of mental health center service coordinator at a county health department is created by the State of Georgia and is governed by the Georgia State Merit System of Personnel Administration for the Georgia Department of Human Resources (now the Department of Community Health for these purposes) with respect to the terms and conditions of employment, including hiring, termination, promotion, demotion, and wage rates. A fortiori, the county is not an "employer" within the meaning of Title VII of the federal Civil Rights Act of 1964. Lewis v. DeKalb County, 569 F. Supp. 11 (N.D. Ga. 1983).

Provisions of paragraph (a)(3) do not include matters relating to public safety. Vinson v. Howe Bldrs. Ass'n of Atlanta, 233 Ga. 948, 213 S.E.2d 890 (1975).

Safety regulations to prevent traumatic death and drowning not within board's powers.

- Traumatic death or drowning is not deleterious to health within the meaning of this section and safety regulations to prevent those occurrences are not within the scope of the board's powers. Vinson v. Howe Bldrs. Ass'n, 233 Ga. 948, 213 S.E.2d 890 (1975).

Authorized fees.

- Legislature, by the legislature's use of the language "other public health services" in former paragraph (6) of O.C.G.A. § 31-3-4, intended to authorize fee collection only for those personal health care services, such as nursing homes services and mental health care, which are provided by county health boards to individual citizens. Aldridge v. Georgia Hospitality & Travel Ass'n, 251 Ga. 234, 304 S.E.2d 708 (1983).

Assessment of fees for inspection of public hotels, motels, and restaurants is simply not within the contemplation of former paragraph (6) of O.C.G.A. § 31-3-4. Aldridge v. Georgia Hospitality & Travel Ass'n, 251 Ga. 234, 304 S.E.2d 708 (1983).

Cited in Rice v. Oaks Investors II, 292 Ga. App. 692, 666 S.E.2d 63 (2008).

OPINIONS OF THE ATTORNEY GENERAL

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 88-203, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

County boards' authority regarding provision of home health care services.

- County boards of health have authority to make contracts and establish and accept fees for purpose of providing home health care services, including service of physical therapy, for chronically ill and aged. 1970 Op. Att'y Gen. No. U70-215.

Boards authorized to serve patients.

- County boards of health clearly are created for public health purposes, and the boards have authority to serve patients among other activities. 1987 Op. Att'y Gen. No. U87-19.

General laws regulating solid waste handling do not preclude county regulation.

- Existence of general laws relating to regulation of solid waste handling and management does not necessarily preclude adoption of regulations on same subject by county boards of health, provided such regulations have a reasonable relation to protection of health of citizenry of county and are not prohibited by express or implied language in Solid Waste Management Act or rules and regulations promulgated thereunder. 1976 Op. Att'y Gen. No. 76-17.

Rules and regulations of county boards of health prevail over municipal regulations. 1954-56 Op. Att'y Gen. p. 571 (decided under former Code 1933, § 88-203 prior to amendment of Chapter 88-2 by Ga. L. 1964, p. 499, § 1).

Department's discretion to withhold state funds from a county.

- State Health Department (now the Department of Community Health for these purposes) has power to withhold at the department's discretion state funds from a county on a variety of grounds, including refusal of county commissioners to approve budget submitted by county board of health, and can refuse to increase salaries of board of health's staff in line with State Personnel Board rules. 1965-66 Op. Att'y Gen. No. 66-165.

Fees for Services

Right of county boards to fees for health services rendered by employee.

- Since the county board of health has the general authority to establish and accept fees for purpose of providing health care services for the ill, it can therefore set, collect, and retain fees for these services where rendered by an employee. 1975 Op. Att'y Gen. No. 75-22.

County board shall maintain funds separate from general county funds.

- Ga. L. 1964, p. 499, § 1, and Ga. L. 1966, p. 380, § 1 (see O.C.G.A. §§ 31-3-4,31-3-8, and31-3-14) indicate that county board of health shall maintain the county's funds separate from those of county, rather than that the county's funds should be paid into general county funds. 1971 Op. Att'y Gen. No. U71-120.

County boards need not pay money received for services to county commissioner or treasury.

- County boards of health are not required to pay over money received for services performed by board to county commissioners or county treasury. 1971 Op. Att'y Gen. No. U71-120.

Contracts Pursuant to Code Section

Purpose of the contract must come within parameters of grant of contracting power given to county board of health. 1980 Op. Att'y Gen. No. 80-52.

Part of authority to contract is authority to give consideration.

- Since both the counties and the department have authority to contract, it was self-evident that they have the authority to give consideration for the contract since, pursuant to former Code 1933, § 20-301, consideration was essential to a contract and a contract without consideration was unenforceable. 1975 Op. Att'y Gen. No. 75-22.

Department's consideration for contract entered may be services of state employee. 1975 Op. Att'y Gen. No. 75-22.

Consideration of county in form of services to state.

- Consideration given by county for contract may be rendering of services to state which county would not otherwise be obligated to perform, or, if county is already obligated to perform such services, some other consideration such as money may be substituted. 1975 Op. Att'y Gen. No. 75-22.

County board of health, in providing consideration to support a contract, may provide personal services. 1980 Op. Att'y Gen. No. 80-52.

Department of Human Resources may provide employee for private nonprofit corporation.

- Department of Human Resources (now the Department of Community Health for these purposes) may contractually obligate itself to provide, through a county board of health, one of its employees to work for a private nonprofit corporation which furnishes mental health services. 1980 Op. Att'y Gen. No. 80-52.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 2, 8 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, § 4 et seq.

ALR.

- Right of one detained pursuant to quarantine to habeas corpus, 2 A.L.R. 1542.

Regulation of business of tattooing, 81 A.L.R.3d 1212.

31-3-5. Functions.

  1. Subject to the provisions of Code Section 31-2A-11 and subsection (b) of this Code section, each county board of health shall have and discharge, within its jurisdiction, subject to any valid local Act which shall remain in force and effect, the following functions:
    1. To determine the health needs and resources of its jurisdiction by research and by collection, analysis, and evaluation of all data pertaining to the health of the community;
    2. To develop, in cooperation with the department, programs, activities, and facilities responsive to the needs of its area;
    3. To secure compliance with the rules and regulations of the department that have local application; and
    4. To enforce, or cause enforcement of, all laws pertaining to health unless the responsibility for the enforcement of such laws is that of another agency.
  2. Each county board of health shall have the power and duty to adopt regulations providing standards and requirements governing the installation of on-site sewage management systems within the incorporated and unincorporated area of the county, subject to the provisions of Code Section 31-2A-11, any rules and regulations promulgated under Code Section 31-2A-11, and subsection (d) of this Code section. Such regulations shall include and be limited to the following:
    1. Specifying the locations within the incorporated and unincorporated area of the county where on-site sewage management systems may be installed;
    2. Specifying the minimum lot size or land area which may be served by an on-site sewage management system based on scientific data regarding on-site sewage management systems;
    3. Specifying the types of residences, buildings, or facilities which may be served by on-site sewage management systems;
    4. Issuing permits for the installation of on-site sewage management systems prior to such installation;
    5. Inspecting on-site sewage management system installations prior to the completion of the installation; and
    6. Providing for ongoing maintenance of such systems, except for nonmechanical residential sewage management systems.
  3. Nothing in this Code section or in Code Section 31-3-5.1 shall limit the power of a county or municipal governing authority to exercise its zoning powers or to establish minimum lot sizes larger than the minimum lot sizes specified pursuant to subsection (b) of this Code section.
    1. Any person may register with the department to conduct soil investigations and prepare soil reports of a site within the state for an on-site sewage management system who meets any one of the following criteria:
      1. Qualifies as a soil classifier as defined in subparagraph (B) of paragraph (3) of this subsection;
      2. Holds a valid certificate of registration as a professional engineer issued pursuant to Chapter 15 of Title 43 and is practicing within his or her area of engineering competency;
      3. Holds a valid certificate of registration as a registered geologist issued pursuant to Chapter 19 of Title 43 and is practicing within his or her area of geologic competency; or
      4. Is a soil and water conservation technician as defined in subparagraph (A) of paragraph (3) of this subsection.
    2. Upon the submission of an evaluation of the suitability of a site within the state for an on-site sewage management system by such a person who is registered with the department, the county board of health shall be required to accept the evaluation unless such evaluation is found by the county board of health to be deficient or questionable. If the county board of health finds such evaluation to be deficient or questionable, the board shall, within three working days of making such finding, issue a written determination stating all deficiencies and all measures needed to correct the deficiencies. A copy of this determination shall be provided to the state director of environmental health.
    3. As used in this subsection, the term:
      1. "Soil and water conservation technician" means a person employed as a soil and water conservation technician by a soil and water conservation district provided for in Article 2 of Chapter 6 of Title 2.
      2. "Soil classifier" means a person who:
        1. Holds at least a bachelor of science degree from an accredited college or university with a major in soil science or a related field of science. This degree shall include 30 semester credit hours or equivalent quarter credit hours in the biological, physical, chemical, and earth sciences with a minimum of 15 semester credit hours or equivalent quarter hours in soil science courses meeting the following distribution:
      3. A minimum of one course in soil classification, morphology, genesis, and mapping; and
      4. The remaining soil science credits must be in at least three of the following eight categories: introductory soil science; soil fertility; soil microbiology; soil chemistry; soil physics; soil management, soils and land use, or soils and the environment; soil mineralogy; or a three credit maximum in independent study, geology, or hydrology; and
        1. Has at least four years of verifiable full-time or equivalent part-time experience under the supervision of a soil classifier who has met the education and experience requirements provided in this subparagraph. Such experience must be obtained after meeting all educational requirements defined in this subparagraph and must have been spent actively mapping, identifying, and classifying soil features and interpreting the influence of soil features on soil uses including, but not limited to, conducting soil investigations for determining the suitability of sites for on-site sewage management systems as approved by the department's soil classifiers advisory committee; and
        2. Has successfully passed a written examination pertaining to site investigations for on-site sewage management systems administered or approved by the department.

(Code 1933, § 88-203, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1985, p. 149, § 31; Ga. L. 1997, p. 708, § 2; Ga. L. 2000, p. 549, § 1; Ga. L. 2003, p. 302, § 1; Ga. L. 2009, p. 453, § 1-10/HB 228; Ga. L. 2011, p. 705, § 3-3/HB 214.)

Cross references.

- Powers and duties of county boards of health with regard to providing of mental health and developmental disabilities services, T. 37, C. 2.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2000, subparagraphs (d)(1)(A) and (d)(1)(B) (now subparagraphs (d)(3)(A) and (d)(3)(B)) were placed in alphabetical order.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

JUDICIAL DECISIONS

County not "employer" within meaning of federal civil rights statute.

- Position of mental health center service coordinator at a county health department is created by the State of Georgia and is governed by the Georgia State Merit System of Personnel Administration for the Georgia Department of Human Resources (now the Department of Community Health for these purposes) with respect to the terms and conditions of employment, including hiring, termination, promotion, demotion, and wage rates. A fortiori, the county is not an "employer" within the meaning of Title VII of the federal Civil Rights Act of 1964. Lewis v. DeKalb County, 569 F. Supp. 11 (N.D. Ga. 1983).

Cited in In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Power to implement and enforce state health laws and regulations vested in county boards.

- While county and district health agencies have enforcement responsibilities for state health laws and implementing regulations of Department of Human Resources (now the Department of Community Health for these purposes), the department itself has no direct statutory power over manner in which enforcement responsibility is met; instead that power is vested in county board of health. 1974 Op. Att'y Gen. No. 74-19.

Boards authorized to serve patients.

- County boards of health clearly are created for public health purposes and the boards have authority to serve patients among other activities. 1987 Op. Att'y Gen. No. U87-19.

Criteria for determining appointing authority for position.

- In determining whether commissioner, Department of Human Resources, or district health director is appointing authority for any particular employee, it is necessary to consider the source of creation and funding of the position in question. 1974 Op. Att'y Gen. No. 74-89.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 10 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, § 10.

31-3-5.1. Conformity prerequisite to building permit.

No building permit for the construction of any residence, building, or other facility which is to be served by a sewage management system shall be issued by or pursuant to the authority of a county governing authority unless the sewage management system installation permit is in conformity with standards contained in Code Section 31-2A-11 for sewage management systems. No person, firm, corporation, or other entity shall install a sewage management system in violation of the provisions of Code Section 31-2A-11 or the regulations of a county board of health adopted pursuant to the authority of Code Section 31-3-5. Each county governing authority shall provide by ordinance or resolution for the enforcement of the provisions of this Code section.

(Code 1981, §31-3-5.1, enacted by Ga. L. 1986, p. 227, § 1; Ga. L. 1992, p. 3308, § 2; Ga. L. 1994, p. 1777, § 2; Ga. L. 1997, p. 708, § 3; Ga. L. 2009, p. 453, § 1-10/HB 228; Ga. L. 2011, p. 705, § 3-3/HB 214.)

Cross references.

- Building standards and requirements generally, T. 8, C. 2.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

31-3-5.2. Definition of "gray water"; lawful use.

  1. As used in this Code section, the term "gray water" means waste water discharged from residential lavatories, bathtubs, showers, clothes washers, and laundry trays.
  2. Private residential direct reuse of gray water shall be lawful if the following conditions are met:
    1. Gray water originating from the residence shall be used and contained within the property boundary for household gardening, composting, lawn watering, or landscape irrigation;
    2. Gray water shall not be used for irrigation of food plants;
    3. The gray water shall not contain hazardous chemicals derived from activities such as cleaning car parts, washing greasy or oily rags, or disposing of waste solutions from home photography laboratories or similar hobbyist or home occupational activities;
    4. The application of gray water shall be managed to minimize standing water on the surface;
    5. The application of gray water shall be outside of a floodway;
    6. The gray water shall not contain water used to wash diapers or similarly soiled or infectious garments unless the gray water is disinfected before irrigation; and
    7. The gray water shall be applied only by hand watering using garden watering cans or similar hand-held containers.
  3. County boards of health shall adopt the provisions of subsection (b) of this Code section by regulation. Local governing bodies shall be authorized to punish violations of said regulations as local ordinance violations, provided that the penalty for each such violation shall not exceed a $100.00 fine.

(Code 1981, §31-3-5.2, enacted by Ga. L. 2008, p. 720, § 1/SB 463; Ga. L. 2009, p. 8, § 31/SB 46.)

31-3-6. Rules and regulations of local application.

The county board of health shall have authority to establish rules and regulations which apply to all citizens and premises of the county or to specified areas and citizens therein without regard to the remainder of the county.

(Code 1933, § 88-205, enacted by Ga. L. 1964, p. 499, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 8 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 9, 10.

31-3-7. Compensation for members' attendance at meetings.

Members of county boards of health shall be paid not more than $25.00 per day for their attendance at meetings of the board, provided funds therefor have been established by budget and are available from funds allocated to that purpose.

(Code 1933, § 88-206, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1989, p. 312, § 1.)

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, § 14.

31-3-8. Records.

The county board of health shall record and preserve true and correct minutes of its proceedings in a book kept for that purpose and shall maintain or cause to be maintained, unless maintained by the governing authority of the county, accurate double entry accounting records including but not limited to:

  1. Prenumbered duplicates of receipts issued for funds received showing the source of such funds; and
  2. Records and financial reports including a general ledger maintained in accordance with generally accepted principles of accounting and in accordance with such standards as may be prescribed by the governing authority of the county and the department. Such records shall show all receipts and disbursements, identifying each item and, in the case of disbursements, listing to whom paid, dates, amounts, and objects of expenditure. All accounting records shall be subject to any audits made of general county financial operations and shall be made available for the purpose of such audits.

(Code 1933, § 88-207, enacted by Ga. L. 1964, p. 499, § 1.)

Cross references.

- Requirements of audit reports generally, § 36-60-8.

OPINIONS OF THE ATTORNEY GENERAL

Code section indicates county board shall maintain funds separate from general county funds.

- Ga. L. 1964, p. 499, § 1, and Ga. L. 1966, p. 380, § 1, indicate that county board of health shall maintain the board's funds separate from those of county, rather than that the board's funds should be paid into general county funds. 1971 Op. Att'y Gen. No. U71-120.

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, §§ 20 et seq., 36.

31-3-9. Office quarters and equipment.

The governing body of the county shall provide the county board of health with quarters and equipment sufficient for its operation.

(Code 1933, § 88-209, enacted by Ga. L. 1964, p. 499, § 1.)

JUDICIAL DECISIONS

Cited in Lewis v. DeKalb County, 569 F. Supp. 11 (N.D. Ga. 1983).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 8 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 9, 10.

31-3-10. Legal representation.

The county board of health may require the legal services of the county attorney or, its budget permitting, may employ other counsel to assist in performing its duties.

(Code 1933, § 88-210, enacted by Ga. L. 1964, p. 499, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 8 et seq., 19, 20.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 9, 10.

ALR.

- Power of fire, water, or health commissioners, or the like, to employ counsel, 2 A.L.R. 1212.

31-3-11. Appointments of director and staff; supervision.

  1. The county board of health shall appoint as its chief executive officer a director who shall be a physician licensed to practice medicine under Chapter 34 of Title 43 and who otherwise meets the requirements of the rules of the State Personnel Board. The director, subject to the approval of the county board of health, shall designate aides and assistants pursuant to the budget adopted by the county board of health in accordance with Code Section 31-3-14.
  2. Each employee of a county board of health whose duties include enforcing those environmental health laws of this state or environmental health regulations of that board of health relating to septic tanks or individual sewage management systems shall be subject to the direction and supervision of the district director of environmental health, although the hiring and termination from employment of such employee shall be subject to the director of that county board of health. The employment activities of such employee with regard to environmental health shall be reported to the director of environmental health through the district director of environmental health at least quarterly. The director of environmental health may recommend to that director of that county board of health personnel actions, including but not limited to termination, which the director of environmental health deems appropriate for such employee's failure or refusal to comply with the direction of the director of environmental health in the carrying out of the environmental health employment duties of such employee. As used in this subsection, the term "director of environmental health" means the director of environmental health of the Department of Public Health.

(Code 1933, § 88-211, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2000, p. 549, § 2; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2011, p. 705, § 6-1/HB 214; Ga. L. 2012, p. 446, § 2-35/HB 642.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2000, "environmental" was substituted for "environment" near the end of the second sentence of subsection (b).

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

JUDICIAL DECISIONS

County not "employer" within meaning of federal civil rights statute.

- Position of mental health center service coordinator at a county health department is created by the State of Georgia and is governed by the Georgia State Merit System of Personnel Administration for the Georgia Department of Human Resources (now the Department of Community Health for these purposes) with respect to the terms and conditions of employment including hiring, termination, promotion, demotion, and wage rates. A fortiori, the county is not an "employer" within the meaning of Title VII of the federal Civil Rights Act of 1964. Lewis v. DeKalb County, 569 F. Supp. 11 (N.D. Ga. 1983).

OPINIONS OF THE ATTORNEY GENERAL

Criteria for determining appointing authority for position.

- In determining whether commissioner, Department of Human Resources (now the Department of Community Health for these purposes), or district health director is appointing authority for any particular employee, it is necessary to consider the source of creation and funding of the position in question. 1974 Op. Att'y Gen. No. 74-89.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 8 et seq., 25, 26.

C.J.S.

- 39A C.J.S., Health and Environment, § 9 et seq.

31-3-12. Duties of director.

Subject to the policies and directives of the county board of health and the policies and directives of the multiple county districts served, the director shall perform the functions and exercise the powers set forth in this chapter except the power to adopt bylaws and to adopt rules and regulations and may delegate the powers and authority conferred, or any part thereof, to one or more individuals as he may deem appropriate. The director shall devote his entire time to the service of the county board of health and to the multiple county districts, where created, and shall be vigilant in procuring compliance with its rules and regulations and with Georgia health laws and rules and regulations adopted thereunder that have application within the county and district. He shall make reports to the county board of health and the agency in charge of the multiple county district in such manner and form and with such frequency as required by it and shall also report to the department in such manner, detail, and form as the department may specify.

(Code 1933, § 88-212, enacted by Ga. L. 1964, p. 499, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 25 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, § 9 et seq.

ALR.

- Personal liability of health officer, 24 A.L.R. 798.

31-3-12.1. Contracts between county boards; authorization for and provisions applicable to county board of health serving as community service board.

  1. In addition to any other power authorized by law, the county governing authority may authorize the county board of health to enter into a contract with the Department of Behavioral Health and Developmental Disabilities or a community mental health, developmental disabilities, and addictive diseases service board created under Chapter 2 of Title 37 to provide certain mental health, developmental disabilities, and addictive diseases services based on the contractual agreement between the parties. In the event that the county governing authority exercises the authority granted by this subsection, the county board of health shall appoint a director for mental health, developmental disabilities, and addictive diseases or a supervisor of the specific service which is being provided by the county board of health, whichever is applicable, who shall meet the requirements established by this subsection. The director for mental health, developmental disabilities, and addictive diseases, or the service supervisor, shall not be required to be a physician and shall be a person other than the director of the county board of health appointed pursuant to Code Section 31-3-11. Further, such director for mental health, developmental disabilities, and addictive diseases or such supervisor of the specific service shall report directly to the county board of health and shall have no formal reporting relationship with the director of the county board of health.
  2. Pursuant to subsection (e) of Code Section 37-2-6, a county governing authority may authorize the membership of a county board of health to serve as the membership of a community mental health, developmental disabilities, and addictive diseases service board, provided that the county governing authority, the county board of health, and any other affected county governing authority act pursuant to subsection (e) of Code Section 37-2-6. If the membership of a county board of health exercises the authority granted pursuant to this subsection and Chapter 2 of Title 37 to serve as the membership of a community service board, the membership of the county board of health shall constitute the membership of the community service board and, at any time that such members are exercising duties and powers related to mental health, developmental disabilities, and addictive diseases, the community service board shall be an independent agency and shall operate in accordance with the provisions of Title 37 as a community service board. Notwithstanding any provisions of law to the contrary, a community service board and a county board of health which have the same membership may contract with each other, provided that any such contract is approved by the department and the Department of Behavioral Health and Developmental Disabilities prior to adoption.

(Code 1981, §31-3-12.1, enacted by Ga. L. 1993, p. 1445, § 3; Ga. L. 1994, p. 437, § 1; Ga. L. 2002, p. 1324, § 1-3; Ga. L. 2006, p. 310, § 1/HB 1223; Ga. L. 2009, p. 453, § 3-9/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."

Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2006, except that those provisions which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." This Act was approved by the Governor on April 21, 2006.

31-3-13. Declaration of public policy; contracts for assistance to boards.

No population area or unit of this state shall be without health services responsive to its needs. Because it is recognized that all counties are not equally able to effectuate this policy, a county board of health may contract for assistance in the performance of its functions and exercise of its powers, provided that such proposed contract and any amendments thereto shall have first been approved by the department.

(Code 1933, § 88-213, enacted by Ga. L. 1964, p. 499, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 19, 20.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 7 et seq., 16, 17, 26.

31-3-14. Financing of expenses.

The county board of health, at a regular or called meeting, at a time appropriate to the fiscal operation of the county, shall determine and fix the amount of money needed for the fiscal or calendar year, as the case may be, in accordance with a budget itemizing anticipated income and expenditure; the budget shall include any unobligated moneys carried over from the current period and funds to be made available from sources other than county taxes. The expenditures anticipated, after applying credits, shall be certified by the county board of health, with a copy of the budget, to the taxing authority of the county, which may fix and levy a tax rate sufficient to raise such amount at the same time and in the same manner prescribed for levying taxes for other county purposes, provided the taxing authority of the county deems the budget reasonable. If, however, the taxing authority of the county should deem the budget unreasonable, it shall promptly return the budget to the county board of health with its objections attached thereto for the purpose of resubmission.

(Code 1933, § 88-214, enacted by Ga. L. 1964, p. 499, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Expense of confining rabid animals to be included in budget.

- Local county boards of health should prescribe rules for prevention and control of rabies by providing for vaccination, tagging, and certification of dogs and for confinement of any animal which exhibits signs of rabies; the cost of such confinement would be an expense of the county board of health to be included in the board's budget which is submitted to local taxing authorities. 1965-66 Op. Att'y Gen. No. 65-21.

County board shall maintain funds separate from general county funds.

- Ga. L. 1964, p. 499, § 1, and Ga. L. 1966, p. 380, § 1 indicate that county board of health shall maintain the board's funds separate from those of county, rather than that the board's funds should be paid into general county funds. 1971 Op. Att'y Gen. No. U71-120.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 17, 18.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 91, 92.

31-3-15. Establishment of health districts.

The department is authorized, with the consent of the boards of health and the county authorities of the counties involved, to establish health districts composed of one or more counties. The county boards of health of the constituent counties shall, at the call of the commissioner, meet in joint session to approve the selection of a director appointed by the commissioner to serve such boards in common. A county board of health is authorized to appoint one of its members to represent the board at a joint meeting for this purpose. The director shall be a physician who is licensed to practice medicine under Chapter 34 of Title 43 and who otherwise meets the requirements of the rules of the State Personnel Board. The district director shall have the same powers, duties, and responsibility as a director serving a single county board of health. To further the purposes of this Code section, county boards of health may contract with each other for the provision of multicounty services and also exercise any additional powers as authorized by paragraph (7) of subsection (a) of Code Section 31-3-4; and in the performance of such contracts a county board of health may utilize its employees in other counties.

(Code 1933, § 88-215, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1978, p. 2031, § 2; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-36/HB 642.)

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

JUDICIAL DECISIONS

Cited in Lewis v. DeKalb County, 569 F. Supp. 11 (N.D. Ga. 1983).

OPINIONS OF THE ATTORNEY GENERAL

Staff member appointed by director need not be licensed physician if not practicing medicine.

- Staff member appointed by director of a health district, including director of a subordinate administrative unit, need not be a licensed physician, as long as the staff member does not engage in any activity which constitutes the practice of medicine and, in case of a position affected by the State Merit System of Personnel Administration, such licensure is not a requirement of the position the employee holds. 1978 Op. Att'y Gen. No. 78-9.

Criteria for determining appointing authority for position.

- In determining whether commissioner, Department of Human Resources (now the Department of Community Health for these purposes), or district health director is appointing authority for any particular employee, it is necessary to consider the source of creation and funding of the position in question. 1974 Op. Att'y Gen. No. 74-89.

Construction with § 45-20-2. - O.C.G.A. § 31-3-15 does not require that the position of District Health Officer be placed in the classified service of the State Merit System and, accordingly, there is no conflict between O.C.G.A. §§ 31-3-15 and45-20-2, which defines classified and unclassified service. 1985 Op. Att'y Gen. No. 85-1.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 8, 9.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 7 et seq., 26.

31-3-16. Enforcement under local ordinances.

It is not the intent of this chapter to abrogate the terms of a municipal charter or laws of local application which authorize a governing body within the county to provide penalties for a violation of a valid rule and regulation of the county board of health.

(Code 1933, § 88-218, enacted by Ga. L. 1964, p. 499, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 8 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 7 et seq., 26.

CHAPTER 4 COUNCIL ON MATERNAL AND INFANT HEALTH

31-4-1 through 31-4-3.

Reserved. Repealed by Ga. L. 2009, p. 453, § 2-15/HB 228, effective July 1, 2009.

Editor's notes.

- This chapter consisted of Code Sections 31-4-1 through 31-4-3 and was based on Ga. L. 1972, p. 635, §§ 1, 2, 3; Ga. L. 1974, p. 269, § 1; Ga. L. 1978, p. 1763, § 1; Ga. L. 1979, p. 766, § 1; Ga. L. 1982, p. 3, § 31.

CHAPTER 5 ADMINISTRATION AND ENFORCEMENT

Article 1 General Provisions.
Article 2 Inspection Warrants.
Cross references.

- Establishment and enforcement of sanitary regulations pertaining to restaurants, taverns and other establishments, § 26-2-370 et seq.

Similar provisions regarding administration and enforcement of mental health laws, T. 37, C. 1.

Administrative procedure generally, T. 50, C. 13.

JUDICIAL DECISIONS

County boards of health.

- Administrative Procedure Act, O.C.G.A. T. 50, Ch. 13, does not apply to county boards of health as these boards are not included within the definition of "agency." Aldridge v. Georgia Hospitality & Travel Ass'n, 251 Ga. 234, 304 S.E.2d 708 (1983).

ARTICLE 1 GENERAL PROVISIONS

31-5-1. Adoption of rules and regulations.

All rules and regulations of the Department of Public Health and any county board of health shall be adopted after due notice to and hearing by persons and parties affected thereby; and such rules and regulations shall be maintained in a book kept for that purpose, orderly arranged and indexed and subject to inspection by the public during regular business hours. The agency adopting such rules and regulations shall make copies thereof available for distribution to persons interested in or affected thereby. Such agencies are also authorized to provide for the mimeographing, printing, or other reproduction of their regulations and the distribution thereof. No rule or regulation shall become effective as law until 30 days after its adoption, except in cases of emergencies constituting an imminent threat to the public, in which event such rules or regulations shall become effective upon adoption; but, in all such cases, the agency adopting same shall as a part thereof state the conditions found by it to justify such immediate effectiveness. Where deemed desirable by the agency, hearing and notice as provided in Code Section 31-5-2 may be conducted by it prior to adoption of any rule or regulation.

(Code 1933, § 88-307, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 38, 90.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 18 et seq., 36.

31-5-2. Hearings.

Hearings shall be required for any and all quasi-judicial actions and in any other proceeding required by this title or the Constitution of Georgia. All such hearings shall be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

(Code 1933, § 88-304, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1977, p. 309, § 1; Ga. L. 1993, p. 1290, § 2; Ga. L. 1995, p. 10, § 31; Ga. L. 2000, p. 1589, § 3; Ga. L. 2009, p. 453, § 1-22/HB 228.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the 2000 amendment was applicable to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Inapplicable to WIC Program.

- Public hearing was not required before the Department of Human Resources (now the Department of Community Health for these purposes) adopted Women, Infants and Children (WIC) Program vendor handbook, since WIC is not a service of the DHR (now the Department of Community Health for these purposes). Accordingly, O.C.G.A. T. 31 was inapplicable to the WIC program. So v. Ledbetter, 209 Ga. App. 666, 434 S.E.2d 517 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Only person authorized to conduct hearings for county board of health is board's chief executive officer. 1975 Op. Att'y Gen. No. U75-90.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 39, 89.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 20 et seq., 81 et seq.

ALR.

- Malicious prosecution predicated upon prosecution, institution, or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R.3d 473.

31-5-3. Appeals.

    1. Any person who is a party to a proceeding and who is aggrieved or adversely affected by any final order or action of a county board of health or agency of the department may have review thereof by appeal to the department. Any person who is a party to a proceeding and who is aggrieved or adversely affected by any final order or action of the department may have review thereof by appeal to the superior court in the county in which the action arose or to the Superior Court of Fulton County.
    2. Appeals to the department shall be heard by it after not less than 20 days' notice delivered by certified mail or statutory overnight delivery is given to all parties and their counsel of record, at such times and places as are set forth in such notice; provided, however, if such appeal is not heard and determined within a period of 90 days, the decision shall stand reversed unless all parties consent to an extension of time. Review on appeal to the department shall be confined to the record transmitted from below and the questions raised in the appeal. Orders, rules, regulations, or other decisions of county boards of health or other agencies of the department shall not be set aside on appeal to the department unless contrary to law or rules and regulations of the department, or unsupported by substantial evidence on the record as a whole, or unreasonable.
    3. Appeal to the superior court shall be by petition which shall be filed in the clerk's office of such court within 30 days after the final order or action of the department; the petition shall set forth the names of the parties taking the appeal, the order, rule, regulation, or decision appealed from, and the reason it is claimed to be erroneous. The enforcement of the order or action appealed from shall not be stayed until and unless so ordered and directed by the reviewing court. A reviewing court may order a stay only if the court makes a finding that the public health, safety, and welfare will not be harmed by the issuance of the stay. Upon the filing of such petition, the petitioner shall serve on the commissioner a copy thereof in a manner prescribed by law for the service of process, unless such service of process is waived. The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the department, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs. The court shall not substitute its judgment for that of the department as to the weight of the evidence on questions of fact. The court may affirm the decision of the department or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
      1. In violation of constitutional or statutory provisions;
      2. In excess of the statutory authority of the department;
      3. Made upon unlawful procedure;
      4. Affected by other error of law;
      5. Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
      6. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
  1. Upon perfection of the appeal as provided in subsection (a) of this Code section, it shall be the duty of the agency whose order, rule, regulation, or decision is under review by the department to cause a transcript of all pleadings, orders, evidence, and other proceedings including a copy of the appeal and motion for reconsideration, if any, filed with it to be transmitted to the department or the superior court in not more than 30 days. For the proceedings not reported, the agency or the department shall cause to be written out a narrative transcript of all evidence and proceedings before it under certificate of its director or examiner or other official conducting such hearings.

(Code 1933, § 88-305, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1986, p. 1280, § 1; Ga. L. 2000, p. 1589, § 3.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, in paragraph (a)(3) the paragraphs (1) through (6) added were redesignated as subparagraphs (a)(3)(A) through (a)(3)(F), respectively.

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the 2000 amendment was applicable to notices delivered on or after July 1, 2000.

Law reviews.

- For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986).

JUDICIAL DECISIONS

Appeal from assessment of inspection fees.

- O.C.G.A. § 31-5-3 did not provide a hotel, motel, and restaurant association with an avenue of administrative appeal from a county board of health's assessment of inspection fees since there was no "proceeding" or hearing conducted by the board to which the association could have been a party. Aldridge v. Georgia Hospitality & Travel Ass'n, 251 Ga. 234, 304 S.E.2d 708 (1983).

Cited in Cobb County Health Dep't v. Henson, 226 Ga. 801, 177 S.E.2d 710 (1970).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 39, 89.

C.J.S.

- 39A C.J.S., Health and Environment, § 20 et seq.

ALR.

- Right of public officer or board to appeal from a judicial decision affecting his or its order or decision, 117 A.L.R. 216.

31-5-4. Testimony or production of evidence by compulsory process.

The testimony of any witnesses or the production of any books, papers, records, documents, physical objects, or other evidence for inspection may be compelled by any superior court of competent jurisdiction on application of the department or any county board of health seeking such process.

(Code 1933, § 88-303, enacted by Ga. L. 1964, p. 499, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 39, 89, 95 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, § 20 et seq.

31-5-5. Classification of confidential and privileged materials.

The department and county boards of health are authorized by regulation to classify as confidential and privileged documents, reports and other information and data obtained by them from persons, firms, corporations, municipalities, counties, and other public authorities and political subdivisions, where such matters relate to secret processes, formulas, and methods or where such matters were obtained or furnished on a confidential basis. All matters so classified shall not be subject to public inspection or discovery and shall not be subject to production or disclosure in any court of law or elsewhere until and unless the judge of the court of competent jurisdiction, after in camera inspection, determines that the public interest requires such production and disclosure or that such production and disclosure may be necessary in the interests of justice.

(Code 1933, § 88-306, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2011, p. 99, § 42/HB 24.)

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

JUDICIAL DECISIONS

Cited in Theragenics Corp. v. Department of Natural Resources, 244 Ga. App. 829, 536 S.E.2d 613 (2000).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 95 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, § 20 et seq.

31-5-6. Distribution of rules.

The department and all county boards of health are directed to prescribe and make available for distribution the rules of practice and procedure to implement this chapter.

(Code 1933, § 88-308, enacted by Ga. L. 1964, p. 499, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 95 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, § 20 et seq.

31-5-7. Application of this chapter.

This chapter shall apply to all other chapters of this title and all amendments hereafter enacted with respect thereto unless provided otherwise expressly or by necessary implication.

(Code 1933, § 88-309, enacted by Ga. L. 1964, p. 499, § 1.)

31-5-8. Penalty for violations of the provisions of this title.

Any person violating the provisions of this title shall be guilty of a misdemeanor, provided that this Code section shall not apply to violations of the provisions of Chapter 20, 22, or 24 of this title.

(Code 1933, § 88-301, enacted by Ga. L. 1964, p. 499, § 1.)

JUDICIAL DECISIONS

Cited in Culverhouse v. Atlanta Ass'n for Convalescent Aged Persons, 127 Ga. App. 574, 194 S.E.2d 299 (1972).

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, § 84.

31-5-9. Injunctions for enjoining violations of the provisions of this title; supersedeas; attachment for contempt; injunctions to abate public nuisances; where actions may be instituted.

  1. The Department of Public Health and all county boards of health and the Department of Community Health, as appropriate, are empowered to institute appropriate proceedings for injunction in the courts of competent jurisdiction in this state for the purpose of enjoining a violation of any provision of this title as now existing or as may be hereafter amended or of any regulation or order duly issued by the department, any county board of health, or the Department of Community Health provided that this Code section shall not apply to violations of the provisions of Chapter 20 of this title. The department, the county boards of health, and the Department of Community Health, as appropriate, are also empowered to maintain action for injunction to abate any public nuisance which is injurious to the public health, safety, or comfort. Such actions may be maintained notwithstanding the fact that such violation also constitutes a crime and notwithstanding that other adequate remedies at law exist. Such actions may be instituted in the name of the department, any county board, or the Department of Community Health, as the case may be, in the county in which a violation of any provision of this title occurs. For purposes of this Code section, the county boards of health are declared to be legal entities capable of maintaining actions in their respective names without naming the individuals constituting such board, or acting on behalf of the department, as the case may be.
  2. Notwithstanding the provisions of Code Section 5-6-13, an appeal or a notice of intent to appeal an adjudication of contempt of court of a party subject to an interlocutory or final judgment in a court action for an injunction instituted under authority of this Code section for a violation of a licensing requirement of this title shall not operate as a supersedeas unless it is so ordered by the court; provided, however, that the court may grant a supersedeas in such a case after making a finding that the health, safety, or welfare of the recipients of the services will not be substantially harmed by the issuance of the stay.
  3. Unless otherwise ordered by the court pursuant to subsection (b) of this Code section, an interlocutory or final judgment in an action granting an injunction under this Code section may be enforced by attachment for contempt.

(Code 1933, § 88-302, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1997, p. 544, § 1; Ga. L. 1998, p. 128, § 31; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 5-10/HB 214.)

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

JUDICIAL DECISIONS

Cited in Cobb County Health Dep't v. Henson, 226 Ga. 801, 177 S.E.2d 710 (1970); Cason v. Upson County Bd. of Health, 227 Ga. 451, 181 S.E.2d 487 (1971).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 93, 103 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 83, 89.

31-5-10. Notifying department or board of health of conditions on private property which are injurious to the public; inspection warrant; notice to owner and occupant; abatement.

  1. The provisions of this Code section shall apply only in those counties of this state having a population of 450,000 or more according to the United States decennial census of 1980 or any future such census.
  2. Any person who knows or suspects that a condition exists on private property, which condition is injurious to the public health, safety, or comfort, shall immediately notify the Department of Public Health or the county board of health. Upon receiving such notice, the department or the county board of health shall be authorized to obtain an inspection warrant as provided in Code Section 31-5-21. If the department or the county board of health determines that there exists a condition which is injurious to the public health, safety, or comfort, the department or county board of health shall, by registered or certified mail or statutory overnight delivery with return receipt requested, notify the occupants of the property and, if different from the occupant, the person, firm, or corporation which owns the property. Notice to the owner shall be sent to the address shown on the county or municipal property tax records.
  3. If the department or the county board of health brings an action for injunction to abate a public nuisance which is injurious to the public health, safety, or comfort, process shall be served on the occupants of the property and on any person, firm, or corporation having any interest in the property according to the county property records. Service shall be made in accordance with Code Section 9-11-4; and, if any person, firm, or corporation to be served resides outside the state, has departed the state, cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, the judge or clerk may make an order that the service be made by publication of summons as provided in Code Section 9-11-4.
  4. In addition to any form of relief ordered by the court, the superior court may, as a part of its order, authorize the department or the county board of health to take appropriate action to abate such public nuisance. Any cost incurred by the department or the county board of health to abate such nuisance shall constitute a lien against the property, and such lien shall have the same status and priority as a lien for taxes.

(Code 1981, §31-5-10, enacted by Ga. L. 1985, p. 388, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2015, p. 598, § 1-10/HB 72.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the 2000 amendment was applicable to notices delivered on or after July 1, 2000.

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 63 (2015).

JUDICIAL DECISIONS

County's recovery of compensatory damages not authorized.

- When a county recovered, identified, and properly disposed of bodies found at a crematorium, O.C.G.A. §§ 31-5-10(d) and41-2-9(a)(7) did not authorize the county to recover the county's costs of doing so as compensatory damages in a tort action against the crematorium, funeral homes, and funeral directors alleging negligence and public nuisance claims; §§ 31-5-10 and41-2-9 do not authorize a county to obtain compensatory damages in a tort action as a means of redress for abating a public nuisance. Walker County v. Tri-State Crematory, 284 Ga. App. 34, 643 S.E.2d 324 (2007).

RESEARCH REFERENCES

ALR.

- Construction and application of "Municipal Cost Recovery Rule," or "Free Public Services Doctrine,", 32 A.L.R.6th 261.

ARTICLE 2 INSPECTION WARRANTS

Cross references.

- Further provisions regarding use of inspection warrants in enforcement of public health laws, § 37-1-70 et seq.

RESEARCH REFERENCES

ALR.

- Propriety of state or local government health officer's warrantless search - post-Camara cases, 53 A.L.R.4th 1168.

31-5-20. "Inspection warrant" defined.

As used in this article, the term "inspection warrant" means a warrant authorizing a search or inspection of private property where such a search or inspection is one that is necessary for the enforcement of any of the provisions of laws authorizing licensure, inspection, or regulation by the Department of Public Health or a local agency thereof.

(Code 1933, § 88-301A, enacted by Ga. L. 1975, p. 693, § 1; Ga. L. 1982, p. 1667, §§ 1, 2; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 5-11/HB 214; Ga. L. 2015, p. 598, § 1-11/HB 72.)

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 63 (2015).

31-5-21. Persons who may obtain inspection warrants; authorization of searches and inspections of property.

The commissioner of public health or his or her delegate or the director of any county board of health, in addition to other procedures now or hereafter provided, may obtain an inspection warrant under the conditions specified in this chapter. Such warrant shall authorize the commissioner of public health or the director of any county board of health, or the agents of any, or the Department of Agriculture, as appropriate, to conduct a search or inspection of property, either with or without the consent of the person whose property is to be searched or inspected, if such search or inspection is one that is elsewhere authorized under the rules and regulations duly promulgated under this title or any provision of law which authorizes licensure, inspection, or regulation by the Department of Public Health or a local agency thereof.

(Code 1933, § 88-302A, enacted by Ga. L. 1975, p. 693, § 1; Ga. L. 1982, p. 1667, §§ 1, 2; Ga. L. 1998, p. 128, § 31; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 5-12/HB 214; Ga. L. 2015, p. 598, § 1-12/HB 72.)

Cross references.

- Search warrants generally, § 17-5-20 et seq.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 63 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 58, 60, 66, 72, 73, 86, 88.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 47 et seq., 66, 81 et seq.

31-5-22. Issuance; grounds.

  1. Inspection warrants shall be issued only by a judge of a court of record whose territorial jurisdiction encompasses the property to be inspected.
  2. The issuing judge shall issue the warrant when he is satisfied that the following conditions are met:
    1. The one seeking the warrant must establish under oath or affirmation that the property to be inspected is to be inspected as a part of a legally authorized program of inspection which includes that property or that there is probable cause for believing that there is a condition, object, activity, or circumstance which legally justifies such an inspection of that property; and
    2. The issuing judge determines that the issuance of the warrant is authorized by this chapter.

(Code 1933, §§ 88-303A, 88-304A, enacted by Ga. L. 1975, p. 693, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 58, 60, 66, 72, 73.

C.J.S.

- 39A C.J.S., Health and Environment, § 81 et seq.

31-5-23. Contents.

The inspection warrant shall be validly issued only if it meets the following requirements:

  1. The warrant is attached to the affidavit required to be made in order to obtain the warrant;
  2. The warrant describes, either directly or by reference to the affidavit, the property upon which the inspection is to occur and is sufficiently accurate that the executor of the warrant and the owner or possessor of the property can reasonably determine from it the property of which the warrant authorizes an inspection;
  3. The warrant indicates the conditions, objects, activities, or circumstances which the inspection is intended to check or reveal; and
  4. The warrant refers, in general terms, to the statutory or regulatory provisions sought to be enforced.

(Code 1933, § 88-305A, enacted by Ga. L. 1975, p. 693, § 1.)

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, § 81 et seq.

31-5-24. Exclusion of evidence obtained.

Repealed by Ga. L. 2015, p. 598, § 1-13/HB 72, effective July 1, 2015.

Editor's notes.

- This Code section was based on Code 1933, § 88-306A, enacted by Ga. L. 1975, p. 693, § 1.

Law reviews.

- For article on the 2015 repeal of this Code section, see 32 Ga. St. U. L. Rev. 63 (2015).

CHAPTER 5A DEPARTMENT OF COMMUNITY HEALTH

31-5A-1 through 31-5A-8.

Editor's notes.

- Ga. L. 2009, p. 453, § 1-1/HB 228, effective July 1, 2009, redesignated former Chapter 5A of Title 31 as present Chapter 2 of Title 31.

CHAPTER 6 STATE HEALTH PLANNING AND DEVELOPMENT

Article 1 General Provisions.
Article 2 Organization.
Article 3 Certificate of Need Program.
Article 4 Reports.
Article 5 State Commission on the Efficacy of the Certificate of Need Program.
Cross references.

- Offering continuing care when resident purchases resident owned living unit, § 33-45-7.1.

Administration of mental health and developmental disabilities services generally, T. 37, C. 2.

Editor's notes.

- Ga. L. 1983, p. 1566, § 1, effective July 1, 1983, repealed the Code sections formerly codified at this chapter, also pertaining to state health planning and development, and enacted the current chapter. The former chapter consisted of Code Sections 31-6-1, 31-6-2, 31-6-20 through 31-6-28, and 31-6-40 through 31-6-51 and was based on Ga. L. 1978, p. 941, § 4; Ga. L. 1979, p. 1109, §§ 1-3; and Ga. L. 1982, p. 3, § 31.

Administrative Rules and Regulations.

- Administration, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Health Planning, Chapter 111-2-1.

Certificate of need, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Health Planning, Chapter 111-2-2.

Patient's right to independent review, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Health Planning, Chapter 111-2-3.

JUDICIAL DECISIONS

Enforcement of chapter.

- Prior to the 1983 reenactment, O.C.G.A. T. 31, Ch. 6, authorized a health planning agency to bring an action to enforce provisions of that chapter, but did not give standing to a competitor of a health service provider. Executive Comm. v. Metro Ambulance Servs., Inc., 250 Ga. 61, 296 S.E.2d 547 (1982).

RESEARCH REFERENCES

ALR.

- Regulation of practice of acupuncture, 17 A.L.R.4th 964.

ARTICLE 1 GENERAL PROVISIONS

RESEARCH REFERENCES

Denial of Hospital Staff Privileges, 1 POF2d 65.

Hospital's Failure to Supervise Private Physician Using Hospital Facilities, 6 POF2d 647.

Hospital Liability for Negligent Selection of Staff Physician, 14 POF3d 433.

Hospital Liability for Negligent Retention of Staff Physician, 15 POF3d 181.

Discrimination in Provision of Medical Services on Basis of Disability, 49 POF3d 1.

Liability of Physician for Improper Referral of Patients to a Medical Care Facility in which Physician has a Financial Interest, 61 POF3d 245.

Liability of Health Maintenance Organizations, 66 POF3d 1.

31-6-1. Declaration of policy.

The policy of this state and the purposes of this chapter are to ensure access to quality health care services and to ensure that health care services and facilities are developed in an orderly and economical manner and are made available to all citizens and that only those health care services found to be in the public interest shall be provided in this state. To achieve such public policy and purposes, it is essential that appropriate health planning activities be undertaken and implemented and that a system of mandatory review of new institutional health services be provided. Health care services and facilities should be provided in a manner that avoids unnecessary duplication of services, that is cost effective, that provides quality health care services, and that is compatible with the health care needs of the various areas and populations of the state.

(Code 1981, §31-6-1, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 2008, p. 12, § 1-1/SB 433.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, the second occurrence of "and" was deleted preceding "purposes, it is essential" in the second sentence.

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

Constitutionality.

- By the statute's plain terms, O.C.G.A. § 31-6-40(a)(7)(C) does not authorize monopolistic contracts relating to providers of new institutional health services and only requires that all such providers obtain a Certificate of Need (CON) before adding new services; thus, it did not implicate the Anti-Competitive Contracts Clause in any way as the requirement did not authorize contracts between service providers or anyone else that would encourage a monopoly. Women's Surgical Ctr., LLC v. Berry, 302 Ga. 349, 806 S.E.2d 606 (2017).

Statute serves legitimate legislative purpose.

- Georgia Supreme Court held the availability of quality health care services was certainly a legitimate legislative purpose and that the government objectives with respect to Georgia's certificate of need laws were indeed legitimate. Women's Surgical Ctr., LLC v. Berry, 302 Ga. 349, 806 S.E.2d 606 (2017).

Certificate of Need.

- 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).

Cited in St. Joseph's Hosp. v. Hospital Corp. of Am., 795 F.2d 948 (11th Cir. 1986); HCA Health Servs., Inc. v. Roach, 263 Ga. 798, 439 S.E.2d 494 (1994); Ga. Dep't of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003); Tanner Med. Ctr., Inc. v. Vest Newnan, LLC, 337 Ga. App. 884, 789 S.E.2d 258 (2016).

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, § 9.

31-6-2. Definitions.

As used in this chapter, the term:

  1. "Ambulatory surgical center or obstetrical facility" means a public or private facility, not a part of a hospital, which provides surgical or obstetrical treatment performed under general or regional anesthesia in an operating room environment to patients not requiring hospitalization.
  2. "Application" means a written request for a certificate of need made to the department, containing such documentation and information as the department may require.
  3. "Basic perinatal services" means providing basic inpatient care for pregnant women and newborns without complications; managing perinatal emergencies; consulting with and referring to specialty and subspecialty hospitals; identifying high-risk pregnancies; providing follow-up care for new mothers and infants; and providing public/community education on perinatal health.
  4. "Bed capacity" means space used exclusively for inpatient care, including space designed or remodeled for inpatient beds even though temporarily not used for such purposes. The number of beds to be counted in any patient room shall be the maximum number for which adequate square footage is provided as established by rules of the department, except that single beds in single rooms shall be counted even if the room contains inadequate square footage.
  5. "Board" means the Board of Community Health.
  6. "Certificate of need" means an official finding by the department, evidenced by certification issued pursuant to an application, that the action proposed in the application satisfies and complies with the criteria contained in this chapter and rules promulgated pursuant hereto.
  7. "Certificate of Need Appeal Panel" or "appeal panel" means the panel of independent hearing officers created pursuant to Code Section 31-6-44 to conduct appeal hearings.
  8. "Clinical health services" means diagnostic, treatment, or rehabilitative services provided in a health care facility and includes, but is not limited to, the following: radiology and diagnostic imaging, such as magnetic resonance imaging and positron emission tomography (PET); radiation therapy; biliary lithotripsy; surgery; intensive care; coronary care; pediatrics; gynecology; obstetrics; general medical care; medical-surgical care; inpatient nursing care, whether intermediate, skilled, or extended care; cardiac catheterization; open heart surgery; inpatient rehabilitation; and alcohol, drug abuse, and mental health services.
  9. "Commissioner" means the commissioner of community health.
  10. "Consumer" means a person who is not employed by any health care facility or provider and who has no financial or fiduciary interest in any health care facility or provider.
  11. Reserved.
  12. "Department" means the Department of Community Health established under Chapter 2 of this title.
  13. "Destination cancer hospital" means an institution with a licensed bed capacity of 50 or less which provides diagnostic, therapeutic, treatment, and rehabilitative care services to cancer inpatients and outpatients, by or under the supervision of physicians, and whose proposed annual patient base is composed of a minimum of 65 percent of patients who reside outside of the State of Georgia.
  14. "Develop," with reference to a project, means constructing, remodeling, installing, or proceeding with a project, or any part of a project, or a capital expenditure project, the cost estimate for which exceeds $10 million. Notwithstanding the provisions of this paragraph, the expenditure or commitment or incurring an obligation for the expenditure of funds to develop certificate of need applications, studies, reports, schematics, preliminary plans and specifications, or working drawings or to acquire, develop, or prepare sites shall not be considered to be the developing of a project.
  15. "Diagnostic imaging" means magnetic resonance imaging, computed tomography (CT) scanning, positron emission tomography (PET) scanning, positron emission tomography/computed tomography, and other advanced imaging services as defined by the department by rule, but such term shall not include X-rays, fluoroscopy, or ultrasound services.
  16. "Diagnostic, treatment, or rehabilitation center" means any professional or business undertaking, whether for profit or not for profit, which offers or proposes to offer any clinical health service in a setting which is not part of a hospital; provided, however, that any such diagnostic, treatment, or rehabilitation center that offers or proposes to offer surgery in an operating room environment and to allow patients to remain more than 23 hours shall be considered a hospital for purposes of this chapter.

    (16.1) "General cancer hospital" means an institution which was an existing and approved destination cancer hospital as of January 1, 2019; has obtained final certificate of need approval for conversion from a destination cancer hospital to a general cancer hospital in accordance with Code Section 31-6-40.3; and offers inpatient and outpatient diagnostic, therapeutic, treatment, and rehabilitative cancer care services or other services to diagnose or treat co-morbid medical conditions or diseases of cancer patients so long as such services do not result in the offering of any new or expanded clinical health service that would require a certificate of need under this chapter unless a certificate of need or letter of determination has been obtained for such new or expanded services.

  17. "Health care facility" means hospitals; destination cancer hospitals; other special care units, including but not limited to podiatric facilities; skilled nursing facilities; intermediate care facilities; personal care homes; ambulatory surgical centers or obstetrical facilities; freestanding emergency departments or facilities not located on a hospital's primary campus; health maintenance organizations; home health agencies; and diagnostic, treatment, or rehabilitation centers, but only to the extent paragraph (3) or (7), or both paragraphs (3) and (7), of subsection (a) of Code Section 31-6-40 are applicable thereto.
  18. "Health maintenance organization" means a public or private organization organized under the laws of this state which:
    1. Provides or otherwise makes available to enrolled participants health care services, including at least the following basic health care services: usual physicians' services, hospitalization, laboratory, X-ray, emergency and preventive services, and out-of-area coverage;
    2. Is compensated, except for copayments, for the provision of the basic health care services listed in subparagraph (A) of this paragraph to enrolled participants on a predetermined periodic rate basis; and
    3. Provides physicians' services primarily:
      1. Directly through physicians who are either employees or partners of such organization; or
      2. Through arrangements with individual physicians organized on a group practice or individual practice basis.
  19. "Health Strategies Council" or "council" means the body created by this chapter to advise the department.
  20. "Home health agency" means a public agency or private organization, or a subdivision of such an agency or organization, which is primarily engaged in providing to individuals who are under a written plan of care of a physician, on a visiting basis in the places of residence used as such individuals' homes, part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse, and one or more of the following services:
    1. Physical therapy;
    2. Occupational therapy;
    3. Speech therapy;
    4. Medical social services under the direction of a physician; or
    5. Part-time or intermittent services of a home health aide.
  21. "Hospital" means an institution which is primarily engaged in providing to inpatients, by or under the supervision of physicians, diagnostic services and therapeutic services for medical diagnosis, treatment, and care of injured, disabled, or sick persons or rehabilitation services for the rehabilitation of injured, disabled, or sick persons. Such term includes public, private, psychiatric, rehabilitative, geriatric, osteopathic, micro-hospitals, general cancer hospitals, and other specialty hospitals.
  22. "Intermediate care facility" means an institution which provides, on a regular basis, health related care and services to individuals who do not require the degree of care and treatment which a hospital or skilled nursing facility is designed to provide but who, because of their mental or physical condition, require health related care and services beyond the provision of room and board.
  23. "Joint venture ambulatory surgical center" means a freestanding ambulatory surgical center that is jointly owned by a hospital in the same county as the center or a hospital in acontiguous county if there is no hospital in the same county as the center and a single group of physicians practicing in the center and that provides surgery in a single specialty as defined by the department; provided, however, that general surgery, a group practice which includes one or more physiatrists who perform services that are reasonably related to the surgical procedures performed in the center, and a group practice in orthopedics which includes plastic hand surgeons with a certificate of added qualifications in Surgery of the Hand from the American Board of Plastic and Reconstructive Surgery shall be considered a single specialty. The ownership interest of the hospital shall be no less than 30 percent and the collective ownership of the physicians or group of physicians shall be no less than 30 percent.

    (23.1) "Life plan community" means an organization, whether operated for profit or not, whose owner or operator undertakes to provide shelter, food, and either nursing care or personal services, whether such nursing care or personal services are provided in the facility or in another setting, and other services, as designated by agreement, to an individual not related by consanguinity or affinity to such owner or operator providing such care pursuant to an agreement for a fixed or variable fee, or for any other remuneration of any type, whether fixed or variable, for the period of care, payable in a lump sum, lump sum and monthly maintenance charges or in installments. Agreements to provide continuing care include agreements to provide care for any duration, including agreements that are terminable by either party.

    (23.2) "Micro-hospital" means a hospital in a rural county which has at least two and not more than seven inpatient beds and which provides emergency services seven days per week and 24 hours per day.

  24. "New and emerging health care service" means a health care service or utilization of medical equipment which has been developed and has become acceptable or available for implementation or use but which has not yet been addressed under the rules and regulations promulgated by the department pursuant to this chapter.
  25. "Nonclinical health services" means services or functions provided or performed by a health care facility, and the parts of the physical plant where they are located in a health care facility that are not diagnostic, therapeutic, or rehabilitative services to patients and are not clinical health services defined in this chapter.
  26. "Offer" means that the health care facility is open for the acceptance of patients or performance of services and has qualified personnel, equipment, and supplies necessary to provide specified clinical health services.
  27. "Operating room environment" means an environment which meets the minimum physical plant and operational standards specified in the rules of the department which shall consider and use the design and construction specifications as set forth in the Guidelines for Design and Construction of Health Care Facilities published by the American Institute of Architects.
  28. "Pediatric cardiac catheterization" means the performance of angiographic, physiologic, and, as appropriate, therapeutic cardiac catheterization on children 14 years of age or younger.
  29. "Person" means any individual, trust or estate, partnership, limited liability company or partnership, corporation (including associations, joint-stock companies, and insurance companies), state, political subdivision, hospital authority, or instrumentality (including a municipal corporation) of a state as defined in the laws of this state. This term shall include all related parties, including individuals, business corporations, general partnerships, limited partnerships, limited liability companies, limited liability partnerships, joint ventures, nonprofit corporations, or any other for profit or not for profit entity that owns or controls, is owned or controlled by, or operates under common ownership or control with a person.
  30. "Personal care home" means a residential facility that is certified as a provider of medical assistance for Medicaid purposes pursuant to Article 7 of Chapter 4 of Title 49 having at least 25 beds and providing, for compensation, protective care and oversight of ambulatory, nonrelated persons who need a monitored environment but who do not have injuries or disabilities which require chronic or convalescent care, including medical, nursing, or intermediate care. Personal care homes include those facilities which monitor daily residents' functioning and location, have the capability for crisis intervention, and provide supervision in areas of nutrition, medication, and provision of transient medical care. Such term does not include:
    1. Old age residences which are devoted to independent living units with kitchen facilities in which residents have the option of preparing and serving some or all of their own meals; or
    2. Boarding facilities which do not provide personal care.

    (30.1) "Primary campus" means the building at which the majority of a hospital's or a remote location of a hospital's licensed and operational inpatient hospital beds are located, and includes the health care facilities of such hospital within 1,000 yards of such building. Any health care facility operated under a hospital's license prior to July 1, 2019, but not on the hospital's primary campus shall remain part of such hospital but shall not constitute such hospital's primary campus unless otherwise meeting the requirements of this paragraph.

  31. "Project" means a proposal to take an action for which a certificate of need is required under this chapter. A project or proposed project may refer to the proposal from its earliest planning stages up through the point at which the new institutional health service is offered.

    (31.1) "Remote location of a hospital" means a hospital facility or organization that is either created by, or acquired by, a hospital that is the main provider for the purpose of furnishing inpatient hospital services under the name, ownership, and financial and administrative control of the main provider.

  32. "Rural county" means a county having a population of less than 50,000 according to the United States decennial census of 2010 or any future such census.
  33. "Single specialty ambulatory surgical center" means an ambulatory surgical center where surgery is performed in the offices of an individual private physician or single group practice of private physicians if such surgery is performed in a facility that is owned, operated, and utilized by such physicians who also are of a single specialty; provided, however, that general surgery, a group practice which includes one or more physiatrists who perform services that are reasonably related to the surgical procedures performed in the center, and a group practice in orthopedics which includes plastic hand surgeons with a certificate of added qualifications in Surgery of the Hand from the American Board of Plastic and Reconstructive Surgery shall be considered a single specialty.
  34. "Skilled nursing facility" means a public or private institution or a distinct part of an institution which is primarily engaged in providing inpatient skilled nursing care and related services for patients who require medical or nursing care or rehabilitation services for the rehabilitation of injured, disabled, or sick persons.
  35. "Specialty hospital" means a hospital that is primarily or exclusively engaged in the care and treatment of one of the following: patients with a cardiac condition, patients with an orthopedic condition, patients receiving a surgical procedure, or patients receiving any other specialized category of services defined by the department. A "specialty hospital" does not include a destination cancer hospital or a general cancer hospital.
  36. "State health plan" means a comprehensive program based on recommendations by the Health Strategies Council and the board, approved by the Governor, and implemented by the State of Georgia for the purpose of providing adequate health care services and facilities throughout the state.
  37. "Uncompensated indigent or charity care" means the dollar amount of "net uncompensated indigent or charity care after direct and indirect (all) compensation" as defined by, and calculated in accordance with, the department's Hospital Financial Survey and related instructions.
  38. "Urban county" means a county having a population equal to or greater than 50,000 according to the United States decennial census of 2010 or any future such census.

(Code 1981, §31-6-2, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1984, p. 22, § 31; Ga. L. 1989, p. 1566, § 1; Ga. L. 1989, p. 1685, § 1; Ga. L. 1991, p. 94, § 31; Ga. L. 1991, p. 1871, §§ 1-5.1; Ga. L. 1991, p. 1880, § 1; Ga. L. 1999, p. 296, §§ 3, 4, 22; Ga. L. 2007, p. 173, § 2A/HB 429; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46; Ga. L. 2009, p. 453, § 1-8/HB 228; Ga. L. 2018, p. 132, § 4/HB 769; Ga. L. 2019, p. 148, § 1-1/HB 186; Ga. L. 2019, p. 945, § 1/HB 300.)

The 2018 amendment, effective July 1, 2018, inserted "micro-hospitals," near the end of paragraph (21); added paragraph (23.1); and substituted "50,000" for "35,000" and "2010" for "2000" in paragraphs (32) and (38).

The 2019 amendments. The first 2019 amendment, effective July 1, 2019, substituted "finding" for "determination" near the beginning of paragraph (6); in paragraph (8), deleted ", or parts of the physical plant where such services are located in a health care facility," following "health care facility" near the middle, inserted "(PET)", substituted "medical-surgical" for "medical/surgical" in the middle, and substituted "open heart" for "open-heart" near the end; substituted the present provisions of paragraph (14) for the former provisions, which read: " 'Develop,' with reference to a project, means:

"(A) Constructing, remodeling, installing, or proceeding with a project, or any part of a project, or a capital expenditure project, the cost estimate for which exceeds $2.5 million; or

"(B) The expenditure or commitment of funds exceeding $1 million for orders, purchases, leases, or acquisitions through other comparable arrangements of major medical equipment; provided, however, that this shall not include build-out costs, as defined by the department, but shall include all functionally related equipment, software, and any warranty and services contract costs for the first five years.

"Notwithstanding subparagraphs (A) and (B) of this paragraph, the expenditure or commitment or incurring an obligation for the expenditure of funds to develop certificate of need applications, studies, reports, schematics, preliminary plans and specifications, or working drawings or to acquire, develop, or prepare sites shall not be considered to be the developing of a project."; added paragraph (16.1); inserted "freestanding emergency departments or facilities not located on a hospital's primary campus;" in the middle of paragraph (17); inserted "general cancer hospitals," near the end of the last sentence of paragraph (21); added paragraphs (30.1) and (31.1); and added "or a general cancer hospital" at the end of the last sentence of paragraph (35). The second 2019 amendment, effective July 1, 2019, substituted "Reserved." for the former provisions of paragraph (11), which read: " 'Continuing care retirement community' means an organization, whether operated for profit or not, whose owner or operator undertakes to provide shelter, food, and either nursing care or personal services, whether such nursing care or personal services are provided in the facility or in another setting, and other services, as designated by agreement, to an individual not related by consanguinity or affinity to such owner or operator providing such care pursuant to an agreement for a fixed or variable fee, or for any other remuneration of any type, whether fixed or variable, for the period of care, payable in a lump sum or lump sum and monthly maintenance charges or in installments. Agreements to provide continuing care include agreements to provide care for any duration, including agreements that are terminable by either party."; added paragraph (23.1); and redesignated former paragraph (23.1) as present paragraph (23.2).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1990, a misspelling of the first occurrence of "services" in paragraph (15) was corrected.

Pursuant to Code Section 28-9-5, in 2008, in paragraph (17), a semicolon was deleted at the end, and, in paragraph (23), "a contiguous" was substituted for "an contiguous" in the first sentence.

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.

- Division of Health Planning granting a certificate of need was not arbitrary and capricious as the proposed new institutional health service was reasonably consistent with the relevant goals and objectives of the State Health Plan as set forth in Ga. Comp. R. & Regs. r. 272-2-.08(b)(1), and it did not err in interpreting the 12-month rule in O.C.G.A. § 31-6-2. Ga. Dep't of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003).

Ga. Comp. R. Regs. 111-2-2-.40, which provided that an ambulatory surgical center (ASC) that was part of a hospital was not subject to more stringent certificate of need (CON) specifications, was not unconstitutionally vague because it stated two clear examples of when an ASC was part of a hospital and provided that other situations would be considered under case-by-case review by the Department of Community Health. Ga. Dep't of Cmty. Health v. Northside Hosp., Inc., 295 Ga. 446, 761 S.E.2d 74 (2014).

Health care facility.

- Hospital could not decouple the hospital's Certificate of Need (CON) for a comprehensive in-patient rehabilitation (CIPR) program that was located in the hospital for hospital patients and transfer the program and the CON to a separately licensed rehabilitation facility without prior CON review and approval; the separate rehab facility was a "health care facility" and if the facility acquired the hospital's 16-bed CIPR program, then the rehab facility's CIPR program would expand from 56 beds to 72 beds. Dep't of Cmty. Health v. Emory Univ., 351 Ga. App. 257, 830 S.E.2d 628 (2019), cert. denied, 2020 Ga. LEXIS 157 (Ga. 2020).

Addition of beds to adult psychiatric facility required certificate of need.

- Trial court erred in denying the challenger's petition for review because the agency's final decision holding that the hospital was not required to obtain a Certificate of Need (CON) before the hospital increased the hospital's available beds was inconsistent with the plain language of O.C.G.A. § 31-6-40(a) and Ga. Comp. R. & Regs. 111-2-2-.26(a), which explicitly required CON prior to the expansion of an existing acute care adult psychiatric and/or substance abuse inpatient program. UHS of Anchor, L.P. v. Dep't of Cmty. Health, 351 Ga. App. 29, 830 S.E.2d 413 (2019).

Cited in Tift County Hosp. Auth. v. MRS of Tifton, Ga., Inc., 255 Ga. 164, 335 S.E.2d 546 (1985); St. Joseph's Hosp. v. Thunderbolt Health Care, Inc., 237 Ga. App. 454, 517 S.E.2d 334 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Effect to be given to rules of State Health Planning and Development Agency under former statutes.

- Those State Health Planning and Development Agency's rules in effect on June 30, 1983, which refer to the $150,000 threshold in former O.C.G.A. § 31-6-2, or do not distinguish between capital expenditures and equipment expenditures as set out in § 31-6-2(14)(B) and (F) are "inconsistent with this chapter" under O.C.G.A. § 31-6-49, but so as to effectuate the General Assembly's intent will be read together and harmonized with the controlling dollar amounts and classifications of the new law. 1983 Op. Att'y Gen. No. 83-34.

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, § 9.

31-6-3. "Medical use rights" defined; limitations.

  1. As used in this Code section, the term "medical use rights" means rights or interests in real property in which the owner of the property has agreed not to sell or lease such real property for identified medical uses or purposes.
  2. It shall be unlawful for any health care facility to purchase, renew, extend, lease, maintain, or hold medical use rights.
  3. This Code section shall not be construed to impair any contracts in existence as of July 1, 2019.

(Code 1981, §31-6-3, enacted by Ga. L. 2019, p. 148, § 1-2/HB 186.)

Effective date.

- This Code section became effective July 1, 2019.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2019, "July 1, 2019" was substituted for "the effective date of this Code section" at the end of subsection (c).

ARTICLE 2 ORGANIZATION

31-6-20. Health Strategies Council generally.

Reserved. Repealed by Ga. L. 2012, p. 1132, § 1/SB 407, effective July 1, 2012.

Editor's notes.

- This Code section was based on Code 1981, § 31-6-20, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1984, p. 22, § 31; Ga. L. 1990, p. 1903, § 7; Ga. L. 1991, p. 1880, §§ 2, 3; Ga. L. 1996, p. 6, § 31; Ga. L. 1999, p. 296, §§ 5, 22; Ga. L. 2005, p. 1036, § 24/SB 49; Ga. L. 2007, p. 173, § 2B/HB 429; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46.

31-6-21. Department of Community Health functions and powers.

  1. The Department of Community Health, established under Chapter 2 of this title, is authorized to administer the certificate of need program established under this chapter and, within the appropriations made available to the department by the General Assembly of Georgia and consistently with the laws of the State of Georgia, a state health plan adopted by the board. The department shall provide, by rule, for procedures to administer its functions until otherwise provided by the board.
  2. The functions of the department shall be:
    1. To conduct the health planning activities of the state and to implement those parts of the state health plan which relate to the government of the state;
    2. To prepare and revise a draft state health plan with recommendations from technical advisory committees;
    3. To seek advice, at its discretion, from technical advisory committees in the performance by the department of its functions pursuant to this chapter;
    4. To adopt, promulgate, and implement rules and regulations sufficient to administer the provisions of this chapter including the certificate of need program;
    5. To define, by rule, the form, content, schedules, and procedures for submission of applications for certificates of need, other determinations, and periodic reports;
    6. To establish time periods and procedures consistent with this chapter to hold hearings and to obtain the viewpoints of interested persons prior to issuance or denial of a certificate of need;
    7. To provide, by rule, for such fees as may be necessary to cover the costs of hearing officers, preparing the record for appeals before such hearing officers and the Certificate of Need Appeal Panel of the decisions of the department, and other related administrative costs, which costs may include reasonable sharing between the department and the parties to appeal hearings;
    8. To establish, by rule, need methodologies for new institutional health services and health care facilities. In developing such need methodologies, the department shall, at a minimum, consider the demographic characteristics of the population, the health status of the population, service use patterns, standards and trends, financial and geographic accessibility, and market economics. The department shall establish service-specific need methodologies and criteria for at least the following clinical health services: short stay hospital beds, adult therapeutic cardiac catheterization, adult open heart surgery, pediatric cardiac catheterization and open heart surgery, Level II and III perinatal services, freestanding birthing centers, psychiatric and substance abuse inpatient programs, skilled nursing and intermediate care facilities, home health agencies, and life plan community sheltered facilities;
    9. To provide, by rule, for a reasonable and equitable fee schedule for certificate of need applications; provided, however, that a certificate of need application filed by or on behalf of a hospital in a rural county shall be exempt from any such fee;
    10. To grant, deny, or revoke a certificate of need as applied for or as amended;
    11. To perform powers and functions delegated by the Governor, which delegation may include the powers to carry out the duties and powers which have been delegated to the department under Section 1122 of the federal Social Security Act of 1935, as amended; and
    12. Study the amount of uncompensated indigent and charity care provided by each type of health care facility, recommend requirements for the levels of uncompensated indigent and charity care required to be performed by each health care facility type and develop standardized reporting requirements for the department to accurately track the amount of uncompensated indigent and charity care provided by each health care facility.
  3. The commissioner shall have the power to establish and abolish technical advisory committees as he or she deems necessary, in consultation with the board, to inform effective strategy development and execution.

(Code 1981, §31-6-21, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1984, p. 22, § 31; Ga. L. 1985, p. 829, § 1; Ga. L. 1992, p. 6, § 31; Ga. L. 1994, p. 684, § 1; Ga. L. 1999, p. 296, §§ 6, 22; Ga. L. 2007, p. 173, § 2C/HB 429; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46; Ga. L. 2009, p. 453, § 1-8/HB 228; Ga. L. 2019, p. 148, § 1-3/HB 186; Ga. L. 2019, p. 945, § 2/HB 300.)

The 2019 amendments. The first 2019 amendment, effective July 1, 2019, added "with recommendations from technical advisory committees" at the end of paragraph (b)(2); substituted "technical advisory committees" for "the Health Strategies Council" in paragraph (b)(3); inserted ", other determinations," in paragraph (b)(5); inserted "care" near the end of the first sentence of paragraph (b)(8); added the proviso at the end of paragraph (b)(9); deleted "and" at the end of paragraph (b)(10); substituted "; and" for a period at the end of paragraph (b)(11); and added paragraph (b)(12) and subsection (c). The second 2019 amendment, effective July 1, 2019, substituted "life plan" for "continuing care retirement" near the end of the last sentence of paragraph (b)(8).

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.

U.S. Code.

- Section 1122 of the federal Social Security Act of 1935, as amended, referred to in paragraph (11), is codified as 42 U.S.C. § 1320a-1.

JUDICIAL DECISIONS

Criteria used by Review Board.

- Review Board could use not only the considerations listed in O.C.G.A. § 31-6-42, but also Health Planning Agency standards and criteria interpreting those standards, to make a decision in the case before the board. North Fulton Community Hosp. v. State Health Planning & Dev. Agency, 168 Ga. App. 801, 310 S.E.2d 764 (1983).

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).

Interpretation of statute exceeded department's authority.

- Department of Community Health's (DCH) decision to treat a hospital's comprehensive in-patient rehabilitation (CIPR) program as a healthcare facility that was being relocated under O.C.G.A. § 31-6-47(a)(24) violated the certificate of need statute and therefore exceeded DCH's authority under O.C.G.A. § 31-6-21. Dep't of Cmty. Health v. Emory Univ., 351 Ga. App. 257, 830 S.E.2d 628 (2019), cert. denied, 2020 Ga. LEXIS 157 (Ga. 2020).

Rule 272-2-.09(13) construed.

- Cardiac Surgery Rule, Rule 272-2-.09(13), promulgated pursuant to O.C.G.A. § 31-6-21, does not place a two-year moratorium on applications for adult cardiac surgery services and pediatric cardiac catheterization and surgical services, but merely requires that the applicant show need. Chatham County Hosp. Auth. & Mem. Medical Center, Inc. v. St. Joseph's Hosp., 178 Ga. App. 628, 344 S.E.2d 463 (1986).

Addition of beds to adult psychiatric facility required certificate of need.

- Trial court erred in denying the challenger's petition for review because the agency's final decision holding that the hospital was not required to obtain a Certificate of Need (CON) before the hopsital increased the hospital's available beds was inconsistent with the plain language of O.C.G.A. § 31-6-40(a) and Ga. Comp. R. & Regs. 111-2-2-.26(a), which explicitly required CON prior to the expansion of an existing acute care adult psychiatric and/or substance abuse inpatient program. UHS of Anchor, L.P. v. Dep't of Cmty. Health, 351 Ga. App. 29, 830 S.E.2d 413 (2019).

Cited in Ga. Dep't of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003).

31-6-21.1. Procedures for rule making by Department of Community Health.

  1. Rules of the department shall be adopted, promulgated, and implemented as provided in this Code section and in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," except that the department shall not be required to comply with subsections (c) through (g) of Code Section 50-13-4.
  2. The department shall transmit three copies of the notice provided for in paragraph (1) of subsection (a) of Code Section 50-13-4 to the legislative counsel. The copies shall be transmitted at least 30 days prior to that department's intended action. Within five days after receipt of the copies, if possible, the legislative counsel shall furnish the presiding officer of each house with a copy of the notice and mail a copy of the notice to each member of the Health and Human Services Committee of the Senate and each member of the Health and Human Services Committee of the House of Representatives. Each such rule and any part thereof shall be subject to the making of an objection by either such committee within 30 days of transmission of the rule to the members of such committee. Any rule or part thereof to which no objection is made by both such committees may become adopted by the department at the end of such 30 day period. The department may not adopt any such rule or part thereof which has been changed since having been submitted to those committees unless:
    1. That change is to correct only typographical errors;
    2. That change is approved in writing by both committees and that approval expressly exempts that change from being subject to the public notice and hearing requirements of subsection (a) of Code Section 50-13-4;
    3. That change is approved in writing by both committees and is again subject to the public notice and hearing requirements of subsection (a) of Code Section 50-13-4; or
    4. That change is again subject to the public notice and hearing requirements of subsection (a) of Code Section 50-13-4 and the change is submitted and again subject to committee objection as provided in this subsection.

      Nothing in this subsection shall prohibit the department from adopting any rule or part thereof without adopting all of the rules submitted to the committees if the rule or part so adopted has not been changed since having been submitted to the committees and objection thereto was not made by both committees.

  3. Any rule or part thereof to which an objection is made by both committees within the 30 day objection period under subsection (b) of this Code section shall not be adopted by the department and shall be invalid if so adopted. A rule or part thereof thus prohibited from being adopted shall be deemed to have been withdrawn by the department unless the department, within the first 15 days of the next regular session of the General Assembly, transmits written notification to each member of the objecting committees that the department does not intend to withdraw that rule or part thereof but intends to adopt the specified rule or part effective the day following adjournment sine die of that regular session. A resolution objecting to such intended adoption may be introduced in either branch of the General Assembly after the fifteenth day but before the thirtieth day of the session in which occurs the notification of intent not to withdraw a rule or part thereof. In the event the resolution is adopted by the branch of the General Assembly in which the resolution was introduced, it shall be immediately transmitted to the other branch of the General Assembly. It shall be the duty of the presiding officer of the other branch to have that branch, within five days after receipt of the resolution, consider the resolution for purposes of objecting to the intended adoption of the rule or part thereof. Upon such resolution being adopted by two-thirds of the vote of each branch of the General Assembly, the rule or part thereof objected to in that resolution shall be disapproved and not adopted by the department. If the resolution is adopted by a majority but by less than two-thirds of the vote of each such branch, the resolution shall be submitted to the Governor for his or her approval or veto. In the event of a veto, or if no resolution is introduced objecting to the rule, or if the resolution introduced is not approved by at least a majority of the vote of each such branch, the rule shall automatically become adopted the day following adjournment sine die of that regular session. In the event of the Governor's approval of the resolution, the rule shall be disapproved and not adopted by the department.
  4. Any rule or part thereof which is objected to by only one committee under subsection (b) of this Code section and which is adopted by the department may be considered by the branch of the General Assembly whose committee objected to its adoption by the introduction of a resolution for the purpose of overriding the rule at any time within the first 30 days of the next regular session of the General Assembly. It shall be the duty of the department in adopting a proposed rule over such objection so to notify the chairpersons of the Health and Human Services Committee of the Senate and the Health and Human Services Committee of the House within ten days after the adoption of the rule. In the event the resolution is adopted by such branch of the General Assembly, it shall be immediately transmitted to the other branch of the General Assembly. It shall be the duty of the presiding officer of the other branch of the General Assembly to have such branch, within five days after the receipt of the resolution, consider the resolution for the purpose of overriding the rule. In the event the resolution is adopted by two-thirds of the votes of each branch of the General Assembly, the rule shall be void on the day after the adoption of the resolution by the second branch of the General Assembly. In the event the resolution is ratified by a majority but by less than two-thirds of the votes of either branch, the resolution shall be submitted to the Governor for his or her approval or veto. In the event of a veto, the rule shall remain in effect. In the event of the Governor's approval, the rule shall be void on the day after the date of approval.
  5. Except for emergency rules, no rule or part thereof adopted by the department after April 3, 1985, shall be valid unless adopted in compliance with subsections (b), (c), and (d) of this Code section and subsection (a) of Code Section 50-13-4.
  6. Emergency rules shall not be subject to the requirements of subsection (b), (c), or (d) of this Code section but shall be subject to the requirements of subsection (b) of Code Section 50-13-4. Upon the first expiration of any department emergency rules, where those emergency rules are intended to cover matters which had been dealt with by the department's nonemergency rules but such nonemergency rules have been objected to by both legislative committees under this Code section, the emergency rules concerning those matters may not again be adopted except for one 120 day period. No emergency rule or part thereof which is adopted by the department shall be valid unless adopted in compliance with this subsection.
  7. Any proceeding to contest any rule on the ground of noncompliance with this Code section must be commenced within two years from the effective date of the rule.
  8. For purposes of this Code section, "rules" shall mean rules and regulations.
  9. The state health plan or the rules establishing considerations, standards, or similar criteria for the grant or denial of a certificate of need pursuant to Code Section 31-6-42 shall not apply to any application for a certificate of need as to which, prior to the effective date of such plan or rules, respectively, the evidence has been closed following a full evidentiary hearing before a hearing officer.
  10. This Code section shall apply only to rules adopted pursuant to this chapter.

(Code 1981, §31-6-21.1, enacted by Ga. L. 1985, p. 829, § 2; Ga. L. 1986, p. 148, § 1; Ga. L. 1992, p. 6, § 31; Ga. L. 1994, p. 684, § 2; Ga. L. 1999, p. 296, § 22; Ga. L. 2005, p. 48, § 1/HB 309; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 453, § 1-23/HB 228.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1985, "April 3, 1985" was substituted for "this Code section becomes effective" in subsection (e).

Pursuant to Code Section 28-9-5, in 1986, a comma was inserted following "1985" in subsection (e).

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.

Law reviews.

- For annual survey of administrative law, see 57 Mercer L. Rev. 1 (2005). For article, "The Status of Administrative Agencies under the Georgia Constitution," see 40 Ga. L. Rev. 1109 (2006).

JUDICIAL DECISIONS

Definition of "part of a hospital" not unconstitutionally vague.

- Ga. Comp. R. Regs. 111-2-2-.40, which provided that an ambulatory surgical center (ASC) that was part of a hospital was not subject to more stringent certificate of need (CON) specifications, was not unconstitutionally vague because it stated two clear examples of when an ASC was part of a hospital and provided that other situations would be considered under a case-by-case review by the Department of Community Health. Ga. Dep't of Cmty. Health v. Northside Hosp., Inc., 295 Ga. 446, 761 S.E.2d 74 (2014).

Promulgation of executive branch rules and legislative oversight thereof.

- O.C.G.A. § 31-6-21.1 does not violate the separation of powers doctrine simply because the statute enables the Department of Community Health to promulgate and adopt regulations pursuant to a delegated power; the statute does not invest the legislature with executive power, nor does the statute invest the executive with legislative power. Nor could it be said that the statute runs afoul of enactment, bicameralism, and presentment provisions, as the statute allows for the adoption of rules consistent with legislation, but it does not enable the department to make laws. Albany Surgical, P.C. v. Ga. Dep't of Cmty. Health, 278 Ga. 366, 602 S.E.2d 648 (2004).

Cited in Ga. Dep't of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003).

31-6-22. Commissioner of department.

Repealed by Ga. L. 2008, p. 12, § 1-1/SB 433, effective July 1, 2008.

Editor's notes.

- This Code section was based on Code 1981, § 31-6-22, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1999, p. 296, § 7.

ARTICLE 3 CERTIFICATE OF NEED PROGRAM

Law reviews.

- For article, "Contracting to Preserve Open Science: Consideration-Based Regulation in Patent Law," see 58 Emory L.J. 889 (2009).

31-6-40. (See Editor's notes.) Certificate of need required for new institutional health services; exemption.

  1. On and after July 1, 2008, any new institutional health service shall be required to obtain a certificate of need pursuant to this chapter. New institutional health services include:
    1. The construction, development, or other establishment of a new, expanded, or relocated health care facility, except as otherwise provided in Code Section 31-6-47;
    2. Any expenditure by or on behalf of a health care facility in excess of $10 million which, under generally accepted accounting principles consistently applied, is a capital expenditure, except expenditures for acquisition of an existing health care facility. The dollar amounts specified in this paragraph and in paragraph (14) of Code Section 31-6-2 shall be adjusted annually by an amount calculated by multiplying such dollar amounts (as adjusted for the preceding year) by the annual percentage of change in the composite index of construction material prices, or its successor or appropriate replacement index, if any, published by the United States Department of Commerce for the preceding calendar year, commencing on July 1, 2019, and on each anniversary thereafter of publication of the index. The department shall immediately institute rule-making procedures to adopt such adjusted dollar amounts. In calculating the dollar amounts of a proposed project for purposes of this paragraph and paragraph (14) of Code Section 31-6-2, the costs of all items subject to review by this chapter and items not subject to review by this chapter associated with and simultaneously developed or proposed with the project shall be counted, except for the expenditure or commitment of or incurring an obligation for the expenditure of funds to develop certificate of need applications, studies, reports, schematics, preliminary plans and specifications or working drawings, or to acquire sites;
    3. The purchase or lease by or on behalf of a health care facility or a diagnostic, treatment, or rehabilitation center of diagnostic or therapeutic equipment, except as otherwise provided in Code Section 31-6-47;
    4. Any increase in the bed capacity of a health care facility except as provided in Code Section 31-6-47;
    5. Clinical health services which are offered in or through a health care facility, which were not offered on a regular basis in or through such health care facility within the 12 month period prior to the time such services would be offered;
    6. Any conversion or upgrading of any general acute care hospital to a specialty hospital or of a facility such that it is converted from a type of facility not covered by this chapter to any of the types of health care facilities which are covered by this chapter;
    7. Clinical health services which are offered in or through a diagnostic, treatment, or rehabilitation center which were not offered on a regular basis in or through that center within the 12 month period prior to the time such services would be offered, but only if the clinical health services are any of the following:
      1. Radiation therapy;
      2. Biliary lithotripsy;
      3. Surgery in an operating room environment, including but not limited to ambulatory surgery; and
      4. Cardiac catheterization; and
    8. The conversion of a destination cancer hospital to a general cancer hospital.
  2. Any person proposing to develop or offer a new institutional health service or health care facility shall, before commencing such activity, submit a letter of intent and an application to the department and obtain a certificate of need in the manner provided in this chapter unless such activity is excluded from the scope of this chapter.
    1. Any person who had a valid exemption granted or approved by the former Health Planning Agency or the department prior to July 1, 2008, shall not be required to obtain a certificate of need in order to continue to offer those previously offered services.
    2. Any facility offering ambulatory surgery pursuant to the exclusion designated on June 30, 2008, as division (14)(G)(iii) of Code Section 31-6-2; any diagnostic, treatment, or rehabilitation center offering diagnostic imaging or other imaging services in operation and exempt prior to July 1, 2008; or any facility operating pursuant to a letter of nonreviewability and offering diagnostic imaging services prior to July 1, 2008, shall:
      1. Provide annual reports in the same manner and in accordance with Code Section 31-6-70; and
        1. Provide care to Medicaid beneficiaries and, if the facility provides medical care and treatment to children, to PeachCare for Kids beneficiaries and provide uncompensated indigent and charity care in an amount equal to or greater than 2 percent of its adjusted gross revenue; or
        2. If the facility is not a participant in Medicaid or the PeachCare for Kids Program, provide uncompensated care for Medicaid beneficiaries and, if the facility provides medical care and treatment to children, for PeachCare for Kids beneficiaries, uncompensated indigent and charity care, or both in an amount equal to or greater than 4 percent of its adjusted gross revenue if it:
      2. Makes a capital expenditure associated with the construction, development, expansion, or other establishment of a clinical health service or the acquisition or replacement of diagnostic or therapeutic equipment with a value in excess of $800,000.00 over a two-year period;
      3. Builds a new operating room; or
      4. Chooses to relocate in accordance with Code Section 31-6-47.

        Noncompliance with any condition of this paragraph shall result in a monetary penalty in the amount of the difference between the services which the center is required to provide and the amount actually provided and may be subject to revocation of its exemption status by the department for repeated failure to pay any fees or moneys due to the department or for repeated failure to produce data as required by Code Section 31-6-70 after notice to the exemption holder and a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The dollar amount specified in this paragraph shall be adjusted annually by an amount calculated by multiplying such dollar amount (as adjusted for the preceding year) by the annual percentage of change in the consumer price index, or its successor or appropriate replacement index, if any, published by the United States Department of Labor for the preceding calendar year, commencing on July 1, 2009. In calculating the dollar amounts of a proposed project for the purposes of this paragraph, the costs of all items subject to review by this chapter and items not subject to review by this chapter associated with and simultaneously developed or proposed with the project shall be counted, except for the expenditure or commitment of or incurring an obligation for the expenditure of funds to develop certificate of need applications, studies, reports, schematics, preliminary plans and specifications or working drawings, or to acquire sites. Subparagraph (B) of this paragraph shall not apply to facilities offering ophthalmic ambulatory surgery pursuant to the exclusion designated on June 30, 2008, as division (14)(G)(iii) of Code Section 31-6-2 that are owned by physicians in the practice of ophthalmology.

  3. A certificate of need issued to a destination cancer hospital shall authorize the beds and all new institutional health services of such destination cancer hospital. As used in this subsection, the term "new institutional health service" shall have the same meaning provided for in subsection (a) of this Code section. A certificate of need shall only be issued to a destination cancer hospital that locates itself and all affiliated facilities within 25 miles of a commercial airport in this state with five or more runways. Such destination cancer hospital shall not be required to apply for or obtain additional certificates of need for new institutional health services related to the treatment of cancer patients, and such new institutional health services related to the treatment of cancer patients offered by the destination cancer hospital shall not be reviewed under any service-specific need methodology or rules except for those promulgated by the department for destination cancer hospitals. After commencing operations, in order to add an additional new institutional health service, a destination cancer hospital shall apply for and obtain an additional certificate of need under the applicable statutory provisions and any rules promulgated by the department for destination cancer hospitals, and such applications shall only be granted if the patient base of such destination cancer hospital is composed of at least 65 percent of out-of-state patients for two consecutive years. The department may apply rules for a destination cancer hospital only for those services that the department determines are to be used by the destination cancer hospital in connection with the treatment of cancer. In no case shall destination cancer hospital specific rules be used in the case of an application for open heart surgery, perinatal services, cardiac catheterization, and other services deemed by the department to be not reasonably related to the diagnosis and treatment of cancer; provided, however, that the department shall apply the destination cancer hospital specific rules if a destination cancer hospital applies for services and equipment required for it to meet federal or state laws applicable to a hospital. If such destination cancer hospital cannot show a patient base of a minimum of 65 percent from outside of this state, then its application for any new institutional health service shall be evaluated under the specific statutes and rules applicable to that particular service. If such destination cancer hospital applies for a certificate of need to add an additional new institutional health service before commencing operations or completing two consecutive years of operation, such applicant may rely on historical data from its affiliated entities, as set forth in paragraph (2) of subsection (b.1) of Code Section 31-6-42. Because destination cancer hospitals provide services primarily to out-of-state residents, the number of beds, services, and equipment destination cancer hospitals use shall not be counted as part of the department's inventory when determining the need for those items by other providers. No person shall be issued more than one certificate of need for a destination cancer hospital. Nothing in this Code section shall in any way require a destination cancer hospital to obtain a certificate of need for any purpose that is otherwise exempt from the certificate of need requirement. Beginning January 1, 2010, the department shall not accept any application for a certificate of need for a new destination cancer hospital; provided, however, all other provisions regarding the upgrading, replacing, or purchasing of diagnostic or therapeutic equipment shall be applicable to an existing destination cancer hospital.
  4. The commissioner shall be authorized, with the approval of the board, to place a temporary moratorium of up to six months on the issuance of certificates of need for new and emerging health care services. Any such moratorium placed shall be for the purpose of promulgating rules and regulations regarding such new and emerging health care services. A moratorium may be extended one time for an additional three months if circumstances warrant, as approved by the board. In the event that final rules and regulations are not promulgated within the time period allowed by the moratorium, any applications received by the department for a new and emerging health care service shall be reviewed under existing general statutes and regulations relating to certificates of need.

(Code 1981, §31-6-40, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1991, p. 1871, § 6; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46; Ga. L. 2019, p. 148, § 1-4/HB 186.)

The 2019 amendment, effective July 1, 2019, rewrote subsection (a); deleted former subparagraph (c)(2)(A), which read: "Provide notice to the department of the name, ownership, location, single specialty, and services provided in the exempt facility;"; substituted "(A) Provide" for "(B) Beginning on January 1, 2009, provide"; redesignated former subparagraph (c)(2)(C) as present subparagraph (c)(2)(B); and substituted "Subparagraph (B)" for "Subparagraph (C)" at the beginning of the last sentence of the undesignated paragraph of subparagraph (c)(2)(B).

Cross references.

- Licensed hospice exempt from certificate of need requirement, § 31-7-179.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, "a" was deleted following "no case shall" in the seventh sentence of subsection (d).

Editor's notes.

- By resolution (Ga. L. 1990, p. 970), the General Assembly directed the State Health Planning Agency to make certain studies and reports and to update its rules and regulations.

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.

For application of this statute in 2020, see Executive Order 03.20.20.02.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

Law reviews.

- 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

Constitutionality.

- By the statute's plain terms, O.C.G.A. § 31-6-40(a)(7)(C) does not authorize monopolistic contracts relating to providers of new institutional health services and only requires that all such providers obtain a Certificate of Need (CON) before adding new services; thus, it did not implicate the Anti-Competitive Contracts Clause in any way as the requirement did not authorize contracts between service providers or anyone else that would encourage a monopoly. Women's Surgical Ctr., LLC v. Berry, 302 Ga. 349, 806 S.E.2d 606 (2017).

Venue of action.

- Trial court did not err in the court's denial of the motion to transfer venue in a case involving an application for a Certificate of Need (CON) because the company began the process of purchasing property and applied for a CON to develop a psychiatric hospital in Coweta County, Georgia; therefore, the company engaged in business activities such that venue was proper there. Tanner Med. Ctr., Inc. v. Vest Newnan, LLC, 337 Ga. App. 884, 789 S.E.2d 258 (2016).

Health care legitimate legislative concern.

- Georgia Supreme Court held the availability of quality health care services was certainly a legitimate legislative purpose and that the government objectives with respect to Georgia's certificate of need laws were indeed legitimate. Women's Surgical Ctr., LLC v. Berry, 302 Ga. 349, 806 S.E.2d 606 (2017).

Relocation of facility.

- Nothing in O.C.G.A. § 31-6-40, or in rules of the State Health Planning Agency, gave the State Health Planning Agency (now Department of Community Health) authority to exempt a facility from Certificate of Need requirements if the facility was relocated. HCA Health Servs., Inc. v. Roach, 263 Ga. 798, 439 S.E.2d 494 (1994).

State Health Planning Agency (now Department of Community Health) did not have discretion to exempt a health care provider from review procedures established by the certificate of need program. North Fulton Medical Ctr. v. Roach, 263 Ga. 814, 440 S.E.2d 18 (1994).

Relocation rule invalid.

- Relocation rule under which the State Health Planning Agency (now Department of Community Health) issued a certificate of need to a facility more than two years after it had already relocated to a new site and commenced operation was in direct conflict with the requirement that both new and relocating facilities first must obtain a certificate of need before commencing operations. North Fulton Medical Ctr., Inc. v. Stephenson, 269 Ga. 540, 501 S.E.2d 798 (1998).

Determination of agency to "grandfather" facility.

- State Health Planning Agency (now Department of Community Health) did not have discretion to determine whether to "grandfather" a particular health care facility; rather, the agency is simply authorized to determine whether the facility may be grandfathered as one which existed and performed the same services prior to the Certificate of Need program in 1979. HCA Health Servs., Inc. v. Roach, 263 Ga. 798, 439 S.E.2d 494 (1994).

Mobile cardiac catherization unit which was "grandfathered" and exempt from obtaining a certificate of need when the unit began operating was required to obtain a certificate of need when the unit was relocated. Phoebe Putney Mem. Hosp. v. Roach, 267 Ga. 619, 480 S.E.2d 595 (1997).

"Offered in a hospital."

- Trial court erred in determining that the Georgia Department of Community Health's interpretation of the phrase "offered in a hospital" violated the equipment threshold provision in O.C.G.A. § 31-6-40. Medical Ctr. of Cent. Ga. v. Hosp. Auth., 340 Ga. App. 499, 798 S.E.2d 42 (2017).

Conversion of hospital beds into skilled nursing beds.

- Certificate of need was properly granted to a hospital for an 11 bed nursing facility, which would be created by converting 13 general acute care hospital beds into 11 skilled nursing beds, notwithstanding the contention of a nursing home that the nursing home should have received the certificate of need. St. Joseph's Hosp. v. Thunderbolt Health Care, Inc., 237 Ga. App. 454, 517 S.E.2d 334 (1999).

Expansion of rehab facility required certificate of need.

- Hospital could not decouple the hospital's Certificate of Need (CON) for a comprehensive in-patient rehabilitation (CIPR) program that was located in the hospital for hospital patients and transfer the program and the CON to a separately licensed rehabilitation facility without prior CON review and approval; the separate rehab facility was a "health care facility" and if the facility acquired the hospital's 16-bed CIPR program, then the rehab facility's CIPR program would expand from 56 beds to 72 beds. Dep't of Cmty. Health v. Emory Univ., 351 Ga. App. 257, 830 S.E.2d 628 (2019), cert. denied, 2020 Ga. LEXIS 157 (Ga. 2020).

Addition of beds to adult psychiatric facility required certificate of need.

- Trial court erred in denying the challenger's petition for review because the agency's final decision holding that the hospital was not required to obtain a Certificate of Need (CON) before the hopsital increased the hospital's available beds was inconsistent with the plain language of O.C.G.A. § 31-6-40(a) and Ga. Comp. R. & Regs. 111-2-2-.26(a), which explicitly required CON prior to the expansion of an existing acute care adult psychiatric and/or substance abuse inpatient program. UHS of Anchor, L.P. v. Dep't of Cmty. Health, 351 Ga. App. 29, 830 S.E.2d 413 (2019).

Application to Open Records Act.

- Procedures set forth in O.C.G.A. T. 31, Ch. 6, Art. 3, for consideration of a certificate of need by the Health Planning Agency (now Department of Community Health), and appeal to the Health Planning Review Board (now Certificate of Need Appeal Panel), establish administrative proceedings within the meaning of O.C.G.A. § 50-18-70. Clayton County Hosp. Auth. v. Webb, 208 Ga. App. 91, 430 S.E.2d 89 (1993).

Exhaustion of administrative remedies.

- Court of appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19(a), in the society's action seeking to prevent the Georgia Department of Community Health and its Commissioner from requiring its members to respond to certain disputed requests in an annual survey because the futility exception to the exhaustion requirement was inapplicable; the Commissioner's position in the lawsuit did not establish futility because actions taken to defend a lawsuit could not establish futility. Ga. Dep't of Cmty. Health v. Ga. Soc'y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012).

Court of appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19(a), in the society's action seeking to prevent the Georgia Department of Community Health (DCH) and its Commissioner from requiring its members to respond to certain disputed requests in an annual survey because the "acting outside statutory authority" exception to the exhaustion requirement did not apply; the society did not allege that DCH was acting wholly outside DCH's jurisdiction under O.C.G.A. § 31-6-70 to conduct surveys, but instead, the society claimed that the manner in which the survey was being conducted did not fully comply with the procedural requirements of the statute. Ga. Dep't of Cmty. Health v. Ga. Soc'y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012).

Because the Georgia Society of Ambulatory Surgical Centers represented the interests of members that had adequate administrative remedies, and those members had not exhausted those remedies, the trial court was required to dismiss its case alleging that an annual survey the Georgia Department of Community Health (DCH) issued to ambulatory surgery centers (ASC) sought information beyond the scope of O.C.G.A. § 31-6-70. Furthermore, the procedures set forth in the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19 and O.C.G.A. §§ 31-6-40(c), and31-6-47(a)(18), and Ga. Comp. R. & Regs. 111-2-2-.05(2)(e) were available to ACSs before DCH took any final adverse action against them for failing to provide the required survey information, the procedures afforded adequate administrative remedies to aggrieved ACSs. Ga. Soc'y of Ambulatory Surgery Ctrs. v. Ga. Dep't of Cmty. Health, 316 Ga. App. 433, 729 S.E.2d 565 (2012).

Certificate of need properly granted.

- Division of Health Planning (now Department of Community Health) granting a certificate of need was not arbitrary and capricious as the proposed new institutional health service was reasonably consistent with the relevant goals and objectives of the State Health Plan as set forth in Ga. Comp. R. & Regs. r. 272-2-.08(b)(1), and it did not err in interpreting the 12-month rule in O.C.G.A. § 31-6-2. Ga. Dep't of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003).

Trial court erred in reversing the grant of a certificate of need on the ground that the applicant was attempting to circumvent a cease-and-desist order issued to a corporation owned by the same individual as the applicant; by seeking the certificate of need, the applicant was not doing anything that the law did not allow, the Department of Community Health held an extensive evidentiary hearing before granting the application, and the trial court improperly disregarded the corporate forms of the corporation and the applicant based on the fact that they were owned by the same individual. Global Diagnostic Dev., LLC v. Diagnostic Imaging of Atlanta, 284 Ga. App. 66, 643 S.E.2d 338 (2007).

Because the hearing officer's factual findings and conclusions of law were consistent with an application of the atypical barrier exception to remedy a barrier to services faced by an identified group of patients, and not to award a certificate of need (CON) simply for the purpose of making it more convenient for patients, the plaintiff did not show that the defendant in the defendant's final order violated Ga. Comp. R. & Regs. 111-2-2-.42(3)(b)4, the Certificate of Need Act, or the Hughston Surgical criteria. Kennestone Hosp. v. Dep't of Cmty. Health, 346 Ga. App. 70, 815 S.E.2d 266 (2018).

Substantial evidence supported the Department of Community Health's (Department) finding of a need for the proposed hospital based on rising population, general growth in the area, and increased emergency room usage at other hospitals and, thus, the Department was authorized to conclude that the appellee's certificate of need application met the general need requirements for a new short-stay hospital. Doctors Hosp. of Augusta, LLC v. Dep't of Cmty. Health, 350 Ga. App. 36, 827 S.E.2d 725 (2019).

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).

Cited in Ga. Oilmen's Ass'n v. Ga. Dep't of Revenue, 261 Ga. App. 393, 582 S.E.2d 549 (2003); Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Increase of ten beds or ten percent of bed capacity requires certificate when new service created.

- Though an increase of the lesser of ten beds or ten percent of bed capacity would be excluded from review generally under O.C.G.A. § 31-6-47(a)(15), it is likely that such increases would require a certificate of need if the new beds were used to create new institutional health services. 1983 Op. Att'y Gen. No. 83-34.

Hospital authority may apply for certificate of need outside its area of operation and without the permission of the affected governing authority or hospital authority board in the planned service area; provided, however, that in order to implement the certificate, permission to pursue the health care activity would be required. 1995 Op. Att'y Gen. No. 95-13.

RESEARCH REFERENCES

Am. Jur. 2d.

- 40A Am. Jur. 2d, Hospitals and Asylums, §§ 5, 6.

31-6-40.1. Acquisition of health care facilities; penalty for failure to notify department; limitation on applications; agreement to care for indigent patients; requirements for destination cancer hospitals; notice and hearing provisions for penalties authorized.

  1. Any person who acquires a health care facility by stock or asset purchase, merger, consolidation, or other lawful means shall notify the department of such acquisition, the date thereof, and the name and address of the acquiring person. Such notification shall be made in writing to the department within 45 days following the acquisition and the acquiring person may be fined by the department in the amount of $500.00 for each day that such notification is late. Such fine shall be paid into the state treasury.
  2. The department may limit the time periods during which it will accept applications for the following health care facilities:
    1. Skilled nursing facilities;
    2. Intermediate care facilities; and
    3. Home health agencies,

      to only such times after the department has determined there is an unmet need for such facilities. The department shall make a determination as to whether or not there is an unmet need for each type of facility at least every six months and shall notify those requesting such notification of that determination.

  3. The department may require that any applicant for a certificate of need agree to provide a specified amount of clinical health services to indigent patients as a condition for the grant of a certificate of need; provided, however, that each facility granted a certificate of need by the department as a destination cancer hospital shall be required to provide uncompensated indigent or charity care for residents of Georgia which meets or exceeds 3 percent of such destination cancer hospital's adjusted gross revenues and provide care to Medicaid beneficiaries. A grantee or successor in interest of a certificate of need or an authorization to operate under this chapter which violates such an agreement or violates any conditions imposed by the department relating to such services, whether made before or after July 1, 2008, shall be liable to the department for a monetary penalty in the amount of the difference between the amount of services so agreed to be provided and the amount actually provided and may be subject to revocation of its certificate of need, in whole or in part, by the department pursuant to Code Section 31-6-45. Any penalty so recovered shall be paid into the state treasury.
  4. Penalties authorized under this Code section shall be subject to the same notices and hearing for the levy of fines under Code Section 31-6-45.

(c.1) (1)A destination cancer hospital that does not meet an annual patient base composed of a minimum of 65 percent of patients who reside outside this state in a calendar year shall be fined $2 million for the first year of noncompliance, $4 million for the second consecutive year of noncompliance, and $6 million for the third consecutive year of noncompliance. Such fine amount shall reset to $2 million after any year of compliance. In the event that a destination cancer hospital does not meet an annual patient base composed of a minimum of 65 percent of patients who reside outside this state for three calendar years in any five-year period, such hospital shall be fined an additional amount of $8 million. It is the intent of the General Assembly that all revenues collected from any such fines shall be dedicated and deposited by the department into the Indigent Care Trust Fund created pursuant to Code Section 31-8-152.

In the event a certificate of need for a destination cancer hospital is revoked pursuant to this subsection, such hospital shall be subject to fines pursuant to subsection (c) of Code Section 31-6-45 for operating without a certificate of need.

In addition to the annual report required pursuant to Code Section 31-6-70, a destination cancer hospital shall submit an annual statement, in accordance with timeframes and a format specified by the department, affirming that the hospital has met an annual patient base composed of a minimum of 65 percent of patients who reside outside this state. The chief executive officer of the destination cancer hospital shall certify under penalties of perjury that the statement as prepared accurately reflects the composition of the annual patient base. The department shall have the authority to inspect any books, records, papers, or other information pursuant to subsection (e) of Code Section 31-6-45 of the destination cancer hospital to confirm the information provided on such statement or any other information required of the destination cancer hospital. Nothing in this paragraph shall be construed to require the release of any information which would violate the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191.

(Code 1981, §31-6-40.1, enacted by Ga. L. 1991, p. 1419, § 1; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46; Ga. L. 2019, p. 148, § 1-5/HB 186.)

The 2019 amendment, effective July 1, 2019, deleted former subsection (b.1), which read: "The department may establish, by rule, set times during the year in which applications for capital projects exceeding the threshold amounts in:

"(1) Paragraph (14) of Code Section 31-6-2; and

"(2) Paragraph (2) or (3) of subsection (a) of Code Section 31-6-40 shall be accepted."

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

Cited in Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).

31-6-40.2. New perinatal services.

  1. As used in this Code section only, the term:
    1. "Certificate of need application" means an application for a certificate of need filed with the department, any amendments thereto, and any other written material relating to the application and filed by the applicant with the department.
    2. "First three years of operation" means the first three consecutive 12 month periods beginning on the first day of a new perinatal service's first full calendar month of operation.
    3. "First year of operation" means the first consecutive 12 month period beginning on the first day of a new perinatal service's first full calendar month of operation.
    4. "New perinatal service" means a perinatal service whose first year of operation ends after April 6, 1992.
    5. "Perinatal service" means obstetric and neonatal services relating to managing high-risk pregnancies, care for moderately ill newborns, care for all maternal and fetal complications either on site or by referral, and operation of neonatal intensive care units equipped to treat critically ill newborns; provided however, this shall not include basic perinatal services as defined in Code Section 31-6-2.
    6. "Year" means one of the three consecutive 12 month periods in a new perinatal service's first 36 months of operation.
    1. A new perinatal service shall provide uncompensated indigent or charity care in an amount which meets or exceeds the department's established minimum at the time the department issued the certificate of need approval for such service for each of the service's first three years of operation; provided, however, that if the certificate of need application under which a new perinatal service was approved included a commitment that uncompensated indigent or charity care would be provided in an amount greater than the established minimum for any time period described in the certificate of need application that falls completely within such new perinatal service's first three years of operation, such new perinatal service shall provide indigent or charity care in an amount which meets or exceeds the amount committed in the certificate of need application for each time period described in the certificate of need application that falls completely within the service's first three years of operation.
    2. The department shall revoke the certificate of need and authority to operate of a new perinatal service if after notice to the grantee of the certificate or such grantee's successors, and after opportunity for a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," the department determines that such new perinatal service has failed to provide indigent or charity care in accordance with the requirements of paragraph (1) of this subsection and such failure is determined by the department to be for reasons substantially within the perinatal service provider's control. The department shall provide the requisite notice, conduct the fair hearing, if requested, and render its determination within 90 days after the end of the first year, or, if applicable, the first time period described in paragraph (1) of this subsection during which the new perinatal service fails to provide indigent or charity care in accordance with the requirements of paragraph (1) of this subsection. Revocation shall be effective 30 days after the date of the determination by the department that the requirements of paragraph (1) of this subsection have not been met.
    1. A new perinatal service shall achieve the standard number of births specified in the state health plan in effect at the time of the issuance of the certificate of need approval by the department in at least one year during its first three years of operation.
    2. The department shall revoke the certificate of need and authority to operate of a new perinatal service if after notice to the grantee of the certificate of need or such grantee's successors, and after opportunity for a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," the department determines that such new perinatal service has failed to comply with the applicable requirements of paragraph (1) of this subsection and such failure is determined by the department to be for reasons substantially within the perinatal service provider's control. The department shall provide the requisite notice, conduct the fair hearing, if requested, and render its determination within 90 days after the end of the new perinatal service's first three years of operation. Revocation shall be effective 30 days after the date of the determination by the department that the requirements of this paragraph or paragraph (1) of this subsection have not been met.
  2. Nothing contained in this Code section shall limit the department's authority to regulate perinatal services in ways or for time periods not addressed by the provisions of this Code section.

(Code 1981, §31-6-40.2, enacted by Ga. L. 1992, p. 1068, § 1; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, "April 6, 1992" was substituted for "the date this Code Section becomes effective" in paragraph (a)(4), and "this paragraph or paragraph (1)" was substituted for "paragraph (1) or (2)" in the last sentence of paragraph (c)(2).

Pursuant to Code Section 28-9-5, in 2008, "service's" was substituted for "service" in paragraph (a)(6).

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.

Law reviews.

- For note on 1992 enactment of this Code section, see 9 Ga. St. U. L. Rev. 265 (1992).

JUDICIAL DECISIONS

Cited in Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).

31-6-40.3. Conversion of destination cancer hospital to general cancer hospital; procedure; requirements.

  1. On and after July 1, 2019, a destination cancer hospital may apply for a certificate of need to convert to a general cancer hospital in accordance with this Code section. A destination cancer hospital that elects to convert to a general cancer hospital shall notify the department in a form and manner established by the department.
  2. The department shall establish a form and process for a destination cancer hospital to submit a certificate of need application to convert to a general cancer hospital; provided, however, that such a conversion shall not be subject to any of the considerations in Code Section 31-6-42 or service specific rules and shall not be subject to opposition or appeal by any other health care facilities. The department shall develop such form and guidance required by this subsection within 30 days of July 1, 2019. Upon its receipt of a complete application for a destination cancer hospital to convert to a general cancer hospital, the department shall issue such certificate of need within 60 days.
  3. Upon the conversion of a destination cancer hospital to a general cancer hospital:
    1. The general cancer hospital may continue to provide all institutional health care services and other services it provided as of the date of such conversion, including but not limited to inpatient beds, outpatient services, surgery, radiation therapy, imaging, and positron emission tomography (PET) scanning, without any further approval from the department;
    2. The destination cancer hospital shall be classified as a general cancer hospital under this chapter and shall be subject to all requirements and conditions applicable to hospitals under this article, including but not limited to, indigent and charity care and inventories and methodologies to determine need for additional providers or services; and
    3. The hospital's inpatient beds, operating rooms, radiation therapy equipment, and imaging equipment existing on the date of conversion shall not be counted in the inventory by the department for purposes of determining need for additional providers or services, except that any inpatient beds, operating rooms, radiation therapy equipment, and imaging equipment added after the date of conversion shall be counted in accordance with the department's rules and regulations.
  4. In the event that a destination cancer hospital does not convert to a general cancer hospital, it shall remain subject to all requirements and conditions applicable to destination cancer hospitals under this article.

(Code 1981, §31-6-40.3, enacted by Ga. L. 2019, p. 148, § 1-6/HB 186.)

Effective date.

- This Code section became effective July 1, 2019.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2019, "July 1, 2019" was substituted for "the effective date of this Act" at the end of the second sentence in subsection (b).

31-6-41. Scope and term of validity of certificate.

  1. A certificate of need shall be valid only for the defined scope, location, cost, service area, and person named in an application, as it may be amended, and as such scope, location, service area, cost, and person are approved by the department, unless such certificate of need owned by an existing health care facility is transferred to a person who acquires such existing facility. In such case, the certificate of need shall be valid for the person who acquires such a facility and for the scope, location, cost, and service area approved by the department. However, in reviewing an application to relocate all or a portion of an existing skilled nursing facility, intermediate care facility, or intermingled nursing facility, the department may allow such facility to divide into two or more such facilities if the department determines that the proposed division is financially feasible and would be consistent with quality patient care.
  2. A certificate of need shall be valid and effective for a period of 12 months after it is issued, or such greater period of time as may be specified by the department at the time the certificate of need is issued. Within the effective period after the grant of a certificate of need, the applicant of a proposed project shall fulfill reasonable performance and scheduling requirements specified by the department, by rule, to assure reasonable progress toward timely completion of a project.
  3. By rule, the department may provide for extension of the effective period of a certificate of need when an applicant, by petition, makes a good faith showing that the conditions to be specified according to subsection (b) of this Code section will be performed within the extended period and that the reasons for the extension are beyond the control of the applicant.

(Code 1981, §31-6-41, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46.)

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

Cancellation of certificate of need proper.

- Trial court properly affirmed an administrative decision cancelling a nursing home's certificate of need as the nursing home failed to comply with applicable statutory and regulatory requirements with regard to completing the project timely and providing documentation that ongoing construction was being undertaken. Further, several site inspections established that, in fact, no construction was being undertaken for the project. Southern Crescent Rehab. & Ret. Ctr., Inc. v. Ga. Dep't of Cmty. Health, 290 Ga. App. 863, 660 S.E.2d 792 (2008), cert. denied, 2008 Ga. LEXIS 679 (2008).

Addition of beds to adult psychiatric facility required certificate of need.

- Trial court erred in denying the challenger's petition for review because the agency's final decision holding that the hospital was not required to obtain a Certificate of Need (CON) before the hospital increased the hospital's available beds was inconsistent with the plain language of O.C.G.A. § 31-6-40(a) and Ga. Comp. R. & Regs. 111-2-2-.26(a), which explicitly required CON prior to the expansion of an existing acute care adult psychiatric and/or substance abuse inpatient program. UHS of Anchor, L.P. v. Dep't of Cmty. Health, 351 Ga. App. 29, 830 S.E.2d 413 (2019).

31-6-42. Qualifications for issuance of certificate.

  1. The written findings of fact and decision, with respect to the department's grant or denial of a certificate of need, shall be based on the applicable considerations specified in this Code section and reasonable rules promulgated by the department interpretive thereof. The department shall issue a certificate of need to each applicant whose application is consistent with the following considerations and such rules deemed applicable to a project, except as specified in subsection (f) of Code Section 31-6-43:
    1. The proposed new institutional health services are reasonably consistent with the relevant general goals and objectives of the state health plan;
    2. The population residing in the area served, or to be served, by the new institutional health service has a need for such services;
    3. Existing alternatives for providing services in the service area the same as the new institutional health service proposed are neither currently available, implemented, similarly utilized, nor capable of providing a less costly alternative, or no certificate of need to provide such alternative services has been issued by the department and is currently valid;
    4. The project can be adequately financed and is, in the immediate and long term, financially feasible;
    5. The effects of new institutional health service on payors for health services, including governmental payors, are not unreasonable;
    6. The costs and methods of a proposed construction project, including the costs and methods of energy provision and conservation, are reasonable and adequate for quality health care;
    7. The new institutional health service proposed is reasonably financially and physically accessible to the residents of the proposed service area;
    8. The proposed new institutional health service has a positive relationship to the existing health care delivery system in the service area;
    9. The proposed new institutional health service encourages more efficient utilization of the health care facility proposing such service;
    10. The proposed new institutional health service provides, or would provide, a substantial portion of its services to individuals not residing in its defined service area or the adjacent service area;
    11. The proposed new institutional health service conducts biomedical or behavioral research projects or new service development which is designed to meet a national, regional, or state-wide need;
    12. The proposed new institutional health service meets the clinical needs of health professional training programs which request assistance;
    13. The proposed new institutional health service fosters improvements or innovations in the financing or delivery of health services, promotes health care quality assurance or cost effectiveness, or fosters competition that is shown to result in lower patient costs without a loss of the quality of care;
    14. The proposed new institutional health service fosters the special needs and circumstances of health maintenance organizations;
    15. The proposed new institutional health service meets the department's minimum quality standards, including, but not limited to, standards relating to accreditation, minimum volumes, quality improvements, assurance practices, and utilization review procedures;
    16. The proposed new institutional health service can obtain the necessary resources, including health care personnel and management personnel; and
    17. The proposed new institutional health service is an underrepresented health service, as determined annually by the department. The department shall, by rule, provide for an advantage to equally qualified applicants that agree to provide an underrepresented service in addition to the services for which the application was originally submitted.
  2. In the case of applications for the development or offering of a new institutional health service or health care facility for osteopathic medicine, the need for such service or facility shall be determined on the basis of the need and availability in the community for osteopathic services and facilities in addition to the considerations in subsection (a) of this Code section. Nothing in this chapter shall, however, be construed as otherwise recognizing any distinction between allopathic and osteopathic medicine.
    1. Paragraphs (4), (5), (6), (9), (12), (13), (15), (16), and (17) of subsection (a) of this Code section;
    2. That the proposed new destination cancer hospital can demonstrate, based on historical data from the applicant or its affiliated entities, that its annual patient base shall be composed of a minimum of 65 percent of patients who reside outside of the State of Georgia;
    3. That the proposed new destination cancer hospital states its intent to provide uncompensated indigent or charity care which shall meet or exceed 3 percent of its adjusted gross revenues and provide care to Medicaid beneficiaries;
    4. That the proposed new destination cancer hospital shall conduct biomedical or behavioral research projects or service development which is designed to meet a national or regional need;
    5. That the proposed new destination cancer hospital shall be reasonably financially and physically accessible;
    6. That the proposed new destination cancer hospital shall have a positive relationship to the existing health care delivery system on a regional basis;

      (6.1) That the proposed new destination cancer hospital shall enter into a hospital transfer agreement with one or more hospitals within a reasonable distance from the destination cancer hospital or the medical staff at the destination cancer hospital has admitting privileges or other acceptable documented arrangements with such hospital or hospitals to ensure the necessary backup for the destination cancer hospital for medical complications. The destination cancer hospital shall have the capability to transfer a patient immediately to a hospital within a reasonable distance from the destination cancer hospital with adequate emergency room services. Hospitals shall not unreasonably deny a transfer agreement with the destination cancer hospital. In the event that a destination cancer hospital and another hospital cannot agree to the terms of a transfer agreement as required by this paragraph, the department shall mediate between such parties for a period of no more than 45 days. If an agreement is still not reached within such 45 day period, the parties shall enter into binding arbitration conducted by the department;

    7. That an applicant for a new destination cancer hospital shall document in its application that the new facility is not predicted to be detrimental to existing hospitals within the planning area. Such demonstration shall be made by providing an analysis in such application that compares current and projected changes in market share and payor mix for such applicant and such existing hospitals within the planning area. Impact on an existing hospital shall be determined to be adverse if, based on the utilization projected by the applicant, such existing hospital would have a total decrease of 10 percent or more in its average annual utilization, as measured by patient days for the two most recent and available preceding calendar years of data; and
    8. That the destination cancer hospital shall express its intent to participate in medical staffing work force development activities.

      the department shall not apply the consideration contained in paragraph (2) of subsection (a) of this Code section.

  3. If the denial of an application for a certificate of need for a new institutional health service proposed to be offered or developed by a:
    1. Minority administered hospital facility serving a socially and economically disadvantaged minority population in an urban setting; or
    2. Minority administered hospital facility utilized for the training of minority medical practitioners

      would adversely impact upon the facility and population served by said facility, the special needs of such hospital facility and the population served by said facility for the new institutional health service shall be given extraordinary consideration by the department in making its determination of need as required by this Code section. The department shall have the authority to vary or modify strict adherence to the provisions of this chapter and the rules enacted pursuant hereto in considering the special needs of such facility and its population served and to avoid an adverse impact on the facility and the population served thereby. For purposes of this subsection, the term "minority administered hospital facility" means a hospital controlled or operated by a governing body or administrative staff composed predominantly of members of a minority race.

  4. For the purposes of the considerations contained in this Code section and in the department's applicable rules, relevant data which were unavailable or omitted when the state health plan or rules were prepared or revised may be considered in the evaluation of a project.
  5. The department shall specify in its written findings of fact and decision which of the considerations contained in this Code section and the department's applicable rules are applicable to an application and its reasoning as to and evidentiary support for its evaluation of each such applicable consideration and rule.

(b.1)In the case of applications for the construction, development, or establishment of a destination cancer hospital, the applicable considerations as to the need for such service shall not include paragraphs (1), (2), (3), (7), (8), (10), (11), and (14) of subsection (a) of this Code section but shall include:

(b.2)In the case of applications for basic perinatal services in counties where:

Only one civilian health care facility or health system is currently providing basic perinatal services; and

There are not at least three different health care facilities in a contiguous county providing basic perinatal services,

(Code 1981, §31-6-42, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1984, p. 22, § 31; Ga. L. 1999, p. 296, § 22; 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 amendment to this Code section shall only apply to applications submitted on or after July 1, 2008.

Law reviews.

- For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012).

JUDICIAL DECISIONS

Definition of "part of a hospital" not unconsitutionally vague.

- Ga. Comp. R. Regs. 111-2-2-.40, which provided that an ambulatory surgical center (ASC) that was part of a hospital was not subject to more stringent certificate of need (CON) specifications, was not unconstitutionally vague because it stated two clear examples of when an ASC was part of a hospital and provided that other situations would be considered under a case-by-case review by the Department of Community Health. Ga. Dep't of Cmty. Health v. Northside Hosp., Inc., 295 Ga. 446, 761 S.E.2d 74 (2014).

Criteria used by Review Board.

- Review Board (now Certificate of Need Appeal Panel) could use not only the considerations listed in O.C.G.A. § 31-6-42, but also State Health Planning and Development Agency (now Department of Community Health) standards and criteria in interpreting those standards to make a decision in the case before the board. North Fulton Community Hosp. v. State Health Planning & Dev. Agency, 168 Ga. App. 801, 310 S.E.2d 764 (1983).

In determining whether a given application was consistent with the considerations set forth in O.C.G.A. § 31-6-42 and the State Health Planning Agency (now Department of Community Health) rules, the board was entitled to place more emphasis on one consideration than another absent some mandatory language to the contrary, and such emphasis was entitled to great deference by a reviewing court. Medical Ctr., Inc. v. State Health Planning Agency, 219 Ga. App. 334, 464 S.E.2d 925 (1995).

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).

Evidence sustaining denial of applications.

- Determination by the State Health Planning Agency (now Department of Community Health) that the establishment of open heart surgery service at two applying hospitals would adversely impact existing service was supported by evidence that open heart service at another hospital would be reduced to less than 350 procedures annually and by more than ten percent of its total annual volume. Hospital Auth. v. State Health Planning Agency, 211 Ga. App. 407, 438 S.E.2d 912 (1993).

Trial court erred by reversing a decision of the Department of Community Health denying an ambulatory surgery center's application for a certificate of need to develop an orthopedic center in a city as the trial court substituted the court's own judgment for that of the agency since the Department made a finding that the service area already had a surplus of operating rooms, which were significantly underutilized, and the ambulatory surgery center failed to prove that any specific patient population was in need of the new center or that any barrier to quality care existed. Surgery Ctr., LLC v. Hughston Surgical Inst., LLC, 293 Ga. App. 879, 668 S.E.2d 326 (2008).

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).

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 its 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).

Cited in St. Joseph's Hosp. v. Hospital Corp. of Am., 795 F.2d 948 (11th Cir. 1986).

31-6-42.1. Payment of obligations prior to granting or modifying a certificate of need.

No applicant for a new certificate of need, a modification to an existing certificate of need, or a conversion of a certificate of need that has any outstanding amounts owed to the state including fines, penalties, fees, or other payments for noncompliance with any requirements contained in Code Section 31-6-40.1, 31-6-45.2, 31-6-70, 31-7-280, or 31-8-179.2 shall be eligible to receive a new certificate of need or a modification to an existing certificate of need unless such applicant pays such outstanding amounts to the state. Any such fines, penalties, fees, or other payments for noncompliance shall be subject to the same notices and hearing for the levy of fines under Code Section 31-6-45.

(Code 1981, §31-6-42.1, enacted by Ga. L. 2019, p. 148, § 1-7/HB 186.)

Effective date.

- This Code section became effective July 1, 2019.

31-6-43. Acceptance or rejection of application for certificate.

  1. 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.
  2. 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.
  3. 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.
    1. 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.
    2. No party may oppose an application for a certificate of need for a proposed project unless:
      1. 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
      2. 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.
  4. 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.
  5. 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:
    1. The first and subsequent applications involve similar clinical health service projects in the same service area or overlapping service areas; and
    2. 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.

  6. 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.
  7. 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.
  8. 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.
  9. 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."
  10. 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).

31-6-44. Certificate of Need Appeal Panel.

  1. Effective July 1, 2008, there is created the Certificate of Need Appeal Panel, which shall be an agency separate and apart from the department and shall consist of a panel of independent hearing officers. The purpose of the appeal panel shall be to serve as a panel of independent hearing officers to review the department's initial decision to grant or deny a certificate of need application. The Health Planning Review Board which existed on June 30, 2008, shall cease to exist after that date and the Certificate of Need Appeal Panel shall be constituted effective July 1, 2008, pursuant to this Code section.
  2. On and after July 1, 2008, the appeal panel shall be composed of five members appointed by the Governor for a term of up to four years each. The Governor shall appoint to the appeal panel attorneys who practice law in this state and who are familiar with the health care industry but who do not have a financial interest in or represent or have any compensation arrangement with any health care facility. Each member of the appeal panel shall be an active member of the State Bar of Georgia in good standing, and each attorney shall have maintained such active status for the five years immediately preceding such person's appointment. The Governor shall name from among such members a chairperson and a vice chairperson of the appeal panel. The vice chairperson shall have the same authority as the chairperson; provided, however, the vice chairperson shall not exercise such authority unless expressly delegated by the chairperson or in the event the chairperson becomes incapacitated, as determined by the Governor. Vacancies on the appeal panel caused by resignation, death, or any other cause shall be filled for the unexpired term in the same manner as the original appointment. No person required to register with the Secretary of State as a lobbyist or registered agent shall be eligible for appointment by the Governor to the appeal panel.
  3. The appeal panel shall promulgate reasonable rules for its operation and rules of procedure for the conduct of initial administrative appeal hearings held by the appointed hearing officers, including an appropriate fee schedule for filing such appeals. Members of the appeal panel shall serve as hearing officers for appeals that are assigned to them on a random basis by the chairperson of the appeal panel. The members of the appeal panel shall receive no salary but shall be reimbursed for their expenses in attending meetings and for transportation costs as authorized by Code Section 45-7-21, which provides for compensation and allowances of certain state officials; provided, however, that the chairperson and vice chairperson of the appeal panel shall also be compensated for their services rendered to the appeal panel outside of attendance at an appeal panel meeting, such as for time spent assigning hearing officers, the amount of which compensation shall be determined according to regulations of the Department of Administrative Services. Appeal panel members shall receive compensation for the administration of the cases assigned to them, including prehearing, hearing, and posthearing work, in an amount determined to be appropriate and reasonable by the Department of Administrative Services. Such compensation to the members of the appeal panel shall be made by the Department of Administrative Services.
  4. Any party that is permitted to oppose an application pursuant to paragraph (2) of subsection (d) of Code Section 31-6-43 that has notified the department prior to its decision that such party is opposed to the application before the department shall have the right to an initial administrative appeal hearing before an appeal panel hearing officer or to intervene in such hearing. Such request for hearing or intervention shall be filed with the chairperson of the appeal panel within 30 days of the date of the decision made pursuant to Code Section 31-6-43. In the event an appeal is filed by a party that is permitted to oppose an application pursuant to paragraph (2) of subsection (d) of Code Section 31-6-43, the appeal shall be accompanied by payment of such fee as is established by the appeal panel. In the event an appeal is requested, the chairperson of the appeal panel shall appoint a hearing officer for each such hearing within 30 days after the date the appeal is received. Within 14 days after the appointment of the hearing officer, such hearing officer shall confer with the parties and set the date or dates for the hearing, provided that no hearing shall be scheduled less than 60 days nor more than 120 days after the filing of the request for a hearing, unless the applicant consents or, in the case of competing applicants, all applicants consent to an extension of this time period to a specified date. Unless the applicant consents or, in the case of competing applicants, all applicants consent to an extension of said 120 day period, any hearing officer who regularly fails to commence a hearing within the required time period shall not be eligible for continued service as a hearing officer for the purposes of this Code section. The hearing officer shall have the authority to dispose of all motions made by any party before the issuance of the hearing officer's decision and shall make such rulings as may be required for the conduct of the hearing.
  5. In fulfilling the functions and duties of this chapter, the hearing officer shall act, and the hearing shall be conducted as a full evidentiary hearing, in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," relating to contested cases, except as otherwise specified in this Code section. Subject to the provisions of Article 4 of Chapter 18 of Title 50, all files, working papers, studies, notes, and other writings or information used by the department in making its decision shall be public records and available to the parties, and the hearing officer may permit each party to exercise such reasonable rights of prehearing discovery of such information used by the parties as will expedite the hearing.
  6. In addition to evidence submitted to the department, a party may present any additional relevant evidence to the appeal panel hearing officer reviewing the decision of the department if the evidence was not reasonably available to the party presenting the evidence at the time of the department's review. The burden of proof as to whether the evidence was reasonably available shall be on the party attempting to introduce the new evidence. The issue for the decision by the hearing officer shall be whether, and the hearing officer shall order the issuance of a certificate of need if, in the hearing officer's judgment, the application is consistent with the considerations as set forth in Code Section 31-6-42 and the department's rules, as the hearing officer deems such considerations and rules applicable to the review of the project. The appeal hearing conducted by the appeal panel hearing officer shall be a de novo review of the decision of the department. The hearing officer shall also consider:
    1. Whether the department committed prejudicial procedural error in its consideration of the application;
    2. Whether the appeal lacks substantial justification; and
    3. Whether such appeal was undertaken primarily for the purpose of delay or harassment.

      The burden of proof shall be on the appellant. Appellants or applicants shall proceed first with their cases before the hearing officer in the order determined by the hearing officer, and the department, if a party, shall proceed last. In the event of a consolidated hearing on applications which were joined for comparative review pursuant to subsection (f) of Code Section 31-6-43, the hearing officer shall have the same powers specified for the department in subsection (f) of Code Section 31-6-43 to order the issuance of no certificate of need or one or more certificates of need.

  7. All evidence shall be presented at the initial administrative appeal hearing conducted by the appointed hearing officer. A party or intervenor may present any relevant evidence on all issues raised by the hearing officer or any party to the hearing or revealed during discovery and shall not be limited to evidence or information presented to the department prior to its decision, except that an applicant may not present a new need study or analysis responsive to the general need consideration or service-specific need formula as provided in the applicable rules that is substantially different from any such study or analysis submitted to the department prior to its decision and that could have reasonably been available for submission. The hearing officer may consider the latest data available, including updates of studies previously submitted, in deciding whether an application is consistent with the applicable considerations or rules. The hearing officer shall consider the applicable considerations and rules in effect on the date the appeal is filed, even if the provisions of those considerations or rules were changed after the department's decision. The hearing officer may remand a matter to the department if the hearing officer determines that it would be beneficial for the department to consider new data, studies, or analyses that were not available before the decision or changes to the provisions of the applicable considerations or rules made after the department's decision. The hearing officer shall establish the time deadlines for completion of the remand and shall retain jurisdiction of the matter throughout the completion of the remand.
  8. After the issuance of a decision by the department pursuant to Code Section 31-6-43, no party to an appeal hearing, nor any person on behalf of such party, including the department, shall make any ex parte contact with the appeal panel hearing officer appointed to conduct the appeal hearing, any other member of the appeal panel, or the commissioner in regard to a decision under appeal.
  9. Within 30 days after the conclusion of the hearing, the hearing officer shall make written findings of fact and conclusions of law as to each consideration as set forth in Code Section 31-6-42 and the department's rules, including a detailed statement of the reasons for the decision of the hearing officer. If any party has alleged that an appeal lacks substantial justification or was undertaken primarily for the purpose of delay or harassment, the decision of the hearing officer shall make findings of fact addressing the merits of the allegation. The hearing officer shall file such decision with the chairperson of the appeal panel who shall serve such decision upon all parties, and shall transmit the administrative record to the commissioner. Any party, including the department, which disputes any finding of fact or conclusion of law rendered by the hearing officer in such hearing officer's decision and which wishes to appeal that decision may appeal to the commissioner and shall file its specific objections with the commissioner or his or her designee within 30 days of the date of the hearing officer's decision pursuant to rules adopted by the department.
  10. The decision of the appeal panel hearing officer will become the final decision of the department upon the sixty-first day following the date of the decision unless an objection thereto is filed with the commissioner within the time limit established in subsection (i) of this Code section.
    1. In the event an appeal of the hearing officer's decision is filed, the commissioner may adopt the hearing officer's order as the final order of the department or the commissioner may reject or modify the conclusions of law over which the department has substantive jurisdiction and the interpretation of administrative rules over which it has substantive jurisdiction. By rejecting or modifying such conclusion of law or interpretation of administrative rule, the department must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The commissioner may not reject or modify the findings of fact unless the commissioner first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon any competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.
    2. If, before the date set for the commissioner's decision, application is made to the commissioner for leave to present additional evidence and it is shown to the satisfaction of the commissioner that the additional evidence is material and there were good reasons for failure to present it in the proceedings before the hearing officer, the commissioner may order that the additional evidence be taken before the same hearing officer who rendered the initial decision upon conditions determined by the commissioner. The hearing officer may modify the initial decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decision with the commissioner. Unless leave is given by the commissioner in accordance with the provisions of this subsection, the appeal panel may not consider new evidence under any circumstances. In all circumstances, the commissioner's decision shall be based upon considerations as set forth in Code Section 31-6-42 and the department's rules.
  11. If, based upon the findings of fact by the hearing officer, the commissioner determines that the appeal filed by any party of a decision of the department lacks substantial justification and was undertaken primarily for the purpose of delay or harassment, the commissioner may enter an award in his or her written order against such party and in favor of the successful party or parties, including the department, of all or any part of their respective reasonable and necessary attorney's fees and expenses of litigation, as the commissioner deems just. Such award may be enforced by any court undertaking judicial review of the final decision. In the absence of any petition for judicial review, then such award shall be enforced, upon due application, by any court having personal jurisdiction over the party against whom such an award is made.
  12. Unless the hearing officer's decision becomes the department's final decision by operation of law as provided in subsection (j) of this Code section, the decision of the commissioner shall become the department's final decision by operation of law. Such final decision shall be the final department decision for purposes of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The appeals process provided by this Code section shall be the administrative remedy only for decisions made by the department pursuant to Code Section 31-6-43 which involve the approval or denial of applications for certificates of need.
  13. A party responding to an appeal to the commissioner may be entitled to reasonable attorney's fees and costs of such appeal if it is determined that the appeal lacked substantial justification and was undertaken primarily for the purpose of delay or harassment; provided, however, that 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 decided in the administrative proceeding, nor shall it apply to costs accrued when the only argument raised by the appealing party is one described in this subsection.

(Code 1981, §31-6-44, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1986, p. 744, § 1; Ga. L. 1990, p. 1469, § 1; Ga. L. 1990, p. 1903, § 8; Ga. L. 1994, p. 684, § 3; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2019, p. 148, § 1-9/HB 186.)

The 2019 amendment, effective July 1, 2019, deleted the former last sentence of subsection (a), which read: "The terms of all members of the Health Planning Review Board serving as such on June 30, 2008, shall automatically terminate on such date."; and, in subsection (d), rewrote the first sentence, which read: "Any applicant for a project, any competing applicant in the same batching cycle, any competing health care facility that has notified the department prior to its decision that such facility is opposed to the application before the department, or any county or municipal government in whose boundaries the proposed project will be located who is aggrieved by a decision of the department shall have the right to an initial administrative appeal hearing before an appeal panel hearing officer or to intervene in such hearing.", and, in the third sentence, substituted "party that is permitted to oppose an application pursuant to paragraph (2) of subsection (d) of Code Section 31-6-43" for "competing applicant, or any competing health care facility, or any county or municipal government".

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, a second occurrence of the word "of" was deleted preceding "the date of" in the last sentence of subsection (i).

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.

Administrative Rules and Regulations.

- Administration, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health Certificate of Need Appeal Panel, Chapter 274-1.

Law reviews.

- For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004).

JUDICIAL DECISIONS

Residents who oppose plans to build a new hospital do not have standing to appeal to the Health Planning Review Board (now Certificate of Need Appeal Panel) a decision by the State Health Planning and Development Agency (now Department of Community Health) for a certificate of need approving construction of the new hospital. Loyd v. Georgia State Health Planning & Dev. Agency, 168 Ga. App. 850, 310 S.E.2d 738 (1983).

Criteria used by Review Board.

- Review Board (now Certificate of Need Appeal Panel) could use not only the considerations listed in O.C.G.A. § 31-6-42, but also Health Planning Agency (now Department of Community Health) standards and criteria interpreting those standards to make a decision in the case before the board. North Fulton Community Hosp. v. State Health Planning & Dev. Agency, 168 Ga. App. 801, 310 S.E.2d 764 (1983).

Ex parte contacts between the assistant attorney general representing the state's interest and the chair of the Review Board (now Certificate of Need Appeal Panel) were not prejudicial to the fair conduct of the hearing when the contacts did not affect an issue of standing, the legal effect of a legislative resolution, and the manner in which votes were taken, nor did the contacts affect the full consideration of each party's interest before the Review Board. North Fulton Community Hosp. v. State Health Planning & Dev. Agency, 168 Ga. App. 801, 310 S.E.2d 764 (1983).

Ex parte contacts between the assistant attorney general and the chair of the Review Board (now Certificate of Need Appeal Panel) regarding findings of facts and conclusions of law two weeks after the decision of the Review Board had been reached were not prejudicial when the contacts were for the sole purpose of drafting an opinion to support the decision already reached and announced. North Fulton Community Hosp. v. State Health Planning & Dev. Agency, 168 Ga. App. 801, 310 S.E.2d 764 (1983).

Agency proper party respondent to petition seeking review of board's decision.

- Health Planning Review Board (now Certificate of Need Appeal Panel) is a solely adjudicatory, quasi-judicial body, and is an inappropriate party to an appeal of the board's rulings in court. A decision by the Health Planning Review Board is a final administrative decision for purposes of judicial appeal, and the Health Planning Agency, not the Review Board, is the proper party respondent to a petition seeking judicial review of the board's determination. Loyd v. Georgia State Health Planning & Dev. Agency, 168 Ga. App. 850, 310 S.E.2d 738 (1983).

Powers of administrative review.

- Review board, in reversing a decision of the Health Planning Agency (now Department of Community Health) which had denied a certificate of need for construction of a nursing home in Alpharetta County, acted beyond the board's powers of administrative review of contested cases by deeming the "County Deficit Rule" of the planning agency inapplicable in a controversy to which the rule applied by the rule's express terms, or by applying the rule to part of the county instead of to the entire county. Dogwood Square Nursing Ctr., Inc. v. State Health Planning Agency, 255 Ga. 694, 341 S.E.2d 432 (1986).

Review Board's reliance upon the principles of res judicata to deny an application for a certificate of need was authorized since the original application had been denied on the basis of the "County Deficit Rule" and the applicant did not introduce evidence upon reapplication which was sufficient to show that the applicant's proposed facility would comport with the same rule. State Health Planning Agency v. Cribb Indus., Inc., 204 Ga. App. 285, 419 S.E.2d 123 (1992).

Evidence sustaining denial of applications.

- Determination by the State Health Planning Agency (now Department of Community Health) that the establishment of open heart surgery service at two applying hospitals would adversely impact existing service was supported by evidence that open heart service at another hospital would be reduced to less than 350 procedures annually and by more than ten percent of the total annual volume. Hospital Auth. v. State Health Planning Agency, 211 Ga. App. 407, 438 S.E.2d 912 (1993).

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).

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).

Error in reversing grant of certificate of need.

- Trial court erred in reversing the grant of a certificate of need on the ground that the applicant was attempting to circumvent a cease-and-desist order issued to a corporation owned by the same individual as the applicant; by seeking the certificate of need, the applicant was not doing anything that the law did not allow, the Department of Community Health held an extensive evidentiary hearing before granting the application, and the trial court improperly disregarded the corporate forms of the corporation and the applicant based on the fact that they were owned by the same individual. Global Diagnostic Dev., LLC v. Diagnostic Imaging of Atlanta, 284 Ga. App. 66, 643 S.E.2d 338 (2007).

Superior court erred in reversing a decision of the Georgia Department of Community Health, which awarded a medical center a certificate of need, because the agency's decision was supported by substantial evidence, and the department's interpretation of the applicable regulations, as requiring only an amendment of the center's application, rather than a new application, was not plainly erroneous. Northeast Ga. Med. Ctr., Inc. v. Winder HMA, Inc., 303 Ga. App. 50, 693 S.E.2d 110 (2010).

Cancellation of certificate of need proper.

- Trial court properly affirmed an administrative decision cancelling a nursing home's certificate of need as the nursing home failed to comply with applicable statutory and regulatory requirements with regard to completing the project timely and providing documentation that ongoing construction was being undertaken. Further, several site inspections established that, in fact, no construction was being undertaken for the project. Southern Crescent Rehab. & Ret. Ctr., Inc. v. Ga. Dep't of Cmty. Health, 290 Ga. App. 863, 660 S.E.2d 792 (2008), cert. denied, 2008 Ga. LEXIS 679 (2008).

Admission of additional evidence permitted.

- 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 the hospitals' 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).

Error in reversing denial of certificate of need.

- Trial court erred by reversing a decision of the Department of Community Health denying an ambulatory surgery center's application for a certificate of need to develop an orthopedic center in a city as the trial court substituted the court's own judgment for that of the agency since the Department made a finding that the service area already had a surplus of operating rooms, which were significantly underutilized, and the ambulatory surgery center failed to prove that any specific patient population was in need of the new center or that any barrier to quality care existed. Surgery Ctr., LLC v. Hughston Surgical Inst., LLC, 293 Ga. App. 879, 668 S.E.2d 326 (2008).

Cited in St. Joseph's Hosp. v. Hospital Corp. of Am., 795 F.2d 948 (11th Cir. 1986); American Medical Int'l, Inc. v. Charter Lake Hosp., 186 Ga. App. 204, 366 S.E.2d 795 (1988); HCA Health Servs. of Ga., Inc. v. Roach, 265 Ga. 501, 458 S.E.2d 118 (1995); Ga. Dep't of Cmty. Health, Div. of Health Planning v. Gwinnett Hosp. Sys., 262 Ga. App. 879, 586 S.E.2d 762 (2003); Greene v. Dep't of Cmty. Health, 293 Ga. App. 201, 666 S.E.2d 590 (2008); Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Administrative review.

- Prior to the 1983 reenactment, applicants proposing a capital expenditure, as well as health systems agencies and persons who qualify as a "party" or "persons aggrieved" under the Georgia Administrative Procedure Act, O.C.G.A. T. 50, Ch. 13, have a right to appeal to the State Health Planning Review Board (now Certificate of Need Appeal Panel) decisions of the State Health Planning and Development Agency (now Department of Community Health) relative to § 1122 of the Social Security Act, 42 U.S.C. § 1320a-1(a). 1981 Op. Att'y Gen. No. 81-8.

31-6-44.1. Judicial review.

  1. 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:
    1. In violation of constitutional or statutory provisions;
    2. In excess of the statutory authority of the department;
    3. Made upon unlawful procedures;
    4. Affected by other error of law;
    5. 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
    6. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
  2. 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.
  3. 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).

31-6-45. Revocation of certificate of need; enforcement of chapter; regulatory investigations and examinations.

  1. The department may revoke a certificate of need, in whole or in part, after notice to the holder of the certificate and a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," for the following reasons:
    1. Failure to comply with the provisions of Code Section 31-6-41;
    2. The intentional provision of false information to the department by an applicant in that applicant's application;
    3. Repeated failure to pay any fines or moneys due to the department;
    4. Failure to maintain minimum quality of care standards that may be established by the department;
    5. Failure to participate as a provider of medical assistance for Medicaid purposes pursuant to Code Section 31-6-45.2 or any other applicable Code section;
    6. The failure to submit a timely or complete report within 180 days following the date the report is due pursuant to Code Section 31-6-70; or
    7. Failure of a destination cancer hospital to meet an annual patient base composed of a minimum of 65 percent of patients who reside outside this state for three calendar years in any five-year period.

      The department may not, however, revoke a certificate of need if the applicant changes the defined location of the project within the same county less than three miles from the location specified in the certificate of need for financial reasons or other reasons beyond its control, including, but not limited to, failure to obtain any required approval from zoning or other governmental agencies or entities, provided such change in location is otherwise consistent with the considerations and rules applied in the evaluation of the project.

  2. Any health care facility offering a new institutional health service without having obtained a certificate of need and which has not been previously licensed as a health care facility shall be denied a license to operate.
  3. In the event that a new institutional health service is knowingly offered or developed without having obtained a certificate of need as required by this chapter, or the certificate of need for such service is revoked according to the provisions of this Code section, a facility or applicant may be fined an amount of $5,000.00 per day up to 30 days, $10,000.00 per day from 31 days through 60 days, and $25,000.00 per day after 60 days for each day that the violation of this chapter has existed and knowingly and willingly continues; provided, however, that the expenditure or commitment of or incurring an obligation for the expenditure of funds to take or perform actions not subject to this chapter or to acquire, develop, or prepare a health care facility site for which a certificate of need application is denied shall not be a violation of this chapter and shall not be subject to such a fine. The commissioner shall determine, after notice and a hearing, whether the fines provided in this Code section shall be levied.
  4. In addition, for purposes of this Code section, the State of Georgia, acting by and through the department, or any other interested person, shall have standing in any court of competent jurisdiction to maintain an action for injunctive relief to enforce the provisions of this chapter.
  5. The department shall have the authority to make public or private investigations or examinations inside or outside of this state to determine whether all provisions of this Code section or any other law, rule, regulation, or formal order relating to the provisions of Code Section 31-6-40 has been violated. Such investigations may be initiated at any time in the discretion of the department and may continue during the pendency of any action initiated by the department pursuant to subsection (a) of this Code section. For the purpose of conducting any investigation or inspection pursuant to this subsection, the department shall have the authority, upon providing reasonable notice, to require the production of any books, records, papers, or other information related to any certificate of need issue.

(a.1)The department may revoke a certificate of need, in whole or in part, after notice to the holder of the certificate and a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," if the services or units of services for which the certificate of need was issued are not implemented in a timely manner, as established by the department in its rules. This subsection shall apply only to certificates of need issued on or after July 1, 2008.

(Code 1981, §31-6-45, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1991, p. 1871, § 7; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1985, a comma was deleted following "denied" near the end of the first sentence of subsection (c).

Pursuant to Code Section 28-9-5, in 1999, "commissioner" was substituted for "executive director" in the last sentence of subsection (c).

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.

Law reviews.

- For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017).

JUDICIAL DECISIONS

Enforcement.

- Prior to the 1983 reenactment, the health planning agency was authorized to bring an action to enforce provisions of O.C.G.A. T. 31, Ch. 6, but a competitor of a health service provider was not. Executive Comm. v. Metro Ambulance Servs., Inc., 250 Ga. 61, 296 S.E.2d 547 (1982).

Competing health care provider is not entitled to bring an enforcement action for injunctive relief against another provider of health care services violating the Certificate of Need Program. Diversified Health Mgt. Servs., Inc. v. Visiting Nurses Ass'n, 254 Ga. 500, 330 S.E.2d 885 (1985).

Competing health care provider has standing to bring a mandamus action to compel the State Health Planning and Development Agency (now Department of Community Health) to institute proceedings against another provider of health care services who is violating the statutory law governing certificates of need. Diversified Health Mgt. Servs., Inc. v. Visiting Nurses Ass'n, 254 Ga. 500, 330 S.E.2d 885 (1985).

Cancellation of certificate of need proper.

- Trial court properly affirmed an administrative decision cancelling a nursing home's certificate of need as the nursing home failed to comply with applicable statutory and regulatory requirements with regard to completing the project timely and providing documentation that ongoing construction was being undertaken. Further, several site inspections established that, in fact, no construction was being undertaken for the project. Southern Crescent Rehab. & Ret. Ctr., Inc. v. Ga. Dep't of Cmty. Health, 290 Ga. App. 863, 660 S.E.2d 792 (2008), cert. denied, 2008 Ga. LEXIS 679 (2008).

Cited in HCA Health Servs. of Ga., Inc. v. Roach, 265 Ga. 501, 458 S.E.2d 118 (1995); Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).

31-6-45.1. Automatic revocation of certificate of need or authority.

  1. A health care facility which has a certificate of need or is otherwise authorized to operate pursuant to this chapter shall have such certificate of need or authority to operate automatically revoked by operation of law without any action by the department when that facility's permit to operate pursuant to Code Section 31-7-4 is finally revoked by order of the department. For purposes of this subsection, the date of such final revocation shall be as follows:
    1. When there is no appeal of the order pursuant to Chapter 5 of this title, the one hundred and eightieth day after the date upon which expires the time for appealing the revocation order without such an appeal being filed; or
    2. When there is an appeal of the order pursuant to Chapter 5 of this title, the date upon which expires the time to appeal the last administrative or judicial order affirming or approving the revocation or revocation order without such appeal being filed.
  2. The services which had been authorized to be offered by a health care facility for which a certificate of need has been revoked pursuant to subsection (a) of this Code section may continue to be offered in the service area in which that facility was located under such conditions as specified by the department notwithstanding that some or all of such services could not otherwise be offered as new institutional health services.

(Code 1981, §31-6-45.1, enacted by Ga. L. 1990, p. 860, § 1; Ga. L. 1991, p. 328, § 1; Ga. L. 1999, p. 296, § 22; Ga. L. 2000, p. 136, § 31; Ga. L. 2001, p. 4, § 31; Ga. L. 2008, p. 12, § 1-1/SB 433.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1996, "this title" was substituted for "Title 31" in paragraphs (a)(1) and (a)(2).

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.

31-6-45.2. Participation as Medicaid provider requirement; termination by health care facility of participation as provider of medical assistance; monetary penalty.

  1. The department may require that any applicant for a certificate of need agree to participate as a provider of medical assistance for Medicaid purposes pursuant to Article 7 of Chapter 4 of Title 49.
  2. Any proposed or existing health care facility which obtains a certificate of need on or after April 6, 1992, based in part upon assurances that it will participate as a provider of medical assistance, as defined in paragraph (6) of Code Section 49-4-141, and which terminates its participation as a provider of medical assistance or violates any conditions imposed by the department relating to such participation, shall be subject to a monetary penalty in the amount of the difference between the Medicaid covered services which the facility agreed to provide in its certificate of need application and the amount actually provided and may be subject to revocation of its certificate of need by the department pursuant to Code Section 31-6-45; provided, however, that this Code section shall not apply if:
    1. The proposed or existing health care facility's certificate of need application was approved by the Health Planning Agency prior to April 6, 1992, and the Health Planning Agency's approval of such application was under appeal on or after April 6, 1992, and the Health Planning Agency's approval of such application is ultimately affirmed;
    2. Such facility's participation as a provider of medical assistance is terminated by the state or federal government; or
    3. Such facility establishes good cause for terminating its participation as a provider of medical assistance. For purposes of this Code section, "good cause" shall mean:
      1. Changes in the adequacy of medical assistance payments, as defined in paragraph (5) of Code Section 49-4-141, provided that at least 10 percent of the facility's utilization during the preceding 12 month period was attributable to services to recipients of medical assistance, as defined in paragraph (7) of Code Section 49-4-141. Medical assistance payments to a facility shall be presumed adequate unless the revenues received by the facility from all sources are less than the total costs set forth in the cost report for the preceding full 12 month period filed by such facility pursuant to the state plan as defined in paragraph (8) of Code Section 49-4-141 which are allowed under the state plan for purposes of determining such facility's reimbursement rate for medical assistance and the aggregate amount of such facility's medical assistance payments (including any amounts received by the facility from recipients of medical assistance) during the preceding full 12 month cost reporting period is less than 85 percent of such facility's Medicaid costs for such period. Medicaid costs shall be determined by multiplying the allowable costs set forth in the cost report, less any audit adjustments, by the percentage of the facility's utilization during the cost reporting period which was attributable to recipients of medical assistance;
      2. Changes in the overall ability of the facility to cover its costs if such changes are of such a degree as to seriously threaten the continued viability of the facility; or
      3. Changes in the state plan, statutes, or rules and regulations governing providers of medical assistance which impose substantial new obligations upon the facility which are not reimbursed by Medicaid and which adversely affect the financial viability of the facility in a substantial manner.
  3. A facility seeking to terminate its enrollment as a provider of medical assistance shall submit a written request to the department documenting good cause for termination. The department shall grant or deny the facility's request within 30 days. If the department denies the facility's request, the facility shall be entitled to a hearing conducted in the same manner as an evidentiary hearing conducted by the department pursuant to the provisions of Code Section 49-4-153 within 30 days of the department's decision.
  4. The imposition of the monetary penalty provided in this Code section shall commence upon the date that said facility has terminated its participation as a provider of medical assistance, as determined by the commissioner. The monetary penalty shall be levied and collected by the department on an annual basis for every year in which the facility fails to participate as a provider of medical assistance. Penalties authorized under this Code section shall be subject to the same notices and hearings as provided for levy of fines under Code Section 31-6-45.

(Code 1981, §31-6-45.2, enacted by Ga. L. 1992, p. 1068, § 2; Ga. L. 1999, p. 296, §§ 22, 24; Ga. L. 2008, p. 12, § 1-1/SB 433.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, "April 6, 1992" was substituted for "the effective date of this Code section" in the introductory language of subsection (a) (now subsection (b)) and in paragraph (a)(1) (now paragraph (b)(1)), and "government" was substituted for "governments" in paragraph (a)(2) (now paragraph (b)(2)).

Pursuant to Code Section 28-9-5, in 1999, "Health Planning Agency" was substituted for "department" and "Health Planning Agency's" was substituted for "department's" in paragraph (a)(1) (now paragraph (b)(1)) and "commissioner" was substituted for "executive director" in the first sentence of subsection (c) (now subsection (d)).

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.

Law reviews.

- For note on 1992 enactment of this Code section, see 9 Ga. St. U. L. Rev. 265 (1992).

31-6-46. Annual report by department.

The department shall prepare and submit an annual report to the board and to the Health and Human Services Committee of the Senate and the Health and Human Services Committee of the House of Representatives about its operations and decisions for the preceding 12 month period, not later than 30 days prior to each convening of the General Assembly in regular session. Either committee may request any additional reports or information, including decisions, from the department at any time, including a period in which the General Assembly is not in regular session. The annual report shall include information and updates relating to the state health plan and the certificate of need program and an annual analysis of proactive and prospective approaches to need methodologies and access to health care services. The annual report shall include information for Georgia's congressional delegation which highlights issues regarding federal laws and regulations influencing Medicaid and medicare, insurance and related tax laws, and long-term health care.

(Code 1981, §31-6-46, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1992, p. 6, § 31; Ga. L. 1999, p. 296, § 22; Ga. L. 2005, p. 48, § 2/HB 309; 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 amendment to this Code section shall only apply to applications submitted on or after July 1, 2008.

31-6-47. Exemptions from chapter.

  1. Notwithstanding the other provisions of this chapter, this chapter shall not apply to:
    1. Infirmaries operated by educational institutions for the sole and exclusive benefit of students, faculty members, officers, or employees thereof;
    2. Infirmaries or facilities operated by businesses for the sole and exclusive benefit of officers or employees thereof, provided that such infirmaries or facilities make no provision for overnight stay by persons receiving their services;
    3. Institutions operated exclusively by the federal government or by any of its agencies;
    4. Offices of private physicians or dentists whether for individual or group practice, except as otherwise provided in paragraph (3) or (7) of subsection (a) of Code Section 31-6-40;
    5. Religious, nonmedical health care institutions as defined in 42 U.S.C. Section 1395x(ss)(1), listed and certified by a national accrediting organization;
    6. Site acquisitions for health care facilities or preparation or development costs for such sites prior to the decision to file a certificate of need application;
    7. Expenditures related to adequate preparation and development of an application for a certificate of need;
    8. The commitment of funds conditioned upon the obtaining of a certificate of need;
    9. Expenditures for the restructuring or acquisition of existing health care facilities by stock or asset purchase, merger, consolidation, or other lawful means;

      (9.1) The purchase of a closing hospital or of a hospital that has been closed for no more than 12 months by a hospital in a contiguous county to repurpose the facility as a micro-hospital;

    10. Expenditures of less than $870,000.00 for any minor or major repair or replacement of equipment by a health care facility that is not owned by a group practice of physicians or a hospital and that provides diagnostic imaging services if such facility received a letter of nonreviewability from the department prior to July 1, 2008. This paragraph shall not apply to such facilities in rural counties;

      (10.1) Except as provided in paragraph (10) of this subsection, expenditures for the minor or major repair of a health care facility or a facility that is exempt from the requirements of this chapter, parts thereof or services provided or equipment used therein; or the replacement of equipment, including but not limited to CT scanners, magnetic resonance imaging, positron emission tomography (PET), and positron emission tomography/computed tomography previously approved for a certificate of need;

    11. Capital expenditures otherwise covered by this chapter required solely to eliminate or prevent safety hazards as defined by federal, state, or local fire, building, environmental, occupational health, or life safety codes or regulations, to comply with licensing requirements of the department, or to comply with accreditation standards of a nationally recognized health care accreditation body;
    12. Cost overruns whose percentage of the cost of a project is equal to or less than the cumulative annual rate of increase in the composite construction index, published by the United States Bureau of the Census of the Department of Commerce, calculated from the date of approval of the project;
    13. Transfers from one health care facility to another such facility of major medical equipment previously approved under or exempted from certificate of need review, except where such transfer results in the institution of a new clinical health service for which a certificate of need is required in the facility acquiring such equipment, provided that such transfers are recorded at net book value of the medical equipment as recorded on the books of the transferring facility;
    14. New institutional health services provided by or on behalf of health maintenance organizations or related health care facilities in circumstances defined by the department pursuant to federal law;
    15. Increases in the bed capacity of a hospital up to ten beds or 10 percent of capacity, whichever is greater, in any consecutive two-year period, in a hospital that has maintained an overall occupancy rate greater than 75 percent for the previous 12 month period;
    16. Expenditures for nonclinical projects, including parking lots, parking decks, and other parking facilities; computer systems, software, and other information technology; medical office buildings; administrative office space; conference rooms; education facilities; lobbies; common spaces; clinical staff lounges and sleep areas; waiting rooms; bathrooms; cafeterias; hallways; engineering facilities; mechanical systems; roofs; grounds; signage; family meeting or lounge areas; other nonclinical physical plant renovations or upgrades that do not result in new or expanded clinical health services, and state mental health facilities;
    17. Life plan communities, provided that the skilled nursing component of the facility is for the exclusive use of residents of the life plan community and that a written exemption is obtained from the department; provided, however, that new sheltered nursing home beds may be used on a limited basis by persons who are not residents of the life plan community for a period up to five years after the date of issuance of the initial nursing home license, but such beds shall not be eligible for Medicaid reimbursement. For the first year, the life plan community sheltered nursing facility may utilize not more than 50 percent of its licensed beds for patients who are not residents of the life plan community. In the second year of operation, the life plan community shall allow not more than 40 percent of its licensed beds for new patients who are not residents of the life plan community. In the third year of operation, the life plan community shall allow not more than 30 percent of its licensed beds for new patients who are not residents of the life plan community. In the fourth year of operation, the life plan community shall allow not more than 20 percent of its licensed beds for new patients who are not residents of the life plan community. In the fifth year of operation, the life plan community shall allow not more than 10 percent of its licensed beds for new patients who are not residents of the life plan community. At no time during the first five years shall the life plan community sheltered nursing facility occupy more than 50 percent of its licensed beds with patients who are not residents under contract with the life plan community. At the end of the five-year period, the life plan community sheltered nursing facility shall be utilized exclusively by residents of the life plan community, and at no time shall a resident of a life plan community be denied access to the sheltered nursing facility. At no time shall any existing patient be forced to leave the life plan community to comply with this paragraph. The department is authorized to promulgate rules and regulations regarding the use and definition of "sheltered nursing facility" in a manner consistent with this Code section. Agreements to provide continuing care include agreements to provide care for any duration, including agreements that are terminable by either party;
    18. Any single specialty ambulatory surgical center that:
        1. Has capital expenditures associated with the construction, development, or other establishment of the clinical health service which do not exceed $2.5 million; or
        2. Is the only single specialty ambulatory surgical center in the county owned by the group practice and has two or fewer operating rooms; provided, however, that a center exempt pursuant to this division shall be required to obtain a certificate of need in order to add any additional operating rooms;
      1. Has a hospital affiliation agreement with a hospital within a reasonable distance from the facility or the medical staff at the center has admitting privileges or other acceptable documented arrangements with such hospital to ensure the necessary backup for the center for medical complications. The center shall have the capability to transfer a patient immediately to a hospital within a reasonable distance from the facility with adequate emergency room services. Hospitals shall not unreasonably deny a transfer agreement or affiliation agreement to the center;
        1. Provides care to Medicaid beneficiaries and, if the facility provides medical care and treatment to children, to PeachCare for Kids beneficiaries and provides uncompensated indigent and charity care in an amount equal to or greater than 2 percent of its adjusted gross revenue; or
        2. If the center is not a participant in Medicaid or the PeachCare for Kids Program, provides uncompensated care to Medicaid beneficiaries and, if the facility provides medical care and treatment to children, to PeachCare for Kids beneficiaries, uncompensated indigent and charity care, or both in an amount equal to or greater than 4 percent of its adjusted gross revenue;

        provided, however, that single specialty ambulatory surgical centers owned by physicians in the practice of ophthalmology shall not be required to comply with this subparagraph; and

      2. Provides annual reports in the same manner and in accordance with Code Section 31-6-70.

        Noncompliance with any condition of this paragraph shall result in a monetary penalty in the amount of the difference between the services which the center is required to provide and the amount actually provided and may be subject to revocation of its exemption status by the department for repeated failure to pay any fines or moneys due to the department or for repeated failure to produce data as required by Code Section 31-6-70 after notice to the exemption holder and a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The dollar amount specified in this paragraph shall be adjusted annually by an amount calculated by multiplying such dollar amount (as adjusted for the preceding year) by the annual percentage of change in the composite index of construction material prices, or its successor or appropriate replacement index, if any, published by the United States Department of Commerce for the preceding calendar year, commencing on July 1, 2009, and on each anniversary thereafter of publication of the index. The department shall immediately institute rule-making procedures to adopt such adjusted dollar amounts. In calculating the dollar amounts of a proposed project for purposes of this paragraph, the costs of all items subject to review by this chapter and items not subject to review by this chapter associated with and simultaneously developed or proposed with the project shall be counted, except for the expenditure or commitment of or incurring an obligation for the expenditure of funds to develop certificate of need applications, studies, reports, schematics, preliminary plans and specifications or working drawings, or to acquire sites;

    19. Any joint venture ambulatory surgical center that:
      1. Has capital expenditures associated with the construction, development, or other establishment of the clinical health service which do not exceed $5 million;
        1. Provides care to Medicaid beneficiaries and, if the facility provides medical care and treatment to children, to PeachCare for Kids beneficiaries and provides uncompensated indigent and charity care in an amount equal to or greater than 2 percent of its adjusted gross revenue; or
        2. If the center is not a participant in Medicaid or the PeachCare for Kids Program, provides uncompensated care to Medicaid beneficiaries and, if the facility provides medical care and treatment to children, to PeachCare for Kids beneficiaries, uncompensated indigent and charity care, or both in an amount equal to or greater than 4 percent of its adjusted gross revenue; and
      2. Provides annual reports in the same manner and in accordance with Code Section 31-6-70.

        Noncompliance with any condition of this paragraph shall result in a monetary penalty in the amount of the difference between the services which the center is required to provide and the amount actually provided and may be subject to revocation of its exemption status by the department for repeated failure to pay any fines or moneys due to the department or for repeated failure to produce data as required by Code Section 31-6-70 after notice to the exemption holder and a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The dollar amount specified in this paragraph shall be adjusted annually by an amount calculated by multiplying such dollar amount (as adjusted for the preceding year) by the annual percentage of change in the composite index of construction material prices, or its successor or appropriate replacement index, if any, published by the United States Department of Commerce for the preceding calendar year, commencing on July 1, 2009, and on each anniversary thereafter of publication of the index. The department shall immediately institute rule-making procedures to adopt such adjusted dollar amounts. In calculating the dollar amounts of a proposed project for purposes of this paragraph, the costs of all items subject to review by this chapter and items not subject to review by this chapter associated with and simultaneously developed or proposed with the project shall be counted, except for the expenditure or commitment of or incurring an obligation for the expenditure of funds to develop certificate of need applications, studies, reports, schematics, preliminary plans and specifications or working drawings, or to acquire sites;

    20. Expansion of services by an imaging center based on a population needs methodology taking into consideration whether the population residing in the area served by the imaging center has a need for expanded services, as determined by the department in accordance with its rules and regulations, if such imaging center:
      1. Was in existence and operational in this state on January 1, 2008;
      2. Is owned by a hospital or by a physician or a group of physicians comprising at least 80 percent ownership who are currently board certified in radiology;
      3. Provides three or more diagnostic and other imaging services;
      4. Accepts all patients regardless of ability to pay; and
      5. Provides uncompensated indigent and charity care in an amount equal to or greater than the amount of such care provided by the geographically closest general acute care hospital; provided, however, that this paragraph shall not apply to an imaging center in a rural county;
    21. Diagnostic cardiac catheterization in a hospital setting on patients 15 years of age and older;
    22. Therapeutic cardiac catheterization in hospitals selected by the department prior to July 1, 2008, to participate in the Atlantic Cardiovascular Patient Outcomes Research Team (C-PORT) Study and therapeutic cardiac catheterization in hospitals that, as determined by the department on an annual basis, meet the criteria to participate in the C-PORT Study but have not been selected for participation; provided, however, that if the criteria requires a transfer agreement to another hospital, no hospital shall unreasonably deny a transfer agreement to another hospital;
    23. Infirmaries or facilities operated by, on behalf of, or under contract with the Department of Corrections or the Department of Juvenile Justice for the sole and exclusive purpose of providing health care services in a secure environment to prisoners within a penal institution, penitentiary, prison, detention center, or other secure correctional institution, including correctional institutions operated by private entities in this state which house inmates under the Department of Corrections or the Department of Juvenile Justice;
    24. The relocation of any skilled nursing facility, intermediate care facility, or micro-hospital within the same county, any other health care facility in a rural county within the same county, and any other health care facility in an urban county within a three-mile radius of the existing facility so long as the facility does not propose to offer any new or expanded clinical health services at the new location;
    25. Facilities which are devoted to the provision of treatment and rehabilitative care for periods continuing for 24 hours or longer for persons who have traumatic brain injury, as defined in Code Section 37-3-1;
    26. Capital expenditures for a project otherwise requiring a certificate of need if those expenditures are for a project to remodel, renovate, replace, or any combination thereof, a medical-surgical hospital and:
      1. That hospital:
        1. Has a bed capacity of not more than 50 beds;
        2. Is located in a county in which no other medical-surgical hospital is located;
        3. Has at any time been designated as a disproportionate share hospital by the department; and
        4. Has at least 45 percent of its patient revenues derived from medicare, Medicaid, or any combination thereof, for the immediately preceding three years; and
      2. That project:
        1. Does not result in any of the following:
      3. The offering of any new clinical health services;
      4. Any increase in bed capacity;
      5. Any redistribution of existing beds among existing clinical health services; or
      6. Any increase in capacity of existing clinical health services;
        1. Has at least 80 percent of its capital expenditures financed by the proceeds of a special purpose county sales and use tax imposed pursuant to Article 3 of Chapter 8 of Title 48; and
        2. Is located within a three-mile radius of and within the same county as the hospital's existing facility;
    27. The renovation, remodeling, refurbishment, or upgrading of a health care facility, so long as the project does not result in any of the following:
      1. The offering of any new or expanded clinical health services;
      2. Any increase in inpatient bed capacity;
      3. Any redistribution of existing beds among existing clinical health services; or
      4. A capital expenditure exceeding the threshold contained in paragraph (2) of subsection (a) of Code Section 31-6-40;
    28. Other than for equipment used to provide positron emission tomography (PET) services, the acquisition of diagnostic, therapeutic, or other imaging equipment with a value of $3 million or less, by or on behalf of:
      1. A hospital; or
      2. An individual private physician or single group practice of physicians exclusively for use on patients of such private physician or single group practice of physicians and such private physician or member of such single group practice of physicians is physically present at the practice location where the diagnostic or other imaging equipment is located at least 75 percent of the time that the equipment is in use.

        The amount specified in this paragraph shall not include build-out costs, as defined by the department, but shall include all functionally related equipment, software, and any warranty and services contract costs for the first five years. The acquisition of one or more items of functionally related diagnostic or therapeutic equipment shall be considered as one project. The dollar amount specified in this paragraph and in paragraph (10) of this subsection shall be adjusted annually by an amount calculated by multiplying such dollar amounts (as adjusted for the preceding year) by the annual percentage of change in the consumer price index, or its successor or appropriate replacement index, if any, published by the United States Department of Labor for the preceding calendar year, commencing on July 1, 2010; and

    29. A capital expenditure of $10 million or less by a hospital at such hospital's primary campus for:
      1. The expansion or addition of the following clinical health services: operating rooms, other than dedicated outpatient operating rooms; medical-surgical services; gynecology; procedure rooms; intensive care; pharmaceutical services; pediatrics; cardiac care or other general hospital services; provided, however, that such expenditure does not include the expansion or addition of inpatient beds or the conversion of one type of inpatient bed to another type of inpatient bed; or
      2. The movement of clinical health services from one location on the hospital's primary campus to another location on such hospital's primary campus.
  2. By rule, the department shall establish a procedure for expediting or waiving reviews of certain projects the nonreview of which it deems compatible with the purposes of this chapter, in addition to expenditures exempted from review by this Code section.

(Code 1981, §31-6-47, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1984, p. 22, § 31; Ga. L. 1989, p. 393, § 1; Ga. L. 1991, p. 1419, § 2; Ga. L. 1991, p. 1871, § 8; Ga. L. 1999, p. 296, §§ 22, 24; Ga. L. 2008, p. 9, § 2/HB 967; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 8, § 31/SB 46; Ga. L. 2009, p. 453, § 1-24/HB 228; Ga. L. 2012, p. 337, § 1/SB 361; Ga. L. 2018, p. 132, § 5/HB 769; Ga. L. 2019, p. 148, § 1-10/HB 186; Ga. L. 2019, p. 945, § 3/HB 300; Ga. L. 2019, p. 1056, § 31/SB 52.)

The 2018 amendment, effective July 1, 2018, added paragraph (a)(9.2); and inserted ", or micro-hospital" near the middle of paragraph (a)(24).

The 2019 amendments. The first 2019 amendment, effective July 1, 2019, substituted "42 U.S.C. Section" for "42 U.S.C. § " in paragraph (a)(5); substituted the present provisions of paragraph (a)(9) for the former provisions, which read: "Expenditures for the acquisition of existing health care facilities by stock or asset purchase, merger, consolidation, or other lawful means unless the facilities are owned or operated by or on behalf of a:

"(A) Political subdivision of this state;

"(B) Combination of such political subdivisions; or

"(C) Hospital authority, as defined in Article 4 of Chapter 7 of this title;"; deleted former paragraph (a)(9.1), which read: "Expenditures for the restructuring of or for the acquisition by stock or asset purchase, merger, consolidation, or other lawful means of an existing health care facility which is owned or operated by or on behalf of any entity described in subparagraph (A), (B), or (C) of paragraph (9) of this subsection only if such restructuring or acquisition is made by any entity described in subparagraph (A), (B), or (C) of paragraph (9) of this subsection;"; redesignated former paragraph (a)(9.2) as present paragraph (a)(9.1); inserted ", magnetic resonance imaging, positron emission tomography (PET), and positron emission tomography/computed tomography" near the end of paragraph (a)(10.1); in paragraph (a)(12), inserted "United States" and deleted "of the United States government," preceding "calculated from the date"; substituted "such equipment" for "said equipment" in the middle of paragraph (a)(13); inserted "administrative office space; conference rooms; education facilities; lobbies; common spaces; clinical staff lounges and sleep areas; waiting rooms; bathrooms; cafeterias; hallways; engineering facilities; mechanical systems; roofs; grounds; signage; family meeting or lounge areas; other nonclinical physical plant renovations or upgrades that do not result in new or expanded clinical health services," in paragraph (a)(16); inserted "that" near the beginning of the proviso following division (a)(18)(C)(ii) and in the proviso in subparagraph (a)(20)(E); deleted "and" at the end of paragraph (a)(25); substituted a semicolon for a period at the end of division (a)(26)(B)(iii); and added paragraphs (a)(27) through (a)(29). The second 2019 amendment, effective July 1, 2019, in paragraph (17), substituted "life plan" for "continuing care retirement" throughout the paragraph. The third 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, inserted "that" following "provided, however," in the undesignated language at the end of subparagraph (a)(18)(C) and in subparagraph (a)(20)(E).

Code Commission notes.

- The amendment of this Code section by Ga. L. 2008, p. 9, § 2/HB 967, irreconcilably conflicted with and was treated as superseded by Ga. L. 2008, p. 12, § 1-1/SB 433. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Pursuant to Code Section 28-9-5, in 2019, "continuing care retirement" was deleted near the end of paragraph (a)(17).

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 by that Act shall only apply to applications submitted on or after July 1, 2008.

JUDICIAL DECISIONS

Certificate of need required to move rehab program.

- Department of Community Health's (DCH) decision to treat a hospital's comprehensive in-patient rehabilitation (CIPR) program as a healthcare facility that was being relocated under O.C.G.A. § 31-6-47(a)(24) violated the certificate of need statute and therefore exceeded DCH's authority under O.C.G.A. § 31-6-21. Dep't of Cmty. Health v. Emory Univ., 351 Ga. App. 257, 830 S.E.2d 628 (2019), cert. denied, 2020 Ga. LEXIS 157 (Ga. 2020).

Rule-making authority of planning agency.

- Relocation rule of the planning agency that purported to exempt certain relocations from compliance with statutory certificate of need requirements, thereby denying opposing parties the opportunity to obtain review by the review board and the courts, was invalid as an unconstitutional attempt to exercise legislative power. HCA Health Servs. of Ga., Inc. v. Roach, 265 Ga. 501, 458 S.E.2d 118 (1995).

Mobile cardiac catherization unit which was "grandfathered" and exempt from obtaining a certificate of need when the unit began operating was required to obtain a certificate of need when the unit was relocated. Phoebe Putney Mem. Hosp. v. Roach, 267 Ga. 619, 480 S.E.2d 595 (1997).

Replacement equipment.

- Healthcare provider did not show that the Department of Community Health committed an error of law in ordering the healthcare provider to cease operations until the healthcare provider obtained a certificate of need; the healthcare provider was not using replacement equipment at the time it moved and, thus, whether the Department of Community Health earlier issued a correct letter of nonreviewability was not at issue at the time the healthcare provider relocated to a new center with new equipment. N. Atlanta Scan Assocs. v. Dep't of Cmty. Health, 277 Ga. App. 583, 627 S.E.2d 67 (2006).

Exhaustion of administrative remedies.

- Court of appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19(a), in the society's action seeking to prevent the Georgia Department of Community Health and the Department's Commissioner from requiring the Department's members to respond to certain disputed requests in an annual survey because the futility exception to the exhaustion requirement was inapplicable; the Commissioner's position in the lawsuit did not establish futility because actions taken to defend a lawsuit could not establish futility. Ga. Dep't of Cmty. Health v. Ga. Soc'y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012).

Court of appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19(a), in the society's action seeking to prevent the Georgia Department of Community Health (DCH) and the Department's Commissioner from requiring the Department's members to respond to certain disputed requests in an annual survey because the "acting outside statutory authority" exception to the exhaustion requirement did not apply; the society did not allege that DCH was acting wholly outside the Department's jurisdiction under O.C.G.A. § 31-6-70 to conduct surveys, but instead, the society claimed that the manner in which the survey was being conducted did not fully comply with the procedural requirements of the statute. Ga. Dep't of Cmty. Health v. Ga. Soc'y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012).

Because the Georgia Society of Ambulatory Surgical Centers represented the interests of members that had adequate administrative remedies, and those members had not exhausted those remedies, the trial court was required to dismiss its case alleging that an annual survey the Georgia Department of Community Health (DCH) issued to ambulatory surgery centers (ASC) sought information beyond the scope of O.C.G.A. § 31-6-70. Furthermore, the procedures set forth in the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19 and O.C.G.A. §§ 31-6-40(c), and31-6-47(a)(18), and Ga. Comp. R. & Regs. 111-2-2-.05(2)(e) were available to ASCs before DCH took any final adverse action against them for failing to provide the required survey information, the procedures afforded adequate administrative remedies to aggrieved ASCs. Ga. Soc'y of Ambulatory Surgery Ctrs. v. Ga. Dep't of Cmty. Health, 316 Ga. App. 433, 729 S.E.2d 565 (2012).

Cited in HCA Health Servs., Inc. v. Roach, 263 Ga. 798, 439 S.E.2d 494 (1994); Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Increase of ten beds or 10 percent of bed capacity requires certificate where new service created.

- Though an increase of the lesser of ten beds or 10 percent of bed capacity would be excluded from review generally under paragraph (a)(15) of O.C.G.A. § 31-6-47, it is likely that such increases would require a certificate of need if the new beds were used to create new institutional health services. 1983 Op. Att'y Gen. No. 83-34.

State Health Planning and Development Agency rules under former § 31-6-50 given effect under O.C.G.A. § 31-6-47. - To the extent that the exclusions in O.C.G.A. § 31-6-47 are identical to or essentially the same as those in former § 31-6-50, those State Health Planning and Development Agency (now Department of Community Health) rules in effect on June 30, 1983, as to such exclusions will remain effective on or after July 1, 1983, and until new rules are adopted. 1983 Op. Att'y Gen. No. 83-34.

Any State Health Planning and Development Agency (now Department of Community Health) rules in effect on June 30, 1983, which require a certificate of need for expenditures which increase the bed capacity of a hospital by up to ten beds or 10 percent of capacity, whichever is less, are "inconsistent with this chapter" under O.C.G.A. § 31-6-49 and therefore not controlling after July 1, 1983. 1983 Op. Att'y Gen. No. 83-34.

31-6-47.1. Prior notice and approval of certain activities.

The department shall require prior notice from a new health care facility for approval of any activity which is believed to be exempt pursuant to Code Section 31-6-47 or excluded from the requirements of this chapter under other provisions of this chapter. The department may require prior notice and approval of any activity which is believed to be exempt pursuant to paragraphs (10), (15), (16), (17), (20), (21), (23), (25), (26), (27), (28), and (29) of subsection (a) of Code Section 31-6-47. The department shall establish timeframes, forms, and criteria to request a letter of determination that an activity is properly exempt or excluded under this chapter prior to its implementation. The department shall publish notice of all requests for letters of determination regarding exempt activity and opposition to such request. Persons opposing a request for approval of an exempt activity shall be entitled to file an objection with the department and the department shall consider any filed objection when determining whether an activity is exempt. After the department's decision, an opposing party shall have the right to a fair hearing pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," on an adverse decision of the department and judicial review of a final decision in the same manner and under the same provisions as in Code Section 31-6-44.1. If no objection to a request for determination is filed within 30 days of the department's receipt of such request for determination, the department shall have 60 days from the date of the department's receipt of such request to review the request and issue a letter of determination. The department may adopt rules for deciding when it is not practicable to provide a determination in 60 days and may extend the review period upon written notice to the requestor but only for an extended period of no longer than an additional 30 days.

(Code 1981, §31-6-47.1, enacted by Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2019, p. 148, § 1-11/HB 186.)

The 2019 amendment, effective July 1, 2019, substituted "(25), (26), (27), (28), and (29)" for "(25), and (26)" in the second sentence, substituted "department shall establish timeframes, forms, and criteria to request a letter of determination" for "department shall be authorized to establish timeframes, forms, and criteria relating to its certification" in the third sentence, substituted "letters of determination regarding" for "approval of an" in the fourth sentence, and added the last two sentences.

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.

31-6-48. Prior entities abolished; transfer of contractual obligations.

The State Health Planning and Development Agency, the State-wide Health Coordinating Council, and the State Health Planning Review Board existing immediately prior to July 1, 1983, are abolished, and their respective successors on and after July 1, 1983, shall be the Health Planning Agency, the Health Policy Council, and the Health Planning Review Board, as established in this chapter, except that on and after July 1, 1991, the Health Strategies Council shall be the successor to the Health Policy Council, and except that on and after July 1, 1999, the Department of Community Health shall be the successor to the Health Planning Agency, and except that on and after July 1, 2008, the Board of Community Health shall be the successor to the duties of the Health Strategies Council with respect to adoption of the state health plan, and except that on June 30, 2008, the Health Planning Review Board is abolished and the terms of all members on such board on such date shall automatically terminate and the Certificate of Need Appeal Panel shall be the successor to the duties of the Health Planning Review Board on such date. For purposes of any existing contract with the federal government, or federal law referring to such abolished agency, council, or board, the successor department, council, or board established in this chapter or in Chapter 2 of this title shall be deemed to be the abolished agency, council, or board and shall succeed to the abolished agency's, council's, or board's functions. The State Health Planning and Development Commission is abolished.

(Code 1981, §31-6-48, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1985, p. 149, § 31; Ga. L. 1991, p. 1880, § 4; Ga. L. 1999, p. 296, § 8; Ga. L. 2000, p. 136, § 31; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2009, p. 453, § 1-25/HB 228.)

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.

31-6-49. Transitional provisions.

All matters transferred to the Health Planning Agency by the previously existing provisions of this Code section and that are in effect on June 30, 1999, shall automatically be transferred to the Department of Community Health on July 1, 1999. All matters of the Health Planning Review Board that are pending on June 30, 2008, shall automatically be transferred to the Certificate of Need Appeal Panel established pursuant to Code Section 31-6-44.

(Code 1981, §31-6-49, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1985, p. 149, § 31; Ga. L. 1999, p. 296, § 8; 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 amendment to this Code section shall only apply to applications submitted on or after July 1, 2008.

OPINIONS OF THE ATTORNEY GENERAL

Effect to be given to prior rules of State Health Planning and Development Agency.

- Any portions of the State Health Planning and Development Agency's (now Department of Community Health) rules in effect on June 30, 1983, which are not "inconsistent with this chapter" under former paragraph (3) of O.C.G.A. § 31-6-49, or which can be adapted to the new law merely by making numerical substitutions, will remain in effect on that date, and will continue in effect until new rules are adopted. 1983 Op. Att'y Gen. No. 83-34.

Those State Health Planning and Development Agency's (now Department of Community Health) rules in effect on June 30, 1983 which refer to the $150,000 threshold in former § 31-6-2, or do not distinguish between capital expenditures and equipment expenditures as set out in current § 31-6-2(14)(B) and (F) are "inconsistent with this chapter" under former paragraph (3) of O.C.G.A. § 31-6-49, but so as to effectuate the General Assembly's intent will be read together and harmonized with the controlling dollar amounts and classifications of the new law. 1983 Op. Att'y Gen. No. 83-34.

Any provisions in the State Health Planning and Development Agency's (now Department of Community Health) rules in effect on June 30, 1983 which provide for health system agency participation in the certificate of need review process on or after July 1, 1983 will be "inconsistent with this chapter" under former paragraph (3) of O.C.G.A. § 31-6-49, and as such will not be effective on or after July 1, 1983. 1983 Op. Att'y Gen. No. 83-34.

To the extent that the exclusions in present O.C.G.A. § 31-6-47 are identical to or essentially the same as those in former § 31-6-50, those State Health Planning and Development Agency (now Department of Community Health) rules in effect on June 30, 1983 as to such exclusions will remain effective on or after July 1, 1983 and until new rules are adopted. 1983 Op. Att'y Gen. No. 83-34.

Any State Health Planning and Development Agency (now Department of Community Health) rules in effect on June 30, 1983 which require a certificate of need for expenditures which increase the bed capacity of a hospital by up to ten beds or 10 percent of capacity, whichever is less, is "inconsistent with this chapter" under former paragraph (3) of O.C.G.A. § 31-6-49 and therefore not controlling after July 1, 1983. 1983 Op. Att'y Gen. No. 83-34.

31-6-50. Application of review procedures to expenditures under Section 1122 of the federal Social Security Act.

The review and appeal considerations and procedures set forth in Code Sections 31-6-42 through 31-6-44, respectively, shall apply to and govern the review of capital expenditures under the Section 1122 program of the federal Social Security Act of 1935, as amended, including, but not limited to, any application for approval under Section 1122 which is under consideration by the Health Planning Agency or on appeal before the Certificate of Need Appeal Panel, successor to the former Health Planning Review Board as of June 30, 2008.

(Code 1981, §31-6-50, enacted by Ga. L. 1983, p. 1566, § 1; Ga. L. 1985, p. 149, § 31; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1985, "31-6-42 through 31-6-44" was substituted for "31-6-42, 31-6-43, and 31-6-44".

Pursuant to Code Section 28-9-5, in 1999, "Health Planning Agency" was substituted for "department".

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.

U.S. Code.

- Section 1122 of the Social Security Act, as amended, referred to in this Code section, is codified as 42 U.S.C. § 1320a-1.

OPINIONS OF THE ATTORNEY GENERAL

Appeal of agency decisions.

- Prior to the 1983 reenactment, applicants proposing a capital expenditure, as well as health systems agencies and persons who qualify as a "party" or "persons aggrieved" under the "Georgia Administrative Procedure Act" (O.C.G.A. Ch. 13, T. 50) have the right to appeal to the State Health Planning Review Board (now Certificate of Need Appeal Panel) decisions of the State Health Planning and Development Agency (now Department of Community Health) relative to § 1122 of the Social Security Act, 42 U.S.C. § 1320a-1(a). 1981 Op. Att'y Gen. No. 81-8.

ARTICLE 4 REPORTS

31-6-70. Reports to the department by certain health care facilities and all ambulatory surgical centers and imaging centers; public availability.

  1. There shall be required from each health care facility in this state requiring a certificate of need and all ambulatory surgical centers and imaging centers, whether or not exempt from obtaining a certificate of need under this chapter, an annual report of such health care information as determined by the department. The report shall be due on the date determined by the department and shall cover the 12 month period preceding each such calendar year.
  2. The report required under subsection (a) of this Code section shall contain the following information:
    1. Total gross revenues;
    2. Bad debts;
    3. Amounts of free care extended, excluding bad debts;
    4. Contractual adjustments;
    5. Amounts of care provided under a Hill-Burton commitment;
    6. Amounts of charity care provided to indigent and nonindigent persons;
    7. Amounts of outside sources of funding from governmental entities, philanthropic groups, or any other source, including the proportion of any such funding dedicated to the care of indigent persons;
    8. For cases involving indigent persons and nonindigent person receiving charity care:
      1. The number of persons treated;
      2. The number of inpatients and outpatients;
      3. Total patient days;
      4. The number of patients categorized by county of residence; and
      5. The indigent and nonindigent care costs incurred by the health care facility by county of residence;
    9. Transfers to a hospital or hospital emergency department, including both direct transfers and transfers by emergency medical services;
    10. Number of rooms, beds, procedures, and patients, including, without limitation, demographic information and payer source;
    11. Patient origin by county; and
    12. Operational information such as procedure types, volumes, and charges.
  3. As used in subsection (b) of this Code section, "indigent persons" means persons having as a maximum allowable income level an amount corresponding to 125 percent of the federal poverty guideline.
  4. The department shall provide a form for the reports required by this Code section and may provide in said form for further categorical divisions of the information listed in subsections (b) or (c.1) of this Code section.
    1. In the event the department does not receive an annual report from a health care facility requiring a certificate of need or an ambulatory surgical center or imaging center, whether or not exempt from obtaining a certificate of need under this chapter, on or before the date such report was due or receives a timely but incomplete report, the department shall notify the health care facility or center regarding the deficiencies and shall be authorized to fine such health care facility or center an amount not to exceed $500.00 per day for every day up to 30 days and $1,000.00 per day for every day over 30 days for every day of such untimely or deficient report.
    2. In the event the department does not receive an annual report from a health care facility within 180 days following the date such report was due or receives a timely but incomplete report which is not completed within such 180 days, the department shall be authorized to revoke such health care facility's certificate of need in accordance with Code Section 31-6-45.
  5. No application for a certificate of need under Article 3 of this chapter shall be considered as complete if the applicant has not submitted the annual report required by subsection (a) of this Code section.
  6. The department shall make publicly available all annual reports submitted pursuant to this Code section on the department website. The department shall also provide a copy of such annual reports to the Governor, the President of the Senate, the Speaker of the House of Representatives, and the chairpersons of the House Committee on Health and Human Services and the Senate Health and Human Services Committee.
  7. All health care facilities, ambulatory surgical centers, and imaging centers required to submit an annual report pursuant to subsection (a) of this Code section shall make such annual reports publicly available on their websites.

(Code 1981, §31-6-70, enacted by Ga. L. 1985, p. 827, § 1; Ga. L. 1987, p. 573, § 1; Ga. L. 1988, p. 13, § 31; Ga. L. 1999, p. 296, § 22; Ga. L. 2008, p. 12, § 1-1/SB 433; Ga. L. 2019, p. 148, § 1-12/HB 186.)

The 2019 amendment, effective July 1, 2019, in subsection (a), substituted "report of such health care information as determined by" for "report of certain health care information to be submitted to" near the end of the first sentence and substituted "date determined by the department" for "last day of January" in the second sentence; inserted "and nonindigent" in paragraph (b)(6) and subparagraph (b)(8)(E); deleted "and" at the end of paragraph (b)(7); inserted "and nonindigent person receiving charity care" in paragraph (b)(8); substituted a semicolon for a period at the end of subparagraph (b)(8)(E); and added paragraphs (b)(9) through (b)(12); in subsection (d), substituted "reports required by this Code section" for "report required by subsection (a) of this Code section" near the middle and substituted "subsections (b) or (c.1)" for "subsection (b)" near the end; deleted "information responsive to subparagraph (c)(2)(A) of Code Section 31-6-40 by December 30, 2008, or" following "does not receive" near the beginning of paragraph (e)(1); and added subsections (g) and (h).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, "within such" was substituted for "with such" in paragraph (e)(2).

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.

Law reviews.

- For annual survey on administrative law, see 64 Mercer L. Rev. 39 (2012).

JUDICIAL DECISIONS

Exhaustion of administrative remedies.

- Court of appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19(a), in the society's ction seeking to prevent the Georgia Department of Community Health (DCH) and the Departmen'ts Commissioner from requiring the Department's members to respond to certain disputed requests in an annual survey because the "acting outside statutory authority" exception to the exhaustion requirement did not apply; the society did not allege that DCH was acting wholly outside the Department's jurisdiction under O.C.G.A. § 31-6-70 to conduct surveys, but instead, the society claimed that the manner in which the survey was being conducted did not fully comply with the procedural requirements of the statute. Ga. Dep't of Cmty. Health v. Ga. Soc'y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012).

Court of appeals erred in ruling that a society of surgery centers did not have to exhaust administrative remedies under the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19(a), in the society's action seeking to prevent the Georgia Department of Community Health and the Department's Commissioner from requiring its members to respond to certain disputed requests in an annual survey because the futility exception to the exhaustion requirement was inapplicable; the Commissioner's position in the lawsuit did not establish futility because actions taken to defend a lawsuit could not establish futility. Ga. Dep't of Cmty. Health v. Ga. Soc'y of Ambulatory Surgery Ctrs., 290 Ga. 628, 724 S.E.2d 386 (2012).

Because the Georgia Society of Ambulatory Surgical Centers represented the interests of members that had adequate administrative remedies, and those members had not exhausted those remedies, the trial court was required to dismiss its case alleging that an annual survey the Georgia Department of Community Health (DCH) issued to ambulatory surgery centers (ASC) sought information beyond the scope of O.C.G.A. § 31-6-70. Furthermore, the procedures set forth in the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-19 and O.C.G.A. §§ 31-6-40(c), and31-6-47(a)(18), and Ga. Comp. R. & Regs. 111-2-2-.05(2)(e) were available to ASCs before DCH took any final adverse action against them for failing to provide the required survey information, the procedures afforded adequate administrative remedies to aggrieved ASCs. Ga. Soc'y of Ambulatory Surgery Ctrs. v. Ga. Dep't of Cmty. Health, 316 Ga. App. 433, 729 S.E.2d 565 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Hospital authority may apply for certificate of need outside the hospital's area of operation and without the permission of the affected governing authority or hospital authority board in the planned service area; provided, however, that in order to implement the certificate, permission to pursue the health care activity would be required. 1995 Op. Att'y Gen. No. 95-13.

ARTICLE 5 STATE COMMISSION ON THE EFFICACY OF THE CERTIFICATE OF NEED PROGRAM

31-6-90 through 31-6-95.

Repealed pursuant to Code Section 31-6-95, which provided for the repeal of this article on June 30, 2007.

Editor's notes.

- This article was based on Code 1981, §§ 31-6-90 through31-6-95, enacted by Ga. L. 2005, p. 43, § 1/HB 390.

CHAPTER 7 REGULATION AND CONSTRUCTION OF HOSPITALS AND OTHER HEALTH CARE FACILITIES

Article 1 Regulation of Hospitals and
Related Institutions. Article 2
Georgia Building Authority Hospital).
Article 3 Grants for Construction and
Modernization of Medical Facilities.
Article 4 County and Municipal Hospital Authorities.
Article 5 Residential Care Facilities for the Elderly Authorities.
Article 6 Peer Review Groups.
Article 6A Medical Review Committees.
Article 7 Home Health Agencies.
Article 8 Health Service Provider Psychologists.
Article 9 Hospice Care.
Article 10 Patient Centered and Family Focused Palliative Care.
Article 11 Facility Licensing and Employee
Records Checks. Article 12
Health Care Data Collection. Article 13
Private Home Care Providers. Article 14
Georgia Long-term Care Background Check Program. Article 14A
Central Caregiver Registry. Article 15
Hospital Acquisition. Cross references. - Authority of board of regents with regard to Eugene Talmadge Memorial Hospital, § 20-3-520 et seq.

Requirement of smoke detectors for nursing homes, § 25-2-40.

Offering continuing care when resident purchases resident owned living unit, § 33-45-7.1.

Designation of emergency receiving facilities for examination of mentally ill persons, alcoholics, and others, §§ 37-3-40 et seq.,37-7-40 et seq.

Designation of evaluating facilities for examination of persons ordered by court to undergo evaluation for mental illness, alcoholism, and other conditions, §§ 37-3-60,37-7-60.

Authority of Department of Veterans Service and Veterans Service Board to construct and operate hospitals, nursing homes, and other facilities for care of war veterans, § 38-4-2.

Registered nurses and licensed practical nurses, T. 43, C. 26.

Physical therapists, T. 43, C. 33.

Physicians, osteopaths, T. 43, C. 34.

Administrative Rules and Regulations.

- General licensing and enforcement requirements, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Healthcare Facility Regulation, Chapter 111-8-25.

Personal care homes, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Healthcare Facility Regulation, Chapter 111-8-62.

Rules and regulations for residential mental health facilities for children and youth, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Healthcare Facility Regulation, Chapter 111-8-68.

Rules and regulations for proxy caregivers used in licensed healthcare facilities, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Healthcare Facility Regulation, Chapter 111-8-100.

Law reviews.

- For article, "Baby Doe Cases: Compromise and Moral Dilemma," see 34 Emory L.J. 545 (1985). For article, "State of Emergency: Why Georgia's Standard of Care in Emergency Rooms is Harmful to Your Health," see 45 Ga. L. Rev. 275 (2010). For article, "The Olmstead Decision: The Road to Dignity and Freedom," see 26 Ga. St. U. L. Rev. 651 (2010). For article, "Olmstead's Promise and Cohousing's Potential," see 26 Ga. St. U. L. Rev. 663 (2010). For article, "From the Inside Out: Personal Perspectives of Six Georgians on Their Institutional Experiences," see 26 Ga. St. U. L. Rev. 741 (2010). For article, "The Constitutional Right to Community Services," see 26 Ga. St. U. L. Rev. 763 (2010). For article, "Reconsidering Makin v. Hawaii: The Right of Medicaid Beneficiaries to Home-Based Services as an Alternative to Institutionalization," see 26 Ga. St. U. L. Rev. 803 (2010). For article, "The Potential and Risks of Relying on Title II's Integration Mandate to Close Segregated Institutions," see 26 Ga. St. U. L. Rev. 855 (2010). For article, "Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings," see 26 Ga. St. U. L. Rev. 875 (2010). For article, "From Almshouses to Nursing Homes and Community Care: Lessons from Medicaid's History," see 26 Ga. St. U. L. Rev. 937 (2010). For note, "Deinstitutionalization: Georgia's Progress in Developing and Implementing an 'Effectively Working Plan' as Required by Olmstead v. L.C. ex rel," see 25 Ga. St. U. L. Rev. 699 (2009). For note, “Bearing Hospital Tax Breaks: How Nonprofits Benefit From Your Surprise Medical Bills,” see 35 Ga. St. U.L. Rev. 809 (2019).

JUDICIAL DECISIONS

Cited in Richards v. Emanuel County Hosp. Auth., 603 F. Supp. 81 (S.D. Ga. 1984).

RESEARCH REFERENCES

Defending Hospital - Negligence of Physician-Employee, 19 Am. Jur. Trials 431.

Hospital Recovery Room Accidents, 25 Am. Jur. Trials 185.

Hospital Liability for Nursing Medication Errors, 29 Am. Jur. Trials 591.

Due Process Considerations in Suspension of Hospital Staff Privileges, 32 Am. Jur. Trials 1.

Establishing Hospital Liability under the Emergency Medical Treatment and Active Labor Act for "Patient Dumping", 62 Am. Jur. Trials 119.

Liability of Hospital or Other Emergency Room Service Provider for Injury to Patient or Visitor, 67 Am. Jur. Trials 271.

Medical and Legal Aspects of Chemical and Physical Restraint in the Nursing Home, 75 Am. Jur. Trials 1.

ALR.

- Licensing and regulation of nursing or rest homes, 53 A.L.R.4th 689.

What patient claims against doctor, hospital, or similar health care provider are not subject to statutes specifically governing actions and damages for medical malpractice, 89 A.L.R.4th 887.

Liability of hospital for injury to person invited or permitted to accompany patient during emergency room treatment, 90 A.L.R.4th 478.

Liability of hospital, physician, or other medical personnel for death or injury from use of drugs to stimulate labor, 1 A.L.R.5th 243.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper administration of, or failure to administer, anesthesia or tranquilizers, or similar drugs, during labor and delivery, 1 A.L.R.5th 269.

Opposition to construction of new hospital or expansion of existing hospital's facilities as violation of Sherman Act (15 U.S.C. § 1 et seq.), 88 A.L.R. Fed. 478.

ARTICLE 1 REGULATION OF HOSPITALS AND RELATED INSTITUTIONS

Editor's notes.

- Ga. L. 2001, p. 1172, § 2, not codified by the General Assembly, provides that: "No hospital shall release for public use any autopsy photographs or images without the written permission of the family."

Law reviews.

- For article, "Hospital Mergers, Market Concentration and the Herfindahl-Hirschman Index," see 33 Emory L.J. 869 (1985).

OPINIONS OF THE ATTORNEY GENERAL

Department cannot regulate abortion facilities not within definition of institution.

- Law concerning regulation of hospitals and related institutions cannot be utilized by Department of Human Resources (now the Department of Community Health for these purposes) to extend regulation to abortions performed in facilities other than those embraced by the term institution. 1973 Op. Att'y Gen. No. 73-24.

Casualty insurance carried by regulated institutions not subject to department's regulation.

- Since the requirement of carrying adequate casualty insurance is a matter which does not pertain to protection of health and lives of patients in institutions nor to kind and quality of building, equipment, facilities and institutional services that institutions shall have and use in order to properly care for patients, the Department of Human Resources (now the Department of Community Health for these purposes) cannot legally pass a valid rule requiring institutions to carry adequate casualty insurance. 1967 Op. Att'y Gen. No. 67-177.

RESEARCH REFERENCES

ALR.

- Liability of private noncharitable hospital or sanitarium for improper care or treatment of patient, 39 A.L.R. 1431; 124 A.L.R. 186.

Hospital's liability for care of convalescing patient, 70 A.L.R.2d 377.

Malpractice in diagnosis and treatment of tetanus, 28 A.L.R.3d 1364.

Hospital's liability for injury or death to patient resulting from or connected with administration of anesthetic, 31 A.L.R.3d 1114.

Hospital's liability to patient for injury allegedly sustained from absence of particular equipment intended for use in diagnosis or treatment of patient, 50 A.L.R.3d 1141.

Hospital's liability for patient's injury or death resulting from escape or attempted escape, 37 A.L.R.4th 200.

31-7-1. (See Editor's notes.) Definitions.

As used in this chapter, the term:

  1. "Board" means the Board of Community Health.
  2. "Commissioner" means the commissioner of community health.
  3. "Department" means the Department of Community Health.
  4. "Institution" means:
    1. Any building, facility, or place in which are provided two or more beds and other facilities and services that are used for persons received for examination, diagnosis, treatment, surgery, maternity care, nursing care, assisted living care, or personal care for periods continuing for 24 hours or longer and which is classified by the department, as provided for in this chapter, as either a hospital, nursing home, assisted living community, or personal care home;
    2. Any health facility wherein abortion procedures under subsections (b) and (c) of Code Section 16-12-141 are performed or are to be performed;
    3. Any building or facility, not under the operation or control of a hospital, which is primarily devoted to the provision of surgical treatment to patients not requiring hospitalization and which is classified by the department as an ambulatory surgical treatment center;
    4. Any fixed or mobile specimen collection center or health testing facility where specimens are taken from the human body for delivery to and examination in a licensed clinical laboratory or where certain measurements such as height and weight determination, limited audio and visual tests, and electrocardiograms are made, excluding public health services operated by the state, its counties, or municipalities;
    5. Any building or facility where human births occur on a regular and ongoing basis and which is classified by the department as a birthing center;
    6. Any building or facility which is devoted to the provision of treatment and rehabilitative care for periods continuing for 24 hours or longer for persons who have traumatic brain injury, as defined in Code Section 37-3-1; or
    7. Any freestanding imaging center where magnetic resonance imaging, computed tomography (CT) scanning, positron emission tomography (PET) scanning, positron emission tomography/computed tomography, and other advanced imaging services as defined by the department by rule, but not including X-rays, fluoroscopy, or ultrasound services, are conducted in a location or setting not affiliated or attached to a hospital or in the offices of an individual private physician or single group practice of physicians and conducted exclusively for patients of that physician or group practice.

      The term "institution" shall exclude all physicians' and dentists' private offices and treatment rooms in which such physicians or dentists primarily see, consult with, and treat patients.

  5. "Medical facility" means any licensed general hospital, destination cancer hospital, or specialty hospital, institutional infirmary, public health center, or diagnostic and treatment center.
  6. "Permit" means a permit issued by the department upon compliance with the rules and regulations of the department.
  7. "Provisional permit" means a permit issued on a conditional basis for one of the following reasons:
    1. To allow a newly established institution a reasonable but limited period of time to demonstrate that its operational procedures equal standards specified by the rules and regulations of the department; or
    2. To allow an existing institution a reasonable length of time to comply with rules and regulations, provided the institution shall present a plan of improvement acceptable to the department.

(Code 1933, § 88-1901, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1969, p. 715, § 3; Ga. L. 1973, p. 635, § 3; Ga. L. 1978, p. 1757, § 1; Code 1933, § 88-1913, enacted by Ga. L. 1980, p. 1040, § 2; Ga. L. 1982, p. 3, § 31; Ga. L. 1982, p. 864, §§ 1, 3; Ga. L. 1983, p. 3, § 22; Ga. L. 1989, p. 1566, § 2; Ga. L. 1990, p. 381, § 1; Ga. L. 1991, p. 94, § 31; Ga. L. 1993, p. 1445, § 4; Ga. L. 2002, p. 1324, § 1-5; Ga. L. 2003, p. 558, § 2; Ga. L. 2008, p. 12, § 2-8/SB 433; Ga. L. 2011, p. 227, § 11/SB 178.)

Cross references.

- "Personal care home" defined, § 31-7-12.

Conscious sedation, § 43-11-21.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

For application of this statute in 2020, see Executive Order 04.14.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

JUDICIAL DECISIONS

Cited in Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); Reddix v. Chatham County Hosp. Auth., 134 Ga. App. 860, 216 S.E.2d 680 (1975); Redd v. State, 240 Ga. 753, 243 S.E.2d 16 (1978); Primary Care Physicians Group v. Ledbetter, 634 F. Supp. 78 (N.D. Ga. 1986); Wofford v. Glynn Brunswick Mem. Hosp., 864 F.2d 117 (11th Cir. 1989).

OPINIONS OF THE ATTORNEY GENERAL

Department cannot regulate abortion facilities not within definition of institution.

- Law concerning regulation of hospitals and institutions cannot be utilized by Department of Human Resources (now the Department of Community Health for these purposes) to extend regulation to abortions performed in facilities other than those embraced by the term institution. 1973 Op. Att'y Gen. No. 73-24.

Classification and operation by department of Gracewood and Central State Hospitals.

- Department of Human Resources (now the Department of Community Health for these purposes) has authority to classify units of Gracewood State School and Hospital and Central State Hospital as a skilled nursing home and general hospital and has ample authority to operate these institutions. 1969 Op. Att'y Gen. No. 69-243.

RESEARCH REFERENCES

Am. Jur. 2d.

- 40A Am. Jur. 2d, Hospitals and Asylums, §§ 1, 17 et seq.

13B Am. Jur. Pleading and Practice Forms, Hospitals, § 2.

C.J.S.

- 41 C.J.S., Hospitals, § 1 et seq.

ALR.

- Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper procedures during caesarean delivery, 76 A.L.R.4th 1112.

31-7-2. Classification of institutions.

The department shall classify institutions and adopt and promulgate rules and regulations applicable thereto according to the type of services rendered.

(Ga. L. 1946, p. 34, § 1; Ga. L. 1958, p. 322, § 1; Code 1933, § 88-1904, enacted by Ga. L. 1964, p. 499, § 1.)

JUDICIAL DECISIONS

Department regulations governing free-standing emergency care clinics violated First Amendment rights of plaintiff physicians since the regulations were more extensive than necessary to serve the governmental interest of prohibiting misleading advertising and were impermissibly vague in providing that facilities which used such terms as "emergency," "crisis," "sudden," "acute" or a similar meaning term fell within the regulatory ambit. Primary Care Physicians Group v. Ledbetter, 634 F. Supp. 78 (N.D. Ga. 1986).

OPINIONS OF THE ATTORNEY GENERAL

Classification and operation by department of Gracewood and Central State Hospitals.

- Department of Human Resources (now the Department of Community Health for these purposes) has authority to classify units of Gracewood State School and Hospital and Central State Hospital as a skilled nursing home and general hospital and has ample authority to operate these institutions. 1969 Op. Att'y Gen. No. 69-243.

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, §§ 4, 6.

31-7-2.1. Rules and regulations; availability of reports of cited deficiencies; disclosure of survey worksheets and documents.

  1. The department shall adopt and promulgate such reasonable rules and regulations which in its judgment are necessary to protect the health and lives of patients and shall prescribe and set out the kind and quality of building, equipment, facilities, and institutional services which institutions shall have and use in order to properly care for their patients. Such rules and regulations shall include detailed quality standards for specific clinical services which shall be required to be met by an institution prior to offering the particular service. Such rules and regulations shall require that all nursing homes annually offer unless contraindicated, contingent on availability, an influenza virus vaccine to all medicare and Medicaid-eligible patients and private-pay patients in their facilities, in accordance with the rules and regulations established pursuant to this subsection. Such rules and regulations shall also require that all nursing homes annually offer unless contraindicated, contingent on availability, a pneumococcal bacteria vaccine to all medicare-eligible patients and all private-pay patients, 65 years of age or older, in their facilities, in accordance with the rules and regulations established pursuant to this subsection.
  2. The department shall compile and distribute, upon request, to interested persons a monthly list of those nursing homes and intermediate care homes surveyed, inspected, or investigated during the month, indicating each facility for which deficiencies have been cited by the department, and indicating where reports of the cited deficiencies and information regarding any sanctions imposed can be obtained. The department shall also make available the survey reports upon written request.
  3. Except as provided in Code Sections 31-8-86 and 31-5-5, all worksheets or documents prepared or compiled by department surveyors in the course of nursing home surveys shall be provided upon written request to a nursing home which has received notice of intent to impose a remedy or sanction pursuant to 42 U.S.C. Section 1396r or Code Section 31-2-8; provided, however, that the names of residents and any other information that would reveal the identities of residents and the content of resident interviews shall not be disclosed except as provided in survey protocols of the federal Centers for Medicare and Medicaid Services. The department may charge a reasonable reproduction fee as provided in Article 4 of Chapter 18 of Title 50.

(Code 1933, § 88-1903, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1991, p. 1603, § 1; Ga. L. 1996, p. 1024, § 1; Ga. L. 2002, p. 415, § 31; Ga. L. 2004, p. 443, § 1; Ga. L. 2008, p. 12, § 2-9/SB 433; Ga. L. 2009, p. 453, § 1-9/HB 228; Ga. L. 2011, p. 705, § 4-7/HB 214.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2003, an extra "the" was deleted preceding "federal Centers for Medicare and Medicaid Services" near the end of the first sentence in subsection (c).

Pursuant to Code Section 28-9-5, in 2004, a hyphen was inserted twice between the words "private pay" and once between the words "Medicaid eligible" and the words "medicare eligible" in the second and third sentence of subsection (a).

Pursuant to Code Section 28-9-5, in 2008, "Article 4 of Chapter 18 of Title 50." was substituted for "Code Section 50-18-70 et seq." in the last sentence of subsection (c).

U.S. Code.

- Requirements for nursing facilities, 42 U.S.C. § 1396r.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For note on 1991 amendment of this Code section, see 8 Ga. St. U. L. Rev. 74 (1992).

31-7-2.2. Determination that patients or residents in an institution, community living arrangement, or treatment program are in danger; relocation of patients or residents; suspension of admissions.

    1. The commissioner may order the emergency relocation of patients or residents from an institution subject to licensure under this chapter, a community living arrangement subject to licensure under paragraph (8) of subsection (d) of Code Section 31-2-4, or a drug abuse treatment and education program subject to licensure under Chapter 5 of Title 26 when the commissioner has determined that the patients or residents are subject to an imminent and substantial danger.
    2. When an order is issued under this subsection, the commissioner shall provide for:
      1. Notice to the patient or resident, his or her next of kin or guardian, and his or her physician of the emergency relocation and the reasons therefor;
      2. Relocation to the nearest appropriate institution, community living arrangement, or drug abuse treatment and education program; and
      3. Other protection designed to ensure the welfare and, when possible, the desires of the patient or resident.
    1. The commissioner may order the emergency placement of a monitor in an institution subject to licensure under this chapter, a community living arrangement subject to licensure under paragraph (8) of subsection (d) of Code Section 31-2-4, or a drug abuse treatment and education program subject to licensure under Chapter 5 of Title 26 when one or more of the following conditions are present:
      1. The institution, community living arrangement, or drug abuse treatment and education program is operating without a permit or a license;
      2. The department has denied application for a permit or a license or has initiated action to revoke the existing permit or license of the institution, community living arrangement, or drug abuse treatment and education program;
      3. The institution, community living arrangement, or drug abuse treatment and education program is closing or plans to close and adequate arrangements for relocation of the patients or residents have not been made at least 30 days before the date of closure; or
      4. The health, safety, security, rights, or welfare of the patients or residents cannot be adequately assured by the institution, community living arrangement, or drug abuse treatment and education program.
    2. A monitor may be placed, pursuant to this subsection, in an institution, community living arrangement, or drug abuse treatment and education program for no more than ten days, during which time the monitor shall observe conditions and compliance with any recommended remedial action of the department by the institution, community living arrangement, or drug abuse treatment and education program. The monitor shall report to the department. The monitor shall not assume any administrative responsibility within the institution, community living arrangement, or drug abuse treatment and education program nor shall the monitor be liable for any actions of the institution, community living arrangement, or drug abuse treatment and education program. The costs of placing a monitor in an institution, community living arrangement, or drug abuse treatment and education program shall be paid by the institution, community living arrangement, or drug abuse treatment and education program unless the order placing the monitor is determined to be invalid in a contested case proceeding under subsection (d) of this Code section, in which event the costs shall be paid by the state.
    1. The commissioner may order the emergency prohibition of admissions to an institution subject to licensure under this chapter, a community living arrangement subject to licensure under paragraph (8) of subsection (d) of Code Section 31-2-4, or program subject to licensure under Chapter 5 of Title 26 when such institution, community living arrangement, or drug abuse treatment and education program has failed to correct a violation of departmental permit rules or regulations within a reasonable period of time, as specified in the department's corrective order, and the violation:
      1. Could jeopardize the health and safety of the residents or patients in the institution, community living arrangement, or drug abuse treatment and education program if allowed to remain uncorrected; or
      2. Is a repeat violation over a 12 month period, which is intentional or due to gross negligence.
    2. Admission to an institution, community living arrangement, or drug abuse treatment and education program may be suspended until the violation has been corrected or until the department has determined that the institution, community living arrangement, or drug abuse treatment and education program has undertaken the action necessary to effect correction of the violation.
  1. The commissioner may issue emergency orders pursuant to this Code section only if authorized by rules and regulations of the department. Unless otherwise provided in the order, an emergency order shall become effective immediately. The department shall hold a preliminary hearing within ten days following a request therefor by any institution, community living arrangement, or drug abuse treatment and education program affected by an emergency order. If at the preliminary hearing the order is determined by the department to be invalid, that order shall thereupon become void and of no effect. If at the preliminary hearing the order is determined by the department to be valid, that determination shall constitute a contested case under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and that order shall remain in effect until determined invalid in a proceeding regarding the contested case or until rescinded by the commissioner, whichever is earlier. For purposes of this subsection, an emergency order is valid only if the order is authorized to be issued under this Code section and rules and regulations relating thereto.
  2. The powers provided by this Code section are cumulative of all other powers of the department, board, and commissioner.

(Code 1981, §31-7-2.2, enacted by Ga. L. 1983, p. 1323, § 1; Ga. L. 2003, p. 558, § 3; Ga. L. 2009, p. 453, § 1-26/HB 228.)

Administrative Rules and Regulations.

- Monitoring, suspension of admissions, or transfer of patients or residents of hospitals and related institutions, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Services, Public Health, Chapter 290-5-44.

JUDICIAL DECISIONS

Discretionary function of state agency.

- Decision of the Department of Human Resources (now the Department of Community Health for these purposes) to review records, discuss with staff residents' care needs in a personal care home, and obtain a physician's statement regarding a resident's condition, in order to determine if the resident was a suitable resident at the home, rather than taking other action, including reassessing the patient or ordering emergency relocation, entailed policy judgments in which alternate courses of action were weighed in light of competing economic and social factors, and was the performance of a discretionary function or duty within the exception stated in O.C.G.A. § 50-21-24(2). Bruton v. State Dep't of Human Resources, 235 Ga. App. 291, 509 S.E.2d 363 (1998).

31-7-3. Requirements for permits to operate institutions.

  1. Any person or persons responsible for the operation of any institution, or who may hereafter propose to establish and operate an institution and to provide specified clinical services, shall submit an application to the department for a permit to operate the institution and provide such services, such application to be made on forms prescribed by the department. No institution shall be operated in this state without such a permit, which shall be displayed in a conspicuous place on the premises. No clinical services shall be provided by an institution except as approved by the department in accordance with the rules and regulations established pursuant to Code Section 31-7-2.1. Failure or refusal to file an application for a permit shall constitute a violation of this chapter and shall be dealt with as provided for in Article 1 of Chapter 5 of this title. Following inspection and classification of the institution for which a permit is applied for, the department may issue or refuse to issue a permit or a provisional permit. Permits issued shall remain in force and effect until revoked or suspended; provisional permits issued shall remain in force and effect for such limited period of time as may be specified by the department. Upon conclusion of the Atlantic Cardiovascular Patient Outcomes Research Team (C-PORT) Study, the department shall consider and analyze the data and conclusions of the study and promulgate rules pursuant to Code Section 31-7-2.1 to regulate the quality of care for therapeutic cardiac catheterization. All hospitals that participated in the study and are exempt from obtaining a certificate of need based on paragraph (22) of subsection (a) of Code Section 31-6-47 shall apply for a permit to continue providing therapeutic cardiac catheterization services once the department promulgates the rules required by this Code section.
  2. The department may accept the certification or accreditation of an institution by the American Osteopathy Association or a nationally recognized health care accreditation body, in accordance with specific standards, as evidence of that institution's compliance with the substantially equivalent departmental requirements for issuance or renewal of a permit or provisional permit, provided that such certification or accreditation is established prior to the issuance or renewal of such permits. The department may not require an additional departmental inspection of any institution whose certification or accreditation has been accepted by the department, except to the extent that such specific standards are less rigorous or less comprehensive than departmental requirements. Nothing contained in this Code section shall prohibit departmental inspections for violations of such standards or requirements nor shall it prohibit the revocation of or refusal to issue or renew permits, as authorized by Code Section 31-7-4, or for violation of any other applicable law or regulation pursuant thereto.
  3. The department shall require a facility licensed under this article and rules and regulations adopted pursuant thereto to have a written and regularly rehearsed disaster preparedness plan, approved by the department, for staff and residents to follow in case of fire, explosion, or other emergency, including interruption of electrical power supply, gas-heating supply, and water supply. The plan shall include written procedures for personnel to follow in an emergency including care of the resident; notification of attending physician and other persons responsible for the resident; and arrangements for transportation, for hospitalization, for alternate living arrangements, for emergency energy sources, or for other appropriate services.
    1. When an application for licensure to operate a personal care home, as defined in subsection (a) of Code Section 31-7-12, or an assisted living community, as defined in Code Section 31-7-12.2, has been made, the department shall inform the office of the state long-term care ombudsman of the name and address of the applicant prior to issuing authority to operate or receive residents and shall provide to the ombudsman program an opportunity to provide to the department information relevant to the applicant's fitness to operate as a licensed personal care home or an assisted living community.
    2. The department may consider any information provided under this subsection, where verified by appropriate licensing procedures, in determining whether an applicant meets the requirements for licensing.
    3. The department shall promulgate regulations setting forth the procedures by which the long-term care ombudsman program shall report information to the department or its designee as required by this subsection, including a consistent format for the reporting of information, safeguards to protect confidentiality, and specified types of information which shall be routinely provided by the long-term care ombudsman program.
    4. Nothing in this subsection shall be construed to provide any authority to the long-term care ombudsman program to license or refuse to license the operation of a personal care home or an assisted living community.

(Ga. L. 1946, p. 34, § 3; Ga. L. 1958, p. 322, § 3; Code 1933, § 88-1905, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1981, p. 920, § 1; Ga. L. 1983, p. 783, § 1; Ga. L. 1994, p. 1358, § 1; Ga. L. 2008, p. 12, § 2-10/SB 433; Ga. L. 2011, p. 227, § 12/SB 178; Ga. L. 2012, p. 337, § 2/SB 361.)

Cross references.

- Certificate of need required for offering health care and exemptions, § 31-6-40 et seq.

JUDICIAL DECISIONS

Permit requirement as prerequisite to recovery for services rendered.

- Permit requirement is clearly a regulatory measure as to health, not a fund-raising or tax measure or mere business permit. Under these circumstances, in order to recover for services rendered, it must be shown that a hospital is properly licensed, or is a holder of the proper permit at the time services are rendered. Proctor v. Lanier Collection Agency & Serv., Inc., 147 Ga. App. 104, 248 S.E.2d 179 (1978), overruled on other grounds, Merrill Lynch v. Zimmerman, 248 Ga. 580, 285 S.E.2d 181 (1981).

Cited in Culverhouse v. Atlanta Ass'n for Convalescent Aged Persons, 127 Ga. App. 574, 194 S.E.2d 299 (1972); Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); Reddix v. Chatham County Hosp. Auth., 134 Ga. App. 860, 216 S.E.2d 680 (1975); Todd v. Physicians & Surgeons Community Hosp., 165 Ga. App. 656, 302 S.E.2d 378 (1983); Piedmont Healthcare, Inc. v. Ga. Dep't of Human Res., 282 Ga. App. 302, 638 S.E.2d 447 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 40A Am. Jur. 2d, Hospitals and Asylums, §§ 5, 6.

C.J.S.

- 41 C.J.S., Hospitals, §§ 1 et seq., 9 et seq.

ALR.

- Validity and construction of statute requiring establishment of "need" as precondition to operation of hospital or other facilities for the care of sick people, 61 A.L.R.3d 278.

31-7-3.1. Posting sign by hospital operating emergency room notifying individuals of legal rights in emergencies.

As a condition of obtaining or retaining the permit required by Code Section 31-7-3 to operate such institution, any hospital which operates an emergency room shall post conspicuously therein a sign notifying the public of the rights of individuals under federal or state law with respect to examination and treatment for emergency medical conditions and women in active labor.

(Code 1981, §31-7-3.1, enacted by Ga. L. 1990, p. 1810, § 1.)

31-7-3.2. Notice of cited deficiency and imposition of sanction.

  1. A nursing home or intermediate care home licensed under this article shall give notice in the event that such facility has been cited by the department for any deficiency for which the facility has received notice of the imposition of any sanction available under federal or state laws or regulations, except where a plan of correction is the only sanction to be imposed.
  2. A notice required under subsection (a) of this Code section shall be of a size and format prescribed by the department and shall contain the following:
    1. A list of each cited deficiency which has resulted in the notice being required;
    2. A description of any actions taken by or of any notices of intent to take action issued by federal or state entities as a result of such cited deficiencies;
    3. The telephone numbers of the state and community long-term care ombudsman programs; and
    4. A statement that a copy of the notice may be obtained upon written request accompanied by a self-addressed stamped envelope.
  3. A notice required by subsection (a) of this Code section shall be posted at the facility giving the notice:
    1. In an area readily accessible and continuously visible to the facility's residents and their representatives;
    2. Within 14 days after the facility receives notification of imposition of a sanction for a cited deficiency which requires the notice; and
    3. Until the department has determined such cited deficiencies no longer exist, at which time the notice may be removed.
  4. In addition to the posted notice required by subsection (c) of this Code section, a notice, containing the information set forth in subsection (b) of this Code section, shall also be provided by the facility upon written request.The facility shall be responsible for mailing a copy of such notice when the written request is accompanied by a postage paid self-addressed envelope.
  5. Each applicant to a facility shall receive upon written request with his application a copy of the most recent notice which has been distributed pursuant to this subsection.The facility may inform the applicant of any corrective actions taken in response to the cited deficiencies contained in such notice.
  6. In the event that the facility previously has been required to have posted or provided notice of the same cited deficiency arising from the same act, occurrence, or omission, this Code section should not be construed to require the facility to post or provide duplicate notice of such cited deficiency so long as the notice is made in a manner consistent with subsections (b) and (c) of this Code section.
  7. In the case of a violation of this Code section, the department may impose administrative sanctions as otherwise provided by law in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  8. The department may promulgate rules and regulations to implement the provisions of this Code section.
  9. No violation of any regulation promulgated pursuant to the federal Nursing Home Reform Act, 42 U.S.C. Sections 1396r and 1395i-3, or any regulation included in Ga. Comp. R. & Regs. 111-8-50 or 111-8-56 or the successor of such regulations as they existed on May 12, 2015, shall constitute negligence per se; provided, however, that the court in any civil action shall take judicial notice of these regulations and admit them into evidence if found to be relevant to the harm alleged in the complaint. Nothing in this subsection shall abrogate any express cause of action authorized under law or be construed to amend or repeal any provision of the "Bill of Rights for Residents of Long-term Care Facilities" in Article 5 of Chapter 8 of this title.
    1. The results or findings of a federal or state survey or inspection of a nursing home facility, including any statement of deficiencies or reports, shall not be used or referenced in an advertisement or solicitation by any person or any entity, unless the advertisement or solicitation includes all of the following:
      1. The date the survey was conducted;
      2. A statement that the Department of Community Health conducts a survey of all nursing home facilities at least once every 15 months;
      3. If a finding or deficiency cited in the statement of deficiencies has been substantially corrected, a statement that the finding or deficiency has been substantially corrected and the date that the finding or deficiency was substantially corrected;
      4. The number of findings and deficiencies cited in the statement of deficiencies on the basis of the survey and a disclosure of the severity level for each finding and deficiency;
      5. The average number of findings and deficiencies cited in statements of deficiencies on the basis of surveys conducted by the department during the same calendar year as the survey used in the advertisement;
      6. A disclosure of whether each finding or deficiency caused actual bodily harm to any residents and the number of residents harmed thereby; and
      7. A statement that the advertisement is neither authorized nor endorsed by any government agency.
    2. In addition to any other remedies and damages allowed by law, a party found to have violated paragraph (1) of this subsection shall be liable for attorney fees and expenses of litigation incurred in an action to restrain or enjoin such violation; provided, however, that damages, attorney fees, and expenses of litigation shall not be recoverable against any newspaper, news outlet, or broadcaster publishing an advertisement or solicitation submitted by a third party for a fee.

(Code 1981, §31-7-3.2, enacted by Ga. L. 1991, p. 1603, § 2; Ga. L. 2015, p. 1315, § 1/HB 342; Ga. L. 2016, p. 864, § 31/HB 737.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2015, "May 12, 2015" was substituted for "the effective date of this subsection" in the first sentence of subsection (i).

Editor's notes.

- Ga. L. 2015, p. 1315, § 2/HB 342, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to all causes of actions arising on and after such date."

Law reviews.

- For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015). For note on 1991 enactment of this Code section, see 8 Ga. St. U. L. Rev. 74 (1992).

JUDICIAL DECISIONS

Anti-SLAPP suit involving nursing homes.

- In a suit involving ads placed by a lawyer challenging nursing home standards, the Supreme Court of Georgia held the trial court overlooked certain preliminary questions as the court did not properly apply the required two step analysis under the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, with respect to the plaintiffs' claims as there was no discussion or analysis of whether the plaintiffs had stated and substantiated a legally sufficient claim for the violations of the statutes. Wilkes & McHugh, P.A. v. LTC Consulting, L.P., 306 Ga. 252, 830 S.E.2d 119 (2019).

31-7-3.3. "Excluded party" defined; liability; notice; dismissal; other procedural factors.

  1. As used in this Code section, the term "excluded party" means a person or entity that neither performs, has the duty to perform, nor controls the performance of any of the following functions at or on behalf of a nursing home or intermediate care home where alleged injuries occurred:
    1. Providing management, operation, or administrative services for such home;
    2. Hiring or firing of the administrator, director of nursing, or other staff working at such home;
    3. Setting or controlling the budget of such home;
    4. Staffing or determining the level of staff at such home;
    5. Providing direct care, treatment, or services to the residents of such home;
    6. Making decisions regarding the care, treatment, or services provided to residents at such home; or
    7. Adopting, implementing, or enforcing the policies and procedures for such home.
  2. Except as otherwise provided by law, the mere ownership of an entity shall not, by itself, create the duty to perform the functions listed in subsection (a) of this Code section.
  3. An excluded party shall not be named in a civil action that alleges its direct or vicarious liability for the personal injury or death of one or more residents of a nursing home or intermediate care home or a violation of residents' rights at such home under Article 5 of Chapter 8 of this title.
  4. Any person or entity named as a defendant in a civil action or arbitration, that claims to be an excluded party, may serve a notice of such claim upon the plaintiff. Such notice shall be sent to counsel for the plaintiff by certified mail, return receipt requested, or, if the plaintiff does not have an attorney, to the plaintiff personally via certified mail, return receipt requested. Such notice shall be served after the discovery period begins under applicable law for the case but not later than 30 days after such discovery period begins.
  5. If, after the expiration of 90 days from the date the notice described in subsection (d) of this Code section is received, the plaintiff does not agree to a dismissal without prejudice of such defendant claiming to be an excluded party, and:
    1. The court later determines that there is no genuine issue of material fact as to whether such defendant is an excluded party, grants summary judgment to such defendant as to this issue, and such order becomes final after any appeal; or
    2. If an arbitrator enters judgment for such defendant as to this issue and determines that there was not a good faith basis in law and fact for the plaintiff's claim that such defendant was not an excluded party and such order becomes final after any appeal,

      then such finding by an arbitrator or final judgment by a court shall be deemed a finding that the plaintiff's claim against such defendant was substantially frivolous, substantially groundless, or substantially vexatious. Upon such a final judgment or finding, such excluded party shall be entitled to an award of reasonable and necessary attorneys' fees and expenses of litigation upon the filing of a motion. The court or arbitrator shall award only such reasonable and necessary attorneys' fees and expenses of litigation as the court or arbitrator determines were related to the defense of only such excluded party and not to the defense of other defendants in such action, unless otherwise authorized by law. Such attorneys' fees and expenses so awarded shall be assessed against the party asserting such claim, against such party's attorney, or against both in such manner as is just.

  6. In the event that the plaintiff prevails on any claim against a defendant claiming to be an excluded party and if the court or an arbitrator determines that there was not a good faith basis in law and fact for the defendant's claim that such defendant was an excluded party, and such order becomes final after appeal, then such judgment by a court or arbitrator shall be deemed a finding that the contention by such defendant that it was an excluded party was substantially frivolous, substantially groundless, or substantially vexatious. Upon such a final judgment or finding, the plaintiff shall be entitled to an award of reasonable and necessary attorneys' fees and expenses of litigation upon the filing of a motion. The court or arbitrator shall award only such reasonable and necessary attorneys' fees and expenses of litigation that were incurred in the pursuit of the action against the defendant claiming to be an excluded party, and the plaintiff shall not be entitled to an award of reasonable and necessary attorneys' fees and expenses of litigation that were incurred in the pursuit of the action against other defendants, unless otherwise authorized by law. Such attorneys' fees and expenses so awarded shall be assessed against the party asserting such claim, against such party's attorney, or against both in such manner as is just.
  7. Notwithstanding Code Section 51-7-85, subsections (e) and (f) of this Code section shall be in addition to and shall not limit a party's right to pursue a recovery pursuant to Code Section 9-15-14 or Article 5 of Chapter 7 of Title 51.
  8. The time period set forth in subsection (e) of this Code section may be extended by agreement of the parties or by order of the court; provided, however, that if during such time period any party files a motion to stay the case or a motion to compel arbitration, such time period shall be extended for 30 days following the date the court rules on such motion; and provided, further, that if any party files a motion to compel discovery, such period shall be extended until 30 days following the date that the party complies with the court's order to produce discovery, whichever is later.
  9. A defendant which is a licensee shall not identify an excluded party as a potentially at-fault nonparty for purposes of apportionment under Code Section 51-12-33, unless such nonparty has entered into a settlement agreement with the plaintiff or claimant.

(Code 1981, §31-7-3.3, enacted by Ga. L. 2016, p. 550, § 1/HB 920; Ga. L. 2017, p. 774, § 31/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "its direct" for "their direct" near the beginning of subsection (c); substituted "that claims" for "who claims" in the first sentence of subsection (d); and substituted "such claim," for "such claim, or" near the end of the last sentence of the ending undesignated paragraph in subsection (e) and near the middle of the last sentence of subsection (f).

Editor's notes.

- Ga. L. 2016, p. 550, § 2/HB 920, not codified by the General Assembly, makes this Code section applicable to any claim filed on or after July 1, 2016.

31-7-3.4. Carrying of liability insurance or establishment of self-insurance trust as condition precedent to obtaining or maintaining permit.

  1. As used in this Code section, the term "nursing home claim" means a claim alleging direct or vicarious liability for the personal injury or death of one or more residents of a nursing home or intermediate care home or a violation of residents' rights at such home under Article 5 of Chapter 8 of this title.
    1. As a condition precedent to obtaining or maintaining a permit under this article to operate a nursing home or intermediate care home, a licensee shall carry or be covered by liability insurance coverages or establish or have established for its benefit a self-insurance trust for a nursing home claim.
    2. If a licensee fails to carry or be covered by liability insurance coverages or establish or have established for its benefit a self-insurance trust for a nursing home claim, the department shall provide notice to such licensee of its noncompliance and allow such licensee 60 days in which to comply. A licensee's failure to maintain such coverage or establish such trust shall result in the department:
      1. Revoking such licensee's permit issued pursuant to this article to operate the nursing home or intermediate care home;
      2. Denying any application to renew such permit; and
      3. Denying any application for a change of ownership of the nursing home or intermediate care home.

(Code 1981, §31-7-3.4, enacted by Ga. L. 2016, p. 550, § 1/HB 920.)

Editor's notes.

- Ga. L. 2016, p. 550, § 2/HB 920, not codified by the General Assembly, makes this Code section appli- cable to any claim filed on or after July 1, 2016.

31-7-4. Denial or revocation of permits.

The department may refuse to grant a permit as provided for in Code Section 31-7-3 for the operation of any institution that does not fulfill the minimum requirements which the department may prescribe by rules and regulations, may revoke a permit which has been issued if an institution violates any of such rules and regulations, and may revoke a portion of a permit which has been issued as it relates to a specific clinical service if the quality standards established by the department pursuant to Code Section 31-7-2.1 for such clinical service are not met; provided, however, that before any order is entered refusing a permit applied for or revoking a permit previously granted, the applicant or permit holder, as the case may be, shall be afforded an opportunity for a hearing as provided for in Article 1 of Chapter 5 of this title. All appeals from such orders and all rights of enforcement by injunction shall be governed by Article 1 of Chapter 5 of this title.

(Ga. L. 1946, p. 34, §§ 3, 4; Ga. L. 1958, p. 322, § 3; Code 1933, § 88-1906, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2008, p. 12, § 2-11/SB 433.)

JUDICIAL DECISIONS

Cited in Bradfield v. Hospital Auth., 226 Ga. 575, 176 S.E.2d 92 (1970).

RESEARCH REFERENCES

Am. Jur. 2d.

- 40A Am. Jur. 2d, Hospitals and Asylums, § 8 et seq.

ALR.

- Validity and construction of statute requiring establishment of "need" as precondition to operation of hospital or other facilities for the care of sick people, 61 A.L.R.3d 278.

31-7-5. Exemptions from permit requirements; application of this chapter to federally operated institutions.

Code Section 31-7-3 shall not apply to the offices of physicians or others practicing the healing arts unless the facilities and services described in paragraph (4) of Code Section 31-7-1 are provided therein; nor shall this chapter apply to institutions operated exclusively by the federal government or by any of its agencies.

(Ga. L. 1946, p. 34, § 6; Code 1933, § 88-1907, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2008, p. 12, § 2-12/SB 433.)

JUDICIAL DECISIONS

Procedure in challenging constitutionality.

- In an action by freestanding emergency care clinics challenging the constitutionality of O.C.G.A. § 31-7-1 et seq. (regulation of hospitals, etc.) on the ground that the statute's exemption for private physicians' offices violated the plaintiffs' equal protection rights, a subpoena of documents from the Georgia Hospital Association, relating to lobbying efforts in support of the legislation, was quashed as the documents were irrelevant to the question the court had to decide, that is, whether there was any conceivable purpose which may have justified the statute. Primary Care Physicians Group v. Ledbetter, 102 F.R.D. 254 (N.D. Ga. 1984).

Cited in Tift County Hosp. Auth. v. MRS of Tifton, Ga., Inc., 255 Ga. 164, 335 S.E.2d 546 (1985).

31-7-6. Provision of data for research purposes by organizations rendering patient care; liability of providers of data; use of data; confidentiality.

  1. Any hospital, health care facility, medical or skilled nursing home, or other organization rendering patient care may provide information, interviews, reports, statements, memoranda, or other data relating to the condition and treatment of any person to research groups approved by the medical staff of the institution involved, to governmental health agencies, medical associations and societies, or to any in-hospital medical staff committee, to be used in the course of any study for the purpose of reducing rates of morbidity or mortality; and no liability of any kind or character for damages or other relief shall arise or be enforced against any person or organization by reason of having provided such information or material, or by reason of having released or published the findings and conclusions of such groups to advance medical research or medical education or to achieve the most effective use of health manpower and facilities, or by reason of having released or published generally a summary of such studies.
  2. The research groups approved by the medical staff of the institution involved, governmental health agencies, medical associations and societies, or any in-hospital medical staff committee shall use or publish material described in subsection (a) of this Code section only for the purpose of advancing medical research or medical education, or to achieve the most effective use of health manpower and facilities, in the interest of reducing rates of morbidity or mortality, except that a summary of such studies may be released by any such group for general publication.
  3. In all events the identity of any person whose condition or treatment has been studied pursuant to this Code section shall be confidential and shall not be revealed under any circumstances.

(Code 1933, §§ 88-1908, 88-1909, 88-1910, enacted by Ga. L. 1966, p. 310, §§ 1-3.)

RESEARCH REFERENCES

C.J.S.

- 41 C.J.S., Hospitals, § 33.

31-7-7. Refusal or revocation by public hospital of staff privileges.

  1. Whenever any licensed doctor of medicine, doctor of podiatric medicine, doctor of osteopathic medicine, or doctor of dentistry shall make application for permission to treat patients in any hospital owned or operated by the state, any political subdivision thereof, or any municipality, the hospital shall act in a nondiscriminatory manner upon such application expeditiously and without unnecessary delay considering the applicant on the basis of the applicant's demonstrated training, experience, competence, and availability and reasonable objectives, including, but not limited to, the appropriate utilization of hospital facilities; but in no event shall final action thereon be taken later than 90 days following receipt of the application; provided, however, whenever the applicant is licensed by any governmental entity outside the continental limits of the United States, the hospital shall have 120 days to take action following receipt of the application. This subsection shall apply solely to applications by licensed doctors of medicine, doctors of podiatric medicine, doctors of osteopathic medicine, and doctors of dentistry who are not members of the staff of the hospital in which privileges are sought at the time an application is submitted and by those not privileged, at such time, to practice in such hospital under a previous grant of privileges. The provisions of this subsection shall not be construed so as to repeal the provisions of Code Section 31-7-15, to mandate hospitals to offer or provide any type of service or services not otherwise offered, or to prohibit a hospital with a clinical training program affiliated with a school of medicine from requiring an applicant to have a faculty teaching appointment as a condition of eligibility.
  2. Whenever any hospital owned or operated by the state, any political subdivision thereof, or any municipality shall refuse to grant a licensed doctor of medicine, doctor of podiatric medicine, doctor of osteopathic medicine, or doctor of dentistry the privilege of treating patients in the hospital, wholly or in part, or revoke the privilege of such licensed medical practitioner for treating patients in such hospital, wholly or in part, the hospital shall furnish to the licensed medical practitioner whose privilege has been refused or revoked, within ten days of such action, a written statement of the reasons therefor.
  3. The provisions of this Code section shall not be construed to mandate such hospital to grant or to prohibit such hospital from granting staff privileges to other licensed practitioners of the healing arts who are otherwise qualified for staff privileges pursuant to the bylaws of the governing body of the hospital and, in addition, shall not be construed to modify or restrict the rights of health service provider psychologists to be treated in a nondiscriminatory manner as provided in Code Sections 31-7-161 and 31-7-164.

(Code 1933, § 88-1911, enacted by Ga. L. 1976, p. 326, § 1; Ga. L. 1978, p. 1969, § 1; Ga. L. 1984, p. 967, § 1; Ga. L. 1990, p. 561, § 1.)

JUDICIAL DECISIONS

Nurse-midwife was "licensed medical practitioner."

- Woman licensed by the state as a registered nurse and certified as a nurse-midwife by the American College of Nurse Midwives was a "licensed medical practitioner" as contemplated under O.C.G.A. § 31-7-7. Sweeney v. Athens Regional Medical Ctr., 705 F. Supp. 1556 (M.D. Ga. 1989).

State action immunity.

- Provision that staff privilege decisions may be based on "the appropriate utilization of hospital facilities" makes it foreseeable that a hospital authority would engage in anticompetitive conduct through its peer review activities, and, thus, the members of a peer review committee were shielded by state action immunity from a suit for injunctive relief by a doctor who was denied staff privileges. Crosby v. Hospital Auth., 93 F.3d 1515 (11th Cir. 1996), cert. denied, 520 U.S. 1116, 117 S. Ct. 1246, 137 L. Ed. 2d 328 (1997).

Hospital held immune from federal antitrust claims.

- Hospital which was acting in accordance with the state's policy to displace competition with regulation in the area of denying or revoking hospital staff privileges was immune from federal antitrust claims under the "state action exemption" doctrine. Sweeney v. Athens Regional Medical Ctr., 705 F. Supp. 1556 (M.D. Ga. 1989).

Injunction prohibiting hospital from limiting privileges.

- Trial court did not abuse the court's discretion in denying a hospital's motion to dissolve an interlocutory and permanent injunction entered in favor of a group of doctors prohibiting the hospital from limiting the doctors from freely exercising their clinical privileges and practicing cardiology at the hospital, despite a resolution by the hospital's board of directors prohibiting the doctors from exercising the privileges, as the prohibition denied the doctors certain procedural protections which could not be ignored when implementing exclusive provider contracts. Satilla Health Servs., Inc. v. Bell, 280 Ga. App. 123, 633 S.E.2d 575 (2006).

Nondiscriminatory bylaws.

- Public hospital bylaws excluding physicians who do not have allopathic postgraduate training from the medical staff do not violate O.C.G.A. § 31-7-7 when the bylaws are rationally related to differences in allopathic and nonallopathic training and promote a legitimate state interest in providing quality health care. Silverstein v. Gwinnett Hosp. Auth., 672 F. Supp. 1444 (N.D. Ga. 1987), aff'd, 861 F.2d 1560 (11th Cir. 1988).

Public hospital bylaw requiring specific postgraduate specialty training or residency in order for physicians to be eligible for admission to the medical staff did not transgress the equal protection or due process rights of osteopathic physicians, nor did it offend the anti-discrimination provisions of O.C.G.A. § 31-7-7(a). Silverstein v. Gwinnett Hosp. Auth., 861 F.2d 1560 (11th Cir. 1988).

After the defendant hospital amended the hospital's bylaws to require the hospital's medical/dental staff to have $1 million malpractice insurance, and subsequently terminated plaintiff staff physician's hospital privileges for failure to provide proof of malpractice insurance coverage, the trial court correctly granted summary judgment in favor of the hospital on the physician's Sherman Act claim against the hospital which included unlawful restraint of trade, monopoly, and boycott, and intentional interference with contract since the hospital's decision was an administrative policy adopted by the hospital in furtherance of the administration, operation, maintenance, and control of the hospital. Stein v. Tri-City Hosp. Auth., 192 Ga. App. 289, 384 S.E.2d 430, cert. denied, 192 Ga. App. 903, 384 S.E.2d 430 (1989).

RESEARCH REFERENCES

Am. Jur. 2d.

- 40A Am. Jur. 2d, Hospitals and Asylums, § 16.

C.J.S.

- 41 C.J.S., Hospitals, § 29 et seq.

ALR.

- Propriety of hospital's conditioning physician's staff privileges on his carrying professional liability or malpractice insurance, 7 A.L.R.4th 1238.

Exclusion of, or discrimination against, physician or surgeon by hospital, 28 A.L.R.5th 107.

Denial by hospital of staff privileges or referrals to physician or other health care practitioner as violation of Sherman Act (15 USCS § 1 et seq.), 89 A.L.R. Fed. 419.

What constitutes "state action" rendering public official's participation in private antitrust activity immune from application of federal antitrust laws, 109 A.L.R. Fed. 758.

31-7-7.1. Denial of staff privileges based upon license, board certification, or membership in professional association.

Notwithstanding the provisions of Code Section 31-7-7, if a hospital offers or provides a service which is within the scope of practice of a person licensed as a doctor of podiatric medicine, doctor of osteopathic medicine, or doctor of dentistry, that hospital may not deny to any such licensee staff privileges at such hospital based solely upon that person's license, board certification, or specialty membership in a professional association.

(Code 1981, §31-7-7.1, enacted by Ga. L. 1997, p. 911, § 1; Ga. L. 1998, p. 548, § 1.)

31-7-8. Reports of disciplinary actions against persons authorized to practice professions under Chapter 11, 34, or 35 of Title 43.

  1. The hospital administrator or chief executive officer of each institution subject to this chapter shall submit a written report to the appropriate licensing board when a person who is authorized to practice medicine, osteopathy, podiatry, or dentistry in this state under Chapter 34, Chapter 35, or Chapter 11, respectively, of Title 43 and who is a member of the medical staff at the institution, has medical staff privileges at the institution, or has applied for medical staff privileges at the institution has his medical staff privileges denied, restricted, or revoked for any reason involving the medical care given his patient.Each such administrator or officer shall also report to the appropriate licensing board resignations from practice in that institution by persons licensed under Chapter 34, Chapter 35, or Chapter 11 of Title 43.This Code section shall not require reports of temporary suspensions for failure to comply with medical record regulations.
  2. The written report required by subsection (a) of this Code section shall be made within 20 working days following final action by the institution on the restriction, denial, or revocation of medical staff privileges. The results of any legal appeal of such action shall be reported within 20 working days following a final court decision on such appeal.
  3. The report required by this Code section shall contain a statement detailing the nature of the restriction, denial, or revocation of medical staff privileges, the date such action was taken, and the reasons for such action. If the action is a voluntary resignation or restriction of medical staff privileges which was the result of action initiated by the institution, the report shall contain the circumstances involved therein.
  4. There shall be no civil or criminal liability on the part of, and no cause of action for damages shall arise against, any hospital administrator, chief executive officer, or other authorized person who in good faith complies with this Code section.
  5. Except as provided in this subsection and Chapter 34A of Title 43, information contained in any report made to the appropriate licensing board pursuant to this Code section shall be confidential and shall not be disclosed to the public. Access to such reports shall be limited to members of the appropriate licensing board or its staff for their use and to interested institutions for their use in the review of medical staff privileges at the institution.
  6. The failure of an institution to comply with this Code section shall be grounds for the denial, refusal to renew, or revocation of the permit for the operation of the institution issued pursuant to this chapter.

(Code 1933, § 88-1912, enacted by Ga. L. 1977, p. 257, § 1; Ga. L. 1983, p. 882, § 1; Ga. L. 1990, p. 561, § 2; Ga. L. 2001, p. 192, § 1.)

Law reviews.

- For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 249 (2001).

RESEARCH REFERENCES

Am. Jur. 2d.

- 40A Am. Jur. 2d, Hospitals and Asylums, § 16 et seq.

C.J.S.

- 41 C.J.S., Hospitals, §§ 16 et seq., 29 et seq.

31-7-9. Reports by physicians and other personnel of nonaccidental injuries to patients; immunity from liability.

  1. As used in this Code section, the term "medical facility" includes, without being limited to, an ambulatory surgical treatment center defined in subparagraph (C) of paragraph (4) of Code Section 31-7-1 and a freestanding imaging center defined in subparagraph (G) of paragraph (4) of Code Section 31-7-1.
  2. Any:
    1. Physician, including any doctor of medicine licensed to practice under the laws of this state;
    2. Licensed registered nurse employed by a medical facility;
    3. Security personnel employed by a medical facility; or
    4. Other personnel employed by a medical facility whose employment duties involve the care and treatment of patients therein

      having cause to believe that a patient has had physical injury or injuries inflicted upon him other than by accidental means shall report or cause reports to be made in accordance with this Code section.

  3. An oral report shall be made immediately by telephone or otherwise and shall be followed by a report in writing, if requested, to the person in charge of the medical facility or his designated delegate. The person in charge of the medical facility or his designated delegate shall then notify the local law enforcement agency having primary jurisdiction in the area in which the medical facility is located of the contents of the report. The report shall contain the name and address of the patient, the nature and extent of the patient's injuries, and any other information that the reporting person believes might be helpful in establishing the cause of the injuries and the identity of the perpetrator.
  4. Any person or persons participating in the making of a report or causing a report to be made to the appropriate police authority pursuant to this Code section or participating in any judicial proceeding or any other proceeding resulting therefrom shall in so doing be immune from any civil liability that might otherwise be incurred or imposed, providing such participation pursuant to this Code section shall be in good faith.

(Code 1933, § 88-1913, enacted by Ga. L. 1980, p. 1040, § 2; Ga. L. 1982, p. 1249, §§ 1, 2; Ga. L. 1985, p. 898, § 1; Ga. L. 2008, p. 12, § 2-13/SB 433.)

Law reviews.

- For article, "Hospital Liability for Physician Negligence in Georgia: A Realistic Approach," see 37 Mercer L. Rev. 701 (1986).

31-7-10. Certification and approval of hospitals eligible to render service under a group nonprofit hospital insurance plan; supervision of such hospitals; withdrawal of approval.

The department shall (1) certify and approve hospitals applying therefor which may be found to be eligible to render hospital service under any group nonprofit hospital insurance plan, which plan may be approved and become effective, and (2) supervise the services rendered by hospitals operating under such plan, with authority to withdraw approval from any hospital which subsequently may, under rules and regulations of the board, become ineligible for rendering such services, provided that, in fixing rules and regulations in this connection or in enforcing such rules, hospitals interested therein shall be given opportunity to be heard.

(Ga. L. 1937, p. 355, § 6.)

Law reviews.

- For article, "Entity and Identity," see 60 Emory L.J. 1257 (2011).

RESEARCH REFERENCES

C.J.S.

- 44 C.J.S., Insurance, § 63 et seq.

31-7-11. Written summary of hospital service charge rates.

  1. Any hospital shall, upon request, provide a written summary of certain hospital and related services charges, including but not limited to:
    1. The average total charges per patient day for the facility's previous fiscal year;
    2. The daily rate for a room in said hospital, which rate shall include an explanation of the categories of services included in said charge;
    3. Anesthesia charges, with an explanation of the categories of services included in this charge;
    4. Operating room charges;
    5. Recovery room charges;
    6. Intravenous administration charges;
    7. Emergency room charges, with an explanation of the categories of services included in the charge;
    8. The charge for the patient care kit or admission kit or other such items furnished to the patient on admission;
    9. Charges for specific routine tests, including but not limited to a complete blood count, urinalysis, and chest X-ray; and
    10. Charges for specific special tests, including but not limited to electrocardiogram, electroencephalogram, CAT scan of the head, CAT scan of liver, CAT scan of lungs, CAT scan of skeletal system, spirometry, and complete pulmonary function.

      Such written summary of charges shall be composed in a simple clear fashion so as to enable consumers to compare hospital charges and make cost-effective decisions in the purchase of hospital services.

  2. The department shall adopt rules and regulations to implement the provisions of this Code section and shall implement such regulations as provided in Code Section 31-7-2.1.

(Code 1981, §31-7-11, enacted by Ga. L. 1983, p. 1307, § 1; Ga. L. 1984, p. 22, § 31.)

Code Commission notes.

- Code Section 31-7-11 was added to the Code by both Ga. L. 1983, p. 1307, § 1 and Ga. L. 1984, p. 778, § 1. The former is set out above and the latter has been redesignated as Code Section 31-7-13 pursuant to the authority granted in Code Section 28-9-5.

Law reviews.

- For article, "Price Transparency and Incomplete Contracts in Health Care," see 67 Emory L.J. 1 (2017).

JUDICIAL DECISIONS

Contract construction.

- Under the rules of contract construction, O.C.G.A. § 31-7-11(a) became a part of the contract between a health care provider and two uninsured patients regarding payment for services rendered by the provider, and the parties were presumed to have contracted with reference to the statute and the statute's effect on the contracts; hence, these rules of contract construction enabled the trial court to conclude that the agreement in the contracts to pay for "all charges" unambiguously referred to the written summary of specific charges required by O.C.G.A. § 31-7-11(a) which established the price terms on which the parties intended to bind themselves. Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1, 633 S.E.2d 68 (2006).

Breach of contract claim.

- Appellants' breach of contract claim was properly dismissed as appellants were free to avail themselves of the procedure established in O.C.G.A. § 31-7-11, allowing purchasers of hospital services to use the mandatorily available pricing information to compare hospital charges and to make cost-effective decisions; having agreed to pay a hospital corporation's fees and charges, appellants could not argue that the appellants agreed to something else. Satterfield v. S. Reg'l Health Sys., 280 Ga. App. 584, 634 S.E.2d 530 (2006).

Cited in Cox v. Athens Reg'l Med. Ctr., Inc., 279 Ga. App. 586, 631 S.E.2d 792 (2006).

31-7-12. "Personal care home" and "personal services" defined; licensure and registration; inspection by local boards; fees; investigations; waiver, variance, or exemption.

  1. As used in this Code section, the term:
    1. "Personal care home" means any dwelling, whether operated for profit or not, which undertakes through its ownership or management to provide or arrange for the provision of housing, food service, and one or more personal services for two or more adults who are not related to the owner or administrator by blood or marriage. This term shall not include host homes, as defined in paragraph (18) of subsection (b) of Code Section 37-1-20.
    2. "Personal services" includes, but is not limited to, individual assistance with or supervision of self-administered medication and essential activities of daily living such as eating, bathing, grooming, dressing, and toileting. Personal services shall not include medical, nursing, or health services; provided, however, that the department shall be authorized to grant a waiver of this provision in the same manner as provided for in Code Section 31-7-12.3 for the waiver of rules and regulations and in the same manner and only to the same extent as granted on or before June 30, 2011.
  2. All personal care homes shall be licensed as provided for in Code Section 31-7-3, except that, in lieu of licensure, the department may require persons who operate personal care homes with two or three beds for nonfamily adults to comply with registration requirements delineated by the department. Such registration requirements within this category shall authorize the department to promulgate pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," reasonable standards to protect the health, safety, and welfare of the occupants of such personal care homes.
  3. Upon the designation by the department and with the consent of county boards of health, such boards may act as agents to the department in performing inspections and other authorized functions regarding personal care homes licensed under this chapter.With approval of the department, county boards of health may establish inspection fees to defray part of the costs of inspections performed for the department.
  4. The state ombudsman or community ombudsman, on that ombudsman's initiative or in response to complaints made by or on behalf of residents of a registered or licensed personal care home, may conduct investigations in matters within the ombudsman's powers and duties.
  5. The department shall promulgate procedures to govern the waiver, variance, and exemption process related to personal care homes pursuant to Chapter 2 of this title.Such procedures shall include published, measurable criteria for the decision process, shall take into account the need for protection of public and individual health, care, and safety, and shall afford an opportunity for public input into the process.

(Code 1981, §31-7-11, enacted by Ga. L. 1983, p. 1323, § 1.1; Code 1981, §31-7-12, as redesignated by Ga. L. 1984, p. 22, § 31; Ga. L. 1984, p. 649, § 1; Ga. L. 1985, p. 952, § 1; Ga. L. 1988, p. 13, § 31; Ga. L. 1992, p. 1392, § 1; Ga. L. 1993, p. 317, § 1; Ga. L. 2008, p. 263, § 1/SB 469; Ga. L. 2009, p. 453, § 1-27/HB 228; Ga. L. 2011, p. 227, § 13/SB 178.)

Code Commission notes.

- Code Section 31-7-11 was added to the Code by both Ga. L. 1983, p. 1307, § 1 and Ga. L. 1983, p. 1323, § 1.1. The latter section was redesignated as Code Section 31-7-12 by Ga. L. 1984, p. 22, § 31, effective February 3, 1984, pursuant to the authority granted in Code Section 28-9-5.

JUDICIAL DECISIONS

Personal care home found when three unrelated men found in basement.

- Evidence supported the defendant's convictions for neglect, abuse, and exploitation of three disabled men that the defendant kept locked in the defendant's mother's basement with no sheets, a poorly functioning toilet, and an uncarpeted concrete floor, O.C.G.A. §§ 31-7-12.1,16-5-101,16-5-102. There was sufficient circumstantial evidence to show that at least two of the men were not related to the defendant or the defendant's mother by blood or marriage. Hawkins v. State, 350 Ga. App. 862, 830 S.E.2d 301 (2019).

31-7-12.1. Unlicensed personal care home; civil penalties; negligence per se for certain legal claims; declared nuisance dangerous to public health, safety, and welfare; criminal sanctions.

  1. A facility shall be deemed to be an "unlicensed personal care home" if it is unlicensed and not exempt from licensure and:
    1. The facility is providing personal services and is operating as a personal care home as those terms are defined in Code Section 31-7-12;
    2. The facility is held out as or represented as providing personal services and operating as a personal care home as those terms are defined in Code Section 31-7-12; or
    3. The facility represents itself as a licensed personal care home.
  2. Any unlicensed personal care home shall be assessed by the department, after opportunity for hearing in accordance with the provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," a civil penalty in the amount of $100.00 per bed per day for each day of violation of subsection (b) of Code Section 31-7-12. The department shall send a notice by certified mail or statutory overnight delivery stating that licensure is required and the department's intent to impose a civil penalty. Such notice shall be deemed to be constructively received on the date of the first attempt to deliver such notice by the United States Postal Service. The department shall take no action to collect such civil penalty until after opportunity for a hearing.
  3. In addition to other remedies available to the department, the civil penalty authorized by subsection (b) of this Code section shall be doubled if the owner or operator continues to operate the unlicensed personal care home, after receipt of notice pursuant to subsection (b) of this Code section.
  4. The owner or operator of a personal care home who is assessed a civil penalty in accordance with this Code section may have review of such civil penalty by appeal to the superior court in the county in which the action arose or to the Superior Court of Fulton County in accordance with the provisions of Code Section 31-5-3.
  5. In addition to the sanctions authorized herein, an unlicensed personal care home shall be deemed to be negligent per se in the event of any claim for personal injury or wrongful death of a resident.
  6. It is declared that the owning or operating of an unlicensed personal care home in this state constitutes a nuisance dangerous to the public health, safety, and welfare. The commissioner or the district attorney of the judicial circuit in which such unlicensed personal care home is located may file a petition to abate such nuisance as provided in Chapter 2 of Title 41.
  7. Upon the designation by the department and with the consent of any local or state law enforcement agency, and subject to a written memorandum of understanding between the department and such agencies, Georgia Peace Officer Standards and Training certified investigators of such law enforcement agencies may act as agents of the department in conducting inspections of unlicensed personal care homes required to be licensed under this chapter. Such investigations shall be limited to instances where a law enforcement agency is performing law enforcement duties and has consent or a warrant to enter the home. Law enforcement agencies shall not be authorized to recoup any of the costs of inspections performed pursuant to this subsection from the department.
  8. Any person who owns or operates a personal care home in violation of subsection (b) of Code Section 31-7-12 shall be guilty of a misdemeanor for a first violation, unless such violation is in conjunction with a violation of Article 8 of Chapter 5 of Title 16, in which case such person shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than five years. Upon conviction for a second or subsequent such violation, such person shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than ten years.

(Code 1981, §31-7-12.1, enacted by Ga. L. 1994, p. 461, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2011, p. 227, § 13A/SB 178; Ga. L. 2012, p. 351, § 3/HB 1110; Ga. L. 2014, p. 682, § 1/HB 899; Ga. L. 2019, p. 81, § 7/HB 424.)

The 2019 amendment, effective April 18, 2019, added subsection (g); redesignated former subsection (g) as present subsection (h); and substituted "a violation of Article 8 of Chapter 5 of Title 16" for "abuse, neglect, or exploitation as defined in Code Section 30-5-3" in the middle of the first sentence of subsection (h).

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the 2000 amendment was applicable to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Evidence sufficient for neglect, abuse, and exploitation of disabled.

- Evidence supported the defendant's convictions for neglect, abuse, and exploitation of three disabled men that the defendant kept locked in the defendant's mother's basement with no sheets, a poorly functioning toilet, and an uncarpeted concrete floor, O.C.G.A. §§ 31-7-12.1,16-5-101,16-5-102; however, as charged, the abuse by deprivation convictions should have been merged with the neglect convictions. Exploitation was shown by the defendant's use of one man's government assistance check for the defendant's own purposes. Hawkins v. State, 350 Ga. App. 862, 830 S.E.2d 301 (2019).

31-7-12.2. Regulation and licensing of assisted living communities; legislative intent; definitions; procedures; requirements for medication aides.

  1. It is the intention of the General Assembly to establish a new licensure category of long-term care provider which shall be referred to as "assisted living community." An assisted living community shall be authorized, in accordance with this Code section, to provide certain services that are beyond the scope of services that a personal care home is authorized to provide.
  2. As used in this Code section, the term:
    1. "Ambulatory" means the ability to move from place to place by walking, either unaided or aided by a prosthesis, brace, cane, crutches, walker, or hand rails, or by propelling a wheelchair and to respond to an emergency condition, whether caused by fire or otherwise, and escape with minimal human assistance using the normal means of egress.
    2. "Assisted living care" includes:
      1. Personal services, which includes, but is not limited to, individual assistance with or supervision of self-administered medication and essential activities of daily living such as eating, bathing, grooming, dressing, and toileting;
      2. The administration of medications by a medication aide in accordance with this Code section; and
      3. The provision of assisted self-preservation in accordance with this Code section.
    3. "Assisted living community" means a personal care home with a minimum of 25 beds that is licensed as an assisted living community pursuant to Code Section 31-7-3.
    4. "Assisted self-preservation" means the capacity of a resident to be evacuated from an assisted living community, to a designated point of safety and within an established period of time as determined by the Office of the Safety Fire Commissioner. Assisted self-preservation is a function of all of the following:
      1. The condition of the individual;
      2. The assistance that is available to be provided to the individual by the staff of the assisted living community; and
      3. The construction of the building in which the assisted living community is housed, including whether such building meets the state fire safety requirements applicable to an existing health care occupancy.
    5. "Continuous medical or nursing care" means medical or nursing care required other than on a periodic basis or for a short-term illness.
  3. An assisted living community shall not admit or retain an individual who is not ambulatory unless the individual is capable of assisted self-preservation. In the event that the department determines that one or more residents of an assisted living community are not capable of assisted self-preservation due to the condition of the resident, the capabilities of the staff of the assisted living community, the construction of the building in which the assisted living community is housed, or a combination of these factors, the department shall have the authority to consider any of the following actions:
    1. An increase in the staffing of the assisted living community to a level that is sufficient to ensure that each resident is capable of assisted self-preservation;
    2. A change in the staffing assignments of the assisted living community if such change would ensure that each resident is capable of assisted self-preservation;
    3. A change in rooms or the location of residents as necessary to ensure that each resident is capable of assisted self-preservation;
    4. The utilization of any specialized equipment that would ensure that each resident is capable of assisted self-preservation. For purposes of this paragraph, specialized equipment shall only include a prosthesis, brace, cane, crutches, walker, hand rails, and a wheelchair;
    5. A cessation in the further admission of individuals who are not ambulatory until such time that the assisted living community has taken actions necessary to ensure that all residents are capable of assisted self-preservation;
    6. The transfer or discharge of any resident who is not capable of assisted self-preservation; and
    7. Any action set forth in Code Section 31-2-8.
  4. An assisted living community shall maintain a current list of all residents who are not ambulatory but who are capable of assisted self-preservation. The list shall be provided upon request to the department and maintained at all times by the assisted living community.
  5. An assisted living community shall maintain fire detection and prevention equipment, including visual signals with alarms for hearing impaired residents, in accordance with manufacturer instructions and the requirements of the Office of the Safety Fire Commissioner.
  6. An assisted living community shall not admit or retain an individual who is in need of continuous medical or nursing care. Other than as permitted by a medication aide pursuant to paragraph (7) of subsection (g) of this Code section, medical, nursing, or health services required on a periodic basis, or for short-term illness, shall not be provided as services of an assisted living community. When such services are required, they shall be purchased by the resident or the resident's representative or legal surrogate, if any, from appropriate providers managed independently from the assisted living community. An assisted living community may assist in arranging for such services, but not in the provision of such services.
    1. An assisted living community may employ certified medication aides for the purpose of performing the technical aspects of the administration of certain medications in accordance with this subsection. An assisted living community that employs one or more certified medication aides must have a safe medication and treatment administration system that meets all the requirements of this subsection.
    2. The department shall establish and maintain a medication aide registry containing the names of each individual in Georgia who is certified by the department as a medication aide. An assisted living community may not employ an individual as a medication aide unless such individual is listed in the medication aide registry in good standing.
    3. An applicant for certification as a medication aide shall meet the following qualifications:
      1. Be a Georgia certified nurse aide with current certification in good standing;
      2. Have successfully completed a state approved medication aide training program administered by a Georgia licensed registered nurse, pharmacist, or physician;
      3. Have successfully passed, with a minimum passing score of 80 percent, a written competency examination; and
      4. Have demonstrated the requisite clinical skills to serve as a medication aide in accordance with a standardized checklist developed by the department.
    4. A record of the successful completion of the written competency examination and clinical skills standardized checklist by an applicant for certification as a medication aide shall be included in the medication aide registry within 30 business days of evaluation. Each candidate for certification as a medication aide shall have the opportunity to take the written competency examination three times before being required to retake and successfully complete the medication aide training program.
    5. An assisted living community shall annually conduct a comprehensive clinical skills competency review of each medication aide employed by the assisted living community.
    6. Certificates issued pursuant to this subsection shall be renewed biennially according to schedules and fees approved by the department.
    7. A medication aide who meets the criteria established in this subsection shall be permitted to perform the following tasks in an assisted living community in accordance with the written instructions of a physician:
      1. Administer physician ordered oral, ophthalmic, topical, otic, nasal, vaginal, and rectal medications;
      2. Administer insulin, epinephrine, and B12 pursuant to physician direction and protocol;
      3. Administer medication via a metered dose inhaler;
      4. Conduct finger stick blood glucose testing following established protocol;
      5. Administer a commercially prepared disposable enema as ordered by a physician;
      6. Assist residents in the supervision of self-administration of medication; and
      7. Administer liquid morphine to a resident of the assisted living community who is the patient of a licensed hospice, pursuant to a hospice physician's written order that contains specific instructions for indication, dosage, frequency, and route of administration, provided that the licensed hospice consents to the use and administration of liquid morphine as described in this subparagraph. The medication aide shall observe and document the resident's need for all "as needed" (PRN) liquid morphine in such resident's record and such indications of need may include verbalizations of pain, groaning, grimacing, or restlessness. The initial dose of any liquid morphine administered pursuant to this subparagraph shall be administered and assessed by a licensed hospice health care professional to observe and address any adverse reactions to such medication. The assisted living community shall ensure that any medication aides who will be administering liquid morphine to any hospice patients in such assisted living community pursuant to this subparagraph receive adequate training from a licensed hospice on the safe and proper administration of liquid morphine prior to such administration and on an annual basis thereafter. The assisted living community shall maintain documentation of all training provided and shall adhere to all security and storage requirements for liquid morphine required under state and federal law, including but not limited to any rules promulgated by the department. Notwithstanding the foregoing, the supply of liquid morphine on-site at the assisted living community shall be limited to no more than 50 ml for each hospice patient in the assisted living community and shall only be administered under limited circumstances when a licensed hospice health care professional is not otherwise available. The department shall promulgate rules and regulations to implement this subparagraph. The authority provided to a medication aide pursuant to this subparagraph shall be in addition to the authority provided to a medication aide pursuant to subparagraphs (A) through (F) of this paragraph and shall not be construed to limit any authority or practice of a medication aide in effect prior to May 11, 2019.
    8. A medication aide shall record in the medication administration record all medications that such medication aide has personally administered to a resident of an assisted living community and any refusal of a resident to take a medication. A medication aide shall observe a resident to whom medication has been administered and shall report any changes in the condition of such resident to the personal representative or legal surrogate of such resident.
    9. All medication administered by a medication aide in accordance with this Code section shall be in unit or multidose packaging.
    10. An assisted living community that employs one or more medication aides to administer medications in accordance with this subsection shall secure the services of a licensed pharmacist to perform the following duties:
      1. Perform a quarterly review of the drug regimen of each resident of the assisted living community and report any irregularities to the assisted living community administrator;
      2. Remove for proper disposal any drugs that are expired, discontinued, in a deteriorated condition, or when the resident for whom such drugs were ordered is no longer a resident;
      3. Establish or review policies and procedures for safe and effective drug therapy, distribution, use, and control; and
      4. Monitor compliance with established policies and procedures for medication handling and storage.
    11. An assisted living community that employs one or more medication aides to administer medications in accordance with this subsection shall ensure that each medication aide receives ongoing medication training as prescribed by the department. A registered professional nurse or pharmacist shall conduct random medication administration observations on a quarterly basis and report any issues to the assisted living community administrator.
  7. An assisted living community shall establish a written care plan for each resident. Such care plan shall describe the needs of the resident and how such needs will be met.
  8. An assisted living community shall not be permitted to enroll as a provider of medical assistance, as defined in paragraph (6) of Code Section 49-4-141, or receive any funds authorized or paid pursuant to Title XIX of the Social Security Act.

(Code 1981, §31-7-12.2, enacted by Ga. L. 2011, p. 227, § 1/SB 178; Ga. L. 2012, p. 775, § 31/HB 942; Ga. L. 2019, p. 1052, § 1/HB 374.)

The 2019 amendment, effective May 11, 2019, substituted "such" for "the" in the second sentence of paragraph (g)(2) and in the first and second sentences in paragraph (g)(8); substituted "state approved" for "state-approved" in subparagraph (g)(3)(B); deleted "and" at the end of subparagraph (g)(7)(E); added "; and" at the end of subparagraph (g)(7)(F); and added subparagraph (g)(7)(G); inserted "shall" following "administered and" in the middle of the second sentence of paragraph (g)(8); and substituted "when" for "where" in the middle of subparagraph (g)(10)(B).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2011, "31-2-8" was substituted for "31-2-11" at the end of paragraph (c)(7).

Pursuant to Code Section 28-9-5, in 2019, "aide in effect prior to May 11, 2019" was substituted for "aide in effect prior to the effective date of this subparagraph" at the end of the last sentence of subparagraph (g)(7)(G).

31-7-12.3. Adoption of rules and regulations to implement Code Sections 31-7-12 and 31-7-12.2

The department shall adopt rules and regulations to implement Code Sections 31-7-12 and 31-7-12.2. Such rules and regulations shall establish meaningful distinctions between the levels of care provided by personal care homes, assisted living communities, and nursing homes but shall not curtail the scope or levels of services provided by personal care homes or nursing homes as of June 30, 2011; provided, however, that nothing in this chapter shall preclude the department from issuing waivers or variances to personal care homes of the rules and regulations established pursuant to this Code section. Notwithstanding Code Section 31-7-12.2, the department shall not grant a waiver or variance unless:

  1. There are adequate standards affording protection for the health and safety of residents of the personal care home;
  2. The resident of the personal care home provides a medical assessment conducted by a licensed health care professional who is unaffiliated with the personal care home which identifies the needs of the resident; and
  3. The department finds that the personal care home can provide or arrange for the appropriate level of care for the resident.

(Code 1981, §31-7-12.3, enacted by Ga. L. 2011, p. 227, § 1/SB 178; Ga. L. 2018, p. 611, § 1-2/SB 406.)

The 2018 amendment, effective October 1, 2019, deleted "31-2-9 or" preceding "31-7-12.2" near the end of the introductory paragraph of this Code section.

31-7-13. Transfer of property upon death of patient.

  1. Whenever any person dies in a hospital licensed pursuant to this chapter, in any federal hospital operating within this state, or any nursing home operated within this state, such hospital or nursing home shall be authorized but shall not be required to transfer possession of any property, tangible or intangible, of such patient which is in the possession of the hospital or nursing home, to the following persons:
    1. To the person designated by the patient in writing upon admission to the hospital or nursing home, if any;
    2. To the surviving spouse of the patient, if any;
    3. If no surviving spouse, to any adult child of the patient, and if no such adult child, to any person acting in loco parentis of any minor child;
    4. If no surviving spouse or surviving children, to either parent of the patient;
    5. If none of the above, then to any brother or sister of the patient; or
    6. If none of the above, to the person assuming responsibility for burial of the patient.
  2. The transfer of possession to the surviving spouse or any of the other family members or persons listed in subsection (a) of this Code section shall operate as a complete acquittal and discharge to the hospital or nursing home of liability from any suit, claim, or demand of whatever nature by any heir, distributee, or creditor of the patient, or any other person as relates to the property transferred. Such distribution is authorized to be made as provided in this Code section without the necessity of administration of the estate of the patient and without the necessity of obtaining an order that no administration of such estate is necessary.
  3. The transfer of possession provided for in this Code section shall in no way affect the legal ownership or title to any property so transferred.
  4. The provisions of any law of descent or distribution or any will or other instrument providing for disposition of property shall not be impaired by this Code section, and any person to whom property is transferred pursuant to this Code section may be required to transfer that property in conformity with the disposition of property required by such laws of descent or distribution or such will or other instrument.

(Code 1981, §31-7-11, enacted by Ga. L. 1984, p. 778, § 1; Ga. L. 2009, p. 8, § 31/SB 46.)

Code Commission notes.

- Code Section 31-7-11 was added to the Code by both Ga. L. 1983, p. 1307, § 1, and Ga. L. 1984, p. 778, § 1. The former is set out as Code Section 31-7-11 and the latter is set out above as Code Section 31-7-13 pursuant to the authority granted by Code Section 28-9-5.

31-7-14. Blood supplies; blood donor storage programs.

  1. When any person is admitted to a medical facility for surgical or medical treatment which has been scheduled in advance, neither the medical facility nor any licensed medical practitioner shall prohibit such person from providing a blood donor or donors to furnish blood which may be needed in such surgery or medical treatment, provided that:
    1. The blood donation will not be detrimental to the donor or the recipient of such blood or any of its components; and
    2. The donation is made not earlier than ten working days before the date of the anticipated transfusion and not later than the evening of the fourth full working day before the date of the anticipated transfusion.
  2. If the person receiving surgical or other medical treatment requires more blood than is furnished by the provided donor or donors, then the medical facility may utilize its regular sources to supply the necessary amount. If less blood than the amount that is furnished by the provided donor or donors is used in the surgery or medical treatment, then the excess blood may be retained by the medical facility or turned over to a community blood bank.
  3. This Code section shall not apply to any emergency surgical or medical treatment.
  4. This Code section shall not apply to any medical facility which does not maintain a system for the collection, processing, and storage of blood and its component parts or to any medical facility which allows through a community blood bank a person to provide a blood donor or donors to furnish blood which may be needed in the person's surgery or medical treatment.
  5. This Code section shall not apply to any person who is under the jurisdiction of the Department of Corrections.
  6. A medical facility or licensed medical practitioner providing health care to a person who utilizes the provisions of this Code section shall not be liable in damages for injury or death occurring during or as a result of the medical or surgical treatment if the injury or death results from use of the blood supplied by the donors selected by the patient, unless that facility or practitioner is grossly negligent with regard to such use.
  7. A medical facility or group of medical facilities may organize and operate short-term blood donor storage programs for the purpose of perpetuating a group of donors of a common blood type for emergency and planned surgical needs.

(Code 1981, §31-7-14, enacted by Ga. L. 1987, p. 1091, § 1.)

Code Commission notes.

- Ga. L. 1987, p. 1091, § 1 and Ga. L. 1987, p. 1494, § 1 enacted different Code sections designated Code Section 31-7-14. Pursuant to Code Section 28-9-5, the Code section enacted by Ga. 1987, p. 1494, § 1 was redesignated as Code Section 31-7-15.

31-7-15. Review of professional practices by a peer review committee.

  1. A hospital or ambulatory surgical center shall provide for the review of professional practices in the hospital or ambulatory surgical center for the purpose of reducing morbidity and mortality and for the improvement of the care of patients in the hospital or ambulatory surgical center. This review shall include, but shall not be limited to, the following:
    1. The quality of the care provided to patients as rendered in the hospital or ambulatory surgical center;
    2. The review of medical treatment and diagnostic and surgical procedures in order to foster safe and adequate treatment of patients in the hospital or ambulatory surgical center; and
    3. The evaluation of medical and health care services or the qualifications and professional competence of persons performing or seeking to perform such services.
  2. The functions required by subsection (a) of this Code section may be performed by a "peer review committee," defined as a committee of physicians appointed by a state or local or specialty medical society or appointed by the governing board or medical staff of a licensed hospital or ambulatory surgical center or any other organization formed pursuant to state or federal law and engaged by the hospital or ambulatory surgical center for the purpose of performing such functions required by subsection (a) of this Code section.
  3. Compliance with the above provisions of subsection (a) of this Code section shall constitute a requirement for granting or renewing the permit of a hospital or ambulatory surgical center. The functions required by this Code section shall be carried out under the regulations and supervision of the department.
  4. Proceedings and records conducted or generated in an attempt to comply with the duties imposed by subsection (a) of this Code section shall not be subject to the provisions of either Chapter 14 or Article 4 of Chapter 18 of Title 50.
  5. Nothing in this or any other Code section shall be deemed to require any hospital or ambulatory surgical center to grant medical staff membership or privileges to any licensed practitioner of the healing arts.

(Code 1981, §31-7-15, enacted by Ga. L. 1987, p. 1494, § 1.)

Code Commission notes.

- Ga. L. 1987, p. 1091, § 1 and Ga. L. 1987, p. 1494, § 1 enacted different Code sections designated Code Section 31-7-14. Pursuant to Code Section 28-9-5, the Code section enacted by Ga. 1987, p. 1494, § 1 was redesignated as Code Section 31-7-15.

JUDICIAL DECISIONS

What constitutes peer review records.

- Reports generated as part of the state's hospital licensing activities, rather than as peer review activities, are not protected from disclosure under the Open Records Act, O.C.G.A. § 50-18-70 et seq. Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 396 S.E.2d 488 (1990).

Scope of peer review.

- Nothing in O.C.G.A. § 31-7-131(3)(B)(vi) implies that every part of the review in O.C.G.A. § 31-7-15 constitutes peer review. Hosp. Auth. v. Meeks, 285 Ga. 521, 678 S.E.2d 71 (2009).

No expansion of civil immunity afforded to peer review groups.

- O.C.G.A. § 31-7-15 does not expand the privilege set forth in O.C.G.A. § 31-7-133(a) to those proceedings and records of a peer review committee which involve only the credentialing process and not a peer review function. The same analysis is equally applicable in holding that § 31-7-15 does not expand the civil immunity otherwise afforded to peer review groups under O.C.G.A. § 31-7-132(a) so as to include all aspects of the credentialing process. Hosp. Auth. v. Meeks, 285 Ga. 521, 678 S.E.2d 71 (2009).

State action immunity.

- Action of individual doctors on a peer review committee were actions of a hospital authority for purposes of the state action immunity doctrine and, thus, the members were immune from an antitrust action brought by a doctor who was denied staff privileges. Crosby v. Hospital Auth., 93 F.3d 1515 (11th Cir. 1996), cert. denied, 520 U.S. 1116, 117 S. Ct. 1246, 137 L. Ed. 2d 328 (1997).

Hospital bylaws are not contract.

- Hospital bylaws, by themselves, do not constitute a contract per se between the hospital and the doctors because there is no mutual exchange of consideration which brought the bylaws into existence. Robles v. Humana Hosp. Cartersville, 785 F. Supp. 989 (N.D. Ga. 1992).

Bylaws may be enforced by injunction.

- Hospital is bound by the bylaws the hospital creates and if the hospital does not follow the procedures established by the bylaws, the court can enjoin the hospital to follow those procedures. Robles v. Humana Hosp. Cartersville, 785 F. Supp. 989 (N.D. Ga. 1992).

Cited in Hosp. Auth. of Valdosta v. Meeks, 294 Ga. App. 629, 669 S.E.2d 667 (2008).

RESEARCH REFERENCES

ALR.

- Right of voluntary disclosure of privileged proceedings of hospital medical review or doctor evaluation processes, 60 A.L.R.4th 1273.

Scope and extent of protection from disclosure of medical peer review proceedings relating to claim in medical malpractice action, 69 A.L.R.5th 559.

31-7-16. Determination or pronouncement of death of patient who died in facility classified as nursing home.

When a patient dies in any facility classified as a nursing home by the department and operating under a permit issued by the department, a physician assistant, a nurse practitioner, or a registered professional nurse licensed in this state and employed by such nursing home at the time of apparent death of such person, in the absence of a physician, may make the determination and pronouncement of the death of said patient; provided, however, that when it appears that a patient died from other than natural causes, only a physician may make the determination or pronouncement of death. Such determination or pronouncement shall be made in writing on a form approved by the department.

(Code 1981, §31-7-16, enacted by Ga. L. 1996, p. 1243, § 1; Ga. L. 2009, p. 859, § 3/HB 509; Ga. L. 2017, p. 625, § 1/SB 96.)

The 2017 amendment, effective July 1, 2017, in the first sentence, inserted ", a nurse practitioner," near the beginning and deleted "that, when said patient is a registered organ donor, only a physician may make the determination or pronouncement of death; provided, further," preceding "that when it" near the end.

31-7-17. Licensure and regulation of hospitals and related institutions transferred to Department of Community Health.

  1. Effective July 1, 2009, all matters relating to the licensure and regulation of hospitals and related institutions pursuant to this article shall be transferred from the Department of Human Resources (now known as the Department of Human Services) to the Department of Community Health.
  2. The Department of Community Health shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources that are in effect on June 30, 2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the Department of Community Health pursuant to this Code section and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources that are in effect on June 30, 2009, which relate to the functions transferred to the Department of Community Health pursuant to this Code section. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by the Department of Community Health by proper authority or as otherwise provided by law.
  3. The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July 1, 2009, by the Department of Human Resources which relate to the functions transferred to the Department of Community Health pursuant to this Code section shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer of the functions to the Department of Community Health. In all such instances, the Department of Community Health shall be substituted for the Department of Human Resources, and the Department of Community Health shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions.
  4. All persons employed by the Department of Human Resources in capacities which relate to the functions transferred to the Department of Community Health pursuant to this Code section on June 30, 2009, shall, on July 1, 2009, become employees of the Department of Community Health in similar capacities, as determined by the commissioner of community health. Such employees shall be subject to the employment practices and policies of the Department of Community Health on and after July 1, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and who are transferred to the department shall retain all existing rights under such rules. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the Department of Community Health.

(Code 1981, §31-7-17, enacted by Ga. L. 2008, p. 12, § 2-14/SB 433; Ga. L. 2009, p. 453, § 1-28/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2012, p. 446, § 2-37/HB 642.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, Code Section 31-7-17, as enacted by Ga. L. 2008, p. 520, § 1, was redesignated as Code Section 31-7-18.

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

31-7-18. Influenza vaccinations for discharged patients aged 65 and older; vaccinations or other measures for health care workers and other employees in hospitals; immunity from liability; standing orders.

  1. Prior to discharging any inpatient who is 65 years of age or older, a hospital shall offer the inpatient vaccinations for the influenza virus and pneumococcal disease in accordance with the recommendations of the Centers for Disease Control and Prevention and any applicable rules and regulations of the department, unless contraindicated and contingent on availability of such vaccine. A hospital may offer other patients such vaccinations in accordance with the recommendations of the Centers for Disease Control and Prevention and any applicable rules and regulations of the department. The vaccinations may be administered pursuant to a standing order that has been approved by the hospital's medical staff.
  2. A hospital shall annually offer to its health care workers and other employees who have direct contact with patients, at no cost, vaccinations for the influenza virus in accordance with the recommendations of the Centers for Disease Control and Prevention, subject to availability of the vaccine. A hospital may offer to its health care workers and other employees any other vaccination, test, or prophylactic measure required or recommended by, and in accordance with the recommendations of, the Centers for Disease Control and Prevention. All such vaccinations, tests, or prophylactic measures may be offered or administered pursuant to standing orders approved by the hospital's medical staff to ensure the safety of employees, patients, visitors, and contractors.
  3. A hospital or health care provider acting in good faith and in accordance with generally accepted health care standards applicable to such hospital or health care provider shall not be subject to administrative, civil, or criminal liability or to discipline for unprofessional conduct for complying with the requirements of this Code section.
  4. Nothing in this Code section shall restrict or limit the use of standing orders in hospitals for any other lawful purpose.

(Code 1981, §31-7-18, enacted by Ga. L. 2008, p. 520, § 1/HB 1105; Ga. L. 2009, p. 184, § 2/HB 217; Ga. L. 2010, p. 529, § 1/HB 1179.)

Cross references.

- Influenza vaccine protocol agreements, § 43-34-26.1.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, Code Section 31-7-17, as enacted by Ga. L. 2008, p. 520, § 1, was redesignated as Code Section 31-7-18.

31-7-19. Nursing homes to annually offer influenza vaccinations to health care workers and other employees; immunity from liability.

  1. Each nursing home shall annually offer on site to its health care workers and other employees who have direct contact with patients, at no cost, vaccinations for the influenza virus in accordance with the recommendations of the Centers for Disease Control and Prevention, subject to availability of the vaccine. Each nursing home shall keep on record a signed statement from each such health care worker and employee stating that he or she has been offered vaccination against the influenza virus and has either accepted or declined such vaccination. A nursing home may offer to its health care workers and other employees who have direct contact with patients any other vaccination required or recommended by, and in accordance with the recommendations of, the Centers for Disease Control and Prevention, which may be offered or administered pursuant to standing orders approved by the nursing home's medical staff to ensure the safety of employees, patients, visitors, and contractors.
  2. A nursing home or health care provider acting in good faith and in accordance with generally accepted health care standards applicable to such nursing home or health care provider shall not be subject to administrative, civil, or criminal liability or to discipline for unprofessional conduct for complying with the requirements of this Code section.

(Code 1981, §31-7-19, enacted by Ga. L. 2013, p. 783, § 1/HB 208.)

31-7-20. Medical facilities to make good faith application to southern regional TRICARE managed care support coordinator for certification in the TRICARE program.

  1. Each medical facility in this state shall, not later than July 1, 2015, make a good faith application to the southern regional TRICARE managed care support contractor for certification in the TRICARE program.
  2. If any medical facility fails to qualify for certification in the TRICARE program, such medical facility shall implement a plan to upgrade the facility, equipment, personnel, or such other cause for the disqualification within one year of notice of such deficiency.
  3. Each medical facility shall submit reports to the commissioner detailing its efforts to join the TRICARE program and shall submit copies of applications, acceptances or rejections, correspondences, and any other information the commissioner deems necessary.
  4. The commissioner shall maintain files on each medical facility in this state and shall monitor each medical facility's efforts to join the TRICARE program.
  5. Nothing in this Code section shall require a medical facility to enter into a contract with the southern regional managed care support contractor or to participate in TRICARE as a network provider or as a participating non-network provider, as such terms are defined in the federal TRICARE regulations.

(Code 1981, §31-7-20, enacted by Ga. L. 2014, p. 83, § 1-1/SB 391.)

Editor's notes.

- Ga. L. 2008, p. 224, § 2/SB 130, effective July 1, 2008, repealed this Code section. Former Code Section 31-7-20 was part of former Article 2 of this chapter, relating to the Georgia Building Authority (Hospital), and was based on Ga. L. 1939, p. 144, § 1; Ga. L. 1967, p. 860, § 1; Ga. L. 1996, p. 6, § 31.

31-7-21. Provision of influenza education information to assisted living community residents.

  1. Each assisted living community shall annually provide to each of its residents, no later than September 1 of each year, educational information on influenza disease. Such information shall include, but is not limited to, the risks associated with influenza disease; the availability, effectiveness, and known contraindications of the influenza immunization; causes and symptoms of influenza; and the means in which it is spread. Provision of the appropriate and current Vaccine Information Statement as provided by the Centers for Disease Control and Prevention shall be deemed to comply with this subsection.
  2. Nothing in this Code section shall be construed to require an assisted living community to provide or pay for any vaccination against influenza for its residents.
  3. No person shall have a cause of action for any loss or damage caused by any act or omission resulting from providing, or the lack of providing, educational information pursuant to this Code section.

(Code 1981, §31-7-21, enacted by Ga. L. 2016, p. 544, § 1/HB 902.)

Editor's notes.

- Ga. L. 2008, p. 224, § 2/SB 130, effective July 1, 2008, repealed this Code section. Former Code Section 31-7-21 was part of former Article 2 of this chapter, relating to the Georgia Building Authority (Hospital), and was based on Ga. L. 1939, p. 144, § 3; Ga. L. 1964, p. 95, § 1; Ga. L. 1967, p. 860, § 2.

31-7-22. Required publication by hospital of certain documentation on website; updating; penalty for noncompliance; enforcement; individual criminal penalty.

  1. As used in this Code section, the term "hospital" means a nonprofit hospital, a hospital owned or operated by a hospital authority, or a nonprofit corporation formed, created, or operated by or on behalf of a hospital authority.
  2. Beginning October 1, 2019, each hospital in this state shall post a link in a prominent location on the main page of its website to the most recent version of the following documents:
    1. Federal related disclosures:
      1. Copies of audited financial statements that are general purpose financial statements, which express the unqualified opinion of an independent certified public accounting firm for the most recently completed fiscal year for the hospital; each of its affiliates, except those affiliates that were inactive or that had an immaterial amount of total assets; and the hospital's parent corporation that include the following:
        1. A PDF version of all audited financial statements;
        2. A note in the hospital's audited financial statements that identifies individual amounts for such hospital's gross patient revenue, allowances, charity care, and net patient revenue;
        3. Audited consolidated financial statements for hospitals with subsidiaries and consolidating financial statements that at a minimum contain a balance sheet and statement of operations and that provide a breakout of the hospital's and each subsidiary's numbers with a report from independent accountants on other financial information; and
        4. Audited consolidated financial statements for the hospital's parent corporation and consolidating financial statements that at a minimum contain a balance sheet and statement of operations and that provide a breakout of the hospital's and each affiliate's numbers with a report from independent accountants on other financial information; and
      2. Copy of audited Internal Revenue Service Form 990, including Schedule H for hospitals and other applicable attachments; provided, however, that for any hospital not required to file IRS Form 990, the department shall establish and provide a form that collects the same information as is contained in Internal Revenue Service Form 990, including Schedule H for hospitals, as applicable; and
    2. Georgia supplemental disclosures:
      1. Copy of the hospital's completed annual hospital questionnaire, as required by the department;
      2. The community benefit report prepared pursuant to Code Section 31-7-90.1, if applicable;
      3. The disproportionate share hospital survey, if applicable;
      4. Listing of all real property holdings of the hospital, including the location and size, parcel ID number, purchase price, current use, and any improvements made to such property;
      5. Listing of any ownership or interest the nonprofit hospital has in any joint venture, partnership, subsidiary holding company, or captive insurance company; where any such entity is domiciled; and the value of any such ownership or interest;
      6. Listing of any bonded indebtedness, outstanding loans, and bond defaults, whether or not in forbearance; and any bond disclosure sites of the hospital;
      7. A report that identifies by purpose, the ending fund balances of the net assets of the hospital and each affiliate as of the close of the most recently completed fiscal year, distinguishing between donor permanently restricted, donor temporarily restricted, board restricted and unrestricted fund balances. The hospital's interest in its foundation shall be deducted from the foundation's total fund balance;
      8. Copy of all going concern statements regarding the hospital;
      9. The most recent legal chart of corporate structure, including the hospital, each of its affiliates and subsidiaries, and its parent corporation, duly dated;
      10. Report listing the salaries and fringe benefits for the ten highest paid administrative positions in the hospital. Each position shall be identified by its complete, unabbreviated title. Fringe benefits shall include all forms of compensation, whether actual or deferred, made to or on behalf of the employee, whether full or part-time;
      11. Evidence of accreditation by accrediting bodies, including, but not limited to, the Joint Commission and DNV; and
      12. Copy of the hospital's policies regarding the provision of charity care and reduced cost services to the indigent, excluding medical assistance recipients, and its debt collection practices.
  3. Each hospital shall update the documents in the links posted pursuant to subsection (b) of this Code section on July 1 of each year or more frequently at its discretion. Noncurrent documents shall remain posted and accessible on the hospital's website indefinitely.
  4. All documents listed in subsection (b) of this Code section shall be prepared in accordance with generally accepted accounting principles, as applicable.
  5. The department shall also post a link in a prominent location on its website to the documents listed in subsection (b) of this Code section for each hospital in this state.
  6. Any hospital that fails to post the documents required pursuant to subsection (b) of this Code section within 30 days of the dates required in this Code section shall be suspended from receiving any state funds or any donations pursuant to Code Section 48-7-29.20; provided, however, that the department shall provide a hospital notice of any deficiency and opportunity to correct such deficiency prior to any suspension of funds pursuant to this subsection.
  7. The department shall have jurisdiction to enforce this Code section and to promulgate rules and regulations required to administer this Code section.
  8. Any person who knowingly and willfully includes false, fictitious, or fraudulent information in any documents required to be posted pursuant to this Code section shall be subject to a violation of Code Section 16-10-20.

(Code 1981, §31-7-22, enacted by Ga. L. 2019, p. 183, § 1/HB 321.)

Effective date.

- This Code section became effective April 25, 2019.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2019, the enactment of this Code section by Ga. L. 2019, p. 148, § 1-13/HB 186, irreconcilably conflicted with and was treated as superseded by Ga. L. 2019, p. 183, § 1/HB 321.

Editor's notes.

- Ga. L. 2008, p. 224, § 2, effective July 1, 2008, repealed this Code section. Former Code Section 31-7-22 was part of former Article 2 of this chapter, relating to the Georgia Building Authority (Hospital), and was based on Ga. L. 1939, p. 144, § 2; Ga. L. 1941, p. 250, § 1; Ga. L. 1967, p. 862, § 1; Ga. L. 1972, p. 1015, § 417; Ga. L. 1985, p. 149, § 31; Ga. L. 1988, p. 426, § 1.

ARTICLE 2 GEORGIA BUILDING AUTHORITY (HOSPITAL)

31-7-23 through 31-7-40.

Reserved. Repealed by Ga. L. 2008, p. 224, § 2/SB 130, effective July 1, 2008.

Editor's notes.

- This article consisted of former Code Sections 31-7-20 through 31-7-40, relating to the Georgia Building Authority (Hospital), and was based on Ga. L. 1939, p. 144, §§ 1-17, 19; Ga. L. 1941, p. 250, §§ 1, 4; Ga. L. 1946, p. 56, § 1; Ga. L. 1951, p. 22, § 1; Ga. L. 1953, p. 357, § 1; Ga. L. 1960, p. 48, § 1; Ga. L. 1964, p. 95, §§ 1-3; Ga. L. 1964, p. 666, § 1; Ga. L. 1966, p. 302, § 1; Ga. L. 1967, p. 852, § 1; Ga. L. 1967, p. 860, §§ 1-4; Ga. L. 1967, p. 862, § 1; Ga. L. 1970, p. 159, § 1; Ga. L. 1972, p. 1015, § 417; Ga. L. 1983, p. 3, § 55; Ga. L. 1985, p. 149, § 31; Ga. L. 1988, p. 426, § 1; Ga. L. 1991, p. 94, § 31; Ga. L. 1993, p. 1402, § 18; Ga. L. 1996, p. 6, § 31; Ga. L. 2001, p. 4, § 31.

ARTICLE 3 GRANTS FOR CONSTRUCTION AND MODERNIZATION OF MEDICAL FACILITIES

JUDICIAL DECISIONS

Cited in Brown v. Wright, 231 Ga. 686, 203 S.E.2d 487 (1974).

31-7-50. Authorization of grants-in-aid.

The state is authorized to make grants to any county, municipality, or any combination thereof or to any hospital authority to assist in the construction and modernization of publicly owned and publicly operated medical facilities, auxiliary medical facilities, and mental health centers as defined in Code Section 31-7-51. The amount of the grant shall be determined in accordance with Code Sections 31-7-52 and 31-7-53.

(Ga. L. 1949, p. 263, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 214, § 1; Ga. L. 1955, p. 410, § 1; Code 1933, § 88-2101, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1966, p. 716, § 1; Ga. L. 2015, p. 385, § 4-2/HB 252.)

Editor's notes.

- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

31-7-51. Definitions.

  1. As used in this article, the term:
    1. "Auxiliary medical facilities" means diagnostic and treatment facilities, nursing homes, chronic illness hospitals, and rehabilitation centers.
    2. "Construction project" means a program for the construction of any medical facility or auxiliary medical facility or mental health center, as evidenced by the approval of a project under Title VI or Title VII of the federal Public Health Service Act, as now or hereafter amended.
    3. "Hospital authority" means any hospital authority created under the "Hospital Authorities Law," Article 4 of this chapter, as now or hereafter amended.
    4. "Medical facilities" means general hospitals, psychiatric hospitals, nurse training facilities, tuberculosis hospitals, and public health centers.
    5. "Mental health center" means a facility providing services for the prevention or diagnosis of mental illness, or care and treatment of mentally ill patients, or rehabilitation of such persons, which services are provided principally for persons residing in a particular community or communities in or near which the facility is situated.
    6. Reserved.
    7. "Modernization project" means the alteration, major repair, remodeling, replacement, and renovation of existing buildings (including original equipment thereof) and replacement of obsolete, built-in equipment of existing buildings, as evidenced by the approval of a project under Title VI or Title VII of the federal Public Health Service Act, as now or hereafter amended.
    8. "Publicly operated" means operated by a county, municipality, hospital authority, or any combination thereof.
    9. "Publicly owned" means that a county, municipality, hospital authority, or any combination thereof holds title to or has a long-term lease acceptable to the state agency on the property on which the construction or modernization is proposed.
    10. "State agency" means the State Health Planning and Development Agency or any successor designated as the agency of state government to administer the state construction and modernization plan and receive funds pursuant to Titles VI and VII of the federal Public Health Service Act, as amended.
  2. The terms "hospital," "psychiatric hospital," "nurse training facilities," "public health center," "rehabilitation facility," "nursing home," "chronic illness hospital," "long-term care facility," "mental health center," "construction," "cost of construction," "modernization," and "cost of modernization" shall have meanings consistent with those respectively ascribed to them in Titles VI and VII of the federal Public Health Service Act, as now or hereafter amended.

(Code 1933, § 88-2102, enacted by Ga. L. 1966, p. 716, § 1; Ga. L. 1996, p. 6, § 31; Ga. L. 2015, p. 385, § 4-3/HB 252.)

Editor's notes.

- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

U.S. Code.

- Titles VI and VII of the Public Health Service Act, as amended, referred to in this Code section, are codified as 42 U.S.C. § 291 et seq. and 42 U.S.C. § 292a et seq., respectively.

JUDICIAL DECISIONS

Cited in Tift County Hosp. Auth. v. MRS of Tifton, Ga., Inc., 255 Ga. 164, 335 S.E.2d 546 (1985).

31-7-52. Amounts of grants for construction and modernization.

  1. Grants for construction projects or modernization projects made from state appropriations pursuant to this article shall be in an amount equal to one-third of the allowable cost of the project, except as otherwise provided in this article.
  2. In the event that state funds appropriated or otherwise made available during a given fiscal year for construction or modernization are not sufficient to match available federal funds, the state agency shall be empowered to:
    1. Reduce the percentage of contribution by the state below one-third of the allowable cost of the project in order to obtain the optimum amount of construction with funds available; and
    2. At its option, annually establish a ceiling which shall be the maximum amount that can be allotted to each or any medical facility project approved in the given fiscal year, provided that any ceiling so established shall not result in the allotment to a medical facility project of an amount greater than the one-third of allowable cost specified in subsection (a) of this Code section.
  3. The aggregate of federal and state funds granted to publicly owned and publicly operated construction or modernization projects shall be 66 2/3 percent unless state funds are inadequate to obtain optimum construction, in which event the state agency is authorized to establish an aggregate less than 66 2/3 percent.
  4. In the event an aggregate of federal and state funds is established at less than 66 2/3 percent, the state agency is authorized to establish a matching formula for any category of construction which is different from any other matching formula for any other category of construction; the state agency is further authorized to establish a matching formula for any category of modernization which is different from the matching formula for construction projects.

(Ga. L. 1949, p. 263, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 214, § 1; Ga. L. 1955, p. 410, § 1; Code 1933, § 88-2103, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1966, p. 716, § 1; Ga. L. 1969, p. 715, §§ 4, 5.)

31-7-53. Matching formula; priority system; use of earnings; approval of federal grant.

  1. The state agency shall establish a matching formula for each construction and modernization category by fiscal year. Any change in a matching formula shall apply in the same manner to each construction and modernization project within the category approved during the fiscal year.
  2. Grants made pursuant to this article shall be in accordance with the priority system as approved by the state agency and the United States secretary of health and human services.
  3. No part of the net earnings of publicly owned and publicly operated medical facilities, auxiliary medical facilities, and mental health centers constructed with the assistance of a grant under this article shall inure to the benefit of any private corporation or individual.
  4. Any grant made pursuant to this article shall be contingent upon the approval for that project of a federal grant approved by the United States secretary of health and human services under either Title VI or Title VII of the federal Public Health Service Act, as now or hereafter amended.

(Ga. L. 1949, p. 263, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 214, § 1; Ga. L. 1955, p. 410, § 1; Code 1933, § 88-2105, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2104, enacted by Ga. L. 1966, p. 716, § 1; Ga. L. 1982, p. 3, § 31; Ga. L. 1992, p. 6, § 31; Ga. L. 2015, p. 385, § 4-4/HB 252; Ga. L. 2017, p. 774, § 31/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "the federal Public Health Service Act" for "the Public Health Service Act" near the end of subsection (d).

Editor's notes.

- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

U.S. Code.

- Titles VI and VII of the Public Health Service Act, as amended, referred to in subsection (d), are codified as 42 U.S.C. § 291 et seq. and 42 U.S.C. § 292a et seq., respectively.

31-7-54. Manner of expenditure of construction funds.

In order to assist the several counties, municipalities, or any combination thereof or any hospital authorities created under the "Hospital Authorities Law," Article 4 of this chapter, such funds as are appropriated for each fiscal year for the construction of publicly owned and publicly operated medical facilities, auxiliary medical facilities, and mental health centers shall be expended in accordance with the provisions of this article.

(Ga. L. 1949, p. 263, § 2; Ga. L. 1955, p. 410, § 2; Code 1933, § 88-2106, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2105, enacted by Ga. L. 1966, p. 716, § 1; Ga. L. 2015, p. 385, § 4-5/HB 252.)

Editor's notes.

- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

31-7-55. Administration of state funds.

The state agency is to be the sole agency for the administration of state funds pursuant to this article. The administration of such funds shall be in direct conjunction with that of federal funds under Titles VI and VII of the Public Health Service Act, as now or hereafter amended.

(Ga. L. 1949, p. 263, § 3; Ga. L. 1955, p. 410, § 3; Code 1933, § 88-2107, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2106, enacted by Ga. L. 1966, p. 716, § 1.)

U.S. Code.

- Titles VI and VII of the Public Health Service Act, as amended, referred to in this Code section, are codified as 42 U.S.C. § 291 et seq. and 42 U.S.C. § 292a et seq., respectively.

31-7-56. Adherence to federal law and regulations.

The establishment of hospital service areas, the determination of relative need, the priority of projects, and the standards of construction shall be consistent with Titles VI and VII of the Public Health Service Act, as now or hereafter amended, and the federal regulations prescribed thereunder.

(Ga. L. 1949, p. 263, § 5; Ga. L. 1955, p. 410, § 5; Code 1933, § 88-2108, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2107, enacted by Ga. L. 1966, p. 716, § 1.)

U.S. Code.

- Titles VI and VII of the Public Health Service Act, as amended, referred to in this Code section, are codified as 42 U.S.C. § 291 et seq. and 42 U.S.C. § 292a et seq., respectively.

31-7-57. Procedure for grants to sponsors of construction projects; injunction of operation by transferee in violation of article.

  1. For each construction project, there shall be submitted to the state agency an application for state funds.
  2. Upon approving an application under this Code section, the state agency shall submit a budget request to the Office of Planning and Budget, based upon such application. Approval by the Office of Planning and Budget shall constitute an obligation of the state.
  3. Payments to the sponsor of a construction project shall be made in installments as construction progresses at intervals to be determined at the discretion of the state agency; and the state agency shall have the right to inspect and audit records and accounts of the sponsor as a condition precedent to making payments.
  4. If any publicly owned and publicly operated medical facility, auxiliary medical facility, or mental health center for which funds have been paid under this Code section shall be leased to any corporation, person, organization, or body other than one eligible to receive a grant under this article or shall be sold or used for any purpose contrary to the provision under which the grant was made, at any time within 20 years after completion of construction, and such change in lease, sale, or use is not approved by the state agency, such agency may bring an equitable proceeding for writ of injunction against any person, firm, corporation, or organization operating in violation of this article. The proceedings shall be filed in the county in which such persons reside or, in the case of a firm or corporation, where such firm or corporation maintains its principal office; and, unless it is shown that such person, firm, or corporation which has leased such medical facility, auxiliary medical facility, or mental health center would have been eligible to accept the grant-in-aid from the state in the first instance and the lease has been approved by the state agency or the sale or use has been approved by such agency, the writ of injunction shall issue and such person, firm, or corporation shall be perpetually enjoined throughout the state from operating in violation of the provisions of this subsection. It shall not be necessary in order to obtain the equitable relief provided in this subsection that the state agency show that such person, firm, or corporation is ineligible nor to prove that there is no adequate remedy at law. In addition, the state agency shall be entitled to bring an action and recover from the transferor and transferee of any facility specified in this subsection such percentage of the value of the facility as the state grant bore toward the total construction cost of that facility as determined by agreement of the parties or by action brought in court.

(Ga. L. 1949, p. 263, § 7; Ga. L. 1955, p. 410, § 6; Code 1933, § 88-2109, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2108, enacted by Ga. L. 1966, p. 716, § 1; Ga. L. 1985, p. 149, § 31; Ga. L. 2015, p. 385, § 4-6/HB 252.)

Editor's notes.

- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

ARTICLE 4 COUNTY AND MUNICIPAL HOSPITAL AUTHORITIES

Cross references.

- Use of excess proceeds of bonds issued by county or municipal corporation to match state and federal contributions to build and equip hospital in such county or municipal corporation, § 36-60-7.

Law reviews.

- For article noting the exclusion of public authorities from the Georgia Administrative Procedure Act, see 1 Ga. St. B. J. 269 (1965). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986). For article, "Tackling the Social Determinants of Health: A Central for Providers," see 33 Georgia St. U. L. Rev. 217 (2017). For note, "Bearing Hospital Tax Breaks: How Nonprofits Benefit from Your Surprise Medical Bills," see 35 Ga. St. U. L. Rev. 809 (2019).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Ga. L. 1941, p. 241, as amended, which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this article.

Georgia Hospital Authorities Law, O.C.G.A. § 31-7-70 et seq., is constitutional. Cheely v. State, 251 Ga. 685, 309 S.E.2d 128 (1983).

Hospital authorities created under the law are local, not state, instrumentalities. Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572, 247 S.E.2d 89 (1978).

Hospital authority was a local, not state, instrumentality, and was not entitled to immunity under the Eleventh Amendment in a federal civil rights act suit brought by a paramedic against the authority. Baxter v. Fulton-DeKalb Hosp. Auth., 764 F. Supp. 1510 (N.D. Ga. 1991).

Hospital authority not within workers' compensation definition of "employer".

- Local hospital authority is an instrumentality of the county and not of the state and, therefore, it is not covered by Workmen's (now Workers') Compensation Law under the law's definition of "employer" as a state instrumentality. Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572, 247 S.E.2d 89 (1978).

Hospital authorities are subject to "open records" law. Cox Enters., Inc. v. Carroll City/County Hosp. Auth., 247 Ga. 39, 273 S.E.2d 841 (1981).

Hospitals operated by authorities are subject to examination by grand juries as facilities of county. Cox Enters., Inc. v. Carroll City/County Hosp. Auth., 247 Ga. 39, 273 S.E.2d 841 (1981).

Hospital authorities are exempt from sales and use taxes. Cox Enters., Inc. v. Carroll City/County Hosp. Auth., 247 Ga. 39, 273 S.E.2d 841 (1981).

Hospital authorities are exempt from Georgia Business Corporation Code.

- Phrase "corporations engaged in any business" in Ga. L. 1975, p. 190, § 1 (see O.C.G.A. § 34-9-4) includes only those corporations governed by the Georgia Business Corporation Code (see O.C.G.A. Ch. 2, T. 14). Hospital authorities are not governed by the Georgia Business Corporation Code, but are expressly exempted therefrom. Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572, 247 S.E.2d 89 (1978).