Ckcg Healthcare Services, Inc. v. Department of Community Health

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.

October 9, 2020

In the Court of Appeals of Georgia
A20A1319. CKCG HEALTHCARE SERVICES, INC. et al. v. McF-048
GEORGIA DEPARTMENT OF COMMUNITY HEALTH.

MCFADDEN, Chief Judge.

This direct appeal is from a superior court decision reviewing decisions of a

state administrative agency. Because the appellants failed to submit an application for

discretionary appeal as required by OCGA § 5-6-35, we lack jurisdiction and the

appeal must be dismissed.

1. Facts and procedural posture.

The Georgia Department of Community Health is responsible for regulating

health care facilities in Georgia, including private home care providers. See OCGA

§ 31-7-300 et seq. CKCG Healthcare Services, Inc. and Shannon Private Home Care,

Inc. are two such licenced private home care providers. In August and October 2018,
the department performed separate licensure inspections of Shannon and CKCG.

Pursuant to the inspections, which included record reviews and employee interviews,

the department determined that both CKCG and Shannon were improperly using

certain certified nursing assistants in violation of department rules and state law

prohibiting the use of unlicensed independent contractors to provide home care

services. The department notified CKCG and Shannon of its decisions and directed

each of them to provide specific plans to correct each violation within ten days of

receipt of their respective violations reports.

CKCG and Shannon jointly challenged the decisions by filing a petition for

declaratory judgment in superior court, arguing that OCGA § 31-7-300 does not

prohibit them from using certified nursing assistants as independent contractors to

provide home care services and that department regulations conflict with the statute.

After a hearing, the court entered a final order denying the petition, finding that the

statute does not allow the use of certified nursing assistants as independent

contractors to provide home care services, that department regulations are consistent

with the statute, and that CKCG and Shannon were in violation of department rules

and state law when they used unlicensed nursing assistants as independent contractors

to provide home care services. CKCG and Shannon filed this direct appeal from that

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order. The department moved to dismiss the appeal on the basis that it fails to comply

with the mandatory application procedures of OCGA § 5-6-35.

2. Application for appeal.

“OCGA § 5-6-35 (a) (1) requires an application for [a]ppeals from decisions

of the superior courts reviewing decisions of state and local administrative agencies.”

Schumacher v. City of Roswell, 301 Ga. 635, 636-637 (1) (803 SE2d 66) (2017)

(punctuation omitted). That requirement obtains notwithstanding that the superior

court’s “judgment was entered in a proceeding for . . . declaratory relief. . . . [W]hen

we consider the nature of the proceedings in the superior court for the purposes of

OCGA § 5–6–5 (a) (1), we look to the substance of those proceedings, not merely the

form of the relief sought.” State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan,

299 Ga. 392, 407 (4) (788 SE2d 455) (2016).

“[A]n act of an administrative agency is a ‘decision’ within the meaning of this

statute only when it is a determination of an ‘adjudicative nature.’” Schumacher,

supra at 637 (1). “Determinations of an adjudicative nature, [unlike those of a

legislative nature], are immediate in application, specific in application, and

commonly involve an assessment of facts about the parties and their activities,

businesses, and properties.” Id. (citation omitted). Our Supreme Court has rejected

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the argument “that a ‘decision’ also must be marked by formal adjudicative

procedures.” Keystone Knights, supra at 404 (4).

Here, the department’s determinations were adjudicative in that they involved

an investigation and assessment of facts about CKCG and Shannon regarding their

use of certified nursing assistants in their business activities, and the department’s

decisions were immediate and specific in application to CKCG and Shannon in that

they assessed specific violations of department rules and directed that corrective

action be taken immediately. Because CKCG and Shannon appeal from the superior

court’s decision reviewing the department’s adjudicative decisions, they were

“required under OCGA § 5-6-35 (a) (1) to bring [their] appeal by way of an

application for discretionary review. [They] failed to do so, and that circumstance

leaves this [c]ourt without appellate jurisdiction. Accordingly, this appeal must be

dismissed.” Keystone Knights, supra at 408 (5). Compare Carson v. Brown, 348 Ga.

App. 689, 697 (1) (c) (i) (824 SE2d 605) (2019) (application for appeal not required

where there was no administrative decision).

Appeal dismissed. Doyle, P. J., and Hodges, J., concur.

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