We have consolidated for review these cases appealing two superior courts’ decisions to reverse the grant of a hospital certificate of need CON issued by the Georgia Department of Community Health DCH. The primary issue on appeal is whether DCH properly applied the applicable statutes and rules when it granted Palmyra Park Hospital’s application for a CON to provide basic perinatal services. A 2008 amendment to the CON statute, OCGA § 31-6-42 b.2, provides that a hospital seeking a CON for these services does not have to establish a “need” for them. In deciding Palmyra’s application, DCH considered how the exclusion of the “need” consideration affected its determination. Two competing hospitals opposed the application and appealed DCH’s final decision to the superior courts in their counties. Both courts held that DCH erred in granting the CON, and both DCH and Palmyra appeal these superior court decisions. After reviewing the record, briefs, statutes, and case law, we conclude that the superior courts erred in reversing the final agency decision approving the CON.1 Neither the superior nor the appellate courts review DCH decisions de novo. DCH v. Gwinnett Hosp. Authority , 262 Ga. App. 879, 882 586 SE2d 762 2003. Instead, the reviewing court determines whether “substantial evidence” supports the agency’s findings of fact, and whether the conclusions of law drawn from those findings of fact are sound. Pruitt Corp. v. Ga. Dept. of Community Health , 284 Ga. 158, 161 3 664 SE2d 223 2008. The reviewing courts may reverse an agency decision if it was based on legal error and unlawful procedures, was arbitrary and capricious, or prejudiced the opposing parties’ substantial rights. OCGA § 31-6-44.1 a formerly OCGA § 31-6-44 m.
The CON program, OCGA § 31-6-40 et seq., establishes a comprehensive system of planning for the orderly development of adequate health care services throughout the state. OCGA § 31-6-1. HCA Health Svcs. v. Roach , 263 Ga. 798, 801 3 b 439 SE2d 494 1994. DCH is the “lead planning agency for all health issues” in Georgia. OCGA § 31-2-1 1. OCGA § 31-6-42 a specifies that DCH will issue a CON that is “consistent with” a list of general considerations, including the establishment of a need for the services. Under DCH regulations, “need” is based on several factors, including area population and the use of existing services. OCGA § 31-6-42 a 2; DCH Rule 111-2-2-.24 3 b.
