After exhausting all administrative remedies, the Applicant may file a Petition for Review in Superior Court. See O.C.G.A. § 49-4-153(c); O.C.G.A. § 50-13-19. The petition may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. O.C.G.A. § 49-4-153(c).
O.C.G.A. § 49-4-153(c) provides:
If any aggrieved party exhausts all the administrative remedies provided in this Code section, judicial review of the final decision of the commissioner may be obtained by filing a petition within 30 days after the service of the final decision of the commissioner or, if a rehearing is requested, within 30 days after the decision thereon. The petition may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. … Copies of the petition shall be served upon the commissioner and all parties of record. The petition shall state the nature of the petitioner’s interest, the facts showing that the petitioner is aggrieved by the decision, and any grounds upon which the petitioner contends that the decision should be reversed or modified. Judicial review of the commissioner’s decision may be obtained in the same manner and under the same standards as are applicable to those contested cases which are reviewable pursuant to Code Section 50-13-19; provided, however, that no other provision of Chapter 13 of Title 50 shall be applicable to the department with the exception of Code Sections 50-13-13 and 50-13-15. Notwithstanding any other provision of law, a stay of the commissioner’s final decision may be granted by a reviewing court to a provider of medical assistance only on condition that such provider posts bond with the commissioner in favor of the state, with good and sufficient surety thereon by a surety company licensed to do business in this state, in an amount determined by the commissioner to be sufficient to recompense the state for all medical assistance which otherwise would not be paid to the provider but for the granting of such a stay. A stay may be granted and renewed for time intervals up to three months, so long as bond is posted for every interval of time in which the stay is in effect. (Emphasis added).
O.C.G.A. § 50-13-19(b) provides:
Proceedings for review are instituted by filing a petition within 30 days after the service of the final decision of the agency or, if a rehearing is requested, within 30 days after the decision thereon. The petition may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. … The petition shall state the nature of the petitioner’s interest, the fact showing that the petitioner is aggrieved by the decision, and the ground as specified in subsection (h) of this Code section upon which the petitioner contends that the decision should be reversed or modified. The petition may be amended by leave of court.
Medicaid applicants are not required to request reconsideration of the agency’s decision before filing an appeal to Superior Court. O.C.G.A. § 50-13-19(c). Within 30 days after the service of the petition or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record. O.C.G.A. § 50-13-19(e).
In Gladowski v. Dep’t of Family & Children Services, 281 Ga. App. 299 (2006), the Court ruled that a hearing request must be filed within 30 days of service, rather than 30 days from mailing. See also O.C.G.A. § 5-3-20. The Civil Practice Act does not apply to appeals from the Department, so its “three day” rule for mailing does not extend the time for receipt of a request for appeal. The Gladowski Court stated:
pretermitting whether OCGA § 50-13-23 could ever apply to a petition filed with a superior court (not an agency), the express language of OCGA § 49-4-153(c) specifies that OCGA § 50-13-23 does not apply in the present context:
Judicial review of the commissioner’s decision may be obtained in the same manner and under the same standards as are applicable to those contested cases which are reviewable pursuant to Code Section 50-13-19; provided, however, that no other provision of Chapter 13 of Title 50 shall be applicable to the department with the exception of Code Sections 50-13-13 [hearing procedures] and 50-13-15 [rules of evidence]. O.C.G.A. § 49-4-153(c). Therefore, Gladowski’s petition was not filed within the statutory deadline. See Dept. of Human Resources v. Lewis (construing O.C.G.A. § 50-13-19(b)).
Application of the APA is limited by O.C.G.A. § 49-4-153(c). In Gladowski v. Dep’t of Family & Children Services, 281 Ga. App. 299 (2006), the Court interpreted Section 49-4-153(c) to mean that O.C.G.A. § 50-13-23 does not apply to medical assistance cases. In Ga. Dep’t of Medical Assist. v. Beverly Enters., 261 Ga. 59 (1991), the Court was asked to consider whether the APA applies to Medicaid administrative appeals, but failed to reach that issue.
A copy of any petition for judicial review shall be field with OSAH by the party seeking review simultaneously with service on the reviewing agency. The suggested form of appeal is as follows (see O.C.G.A. § 5-3-21; however, no appeal shall be dismissed because of any defect in the notice of appeal. O.C.G.A. § 5-3-27):
(NAME OF INFERIOR JUDICATORY)
STATE OF GEORGIA
)
)
v. ) (Case number
) designation)
)
)
APPEAL TO SUPERIOR COURT
Notice is hereby given that __________________, appellant herein, and __________, above-named, hereby appeals to the Superior Court of County from the judgment (or order, decision, etc.) entered herein on _____ (date) , .
Dated: .
Attorney For
Appellant
Address
The suggested statutory form omits the following elements required by § 49-4-153(c): “The petition shall state the nature of the petitioner’s interest, the facts showing that the petitioner is aggrieved by the decision, and any grounds upon which the petitioner contends that the decision should be reversed or modified.”
Within 30 days after the service of the petition or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record. O.C.G.A. § 50-13-19(e). Ga. R. & Regs. § 616-1-2-.39. No appeal shall be dismissed because of …. The failure of the lower court, agency or other tribunal to transmit the pleadings or other record; but the superior court shall at any time permit such amendments and enter such orders as may necessary to cure the defect. O.C.G.A. § 5-3-27.
If, before the date set for hearing, application is made to the court for leave to present additional evidence and it is shown to the satisfaction of the court that the additional evidence is material and there were good reasons for failure to present it in the proceedings before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court. O.C.G.A. § 50-13-19(f).
The Superior Court’s review shall be conducted by the court without a jury and shall be confined to the record. O.C.G.A. § 50-13-19(g). If agency irregularities are alleged that are not in the record, the Court may take evidence regarding the alleged irregularities. The Court, on the request of either party, shall hear oral argument and receive written briefs. O.C.G.A. § 50-13-19(g),
In making its ruling, O.C.G.A. § 50-13-19(h) provides that:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
In Pruitt Corporation, supra, the Court indicated that an administrative tribunal is not entitled to affirmance on the basis of the “any evidence” standard. The Court stated:
Judicial review of an administrative decision requires the court to determine that the findings of fact are supported by “any evidence” and to examine the soundness of the conclusions of law that are based upon the findings of fact. O.C.G.A. § 50-13-19(h). As to the first step, O.C.G.A. § 50-13-19(h) provides that
[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact [but] . . . [t]he court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings . . . are: . . . (5) [c]learly erroneous. . . .
“Thus, the statute prevents a de novo determination of the evidentiary questions leaving only a determination of whether the facts found by the [agency] are supported by ‘any evidence.'” Hall v. Ault, 240 Ga. 585, 586 1978).
Thus, the court is statutorily required to examine the soundness of the conclusions of law drawn from the findings of fact supported by any evidence, and is authorized to reverse or modify the agency decision upon a determination that the agency’s application of the law to the facts is erroneous. A determination that the findings of fact are supported by evidence does not end judicial review of an administrative decision. (Emphasis added).
Review in Superior Court is limited to those matters raised with the Department. O.C.G.A. § 50-13-19(c). If Department action is imminent, the filing of a Petition for Review does not act as an automatic stay; the Department or the reviewing court may grant a stay for good cause shown. O.C.G.A. § 50-13-19(d). In Medders, supra, the issue of estate recovery was improperly raised since it was not a disputed issue at the hearing. However, where an issue is raised, other legal arguments supporting that issue may be heard on appeal. See Ga. Dep’t of Cmty. Health v. Fulton-DeKalb Hosp. Auth., 294 Ga. App. 431 (2008).
