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Georgia State Code
Title      31
Chapter       6  
Section Navigation     1 ... 41           42 ... 49    
    50 ... 70      
Section<<< 42 43 44 45 45.1 45.2 46 47 48 49 >>>  
Title 31, Chapter 6, Section 44 (31-6-44)

(a) There is created the Health Planning Review Board, which shall be an agency separate and apart from the department. That review board which existed on June 30, 1994, is continued in existence after that date but on and after July 1, 1994, shall be constituted as provided in this subsection. Those members of the Health Planning Review Board serving as such on January 1, 1994, or any person selected to fill a vacancy in such membership shall continue to serve as such members until July 1, 1994, at which time the terms of office of such members shall expire. On and after July 1, 1994, the review board shall be composed of 11 members appointed by the Governor, with one from each congressional district. The Governor shall appoint persons to the review board 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. The Governor shall also name from among such members a chairperson and a vice chairperson of the review board, both of whom shall be attorneys licensed to practice law in this state. 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 board 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 board.

(b) The purpose of the review board shall be to review decisions made by hearing officers as provided in subsection (h) of this Code section. At least a quorum of the review board shall meet at least once every month to review hearing officer decisions unless there are not any decisions for it to review. For purposes of this subsection, a quorum shall consist of five members of the review board, including either the chairperson or the vice chairperson. The review board shall promulgate reasonable rules for its operation and rules of procedure for the conduct of review board meetings and initial administrative appeal hearings held by the appointed hearing officers. Subject to the limitations stated in this subsection and in subsection (c) of this Code section, the review board shall formulate and approve a list of at least five and not more than ten attorneys who shall serve as hearing officers for appeals which are assigned to them by the chairperson of the review board. Each such attorney approved to be included on the list of hearing officers shall be an active member of the State Bar of Georgia in good standing, and each such attorney must have maintained such active status for the five years immediately preceding such person's respective approval. The members of the review board 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, and the chairperson and vice chairperson shall also be compensated for their services rendered to the review board outside of attendance at a review board meeting, the amount of which compensation shall be determined according to regulations of the Department of Administrative Services. Hearing officers to whom a case has been assigned shall receive compensation determined to be appropriate and reasonable by the review board. Such compensation to the members of the review board and to hearing officers shall be made by the Department of Administrative Services.

(c) Any applicant for a project, or any competing applicant, or 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 a hearing officer or to intervene in such hearing. Such request for hearing or intervention shall be made within 30 days of the date of the decision made pursuant to Code Section 31-6-43. In the event that an appeal is requested, the chairperson of the review board shall appoint a hearing officer for each such hearing within 50 days after the date of the decision made pursuant to Code Section 31-6-43. Within 14 days after the appointment of the hearing officer, such hearing officer shall set the date or dates for the hearing and shall provide the parties with written notice mailed at least 14 days before the date of commencement of such hearing. The hearing shall be commenced within 120 days of 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 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.

(d) 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.

(e) 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 hearing officer shall also consider whether the department committed prejudicial procedural error in its consideration of the application. The hearing officer shall also consider whether the appeal lacks substantial justification and whether such appeal was undertaken solely for the purpose of delay or harassment. 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 pursuant to subsection (d) of Code Section 31-6-43, the hearing officer shall have the same powers specified for the department in subsection (d) of Code Section 31-6-43 to order the issuance of no certificate of need or one or more certificates of need.

(f) 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, except that, unless in response to an issue raised by an opponent or the hearing officer or revealed during discovery, a party or intervenor may not present a new need study or analysis that is substantially different from any such study or analysis submitted to the department prior to its decision and that could reasonably have been available for submission to the department prior to its decision. Except for such limitation on new studies or analyses, 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.

(g) 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 and was undertaken solely for the purpose of delay or harassment, the decision of the hearing officer shall make findings of fact addressing the merits of the allegation. Immediately upon rendering a decision, the hearing officer shall file such decision with the review board, serve such decision upon all parties, and transmit the administrative record to the chairperson of the review board. 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 to the review board shall file such party's specific objections thereto with the review board within 30 days of such party's receipt of the hearing officer's decision.

(h) The decision of the hearing officer will become the final decision of the department upon the sixty-first day following the receipt of the decision by the review board unless an objection thereto is filed within the time limit established in subsection (g) of this Code section and within 60 days of the receipt of the hearing officer's decision by the review board:

(1) At least a quorum of the review board meets to review such decision and, by a majority vote of those members present at the meeting, decides whether to affirm, reverse, or modify the hearing officer's decision or to remand the case to the hearing officer for further consideration; or

(2) At the request of any party which participated in the initial administrative hearing before the hearing officer, or upon its own initiative, the chairperson or the chairperson's designee extends the time period for review of such decision. However, the review board may not extend the time period for review of such decision for longer than 45 days. The chairperson or vice chairperson shall set the date for the review board meeting and provide the parties with written notice mailed at least 14 days prior to such meeting. Within 30 days after meeting to review such hearing officer's decision, either the chairperson or the vice chairperson of the review board shall, on behalf of the review board members present at such meeting, issue a written order which memorializes the decision of the review board reached by such majority vote. In the event the review board reverses or modifies the hearing officer's decision, the review board shall issue a written decision explaining why such changes were made. However, the review board shall not reverse findings of fact made by the hearing officer unless the review board specifically finds that the hearing officer's findings of fact are 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. If, before the date set for the review board's meeting, application is made to the chairperson for leave to present additional evidence and it is shown to the satisfaction of the chairperson that the additional evidence is material and there were good reasons for failure to present it in the proceedings before the hearing officer, the chairperson may order that the additional evidence be taken before the same hearing officer who rendered the initial decision upon conditions determined by the chairperson. 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 review board. Unless leave is given by the chairperson in accordance with the provisions of this subsection, the review board may not consider new evidence under any circumstances. In all circumstances, the review board's decision shall be based upon considerations as set forth in Code Section 31-6-42 and the department's rules.

(i) 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, shall make any ex parte contact with the hearing officer appointed to conduct the appeal hearing or any member of the review board in regard to a project under appeal.

(j) Unless the hearing officer's decision becomes the department's decision by operation of law as provided in subsection (h) of this Code section, the final decision of the review board shall become the department's 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.

(k) In the event that the review board or its chairperson or vice chairperson requires legal counsel, the chairperson or vice chairperson shall make a request for such advice to the Attorney General.

(l) If, based upon the findings of the hearing officer, the review board determines that the appeal filed by any party of a decision of the department lacks substantial justification and was undertaken solely for the purpose of delay or harassment, the review board may enter an award in its 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 review board 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.

(m) Any party to the initial administrative appeal hearing conducted by the appointed 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"; 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 review board 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.

Saturday May 23 15:19 EDT


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