Administrative Hearings and Appeals; Judicial Review; Contested Cases Involving Imposition of Remedial or Punitive Measure Against Nursing Facility

  1. Law
  2. Georgia Code
  3. Social Services
  4. Public Assistance
  5. Medical Assistance Generally
  6. Administrative Hearings and Appeals; Judicial Review; Contested Cases Involving Imposition of Remedial or Punitive Measure Against Nursing Facility

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  1. The Board of Community Health is authorized to establish regulations regarding the manner in which the appeals set forth in subsection (b) of this Code section shall be conducted.
    1. Any applicant for medical assistance whose application is denied or is not acted upon with reasonable promptness and any recipient of medical assistance aggrieved by the action or inaction of the Department of Community Health as to any medical or remedial care or service which such recipient alleges should be reimbursed under the terms of the state plan which was in effect on the date on which such care or service was rendered or is sought to be rendered shall be entitled to a hearing upon his or her request for such in writing and in accordance with the applicable rules and regulations of the department and the Office of State Administrative Hearings. As a result of the written request for hearing, a written recommendation shall be rendered in writing by the administrative law judge assigned to hear the matter. Should a decision be adverse to a party and should a party desire to appeal that decision, the party must file a request in writing to the commissioner or the commissioner's designated representative within 30 days of his or her receipt of the hearing decision. The commissioner, or the commissioner's designated representative, has 30 days from the receipt of the request for appeal to affirm, modify, or reverse the decision appealed from. A final decision or order adverse to a party, other than the agency, in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated, and the effective date of the decision or order. Findings of fact shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. Each agency shall maintain a properly indexed file of all decisions in contested cases, which file shall be open for public inspection except those expressly made confidential or privileged by statute. If the commissioner fails to issue a decision, the initial recommended decision shall become the final administrative decision of the commissioner.
      1. A provider of medical assistance may request a hearing on a decision of the Department of Community Health with respect to a denial or nonpayment of or the determination of the amount of reimbursement paid or payable to such provider on a certain item of medical or remedial care of service rendered by such provider by filing a written request for a hearing in accordance with Code Sections 50-13-13 and 50-13-15 with the Department of Community Health. The Department of Community Health shall, within 15 business days of receiving the request for hearing from the provider, transmit a copy of the provider's request for hearing to the Office of State Administrative Hearings. The provider's request for hearing shall identify the issues under appeal and specify the relief requested by the provider. The request for hearing shall be filed no later than 15 business days after the provider of medical assistance receives the decision of the Department of Community Health which is the basis for the appeal.
      2. The Office of State Administrative Hearings shall assign an administrative law judge to hear the dispute within 15 days after receiving the request. The hearing is required to commence no later than 90 days after the assignment of the case to an administrative law judge, and the administrative law judge shall issue a written decision on the matter no later than 30 days after the close of the record except when it is determined that the complexity of the issues and the length of the record require an extension of these periods and an order is issued by an administrative law judge so providing, but no longer than 30 days. Such time requirements can be extended by written consent of all the parties. Failure of the administrative law judge to comply with the above time deadlines shall not render the case moot.
      3. A request for hearing by a nursing home provider shall stay any recovery or recoupment action.
      4. Should the decision of the administrative law judge be adverse to a party and should a party desire to appeal that decision, the party must file a request therefor, in writing, with the commissioner within ten days of his or her receipt of the hearing decision. Such a request must enumerate all factual and legal errors alleged by the party. The commissioner, or the commissioner's designated representative, may affirm, modify, or reverse the decision appealed from.
    3. A person or institution who either has been refused enrollment as a provider in the state plan or has been terminated as a provider by the Department of Community Health shall be entitled to a hearing; provided, however, that no entitlement to a hearing before the department shall lie for refusals or terminations based on the want of any license, permit, certificate, approval, registration, charter, or other form of permission issued by an entity other than the Department of Community Health, which form of permission is required by law either to render care or to receive medical assistance in which federal financial participation is available. The final determination (subject to judicial review, if any) of such an entity denying issuance of such a form of permission shall be binding on and unreviewable by the Department of Community Health. In cases where an entitlement to a hearing before the Department of Community Health, pursuant to this paragraph, lies, the Department of Community Health shall give written notice of either the denial of enrollment or termination from enrollment to the affected person or institution; and such notice shall include the reasons of the Department of Community Health for denial or termination. Should such a person or institution desire to contest the initial decision of the Department of Community Health, he or she must give written notice of his or her appeal to the commissioner of community health within ten days after the date on which the notice of denial or notice of termination was transmitted to him or her. A hearing shall be scheduled and commenced within 20 days after the date on which the commissioner receives the notice of appeal; and the commissioner or his or her designee or designees shall render a final administrative decision as soon as practicable thereafter.
  3. If any aggrieved party exhausts all the administrative remedies provided in this Code section, judicial review of the final decision of the commissioner may be obtained by filing a petition within 30 days after the service of the final decision of the commissioner or, if a rehearing is requested, within 30 days after the decision thereon. The petition may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. When the petitioner is a corporation, the action may be brought in the Superior Court of Fulton County or in the superior court of the county where the petitioner maintains its principal place of doing business in this state. Copies of the petition shall be served upon the commissioner and all parties of record. The petition shall state the nature of the petitioner's interest, the facts showing that the petitioner is aggrieved by the decision, and any grounds upon which the petitioner contends that the decision should be reversed or modified. Judicial review of the commissioner's decision may be obtained in the same manner and under the same standards as are applicable to those contested cases which are reviewable pursuant to Code Section 50-13-19; provided, however, that no other provision of Chapter 13 of Title 50 shall be applicable to the department with the exception of Code Sections 50-13-13 and 50-13-15. Notwithstanding any other provision of law, a stay of the commissioner's final decision may be granted by a reviewing court to a provider of medical assistance only on condition that such provider posts bond with the commissioner in favor of the state, with good and sufficient surety thereon by a surety company licensed to do business in this state, in an amount determined by the commissioner to be sufficient to recompense the state for all medical assistance which otherwise would not be paid to the provider but for the granting of such a stay. A stay may be granted and renewed for time intervals up to three months, so long as bond is posted for every interval of time in which the stay is in effect.
  4. All contested cases involving the imposition of a remedial or punitive measure against a nursing facility by the Department of Community Health shall be conducted in the manner provided for in subsection (l) of Code Section 31-2-8, but only if such remedial or punitive measure is based upon findings made by the Department of Community Health in its capacity as the state survey agency for the Georgia Medicaid program.
    1. A dentist acting pursuant to subsection (b) of Code Section 33-21A-8 or a provider of medical assistance may request a hearing on a decision of a care management organization with respect to the provisions set forth in subsection (b) of Code Section 33-21A-8 or with respect to a denial or nonpayment of or the determination of the amount of reimbursement paid or payable to such provider on a certain item of medical or remedial care of service rendered by such provider by filing a written request for a hearing in accordance with Code Sections 50-13-13 and 50-13-15 with the Department of Community Health. The Department of Community Health shall, within 15 business days of receiving the request for hearing from the provider, transmit a copy of the provider's request for hearing to the Office of State Administrative Hearings but shall not be a party to the proceedings. The provider's request for hearing shall identify the care management organization with which the provider has a dispute, the issues under appeal, and specify the relief requested by the provider. The request for hearing shall be filed no later than 15 business days after the provider of medical assistance receives the decision of the care management organization which is the basis for the appeal. Notwithstanding any other provision of this title, an administrative law judge appointed pursuant to paragraph (2) of this subsection shall be authorized to allow a provider of medical assistance to consolidate pending complaints or claims against a care management organization that are based on the same or similar payment or coverage issues, as determined by such administrative law judge. Such consolidation shall include disposition of the same or similar claims through a single hearing that adjudicates the total amount of such consolidated claims.
    2. The Office of State Administrative Hearings shall assign an administrative law judge to hear the dispute within 15 days after receiving the request. The hearing is required to commence no later than 90 days after the assignment of the case to an administrative law judge, and the administrative law judge shall issue a written decision on the matter no later than 30 days after the close of the record except when it is determined that the complexity of the issues and the length of the record require an extension of these periods and an order is issued by an administrative law judge so providing, but no longer than 30 days. Such time requirements can be extended by written consent of all the parties. Failure of the administrative law judge to comply with the above time deadlines shall not render the case moot.
    3. The decision of the administrative law judge shall be the final administrative remedy available to the provider. Review thereafter shall proceed in accordance with Code Section 50-13-19. The fees and expenses of the Office of State Administrative Hearings may, at the administrative law judge's discretion, be assessed against the party against whom the administrative law judge enters his or her order.

(Ga. L. 1977, p. 384, § 12; Ga. L. 1988, p. 288, § 1; Ga. L. 1993, p. 1290, § 3; Ga. L. 1994, p. 1856, § 2; Ga. L. 1997, p. 679, § 2; Ga. L. 1998, p. 576, § 1; Ga. L. 1999, p. 296, § 24; Ga. L. 2006, p. 775, §§ 4, 5/SB 572; Ga. L. 2008, p. 704, § 2/HB 1234; Ga. L. 2009, p. 453, § 1-53/HB 228; Ga. L. 2011, p. 705, § 4-7/HB 214.)

The 2011 amendment, effective July 1, 2011, substituted "Code Section 31-2-8" for "Code Section 31-2-11" in the middle of subsection (d).

Law reviews.

- For annual survey on administrative law, see 61 Mercer L. Rev. 1 (2009). For survey article on administrative law, see 59 Mercer L. Rev. 1 (2007).

Editor's notes.

- Ga. L. 1994, p. 1856, § 5, not codified by the General Assembly, provides: "This Act shall become effective July 1, 1994, for purposes of commencing transfer of positions, independent hearing officers, employees, and equipment and for general administrative purposes. The Office of State Administrative Hearings may commence the performance of its duties on and after July 1, 1994, and shall assume full responsibility for the performance of its duties on and after April 1, 1995. The Office of State Administrative Hearings shall, where necessary for any class of hearings, promulgate rules and regulations in order to comply with all federal and state procedural requirements. During the period between July 1, 1994, and April 1, 1995, covered agencies may continue to conduct covered administrative hearings as provided by prior law; but on and after April 1, 1995, all such hearings in new and, where practical, in pending proceedings shall be conducted as provided in this Act."

JUDICIAL DECISIONS

Service.

- Based on use of the term "service" for purposes of O.C.G.A. § 49-4-153(c) with respect to timing for filing the petition for judicial review, as opposed to use of the word "receipt" when discussing timing issues under § 49-4-153(b)(2)(D) and (b)(1), the timing provision in § 49-4-153(c) has been construed to require that a petition for judicial review was to be filed within 30 days after the date on which the final decision was mailed by the Commissioner for the Department of Family and Children Services. Gladowski v. Dep't of Family & Children Servs., 281 Ga. App. 299, 635 S.E.2d 886 (2006).

Agency interpretation not entitled to judicial deference.

- Decision of the department of community health (DCH) interpreting the phrase "last approved cost report" as used in the DCH's policies and procedures manual for purposes of computing an owner's reimbursement rate was not entitled to judicial deference because the phrase was not used in a statute, rule, or regulation, but rather in the manual, the terms of which had not undergone the scrutiny afforded a statute during the legislative process or the adoption process. Pruitt Corp. v. Ga. Dep't of Cmty. Health, 284 Ga. 158, 664 S.E.2d 223 (2008).

Exhaustion of administrative remedies. Commissioner of the Department of Community Health, members of the board of that Department, and the Director of the Department's Division of Medical Assistance could not avoid judicial review for want of exhaustion of administrative remedies when the very rules of the department precluded both hearing and a remedy sought by a Medicaid-eligible woman; moreover, no adequate administrative remedy existed which the woman could have exhausted. Feminist Women's Health Ctr. v. Burgess, 282 Ga. 433, 651 S.E.2d 36 (2007).

In an action involving a dispute over Medicaid reimbursement rates, the plaintiffs were not excused from the exhaustion of administrative remedies requirement because the plaintiffs were required to raise the plaintiffs' defective notice claims in the administrative review process in the first instance and O.C.G.A. § 49-4-153 governed that administrative review process. Ga. Dep't of Behavioral Health & Developmental Disabilities v. United Cerebral Palsy of Ga., Inc., 298 Ga. 779, 784 S.E.2d 781 (2016).

Untimely petition.

- Georgia Civil Practice Act's three-day rule under O.C.G.A. § 9-11-6(e) was inapplicable to a determination of timeliness with respect to a petition for judicial review of a Medicaid applicant's claim for benefits pursuant to O.C.G.A. § 50-13-19; similarly, the certified mail rule under O.C.G.A. § 50-13-23 was expressly deemed inapplicable pursuant to O.C.G.A. § 49-4-153(c), and, accordingly, the applicant's petition was properly denied as untimely. Gladowski v. Dep't of Family & Children Servs., 281 Ga. App. 299, 635 S.E.2d 886 (2006).

Applicable standard of review.

- Trial court erred by failing to apply the proper standard of review to a decision of the Georgia Department of Community Health that terminated a claimant's medical assistance under a Medicaid waiver program available to qualifying children. The appellate court directed that the standard of review set forth in O.C.G.A. § 49-4-153(c) was applicable to the case, which called for application of the substantial evidence standard set forth in the Administrative Procedure Act, O.C.G.A. § 50-13-19. Greene v. Dep't of Cmty. Health, 293 Ga. App. 201, 666 S.E.2d 590 (2008).

Cited in Hodges v. Smith, 910 F. Supp. 646 (N.D. Ga. 1995); Ga. Dep't of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008); Cazier v. Georgia Power Company, 339 Ga. App. 506, 793 S.E.2d 668 (2016), aff'd, 303 Ga. 820, 815 S.E.2d 922 (2018).


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