State Supreme Court Takes Up Gwinnett County CON Dispute

Dave Williams

Wednesday, November 8th, 2023

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The scope of the Georgia Department of Community Health’s (DCH) authority to overrule decisions on Certificate of Need (CON) applications rendered by hearing officers was at issue Tuesday before the state Supreme Court.

In a complicated case, multiple parties are challenging Northside Gwinnett Hospital’s application for a CON to establish a new radiation therapy service.

The case made its way to the state’s highest court after the Georgia Court of Appeals declared the DCH commissioner had the authority to approve Northside Gwinnett’s CON application.

The appellate court’s ruling overturned a lower court decision that the commissioner exceeded the limits of his statutory authority by rejecting and modifying findings of fact of the hearing officer without specifically declaring those findings “were not based upon competent substantial evidence.”

On Tuesday, a lawyer representing Northeast Georgia Medical Center in Gainesville told the justices the commissioner improperly rejected half of the 86 findings of fact in the hearing officer’s earlier decision to deny the CON application.

“There’s not a single place in the commissioner’s order where he addresses evidence at all,” David Darden said.

“A lot was done wrong in this case,” added Keith Blackwell, a former Georgia Supreme Court justice representing Dunwoody-based Vantage Cancer Centers of Georgia in this case.

Lawyers representing the DCH and Northside Gwinnett Hospital conceded some of the language in the commissioner’s order was imprecise.

But Robert Highsmith, representing Northside Gwinnett, argued the rules of evidence in administrative law proceedings are broad, giving the commissioner the leeway to render decisions based on competent substantial evidence, not just legally admissible evidence. In his order, the commissioner went beyond that by explaining his legal interpretations, he said.

“In every case, the commissioner said, ‘Here’s why I’m rejecting this evidence,’ ” Highsmith said.

Blackwell suggested the state Supreme Court could order the DCH commissioner to redo the review of the CON application or remand it back to a lower court to reassess the case.