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Albany Surgical PC v. Georgia Dep't of Community Health

O.C.G.A. § 31-6-21.1 does not violate the separation of powers doctrine simply by enabling the Department of Community Health to promulgate and adopt regulations pursuant to legislative power.

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This marks the second appearance of this case in our appellate courts. Previously, in Albany Surgical, P. C. v. Dept. of Community Health , 257 Ga. App. 636 572 SE2d 638 2002, our Court of Appeals affirmed the grant of summary judgment to defendants, but remanded for a determination of the constitutional issues raised, but not ruled on, in the trial court. Albany Surgical brought a declaratory judgment action against defendants seeking a declaration that Ga. Comp. R. & Regs. Rules 272-2-.01 19 h 3 and 272-2-.09 1 b 10, which provide that an ambulatory surgery center requires a Certificate of Need CON because it does not qualify for a single specialty exemption, are invalid because they are not authorized by the CON statutes and are unreasonable. The parties filed cross motions for summary judgment. Responding to defendants’ motion, Albany Surgical challenged the regulations on constitutional grounds, asserting the procedure for approving the regulations violated the separation of powers doctrine. See Ga. Const. Art. I, Sec. II, Para. III.1

The trial court granted defendants’ motion for summary judgment, but it did not rule upon any constitutional concerns. Accordingly, when Albany Surgical first appealed to this Court, we transferred the appeal to the Court of Appeals. See Senase v. State , 258 Ga. 592 372 SE2d 813 1988.

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