Albany Surgical PC v. Department of Community Health

This is an appeal from the grant of summary judgment for the Department of Community Health, Division of Health Planning, in a declaratory judgment action brought by Albany Surgical, P. C. seeking to declare invalid Ga. Comp. R. & Regs. Rule 272-2- .01 19 h 3 and 272-2-.09 1 b 10 “DHP Rule”, which provides that an ambulatory surgery center engaged only in the practice of “general surgery” does not qualify for the single specialty exemption for the Certificate of Need. In its trial brief in opposition to such motion, Albany Surgical raised for the first time Georgia Constitutional issues, which the trial court did not pass upon. In transferring this appeal to this Court, the Supreme Court held: “as the issue on appeal concerns the validity of an administrative regulation adopted by the defendants and does not appear that the trial court ruled on any constitutional issues, this Court does not have jurisdiction over the appeal and it is hereby transferred to the Court of Appeals.” Finding no merit to the legal issues before us, we affirm and remand to the trial court for determination of the constitutional issues raised but not ruled upon by the trial court and such other pending motions as remain relevant to the determination of such constitutional issues.

The General Assembly passed and later amended the Certificate of Need Act to create a system for planning new health service institutions to avoid costly duplication of services where insufficient need existed. OCGA § 31-6-2 et seq. The legislative intent expressed in the Act is: