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Facility not entitled to hearing to contest plan of correction.

Topic: Procedure, Decided by Judge Walker 
Docket Number: 1701961 , Decision Date: 2016-09-27 
Attachment: Click here to download the decision. 

The Department of Community Health was required to provide notice and an opportunity for a hearing prior to only certain administrative actions specified by statute.  Therefore, as requiring a facility to submit a plan of correction was not among the administrative actions for which prior notice and an opportunity for a hearing was required, the facility was not entitled to a hearing. Further, the DCH’s action was not equivalent to a Public Reprimand, nor did it impose an undue burden for which a hearing was required pursuant to the Due Process Clause.

Suspension inappropriate where educator complied with mandatory reporting requirements.

Topic: Educators, Decided by Judge Teate 
Docket Number: 1642834 , Decision Date: 2016-08-26 
Attachment: Click here to download the decision. 

A high school assistant principal was directed by the principal to investigate an incident involving two students circulating a naked photograph of one of their peers. The assistant principal complied, and later reported her findings to the principal, but did not directly report the incident to the police.  The Professional Standards Commission later found probable cause that the assistant principal violated the requirement that educators report criminal activity and sought to suspend her for ninety days.  However, the Court concluded that the assistant principal’s conduct comported with the reporting requirement, as the governing law required educators to report to the principal.

Summer Food Service Program participants must repay disallowances using non-SFSP funds.

Topic: Early Care & Learning, Decided by Judge Walker-Russell 
Docket Number: 1653326 , Decision Date: 2016-07-25 
Attachment: Click here to download the decision. 

The Petitioner, a participant in the Summer Food Service Program (SFSP), was required to repay a debt to SFSP after the Department of Early Care and Learning (DECAL) discovered that it exceeded its state-approved budget for store purchases.  DECAL subsequently sought to disqualify the Petitioner [..] Read More..

Peace officer certification revoked for unprofessional conduct, improper dealings with inmates.

Topic: Professional Licensing, Decided by Judge Howells 
Docket Number: 1707311 , Decision Date: 2016-11-08 
Attachment: Click here to download the decision. 

The Georgia Peace Officer Standards and Training (POST) Council properly revoked the POST certification of a former corrections officer based on evidence that the officer possessed an unauthorized weapon (a shank) around violent inmates, gave special treatment to homosexual inmates, and allowed an inmate with [..] Read More..

Used motor vehicle dealer license revoked.

Topic: Professional Licensing, Decided by Judge Woodard 
Docket Number: 1705373 , Decision Date: 2016-10-25 
Attachment: Click here to download the decision. 

The Court upheld the decision of the Board of Registration of Used Motor Vehicle Dealers and Used Motor Vehicle Parts Dealers to revoke a dealer’s license to operate as a used motor vehicle dealer based on evidence that the dealer failed to apply for a [..] Read More..

Superior Court upholds OSAH Decision on Outdoor Advertising Control Act.

Topic: Outdoor Advertising, Decided by Judge Howells 
Docket Number: 1502559 , Decision Date: 2016-07-15 
Attachment: Click here to download the decision. 
Attachment: Click here to download the decision on appeal. 

The Fulton County Superior Court affirmed an OSAH Judge’s Decision holding that LED signs located behind glass panes on a building and visible to the outside public were subject to regulation under the Outdoor Advertising Control Act.  The Superior Court also concurred with the OSAH Judge’s holding [..] Read More..

Hearsay within hearsay was not admissible under the business/public records exception.

Topic: Public Health, Decided by Judge Schroer 
Docket Number: 1642575 , Decision Date: 2016-08-29 
Attachment: Click here to download the decision. 

Although inspection reports and a sheriff’s report could be admissible under the business and/or public records exceptions to the hearsay rule, the statements from third parties within those reports did not fall under those exceptions and, as they did not fit under other exceptions to [..] Read More..

Amendments to the professional licensing statute apply prospectively.

Topic: Professional Licensing, Decided by Judge Howells 
Docket Number: 1653672 , Decision Date: 2016-10-31 
Attachment: Click here to download the decision. 

Legislative amendments to the professional licensing statute that disallowed licensing boards from refusing to grant a license due to a felony conviction unless such felony directly related to the occupation for which the applicant sought licensure went into effect on July 1, 2016 and applied [..] Read More..

State could not rely on documentation of criminal conviction to meet its burden in administrative case.

Topic: Educators, Decided by Judge Howells 
Docket Number: 1648876 , Decision Date: 2016-08-12 
Attachment: Click here to download the decision. 

The Professional Standards Commission sought to sanction an educator’s certificate based, in part, on her alleged violation of the standards governing honesty, confidentiality, and required reports.  However, the Commission introduced no evidence in support of the allegations at the hearing, but instead relied on the [..] Read More..

Educator suspended for showing up to school intoxicated.

Topic: Educators, Decided by Judge Schroer 
Docket Number: 1636724 , Decision Date: 2016-07-14 
Attachment: Click here to download the decision. 

The results of a preliminary breath test performed on a portable device were entitled to no evidentiary weight absent evidence that the device was approved for use as an initial alcohol screening device, and could not support the Professional Standards Commission’s finding that a teacher [..] Read More..

Permit for Sea Island’s groin project did not violate Shore Protection Act.

Topic: Environmental Law, Decided by Judge Miller 
Docket Number: 1630908 , Decision Date: 2016-08-26 
Attachment: Click here to download the decision. 

The Shore Protection Committee issued a permit to Sea Island Acquisition, LLC, for the construction and maintenance of a rock groin near the southern end of Sea Island in Glynn County.  The new groin would be accompanied by beach nourishment and dune construction.  Petitioners—consisting of [..] Read More..

Duplicate food stamp benefits must be recouped from the ineligible household.

Topic: Health Law, Decided by Judge Woodard 
Docket Number: 1649344 , Decision Date: 2016-08-09 
Attachment: Click here to download the decision. 

Where two households claimed the same child as a household member for the purpose of obtaining food stamp benefits, resulting in the issuance of duplicate benefits, the correct action was to recoup benefits from the head of household that falsely claimed that the child continued [..] Read More..

Care management organization failed to demonstrate authority to recover reimbursements.

Topic: Public Health, Decided by Judge Schroer 
Docket Number: 1638270 , Decision Date: 2016-08-04 
Attachment: Click here to download the decision. 

Peach State Health Plan (Peach State), a care management organization (CMO) sought to recover payments made to JLD, a speech therapy provider, based primarily on its determination that JLD failed to document the duration of speech therapy sessions.  However, in the absence of a contract [..] Read More..

Court of Appeals upholds Tax Tribunal decision on sales tax liability.

Topic: Tax Court, Decided by Judge Beaudrot 
Docket Number: 1340253 , Decision Date: 2015-02-11 
Attachment: Click here to download the decision. 
Attachment: Click here to download the decision on appeal. 

The Georgia Court of Appeals upheld the decision of the Georgia Tax Tribunal, concurring with Judge Beaudrot’s holding that a government contractor that purchased materials within Georgia was a retail consumer, and therefore liable for sales tax on the materials.

SOURCE participation not limited to SSI recipients.

Topic: Health Law, Decided by Judge Woodard 
Docket Number: ***** , Decision Date: 2016-08-25 
Attachment: Click here to download the decision. 

Financial eligibility for the Service Options Using Resources in Community Environments (SOURCE) Program is not dependent upon whether the individual is categorically eligible for Medicaid due to his or her receipt of Supplemental Security Income.  Rather, under the terms of the Waiver, eligibility extends to [..] Read More..

Medicaid-ineligible spouse must be included to determine income limit for Medicare Savings Programs.

Topic: Health Law, Decided by Judge Miller 
Docket Number: ***** , Decision Date: 2016-07-27 
Attachment: Click here to download the decision. 

Pursuant to its policy manual, the Division of Family and Children Services determined the income limit for Q-track Medicaid programs according to the federal poverty level for an individual where the applicant had a Medicaid-ineligible spouse.  This policy contradicted the plain language of the Medicaid [..] Read More..

Allegations not included in Statement of Matters Asserted cannot serve as a basis for sanction.

Topic: Professional Licensing, Decided by Judge Miller 
Docket Number: ***** , Decision Date: 2016-07-21 
Attachment: Click here to download the decision. 

The Georgia Board of Nursing was authorized to impose a sanction against a licensee due to her violation of a consent order wherein she agreed to abstain from alcohol and controlled substances, attend aftercare treatment, and ensure that the Board received quarterly aftercare reports.  However, [..] Read More..

Resource level required for spouse to live in community must be determined using reasonable method.

Topic: Public Health, Decided by Judge Miller 
Docket Number: ***** , Decision Date: 2016-08-18 
Attachment: Click here to download the decision. 

A nursing home resident and his spouse, who resided in the community, were denied Nursing Home Medicaid because their combined resources exceeded program limits.  Federal law allowed for redetermination of the resource limit where it was necessary to allow the community spouse to generate sufficient [..] Read More..

Agency’s adverse action letter failed to comport with standards of due process.

Topic: Procedure, Decided by Judge Miller 
Docket Number: ***** , Decision Date: 2016-08-03 
Attachment: Click here to download the decision. 

The Department of Community Health’s letter denying the Petitioner’s request for an increase in occupational therapy was “so lacking in grammar and syntax that it [was] largely incomprehensible,” and thus denied the Petitioner the adequate notice required under Georgia law and the principles of due [..] Read More..

TANF applicant entitled to conciliation following first material violation.

Topic: Public Assistance, Decided by Judge Miller 
Docket Number: ***** , Decision Date: 2016-05-31 
Attachment: Click here to download the decision. 

A TANF applicant’s failure to attend a meeting due to her mistake in recording the date and time of the appointment constituted a material violation of program rules.  However, as the applicant’s failure to keep the appointment was the first material violation she had committed, [..] Read More..

Acceptance of partial payment insufficient to show alteration of Admission Agreement.

Topic: Health Law, Decided by Judge Miller 
Docket Number: ***** , Decision Date: 2016-06-06 
Attachment: Click here to download the decision. 

The fact that the owner of a personal care home accepted partial payments from a resident did not alter the terms of the Admission Agreement where the resident assured the owner he would make up for the difference in payment at a later date.  Therefore, [..] Read More..

Annual Report 2016

Pulpit rock Topic: Articles

 

Appellate litigator Robert P. Marcovitch joins OSAH as Special Assistant Administrative Law Judge

Pulpit rock Topic: Court News

I am pleased to announce that distinguished litigator Bob Marcovitch will join OSAH as a Special Assistant Administrative Law Judge.  Judge Marcovitch has been an appellate litigator since the early 1990s when he was an Assistant U.S. Attorney in the Appellate Section of the United [..] Read More..

OSAH is Awarded the Governor’s Cup and the Governor’s Award for the Highest Charitable Contribution Per Employee

Pulpit rock Topic: Court News

During last year’s 2015-2016 campaign, state employees pledged more than $1.4 million to over 1,350 charities. On Thursday, June 9, 2016, OSAH was awarded the Governor’s Cup for the highest charitable contribution per employee.  OSAH also received the Governor’s Award for the highest level of [..] Read More..

Elimination of railroad crossing must be reasonably necessary in the interest of public safety.

Topic: Railroad Crossings, Decided by Judge Howells 
Docket Number: 1619206 , Decision Date: 2016-05-27 
Attachment: Click here to download the decision. 

A railroad company petitioned the City of Royston to eliminate four highway-rail grade crossings.   The City denied the petition, but employed none of the criteria for evaluating a crossing’s safety.  After applying said criteria, the Georgia Department of Transportation (GDOT) determined that two of the [..] Read More..

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