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Albany Surgical challenges constitutionality of CON regulations in GA

Ambulatory Surgery Reimbursement Update, October 26, 2004

Albany Surgical, a six-physician general surgery practice in Albany, GA, were recently defeated in the latest round of legal battles with Georgia's Department of Community Health, according to the Fulton County Daily Report. In the dispute, Albany Surgical has argued that general surgery should be recognized as a single specialty, not a multi-specialty, and should therefore be exempt from the certificate of need requirements that ambulatory surgical centers are subject to in the state.

It was summer of 2003 when the Georgia DCH issued the regulations classifying general surgery as a multi-specialty, citing the existence of different subspecialties within general surgery as a reason. Albany Surgical's return to the Dougherty Superior Court last month argued the point on constitutional grounds, saying that the procedure for approving those regulations violate a separation of powers doctrine.

Albany Surgical asserted, in their most recent challenge, that Rule 272-2-.09 [1] [b] 10 is unconstitutional because the DCH has no authority to promulgate it, and because the regulation had become effective through "legislative acquiescence" (meaning that the legislative health committees who hear the regulation did not object to it outright, thus allowing it to be adopted). However, the appellate court refused to accept this argument, which had already been addressed, and dismissed, by the Court of Appeals.

Instead, the findings of the Court of Appeals were upheld: specifically, that the legislative health committees not objecting to a proposed regulation may create a presumption that the regulation represents the intent of the legislature, but that, when all is said and done, a regulation is not a law and can be adopted without all the same procedural steps required for legislation.

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