FOURTH DIVISION
MERCIER, C. J.,
DILLARD, P. J., and MARKLE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
October 29, 2024
In the Court of Appeals of Georgia
A22A1081. NORTHSIDE HOSPITAL, INC. v. NORTHEAST
GEORGIA MEDICAL CENTER, INC. et al.
A22A1082. GEORGIA DEPARTMENT OF COMMUNITY
HEALTH v. NORTHEAST GEORGIA MEDICAL
CENTER, INC. et al.
A22A1124. VANTAGE CANCER CENTERS OF GEORGIA, LLC
et al. v. GEORGIA DEPARTMENT OF COMMUNITY
HEALTH et al.
MARKLE, Judge.
On remand from the Supreme Court of Georgia, these related appeals involve
the Georgia Department of Community Health’s (“the Department”) grant of a
certificate of need (“CON”) to Northside Hospital, Inc. d/b/a Northside Hospital
Gwinnett (“Northside”) to build an in-house radiation therapy center. Specifically,
they address whether the Department’s Commissioner applied the correct standard of review in rejecting a hearing officer’s findings of fact. For the reasons that follow,
we conclude the Commissioner did not.
The facts of this case are set forth in the Supreme Court’s decision in Vantage
Cancer Centers of Georgia v. Department of Community Health, 318 Ga. 361, 361-365 (1)
(898 SE2d 462) (2024). Succinctly stated, the record shows that the Department
initially approved Northside’s CON application for the radiation center. See OCGA
§ 31-6-43 (g), (i) (2019). Competing healthcare providers, Northeast Georgia Medical
Center, Inc. (“NGMC”), RCOG Cancer Centers, LLC and Vantage Cancer Centers
of Georgia (collectively, “Vantage”) filed administrative appeals. Vantage Cancer
Centers of Ga., 318 Ga. at 362 (1) (a); see OCGA § 31-6-44 (a), (d), (e), (g), (i) (2019).
Following a lengthy evidentiary hearing, a hearing officer reversed the initial
Department decision, and denied Northside’s application. Northside then filed a
request for review with the Commissioner, who issued the final agency decision,
overturning the hearing officer’s decision and again granting a CON for the project.
See OCGA § 31-6-44 (i), (j) (2019).
NGMC petitioned for judicial review in the Superior Court of Hall County,
which granted its petition and reversed the Commissioner’s decision. See OCGA §
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31-6-44.1 (a) (2008). Concurrently, Vantage sought judicial review in the Superior
Court of Gwinnett County, but that court denied its petition and affirmed the
Commissioner’s decision.
In Case Nos. A22A1081 and A22A1082, Northside and DCH appealed to this
Court from the Hall County court’s decision; and, in Case No. A22A1124, Vantage
appealed from the Gwinett County court’s decision. In a split opinion, the outcome
reversed the Hall County court’s judgment and affirmed the Gwinnett County court’s
judgment, and determined that the Commissioner was vested with broad discretion
to reject the factual findings of the hearing officer. The opinion construed the term
“competent substantial evidence,” as used in OCGA § 31-6-44 (k) (1),1 to “require[]
1
During the pendency of these appeals, the General Assembly amended OCGA § 31-6-44 to reflect that the decision of the hearing officer approving or denying certificates of need is now the final decision of the Department without an opportunity for further review by the Commissioner. OCGA § 31-6-44 (j) (2024). References to OCGA § 31-6-44 (k) (1) in the body of the opinion are to the version in effect at the time of the administrative decisions in this appeal.
At the time, OCGA § 31-6-44 (k) (1) provided:
In the event an appeal of the hearing officer’s decision is filed, the
commissioner may adopt the hearing officer’s order as the final order of
the department or the commissioner may reject or modify the
conclusions of law over which the department has substantive
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the [C]ommissioner to apply an additional layer of qualitative inquiry.” Northside
Hosp. v. Northeast Ga. Med. Center, 365 Ga. App. 778, 783-784 (1) (a) (880 SE2d 286)
(2022) (Mercier, J., concurring in judgment only; Dillard, P.J., dissenting).
The Supreme Court of Georgia granted certiorari and subsequently vacated the
judgment of this Court, explaining
jurisdiction and the interpretation of administrative rules over which it
has substantive jurisdiction. By rejecting or modifying such conclusion
of law or interpretation of administrative rule, the department must state
with particularity its reasons for rejecting or modifying such conclusion
of law or interpretation of administrative rule and must make a finding
that its substituted conclusion of law or interpretation of administrative
rule is as or more reasonable than that which was rejected or modified.
Rejection or modification of conclusions of law may not form the basis
for rejection or modification of findings of fact. The commissioner may
not reject or modify the findings of fact unless the commissioner first
determines from a review of the entire record, and states with
particularity in the order, that the findings of fact were not based upon
any competent substantial evidence or that the proceedings on which the
findings were based did not comply with the essential requirements of
law.
OCGA § 31-6-44 (k) (1) (2019).
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that the term “competent substantial evidence” is most reasonably
understood to refer to evidence that is “relevant” such that a reasonable
mind might accept it as adequate to support a finding of fact, and that is
admissible. Moreover, . . . this standard is a deferential one that does not
permit the Commissioner to reweigh the evidence, judge the credibility
of witnesses, or substitute his judgment on factual issues for that of the
hearing officer based on the Commissioner’s expertise.
(Punctuation and citation omitted.) Vantage Cancer Centers of Ga., 318 Ga. at 373 (2)
(b); see also OCGA § 31-6-44.1 (a) (5) (defining the term “substantial evidence,” for
purposes of the certificate of need program, as “such relevant evidence as a reasonable
mind might accept as adequate to support such findings” in the final administrative
decision).
The Supreme Court further examined the language of OCGA § 31-6-44 (k) (1),
which required the Commissioner to “state with particularity” his conclusion that the
hearing officer’s findings of fact were not supported by competent substantial
evidence before rejecting or modifying them. Vantage Cancer Centers of Ga., 318 Ga.
at 374 (2) (c). The Court explained that, in light of the Commissioner’s limited
authority to reject the hearing officer’s findings of fact,
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the most reasonable understanding of the “particularity” requirement
is that the Commissioner must provide sufficient detail in his order from
which a reviewing court can determine whether the Commissioner has
or has not improperly substituted his judgment for the findings of fact of
the hearing officer.
Id.
The Supreme Court then remanded these appeals to this Court with
instructions to “undertake in the first instance to determine whether the
Commissioner complied with the ‘particularity’ requirement of OCGA § 31-6-44 (k)
(1) as defined” in its opinion. Vantage Cancer Centers of Ga., 318 Ga. at 375 (3).
Accordingly, we vacate our previous opinion and adopt the opinion of the Supreme
Court as our own.
In accordance with the Supreme Court’s mandate, we first address whether the
Commissioner satisfied the particularity requirement of OCGA § 31-6-44 (k) (1), as
that term has now been defined, in rejecting the hearing officer’s findings of fact. We
conclude that the Commissioner’s objections, as a whole, provide sufficient detail
from which it can be determined that he improperly substituted his judgment for the
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hearing officer’s findings of fact. See Vantage Cancer Centers of Ga., 318 Ga. at 374 (2)
(c).
In his decision, the Commissioner objects to or modifies many of the hearing
officer’s factual findings by stating that they are “conclusory,” “speculative,”
“misleading,” or on the grounds that they are merely “conclusions couched as
findings of fact.” Notably, in one instance, the Commissioner rejects one of the
hearing officer’s findings of fact because “it diverts attention from the issue of
inpatients by diminishing their need for access to an inpatient [radiation therapy]
service.” In another, the Commissioner criticizes the hearing officer’s use of a phrase
regarding less costly alternatives to Northside’s proposed project because it
“purposefully diverts attention to the cost without explaining [that] the project not
only involves the acquisition of a hospital based [radiation therapy] unit but the
construction of a two-story medical office building that will also contain an infusion
therapy center and related cancer services.” Thus, the Commissioner’s rejection of
the hearing officer’s factual findings generally reflect that he overstepped his authority
by substituting his judgment for that of the hearing officer. See Vantage Cancer Centers
of Ga., 318 Ga. at 374 (2) (c); OCGA § 31-6-44 (k) (1).
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Additionally, the Commissioner did not apply the correct standard of review
under OCGA § 31-6-44 (k) (1) because he did not, in the first instance, determine and
state with particularity that the hearing officer’s findings of fact were not based on
competent substantial evidence. Id.; see also Vantage Cancer Centers of Ga., 318 Ga.
at 373 (2) (b). Rather, the decision is wholly silent as to whether the hearing officer’s
factual findings were based on competent substantial evidence. Accordingly, the
Commissioner’s decision did not comport with the requirements of OCGA § 31-6-44
(k) (1).
Because the underlying decision of the Commissioner is in error, we must
vacate both of the trial courts’ judgments; and we remand these cases to them with
instructions to vacate the Department’s final decision and to direct the Commissioner
to issue a decision that comports with OCGA § 31-6-44 (k) (1), as construed by our
Supreme Court in Vantage Cancer Centers of Georgia. 318 Ga. 361; see also OCGA §
50-13-19 (h) (Under the Georgia Administrative Procedure Act, on judicial review,
“[t]he court may affirm the decision of the agency or remand the case for further
proceedings.”); OCGA § 31-6-44.1 (a) (2008) (methods and proceedings for judicial
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review under the Administrative Procedure Act apply to the statutory certificate of
need program unless otherwise provided therein).
Judgments vacated, and cases remanded with direction. Mercier, C. J., and Dillard,
P. J., concur.
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