Boone County v. Apex of Arkansas, Inc.

• Decision Date: 03 February 1986
• Docket Number: No. 85-279,85-279
• Citation: 288 Ark. 152,702 S.W.2d 795
• Parties: BOONE COUNTY, Arkansas, d/b/a Hillcrest Nursing Home et al., Appellants, v. APEX OF ARKANSAS, INC., et al., Appellees.
• Court: Arkansas Supreme Court

Page 795

702 S.W.2d 795

288 Ark. 152

BOONE COUNTY, Arkansas, d/b/a Hillcrest Nursing Home et al Appellants, v.APEX OF ARKANSAS, INC., et al., Appellees.

No. 85-279.

Supreme Court of Arkansas.

Feb. 3, 1986.

Robert L. Brown, Little Rock, for appellants.

George A. Harper, Special Asst. Atty. Gen., Gill, Skokos, Simpson, Buford & Graham by Harold H. Simpson, II, Little Rock, for appellees.

HICKMAN, Justice.

The Pulaski County Circuit Court issued a writ of mandamus ordering the Arkansas Health Planning and Development Agency to issue certificates of need to eight nursing homes.The court erred in issuing this writ because the matter was still in the process of administrative review and appeal and no clear duty existed to issue the certificates until the procedure was over.

The appellants are the state agency AHPDA ordered to issue the certificates and Hillcrest Nursing Home of Harrison.The appellees are eight of sixteen nursing homes awarded the right to have new beds.

In August, 1984, the Statewide Health Coordinating Council lifted a moratorium on nursing home beds and approved the need for 481 new beds in Northwest Arkansas.Forty-five nursing homes applied for the new beds.On February 28, 1985, the appellant state agency approved 16 of the applications, allotting all the new beds.Twenty-nine applications were denied.Hillcrest's request for 33 beds was one of those denied.

Within 30 days, as required by regulation, Hillcrest asked for administrative review of the decision.Hillcrest also timely asked the agency to reconsider its decision but the reconsideration was denied.Hillcrest took the position that the entire allocation of beds was being contested.The agency agreed because the contest by Hillcrest would necessarily mean that some nursing homes granted new beds would lose them if Hillcrest prevailed.So the agency decided in writing that the decision on the entire allocation at issue and the issuance of the certificates of need must be delayed pending review.

The agency requested the governor to appoint a state agency to conduct the administrative review on May 31, 1985.The Department of Finance and Administration was appointed on June 21, 1985, and a hearing officer was appointed August 14, 1985.

Pending review, this suit was filed in circuit court on August 9, 1985.The relief sought was mandamus which is a writ to require, in this case, a state agency to perform an act which is an established, clear and specific legal right.Chandler v. Perry-Casa Public Schools, 286 Ark. 170, 690 S.W.2d 349(1985).It must be to enforce the performance of a legal right after it has been established and not to establish a right.Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100(1979).There must be no discretion available to the ordered party to perform the act.Chandler v. Perry-Casa Public Schools, supra.

There is no doubt that the appellant agency is empowered to issue the certificates.The question is when.The regulations provide that any decision by the state agency to issue or deny a certificate of need, upon request, will be reviewed by an independent state agency appointed by the governor.In such a case the decision by the reviewing agency is deemed the final decision.

It is the appellees' assertion that the...