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Kennestone Hospital, Inc. v. Georgia Department of Community Health

Court of Appeals of Georgia, Third Division

June 1, 2018



          Ellington, Presiding Judge.

         Kennestone Hospital, Inc. ("Wellstar Kennestone") and Wellstar Cobb Hospital Cancer Center, LLC ("Wellstar Cobb") (collectively, "Wellstar") appeal from the order of the Superior Court of Cobb County affirming the Georgia Department of Community Health's ("DCH") grant of a certificate of need ("CON") to Piedmont Hospital, Inc. d/b/a Piedmont Atlanta Hospital ("Piedmont") for establishment of a radiation therapy service in Cobb County. We affirm for the reasons set forth below.

         The CON program, which is administered by DCH, "establishes a system of mandatory review requiring that, before new institutional health services and facilities can be developed, the developer must apply for and receive a CON from DCH. OCGA §§ 31-6-1; 31-6-40 (a), (b)." ASMC, LLC v. Northside Hosp., Inc., 344 Ga.App. 576, 577 (810 S.E.2d 663) (2018). DCH reviews and either grants or denies a CON application "under general and specific review considerations in rules and regulations promulgated by the DCH as set forth in Ga. Comp. R. & Regs. (rule or rules) 111-2-1-.09 and 111-2-2-.01 through 111-2-2-.43." Id.

         The record shows that Piedmont, a general acute care hospital located in Fulton County, offers radiation therapy services at two of its Atlanta campuses. Piedmont operates one non-special purpose megavoltage radiation therapy ("non-special MRT") linear accelerator unit at its main campus on Peachtree Road ("Piedmont Main") and two such units at its "Piedmont West" campus on Howell Mill Road. In 2015, DCH published notice that there was not sufficient need for non-special MRT services to warrant its acceptance of new applications for such services pursuant to the need methodology set forth in its regulations.[1] The notification provided that DCH would nevertheless accept and review applications for new or expanded non-special MRT services under the regulatory exceptions to the need methodology.[2] One such exception is the "atypical barrier" to care exception, which authorizes CONs "[t]o remedy an atypical barrier to non-special MRT services based on cost, quality, financial access and geographic accessibility."[3]

         In response to the review notification, Piedmont filed an application with DCH seeking a CON for a project that included decommissioning one of its linear accelerators at Piedmont West and installing a new linear accelerator at its Kennesaw, Cobb County, facility. Piedmont sought the CON on the ground that its project sought to remedy an atypical barrier to care.

         Wellstar, through a statement and a presentation to DCH, opposed Piedmont's CON application. Wellstar Kennestone offers radiation therapy services and operates three non-special MRT units at its main campus in Marietta, Cobb County. Wellstar Cobb provides radiation therapy services, including two linear accelerators, at its campus in Austell, Cobb County.

         Following its initial review, [4] DCH denied Piedmont's request for a CON to establish non-special MRT service at the Kennesaw, Cobb County location. DCH found, among other things, that Piedmont "failed to demonstrate that non-special radiation therapy services are not available to the proposed service population despite the existence of a service in such close proximity[.]" Piedmont appealed DCH's initial decision to the Certificate of Need Appeal Panel for an administrative appeal hearing, [5] and Wellstar intervened in the hearing in support of DCH's initial decision.[6]Following an evidentiary hearing, the hearing officer reversed DCH's initial decision and ordered that DCH issue a CON to Piedmont.

         In summary, the hearing officer's findings show the following. Piedmont's proposed project in Kennesaw would primarily serve Cobb and Fulton County, with a secondary service area in Cherokee and Pickens County. Radiation therapy services are concentrated in the core of Atlanta notwithstanding growing populations in the counties north of the city, resulting in a maldistribution of services. The roadways needed to access Piedmont West and Piedmont Main are some of the most congested in Atlanta. Other than Wellstar Kennestone, existing service providers are located 16 or more driving miles from the proposed project site and access to those providers requires travel on roadways that are some of the most crowded in the State.

         Many radiation courses require treatment on a daily basis, from Monday through Friday, for a five to eight week period. Cancer patients often suffer from conditions that impair their ability to drive or to travel, and the hearing officer noted the "vast amount of physician testimony" addressing the debilitating effects of cancer, its treatment, and the burden faced by cancer patients who must travel for radiation therapy. Patients traveling from the project's service area, the hearing officer concluded, "face immense travel burdens that affect them physically, emotionally, financially, and mentally, impacting their care and recovery."

         Cancer treatment also involves highly integrated care, and planning for cancer services is different from other types of medical services because of the high number of visits, the continued care, and the degree of coordination among multiple specialists that is often required. Expert testimony supported a finding that it is in the best interest of patients to receive radiation therapy care within an integrated health care system as close to home as possible. Medical specialists who administer cancer treatments closely coordinate patient treatment, often through interdisciplinary meetings, but physicians outside the Piedmont system do not participate in those meetings. When Piedmont cancer patients need radiation therapy and must obtain that care outside the Piedmont system[7] due to access concerns, their continuity of care is broken, which negatively impacts those patients.[8]

         The hearing officer found that many Piedmont patients face barriers to radiation therapy services in the form of lack of continuity of care with their treatment team, access to electronic medical records, and burdensome travel times. The hearing officer also concluded that the proposed project to install a linear accelerator in Kennesaw would allow certain patients to minimize their travel burdens and maintain continuity of care. Although only five miles away from the site of the proposed project, Wellstar Kennestone's radiation therapy service was not, the hearing officer found, a viable existing alternative to the project due to its high utilization[9] and the lack of continuity of care for Piedmont patients. Based on these findings, the hearing officer found that the CON requested by Piedmont was warranted under the atypical barrier exception.

         Wellstar appealed the hearing officer's decision to the Commissioner of DCH.[10] In a final order, the Commissioner's designee adopted the hearing officer's findings of fact and conclusions of law, affirmed the decision of the hearing officer, and ordered DCH to award the requested CON to Piedmont. Wellstar sought judicial review of DCH's final order, [11] which the superior court affirmed.[12] Following this ...

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