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Georgia Soc'y of Ambulatory Surgery Ctrs. v. Georgia Dep't of Community Health

The exhaustion of administrative remedies requirement must be assessed as of the time the lawsuit is filed, and actions taken to defend a lawsuit cannot establish futility.

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The Georgia Society of Ambulatory Surgical Centers “GSASC” brought this action against the Georgia Department of Community Health and its Commissioner collectively, “DCH” for declaratory judgment and injunctive relief, alleging that a 2009 annual survey issued by DCH to ambulatory surgery centers “ASCs” sought information beyond the scope of OCGA § 31-6-70. The trial court denied GSASC’s request for an interlocutory injunction on the ground that DCH was “authorized to request the information at issue under Georgia law.”

In a 4-3 decision, this Court reversed the trial court, concluding that the 2009 survey sought information beyond what was statutorily authorized. See Ga. Society of Ambulatory Surgery Centers v. Ga. Dept. of Community Health, 309 Ga. App. 31, 33-37 1 710 SE2d 183 2011. This Court further concluded that GSASC and its members were not required to exhaust administrative remedies before bringing suit for declaratory and injunctive relief because 1 resorting to those remedies would be futile and 2 GSASC was challenging DCH’s power to act. Id. at 37-40 2.

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