(See Editor's notes.) Rules and Regulations; Variances and Waivers to Rules and Regulations Establishing Licensure Standards for Facilities; Exemption of Classes of Facilities From Regulation

  1. Law
  2. Georgia Code
  3. Health
  4. Department of Community Health
  5. (See Editor's notes.) Rules and Regulations; Variances and Waivers to Rules and Regulations Establishing Licensure Standards for Facilities; Exemption of Classes of Facilities From Regulation

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  1. The department is authorized to adopt and promulgate rules and regulations to effect prevention, abatement, and correction of situations and conditions which, if not promptly checked, would militate against the health of the people of this state. Such rules and regulations shall be adapted to the purposes intended, within the purview of the powers and duties imposed upon the department by this chapter, and supersede conflicting rules, regulations, and orders adopted pursuant to the authority of Chapter 3 of this title.
  2. The department upon application or petition may grant variances and waivers to specific rules and regulations which establish standards for facilities or entities regulated by the department as follows:
    1. The department may authorize departure from the literal requirements of a rule or regulation by granting a variance upon a showing by the applicant or petitioner that the particular rule or regulation that is the subject of the variance request should not be applied as written because strict application would cause undue hardship. The applicant or petitioner additionally must show that adequate standards affording protection of health, safety, and care exist and will be met in lieu of the exact requirements of the rule or regulation in question;
    2. The department may dispense entirely with the enforcement of a rule or regulation by granting a waiver upon a showing by the applicant or petitioner that the purpose of the rule or regulation is met through equivalent standards affording equivalent protection of health, safety, and care;
    3. The department may grant waivers and variances to allow experimentation and demonstration of new and innovative approaches to delivery of services upon a showing by the applicant or petitioner that the intended protections afforded by the rule or regulation which is the subject of the request are met and that the innovative approach has the potential to improve service delivery;
    4. Waivers or variances which affect an entire class of facilities may only be approved by the Board of Community Health and shall be for a time certain, as determined by the board. A notice of the proposed variance or waiver affecting an entire class of facilities shall be made in accordance with the requirements for notice of rule making in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; or
    5. Variances or waivers which affect only one facility in a class may be approved or denied by the department and shall be for a time certain, as determined by the department. The department shall maintain a record of such action and shall make this information available to the board and all other persons who request it.

      This subsection shall not apply to rules adopted by the department pursuant to Code Section 31-6-21.1.

  3. The department may exempt classes of facilities from regulation when, in the department's judgment, regulation would not permit the purpose intended or the class of facilities is subject to similar requirements under other rules and regulations. Such exemptions shall be provided in rules and regulations promulgated by the board.

(Code 1933, § 88-110, enacted by Ga. L. 1964, p. 499, § 1; Code 1981, §31-2-4; Ga. L. 1982, p. 1592, §§ 1, 2; Ga. L. 1990, p. 791, § 1; Ga. L. 2003, p. 569, § 1; Code 1981, §31-2-9, as redesignated by Ga. L. 2009, p. 453, § 1-1/HB 228; Code 1981, §31-2-7, as redesignated by Ga. L. 2011, p. 705, § 4-4/HB 214.)

Editor's notes.

- Ga. L. 2009, p. 453, § 1-1, effective July 1, 2009, redesignated former Code Section 31-2-7 as present Code Section 31-2-12.

Ga. L. 2011, p. 705, § 3-2/HB 214, effective July 1, 2011, redesignated former Code Section 31-2-7 as present Code Section 31-2A-8.

For application of this statute in 2020, see Executive Order 03.20.20.02.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 88-112 and 88-117, which were subsequently repealed but were succeeded by provisions of this Code section, are included in the annotations for this Code section.

Authority to regulate, quarantine, and control tuberculosis.

- Department of Human Resources (now the Department of Community Health for these purposes) has authority to make reasonable rules and regulations regarding quarantine and control of communicable tuberculosis. 1945-47 Op. Att'y Gen. p. 530 (decided under former Code 1933, §§ 88-112 and 88-117).

Power to promulgate rules as to abortions.

- Board of Human Resources (now the Department of Community Health for these purposes) has power to promulgate rules and regulations governing abortions when the board finds such regulation appropriate to promote or safeguard the public health; the General Assembly not only gave authority to do this but actually directed that it be done. 1973 Op. Att'y Gen. No. 73-24.

Phenylketonuria and other inborn errors of metabolism in infants are conditions which the legislature intended to cover; the State Board of Health (now the Department of Community Health for these purposes) has authority to adopt and promulgate reasonable rules and regulations which will affect prevention, correction, and abatement of such situations and conditions so long as such rules do not violate constitutional or legal guarantees of any person and are within the purview of the powers and duties imposed upon the State Health Department (now the Department of Community Health for these purposes). 1965-66 Op. Att'y Gen. No. 65-81.

Authority to adopt rules and regulations concerning phenylketonuria.

- Adoption of rules and regulations concerning phenylketonuria would be for purpose of detection and prevention of condition which adversely affects health of citizens of the state, and State Board of Health (now the Department of Community Health for these purposes) is authorized to adopt such rules and regulations. 1965-66 Op. Att'y Gen. No. 65-81.

Regulation of septic tank construction outside city limits.

- Georgia Department of Public Health (now the Department of Community Health for these purposes) is authorized to adopt and enforce rules and regulations establishing standards for construction of septic tanks for housing located outside city limits. 1968 Op. Att'y Gen. No. 68-185.

Authority to require licensees under Chapter 13 to notify employees of radiation.

- Ample statutory authority exists for Department of Public Health (now the Department of Community Health for these purposes) to require persons or firms licensed under Ga. L. 1964, p. 499 to notify an employee in writing when the employee has received radiation exposure in excess of prescribed limits. 1968 Op. Att'y Gen. No. 68-299.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 1 et seq.

C.J.S.

- 39A C.J.S., Health and Environment, § 5.


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