The Ga. Court of Appeals has ruled in favor of the Ga. Society Ambulatory Surgery Centers (GSASC) in a case against the Georgia Department of Community Health (DCH) over information requested in annual surveys, according to Victor L. Moldovan, JD, of McGuireWoods, who represented the GSASC in the case, and a copy of the decision.
GSASC had filed a complaint in the Superior Court of Fulton County against DCH requesting that under the letter of non-reviewability, members of GSASC should not be required to fill out parts of the DCH's 2009 annual survey.
The Fulton County Court held that DCH was allowed to ask for the information in the 2009 survey but enjoined DCH from requiring the information during the pendency of GSASC's appeal to the Georgia Court of Appeals. GSASC immediately filed its appeal and the case has been pending for over six months. GSASC members have not been required to provide the information at issue in the 2009 survey and the 2010 survey up to this point.
The Court of Appeal reversed the Fulton County Court's decision. "The upshot of the Court of Appeals decision is that the statutes relied on by DCH to require annual surveys do not allow DCH to ask for the disputed information," says Mr. Moldovan. The Court of Appeals held that the statute limits the information that DCH can request to only the items specified in the statute and nothing more. The Court also held that the members of GSASC were not required to exhaust any administrative remedies they may have had before filing the complaint in this case. The Court noted that DCH had the right to fine surgery centers, revoke their letters of non-reviewability and even criminally prosecute them if they failed to submit the information. The Court held that the surgery centers did not have to risk those penalties before filing the Complaint in this case.
Three of the Court of Appeals members dissented from the decision. That has no bearing on the validity of the decision, says Mr. Moldovan. Moreover, the dissent was not based on the merits of the case. It simply held that they believe the surgery centers should have been required to pursue administrative appeals before filing the complaint in Court.
GSASC President Stanford Plavin, MD, responding to the news of the court's decision, stated "this is a great victory for the protection of confidential information in our ASCs. The state doesn't need this information to operate the CON program and the legislature didn't authorize them to acquire it."
DCH has the right to file a motion for reconsideration in the Court of Appeals. In the alternative, it can file a petition with the Georgia Supreme Court asking it to review the Court of Appeals decision. If DCH files a motion for reconsideration with the Court of Appeals and it is denied, DCH has 20 days from the denial of the motion to ask the Georgia Supreme Court to review the case.
GSASC will respond to DCH's petitions in the appropriate manner, says Mr. Moldovan.
Learn more about the Georgia Society Ambulatory Surgery Centers.