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Health board poised to bypass lawmakers on CON exemption

Last spring, supporters of reforming how Georgia regulates where hospitals and other health care facilities can be built were resigned to taking another crack at convincing the legislature to approve the overhaul.

But if the state Board of Community Health approves a proposed rule next month making it easier for general surgeons to open outpatient clinics, pro-reform forces will have accomplished one of their key objectives four weeks before lawmakers convene for the 2008 session.

That possibility has the state's powerful hospital lobby and its legislative allies crying foul.

They say the Department of Community Health's determination to accomplish administratively what couldn't be done in the General Assembly this year not only short circuits the legislative process but is unconstitutional.

At issue is to a proposal to declare general surgery in Georgia a single specialty, as it already is considered by every other state.

The change would allow general surgeons to own and operate outpatient clinics without seeking state approval because Georgia's Certificate of Need law exempts single specialists.

After voting in June to ask the General Assembly to pass a bill on the subject, the health board reversed course last month and gave preliminary approval to making the change administratively.

Board members are due to vote on the proposed rule next month, following a public hearing set for Nov. 28.

Backers of the change, including the Georgia Society for General Surgeons, say physician-owned outpatient clinics could offer patients high-quality health care at lower cost than they could get in hospital settings.

But hospital administrators say the facilities would put them at a competitive disadvantage.

They argue that because outpatient clinics aren't legally required to serve indigent patients, they would be free to load up on patients who could afford to pay. Hospitals then would be left with a higher concentration of nonpaying patients, to the detriment of their bottom lines.

Beyond the merits of the two sides' arguments, however, the proposal's critics also object to the Board of Community Health taking the issue out of the legislative arena.

Declaring general surgery a single specialty was a key component of several CON-reform bills considered by the General Assembly this year.

All were thoroughly hashed out by a special House committee created by Speaker Glenn Richardson, R-Hiram. None passed.

"If (lawmakers) had wanted that change made, they already would have done it," said Kevin Bloye, spokesman for the Georgia Hospital Association.

But Rep. Austin Scott, R-Tifton, a key supporter of the change, said exempting general surgeons from the CON law not only enjoyed widespread support in the legislature. He said it also was among the recommendations of a state commission that examined the CON issue during the two years leading up to this year's General Assembly session.

"It's certainly not circumventing the will of the legislature," said Scott, who was a member of both the CON commission and the special House committee.

From a practical standpoint, there also are concerns that letting the health board make the change now could hurt ongoing talks between the two sides.

"The doctors and hospitals have been negotiating to try to work out a settlement everybody can agree to," said Sen. Don Balfour, R-Snellville, who also served on the CON commission. "Why would a doctor negotiate when the ball is being moved his direction anyway?"

But Scott said dealing with the general surgeons' exemption now could only help the doctors and hospitals reach consensus.

"If (board members) do this administratively, it takes that out of the fight," he said.

Then, there's the legal question. An assistant attorney general warned the board in June that attempting to push through an exemption for general surgeons administratively rather than leaving it to the legislature would risk a legal challenge.

"There obviously will be lawsuits," Balfour said. "I hope they're successful."

But Scott said the health board would be within its constitutional rights in adopting the exemption as a rule.

He cited a 2004 state Supreme Court ruling in a case involving Albany Surgical, which was challenging a Department of Community Health rule prohibiting the company from opening an outpatient clinic. The court upheld that rule - the same one the board is now considering changing - as legally valid.

The issue could end up in court again.

Community Health Commissioner Rhonda Medows is pushing for the rule because she considers general surgery a single specialty.

Throwing down the gauntlet last June, she said she wouldn't be afraid to be sued for "doing the right thing."

E-mail Dave Williams at dave.williams@gwinnettdailypost.com.