These consolidated appeals arise from the Georgia Department of Community Health’s “DCH’s” granting of an application for a Certificate of Need “CON” to develop an outpatient ambulatory surgery service in East Cobb County to Kennestone Hospital, Inc. “Kennestone”.1 Kennestone’s application was eventually approved by the DCH after the service was determined to be “part of a hospital” pursuant to Ga. Comp. R. Regs. r. 111-2-2-.40 1 a, which is the regulation at issue in this case. Northside Hospital, Inc. “Northside” opposed the CON and sought administrative review of the DCH’s initial decision. After the appeal was unsuccessful, Northside then filed a petition for judicial review in the Superior Court of Fulton County. See OCGA § 31-6-44.1. The superior court reversed the DCH’s decision to grant the CON on the basis that the “case-by-case” provision in Ga. Comp. R. Regs. r. 111-2-2-.40 1 a was unconstitutionally vague. The Court of Appeals upheld the superior court’s determination,2 and this Court granted certiorari to determine whether the Court of Appeals erred in determining that Ga. Comp. R. Regs. r. 111-2-2-.40 1 a was unconstitutionally vague.3 For the reasons that follow, we reverse.
The record reveals that Kennestone operates two hospitals in the service area, WellStar Kennestone Hospital and Wellstar Windy Hill Hospital. Kennestone’s application was approved after the surgery service was determined to be “part of a hospital” pursuant to Ga. Comp. R. Regs. r. 111-2-2-.40 1 a hereinafter referred to as “the Rule”, which provides, in part, that if an ambulatory surgery service is or will be provided as part of a hospital,4 it is not subject to more stringent service-specific CON review by the DCH. An ambulatory surgery service is part of a hospital “a if the service is located within a hospital; or b if the service is located in a building on the hospital’s primary campus and that building, or relevant portion thereof, is included within the hospital’s permit . . . .” However, for situations that do not fall squarely under subparts a and b of the Rule, the Rule’s final sentence provides that “the DCH also will make a determination of reviewability on a case-by-case basis in other situations involving hospitals.”5
