A Dunwoody hospital is bringing legal action against Georgia’s Department of Community Health (DCH) for allegedly allowing a substance abuse facility to offer psychiatric treatment it is not licensed for.
On March 5, 2021, Peachford Hospital filed a petition in Fulton County Superior Court for a writ of mandamus, or an order from a court compelling a government body or official to perform its legal duty. The complaint asked the court to order Frank W. Berry in his official capacity as the commissioner of the DCH to ensure that Southern Live Oak Wellness (SLOW), a drug treatment center in Dunwoody, is operating within the scope of its license.
Peachford’s Allegations
According to court documents, the DCH issued a Drug Abuse Treatment and Education Program (DATEP) license to SLOW in 2019. Georgia law states that this license allows facilities to offer treatment and counsel for people struggling with drug addiction. SLOW’s permit, included in the court documents, allows it to provide “intensive outpatient and residential” drug abuse treatment programs.
In its initial complaint, Peachford alleges SLOW has been offering mental health and psychiatric treatment not related to drug or alcohol dependency. To legally offer those services, Peachford argues SLOW would need a hospital permit and Certificate of Need (CON) approval.
“Despite being licensed solely as a DATEP, SLOW is currently operating as a psychiatric hospital and is providing a residential level of general psychiatric treatment,” reads the complaint. “SLOW offers its patients: adult inpatient psychiatric services, partial hospitalization, and intensive and non-intensive outpatient programs for psychiatric care. SLOW holds no permit to operate a psychiatric hospital, nor does it have CON approval to offer these service lines.”
According to the complaint, Peachford sent a letter to the DCH in January of this year asking the department to investigate SLOW. Peachford alleges the department failed to do so promptly, resulting in a “dereliction of the Department’s duties under the DATEP, CON and Permitting statutes.”
The DCH declined to comment on the litigation, as did the Georgia Attorney General’s office, who is representing the DCH. However, in court documents, DCH Commissioner Berry denied that the department failed to perform its legal duty and that SLOW is operating outside of the scope of its license. In response to Peachford’s complaint, the DCH said it did investigate SLOW after the initial allegations.
“The Department completed its investigation on February 1, 2021,” reads the response. “Based on the observations of its investigators, review of facility records, and staff interviews, the Department determined that Peachford’s allegations were unsubstantiated.”
SLOW’s Response
Peachford argues that SLOW markets itself as a mental health treatment facility. SLOW’s website lists a number of conditions a client could be treated for, including Schizoaffective Disorder, depression, anxiety, Obsessive-Compulsive Disorder, and others. Drug abuse is not mentioned until the final item on the list, which reads “Other Substance Abuse Related Issues.”
COO Ryan Cierzniewski said SLOW treats clients with substance abuse issues, but also focuses on treating underlying psychiatric or mental health issues that might be at play.
“For a long time people just said, they’re abusing drugs, let’s treat that,” he said. “But the drugs seem to be a symptom of the ongoing psychiatric issue at hand. We’ve moved more in that direction over the last 20 years, of people identifying and realizing that mental health issues cause people to abuse substances.”
Cierzniewski said SLOW is a voluntary treatment program. However, Peachford’s complaint alleges SLOW admitted a patient from Florida under the Baker Act in 2020. Under the Baker Act, someone could be involuntarily committed to a mental health facility for a period of time.
Police records obtained by The Reporter state that a patient was reported missing from SLOW’s facility by a family member in 2020. In the incident report, the officer states that the family member said the patient was under a signed order from a judge in Florida under the Baker Act. According to the report, the patient asked to be discharged and was refused, so they left of their own accord. The report states that the patient went back voluntarily.
Cierzniewski denied the allegation that a patient was at SLOW under the Baker Act.
“I can’t speak to a client specifically, but I can say that we would never actually take … a Baker Act [patient] or any equivalent, because we are a voluntary program,” he said.
Peachford’s complaint also alleges that SLOW is building a new facility that would operate as a general psychiatric hospital “in Peachford’s backyard.” Cierzniewski said SLOW has not yet applied for licensure for the new facility, which will be located at 4594 Barclay Drive, because the facility will “most likely” operate the same way as SLOW’s other facilities, which he maintains are not operating outside the scope of their DATEP license.
Cierzniewski said SLOW had a working relationship with Peachford until they moved to purchase the property on Barclay Drive last year, which he alleges the hospital was also interested in buying.
“It’s just my opinion, but it seems kind of coincidental that the push towards the state and the lawsuit came after our acquisition of that building,” he said.
Lawyers for Peachford Hospital did not respond to multiple requests for comment. A spokesperson for the hospital declined to comment as well.
“We cannot comment on pending litigation,” Peachford Director of Business Development John Golden said in an email. “However, we believe that the complaint and the exhibits speak for themselves.”
Motion to Dismiss
On May 11, the DCH made motions to dismiss the complaint entirely as well as a motion to stay discovery, or delay the entry of evidence into the case. The department claimed the motion should be dismissed under the doctrine of sovereign immunity, which allows a governing body to bar itself from being sued, and also claimed Peachford failed to properly serve the DCH and the commissioner.
The department also claimed the complaint should be dismissed because what Peachford seeks – an investigation into SLOW, a determination on whether its conduct violates its permit, and then enforcement – are discretionary acts, and not appropriate for mandamus.
“Peachford seeks to compel the Commissioner to continue investigating SLOW; enforce the DATEP, CON and hospital permitting statutes; and issue a cease and desist order against SLOW’s provision of residential psychiatric care,” reads the motion. “But Peachford has failed to cite any DATEP, CON, or hospital permitting laws requiring the Commissioner or the Department to perform any of these so-called ‘duties.’ Instead, Peachford seeks to compel the Department to exercise its discretion in a particular manner and pursue a specific course of action.”
In response to the motion to dismiss, Peachford argued the DCH does have an obligation to enforce Health Care Statutes, and questioned the DCH’s reasons for arguing for dismissal.
“Notably, in moving for dismissal, the Commissioner does not argue that Defendant Live Oak Wellness … is somehow in compliance with the permitting and licensure requirements of the separate Health Care Statutes,” reads the response. “Rather, the Commissioner’s Motion eschews its obligations to do anything in response to noncompliance with the Healthcare Statutes.”
As of July 6, the court has not made a decision on either motion, according to Fulton County Superior Court’s public records.