IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

NORTHSIDE HOSPITAL, INC., and

MRI & IMAGING OF GEORGIA, LLC,
Plaintiffs,

CHEROKEE COUNTY,
Plaintiff-Intervenor,

v. CIVIL ACTION FILE NO.

2021CV358403
BLUE CROSS BLUE SHIELD
HEALTHCARE PLAN OF GEORGIA, INC.
d/b/a ANTHEM BLUE CROSS AND BLUE
SHIELD, itself and as successor in interest to
BLUE CROSS AND BLUE SHIELD OF
GEORGIA, INC., and ANTHEM
INSURANCE COMPANIES, INC.,
Defendants.

NORTHSIDE HOSPITAL, INC. and

LAUREATE MEDICAL GROUP, P.C.,
Plaintiffs,

v. CIVIL ACTION FILE NO.

2021CV358406
BLUE CROSS BLUE SHIELD
HEALTHCARE PLAN OF GEORGIA, INC.,
itself and as successor in interest to BLUE
CROSS AND BLUE SHIELD OF
GEORGIA, INC.,
Defendant.

ORDER REFERRING ISSUES TO THE GEORGIA DEPARTMENT OF INSURANCE,

STAYING DISCOVERY, EXTENDING INJUNCTION, AND SETTING HEARING

Pending before the Court are Defendants’ Dispositive Motion, Defendants’ Motion to Stay

Discovery, Plaintiffs’ Motion for Judgment on the Pleadings, Plaintiffs’ Motion to Modify

Injunction, and Plaintiffs’ Consolidated Emergency Motion to Extend the Injunction. Having

considered the record and for the reasons that follow, the Court REFERS certain issues to the

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Georgia Department of Insurance, STAYS discovery until further Order, EXTENDS the present

injunction, and SETS a hearing on the escrow arrangement portion of the injunction.

Plaintiffs (“Northside”) are healthcare facilities and providers. Defendants (“Anthem”) are

a health insurance provider and administrator of health insurance plans. Plaintiffs and Defendants

operate in highly-regulated fields. Plaintiff-Intervenor (“Cherokee County”) is a Georgia county

where Northside operates the County’s only acute care hospital facility. Cherokee County also

contracts with Anthem for the administration of the County’s employee health plan. The claims in

these cases arise out the termination of several agreements pursuant to which Northside

participates in certain networks maintained by Anthem.

O.C.G.A. § 33-20C-2(g)(2), effective July 1, 2021, provides:

In the event of a public health emergency, including but not limited to a public
health emergency as defined in Code Section 31-12-1.1, an insurer shall, for a
period commencing on the effective date of the public health emergency and ending
150 days after the expiration of such public health emergency: (A) Be prohibited
from terminating a provider from the insurer’s network; and (B) Reimburse a
provider at its most recent contracted in-network rates.

In May 2021, Anthem notified Northside of the insurer’s intention to terminate the

Agreements effective January 1, 2022. Northside contends that applicable law prevents such

termination and that Anthem’s actions amount to a breach of the Agreements. Northside’s breach

of contract, declaratory judgment, and injunctive relief claims generally center around the meaning

of the terms “public health emergency,” “effective date of the public health emergency,” and

“expiration of such public health emergency” as used in O.C.G.A. § 33-20C-2(g)(2). Cherokee

County’s claim is based on the uncertainty regarding Anthem and Northside’s contractual

relationship.

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 In its pleadings, Anthem asserts that these cases are barred because the Georgia Department

of Insurance has exclusive jurisdiction over Northside’s and Cherokee County’s claims. Therefore,

the Court is compelled to examine its own jurisdiction.

Administrative Exhaustion

Under the doctrine of administrative exhaustion, a party must pursue available statutory

administrative remedies before seeking judicial review. The requirement for administrative

exhaustion permits an agency to apply its expertise and protect its autonomy. The requirement also

allows for a more efficient resolution because it results in the uniform application of matters within

the agency’s jurisdiction. Cerulean Companies, Inc. v. Tiller, 271 Ga. 65 (1999). If a party fails to

pursue administrative remedies, a trial court is deprived of subject matter jurisdiction over the

action. Bobick v. Cmty. & S. Bank, 321 Ga. App. 855 (2013).

The determination of whether a claim first must be brought through an administrative body

depends upon the claim and the relief requested. Provident Indem. Life Ins. Co. v. James, 234 Ga.

App. 403 (1998). Here, it does not appear that any party was directly aggrieved by a state agency’s

decision, so the Court looks to other authority entrusted to the Department of Insurance by statute.

The Health Care Plan Act, codified in Chapter 20 of Title 33 of the Official Code of

Georgia, governs the licensing and supervision of health care corporations. See generally O.C.G.A.

§ 33-20-1, et seq. The Health Care Plan Act provides as follows:

Any dispute arising within the purview of this chapter with reference to the
regulation and supervision of any health care corporation shall within 30 days after
such dispute arises be submitted by the aggrieved person to the Commissioner for
his decision with reference thereto, provided nothing in this Code section shall
authorize or require the Commissioner to determine the contractual rights between
the parties interested in any such corporations. After proper notice and hearing, any
decisions and order of the Commissioner made pursuant to this chapter shall be

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 binding on the persons involved unless set aside on review as provided by this Code
section. O.C.G.A. § 33-20-30.

Although the Health Care Plan Act provides the Commissioner of the Department of

Insurance with broad jurisdiction over activities of health care corporation, the statute at issue in

this case, O.C.G.A. § 33-20C-2, is not in Chapter 20 of Title 33. The General Assembly chose to

place the critical language of O.C.G.A. § 33-20C-2(g)(2) within Title 33, Chapter 20C, a chapter

about accurate provider directories. Chapter 20C does not include provisions from which the Court

must conclude that exhaustion of administrative remedies is required. Further, no statute squarely

requires Northside or Cherokee County to exhaust administrative remedies before the claims in

these actions.

Primary Jurisdiction

However, while no statute expressly demands the exhaustion of administrative remedies

for the claims at issue in these cases, there is no question that the termination prohibition and

reimbursement requirement of O.C.G.A. § 33-20C-2(g)(2), like the other provisions of Chapter

20C of Title 33, implicate the authority of the Department of Insurance. Significantly, if this court

were to misconstrue the directives in Chapter 20C or if multiple courts were to inconsistently

construe Chapter 20C, such rulings would treat patients, health care providers, and insurers

inequitably. Additionally, inconsistent judicial rulings would significantly undercut the state’s

policy to promote quality, comprehensive health care services that are efficiently provided at a

reasonable cost. See O.C.G.A. §§ 33-20-2 and 33-20A-2 (stating policies of the State of Georgia

with respect to patients, health care providers, and health care corporations).

Distinct from the exhaustion doctrine discussed above, Georgia courts recognize the

doctrine of primary jurisdiction, which is concerned with promoting proper relationships between

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the courts and administrative agencies charged with particular regulatory duties. Georgia Power

Co. v. Cazier, 303 Ga. 820 (2018). This doctrine applies where a claim is originally cognizable in

the courts, and it comes into play whenever enforcement of the claim requires the resolution of

issues which, under a regulatory scheme, have been placed within the special competence of an

administrative body. The doctrine of primary jurisdiction is not simply a procedural mechanism of

suspending judicial proceedings pending a referral to an agency. Rather, the doctrine transfers

from court to agency some law-making power and authority over disputes. United States v. W.

Pac. R. Co., 352 U.S. 59 (1956); See Reiter v. Cooper, 507 U.S. 258, n.3 (1993) (discussing that

there is often no mechanism whereby a court can demand a determination from the agency so the

referral process is actually a time for the parties to submit the matter for agency review). A court

allocates certain decisions to an agency to obtain the agency’s view before continuing with the

court’s business. Distrigas of Massachusetts Corp. v. Bos. Gas Co., 693 F.2d 1113 (1st Cir. 1982).

The doctrine, based on deference and comity, is grounded in judicial restraint, and it supports the

integrity of co-equal branches of government. Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029 (Fla. 2001).

As indicated above, the meaning of “public health emergency,” “effective date of the public

health emergency,” and “expiration of such public health emergency” as used in O.C.G.A. § 33-

20C-2 and as applied to the facts herein are essentially the determinative questions in this case.

The use of these phrases in this specific statute is peculiar. In this statute, the term “public health

emergency” is not defined and is expressly not limited by a definition provided elsewhere in the

law. An understanding of the meaning and application of these terms requires a factual and

technical inquiry where extrinsic evidence is necessary to determine their meaning or proper

application. The Commissioner of Insurance has broad authority to enforce, interpret, and

implement Title 33. See, e.g., O.C.G.A. §§ 33-2-9 and 33-2-24. And these key terms and their

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application to the present dispute require the technical expertise that is within the special

competence of the Commissioner. Moreover, the Commissioner of Insurance, as a member of the

executive branch, is in the best position to ensure patients, health care providers, and insurers are

all equally protected by O.C.G.A. § 33-20C-2(g)(2).

The Court, therefore, determines that referral to the Department of Insurance under the

doctrine of primary jurisdiction is warranted, necessary, and appropriate. It is hereby ORDERED

that the parties to submit petitions to the Department of Insurance for a declaratory ruling, pursuant

to Ga Comp. R. & Regs. 120-2-2-.52, within 20 days of the entry of this Order. The parties shall

provide notice to this Court of the filing of the petitions and shall file with this Court copies of all

substantive submissions, requests, opinions, and rulings. No later than June 15, 2022, the parties

shall provide the Court with an update as to the status of the Department of Insurance’s review.

Further, to conserve the resources of the parties, discovery in these cases is hereby

STAYED until after the conclusion of the declaratory ruling process.

Injunction and Hearing

In view of the above, allowing the injunction to expire before the conclusion of the

declaratory ruling process would defeat the purpose of the injunction and the referral. Therefore,

the preliminary injunction, as detailed in the Court’s December 30, 2022; January 28, 2022; and

February 22, 2022 Orders, is hereby EXTENDED until further order.

Having read and considered the pending Motions, the Court will hear argument on

modification of only the escrow arrangement provisions of the injunction on April 22, 2022, at

11:00 a.m. in Courtroom 5F the Fulton County Superior Court Justice Center Tower at 185 Central

Avenue, Atlanta, GA 30303.

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 The Court’s Official Court Reporter will be present and available to take down this matter.

Counsel/parties are encouraged to visit www.fultoncourt.org for updates on health and

safety measures at the courthouse.

13
SO ORDERED this _________day April
of _____________________, 2022.

____________________________________
RACHELLE L. CARNESALE, JUDGE
Fulton County Superior Court
Atlanta Judicial Circuit

Filed and served electronically via Odyssey eFileGA

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