dissenting.
In this case, the Georgia Society of Ambulatory Surgery Centers represents the interests of members that appear to have adequate administrative remedies, and it is undisputed that these members have not exhausted their administrative remedies. Consequently, I conclude that both this Court and the trial court lack jurisdiction of the subject matter, and for this reason, we ought to dismiss this appeal and remand with instructions to dismiss the case below. Because the majority' instead proceeds to address the merits, I dissent.
As our Supreme Court has explained,
Georgia law requires that a party aggrieved by a state agency’s decision must raise all issues before that agency and exhaust available administrative remedies before seeking any judicial review of the agency’s decision. As long as there is an effective and available administrative remedy, a party is required to pursue that remedy before seeking equitable relief in the superior court.
Cerulean Companies v. Tiller, 271 Ga. 65, 66 (1) (516 SE2d 522) (1999). This requirement respects the constitutional prerogatives of the executive branch and its agencies, permits an agency to apply its expertise to the resolution of disputes, promotes a more efficient resolution of disputes, and encourages the uniform and consistent resolution of disputes of a similar nature. See id. at 67 (1). When a person aggrieved by agency action has adequate administrative remedies, but files a lawsuit before exhausting his administrative remedies, the courts cannot entertain the suit. See Northeast Georgia Cancer Care v. Blue Cross & Blue Shield of Georgia, 297 Ga. App. 28, 32 (1) (676 SE2d 428) (2009); see also Cerulean Companies, 271 Ga. at 68-69 (2). “When an adequate administrative remedy exists that has not been taken, dismissal of any declaratory judgment or equitable action is appropriate.” USA Payday Cash Advance Centers v. Oxendine, 262 Ga. App. 632, 635 (585 SE2d 924) (2003).
Citing City of Atlanta v. Hotels.com, 285 Ga. 231 (674 SE2d 898) (2009), the majority says that the exhaustion requirement does not *41apply at all in this case because the Society challenges the power of the Department of Community Health, not merely the way in which it has exercised its power. I agree that a lawsuit asserting that an administrative agency is without any power to do what it has done usually does not require the exhaustion of administrative remedies, see 285 Ga. at 233, but I do not think this is such a case. The Department clearly has statutory authority to collect information about “the demographic characteristics of the population, the health status of the population, service use patterns, standards and trends, financial and geographic accessibility, and market economics,” OCGA § 31-6-21 (b) (8), to require ambulatory surgery centers to submit annual reports, OCGA § 31-6-70 (a), and to penalize ambulatory surgery centers that fail to do so. OCGA § 31-6-47 (a) (18), (19). The dispute in this case involves whether the Department properly exercised these powers when it issued its 2009 survey of ambulatory surgery centers, which contains requests for information that is not specifically identified in OCGA § 31-6-70 (b). I think this case, therefore, is more properly characterized as a challenge to the way in which the Department has exercised its authority, not the scope of its authority.5
I turn now to the adequacy of the administrative remedies available to the Society and its members. The Society is bothered, of course, not so much by the fact that the Department has asked certain questions of its members, but instead by the prospect that the Department might penalize them — by imposing fines or by revoking their exemptions from certificate of need requirements6 — if they fail to answer these specific questions. At this time, no such sanctions have been imposed against any member. But if the Department were to seek to impose such sanctions, the members against whom sanctions were sought would be entitled to notice, a hearing before an administrative law judge (“ALJ”) pursuant to the Administrative Procedure Act, an opportunity to appeal the decision of the *42AU to the Commissioner of the Department, and an opportunity to seek judicial review of the decision of the Commissioner. See OCGA §§ 31-6-40 (b) (2), 31-6-47 (a) (18); DCH Rules 111-2-2-.05, 111-2-2-.10. Because these proceedings are available to the members of the Society prior to the Department taking any final, adverse action against them for failing to provide the information requested by the Department, these administrative remedies appear adequate.7
The majority does not dispute that these administrative remedies are facially adequate, but the majority, relying on Glynn County Bd. of Ed. v. Lane, 261 Ga. 544, 545-546 (1) (407 SE2d 754) (1991), says that requiring the members of the Society to exhaust these administrative remedies would be futile because the Department already has prejudged its authority to sanction the members for failing to answer the survey. I disagree. Lane stands for the proposition that, when the available administrative remedy consists of a hearing before a particular judicial decision maker, but the judicial decision maker already has prejudged the issue, it would be futile to require the aggrieved person to exhaust his remedy. See 261 Ga. at 545-546 (l).8 “Exhaustion of administrative remedies is futile only where further administrative review would result in a decision on the same issue by the same body.” Little v. City of Lawrenceville, 272 Ga. 340, 342 (3) (528 SE2d 515) (2000) (citation and punctuation omitted).
Here, the administrative remedies available to members of the Society are a hearing before an ALJ and an appeal to the Commissioner. Although some of the Department staff may have prejudged the issue and determined that the Department can sanction members of the Society for failing to complete the questionnaire, nothing *43in the record suggests that the ALJ who might be assigned to hear the matter or the Commissioner personally has prejudged the issue.9 In the absence of evidence of predisposition,10 I cannot say that exhaustion of administrative remedies would be futile.
Decided March 30, 2011 McGuire Woods, Victor L. Moldovan, Kevin C. Watters, for appellant. Thurbert E. Baker, Attorney General, Sidney R. Barrett, Jr., *44Senior Assistant Attorney General, Alex F. Sponseller, Assistant Attorney General, for appellees.*43We should view with grave concern the interference with the executive branch that would follow if courts, including this Court on appeal, exercised jurisdiction to make decisions that are committed by law in the first instance to the jurisdiction of administrative bodies. See George v. Dept. of Natural Resources, 250 Ga. 491, 492 (299 SE2d 556) (1983). And we should defer to an agency in matters involving the interpretation of the statutes that it is authorized to enforce. See Albany Surgical v. Dept. of Community Health, 257 Ga. App. 636, 638 (1) (a) (572 SE2d 638) (2002). Because the members of the Society have available administrative remedies that they failed to exhaust, and because the Society has failed to show that these remedies are inadequate or that their exhaustion would be futile, we must, I think, dismiss this appeal. Because the majority does not, I dissent.
I am authorized to state that Judge Andrews and Judge Dillard join in this dissent.
I do not think the majority’s characterization of this case is an unreasonable one, but I think mine is more accurate and faithful to the separation of powers that the exhaustion requirement is meant to safeguard. I readily admit, however, that properly characterizing a dispute like this one-determining whether it involves a challenge to the scope of power or a mere challenge to the exercise of power-is something about which reasonable people of good faith can disagree. Some disputes clearly should be characterized as one or the other, but in most disputes, like this one, a fair case can be made for characterizing the dispute in either way, and the question ultimately comes down to a matter of semantics.
The Society also claims that its members might be prosecuted for violations of the criminal law if they give false answers to these questions. But no one contends that the members of the Society have a right to give false information to the Department; the Society merely contends that its members have a right to give no information at all in response to these questions. So, I do not think the threat of criminal prosecution for giving false information has any bearing upon the effectiveness of administrative remedies in this case.
The Society points us to Thomas v. Georgia Bd. of Dentistry, 197 Ga. App. 589 (398 SE2d 730) (1990), and Moss v. Central State Hosp., 255 Ga. 403 (339 SE2d 226) (1986), on the question of adequacy. I think those cases are distinguishable. In Thomas, we concluded that administrative remedies were inadequate because awaiting an administrative remedy would expose the aggrieved person to a risk of criminal prosecution or the revocation of his license to practice dentistry, which would result in a loss of his livelihood. See 197 Ga. App. at 590 (1). And in Moss, our Supreme Court concluded that administrative remedies were inadequate because they would expose the aggrieved person to the loss of her job and, thus, a complete loss of her livelihood. See 255 Ga. at 404. Here, as I have already noted, no risk of criminal prosecution is relevant to our assessment of the adequacy of the administrative remedies. See note 6, supra. And the record does not show that even a revocation of an exemption from certificate of need requirements would likely result in a complete loss of livelihood for the members of the Society. I am not convinced that the administrative remedies are inadequate.
To the extent that the Society might be capable of making a showing of inadequacy if this case were remanded, I note that the Society does not ask us to remand this case or suggest that the record on the adequacy of administrative remedies is incomplete. Because the Society does not ask, I would not remand.
In Lane, the Supreme Court found that appealing a decision of a board of education to the same board of education would be futile. 261 Ga. at 546 (1).
The majority says that, because the Society sued both the Department and, in an official capacity only, the Commissioner, the briefs filed in this case by the Department necessarily reflect the views of the Commissioner personally, demonstrating that the Commissioner has prejudged the issue. I am not convinced that the requirement of exhaustion is so easily circumvented and that an aggrieved person can manufacture futility simply by naming the judicial decision makers for the agency as additional parties in a lawsuit. No party to this case has urged that the filing of papers in response to litigation is evidence of futility, and the majority cites no authority for its novel theory. Exhaustion, like other jurisdictional issues, must be assessed as of the time a lawsuit is filed. Consequently, developments occurring after the initiation of litigation cannot breathe life into a lawsuit of which the courts had no jurisdiction when it was filed. See McNeil v. United States, 508 U. S. 106, 112 (113 SC 1980, 124 LE2d 21) (1993); see also Busch v. Jones, 184 U. S. 598, 599 (22 SC 511, 46 LE 707) (1902). And I note in passing that, even if we were to assess exhaustion as of today, and not as of the time the complaint in this case was filed, the Commissioner on whose watch the briefs in this case were filed no longer occupies the office, and nothing suggests that the new Commissioner, who took office after all briefs in this case were filed, has taken any position on the issue.
Again, the Society does not ask us to remand or suggest that the record is not sufficiently developed to permit a decision on the question of futility. Because it does not ask, I would not remand.