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Health board asks lawmakers to revisit CON law

ATLANTA - The state board with jurisdiction over health policy voted Thursday to ask the General Assembly to exempt general surgeons from the Georgia law regulating where medical facilities can be built.

The proposal was part of a comprehensive overhaul of the state's Certificate of Need law that failed in the legislature this year.

Under the CON law, which allows the state to control the distribution of hospitals and health care services across Georgia, general surgery is not considered a single specialty.

Thus, a 1991 exemption that allows single specialty physicians to operate outpatient surgery centers without seeking state approval does not apply to general surgeons.

Supporters say making it easier for general surgeons to open freestanding centers would increase access to health care and reduce patient costs.

"General surgery is a single specialty," Rhonda Medows, commissioner of the Georgia Department of Community Health, told the agency's board Thursday. "How we got to this point in the first place is beyond me."

Overhauling the CON law was one of the most contentious issues to hit the General Assembly this year.

Extending the single specialty exemption to general surgeons was among a host of changes lawmakers considered, based on the recommendations of a commission of legislators and health industry experts that worked on the issue for two years.

But a comprehensive bill introduced on behalf of Gov. Sonny Perdue couldn't overcome intense opposition from hospital officials, who warned an influx of freestanding surgery centers would siphon off their paying patients, leaving some hospitals with a thin profit margin and bankrupting others.

Responding to the legislature's inaction, the state's Health Strategies Council, which advises the Board of Community Health on health planning and policy, recommended last month that the board exempt general surgeons from the CON law administratively.

But Thursday, Senior Assistant Attorney General Sid Barrett warned board members that acting on their own to modify the CON law rather than relying on the General Assembly would make any exemption they grant more vulnerable to a legal challenge.

He cited two cases from the 1990s where state courts denied CON applications to Albany Surgical Center because it wasn't considered a single specialty practice.

Barrett said the courts ruled that it was the legislature's intent to define general surgery as a single specialty. Absent any new legislation, he said, any future ruling probably would be along the same lines.

Medows urged board members to make a decision based on policy considerations rather than the threat of a lawsuit.

"I'm not afraid of being sued for doing the right thing," she said.

Most board members agreed with Medows' contention that general surgery should be treated as a single specialty and, thus, exempt from CON.

But a motion to make that change in the CON law administratively was withdrawn in favor of asking the General Assembly for a legislative solution.

"We're the only state in the union that discriminates this way," said board member Ann Parker of Atlanta, referring to the treatment of general surgeons. "(But) it sounds like it's not the purview of this board to make this decision. It's the purview of the legislature."