Hospitals sue to stop new rule

ATLANTA --- Nearly five dozen hospitals filed suit Monday, seeking to overturn a state rule they contend is illegal and could drive many of them out of business.

Supporters of the new rule say the lawsuit's claims are flimsy and that patients will be hurt by any delays the legal maneuver causes.

The lawsuit, filed in Dougherty County Superior Court, is not a surprise. Hospitals had long threatened to sue if the Department of Community Health changed its rules to allow general surgeons to open physician-owned surgery centers without going through the state's health care planning process.

The Board of Community Health voted unanimously in mid-December to allow general surgeons to open the centers without getting a "certificate of need," which requires major medical facilities and some outpatient surgery centers to show before they open that the services they provide are needed in an area.

The certification process is designed to ensure there will be enough customers for each facility to break even while charging reasonable fees.

Under the new rule, general surgeons, who focus on abdominal surgeries, are classified as a "single specialty."

Single-specialty surgery centers that are located in a doctor's office are exempt from the state's certificate of need laws.

The hospitals argue that a series of court rulings in recent years have held that the General Assembly never intended general surgeons to classify for the exemption, leaving the department powerless to change the rule.

"As the Department of Community Health and its board members know full well, the new general surgery rule flies in the face of multiple court decisions and is a naked and illegal attempt to override the will of the General Assembly of Georgia," said Monty Veazey, the president of the Georgia Alliance of Community Hospitals, in a statement issued by the alliance. "DCH has been publicly and repeatedly advised by its own legal counsel -- the state attorney general -- that it lacks the authority to make this rule change."

The alliance filed the lawsuit on behalf of its 59 members, including MCG Health Inc. and University Health Care System, both in Augusta, and Wayne Memorial Hospital in Waynesboro.

Hospitals say the rule change would prompt some general surgeons to refer patients with private insurance, who are usually more profitable, to their own surgery centers while sending less profitable Medicaid and self-paying customers to the hospital for care.

Supporters of the rule contend the courts were only upholding the department's rule at the time -- which did not include an exemption for general surgeons -- and the agency is free to change the rule at any time.

"We still believe the Department of Community Health has the ability to change a rule that they make, and that's the bottom line," said Kathy Browning, the executive director of the Georgia Society of General Surgeons, which pushed for the change. She also said that patients would be hurt by the legal maneuvering.