{ "id": 1906084, "name": "RIVERWAYS HOME CARE of Ozarks Medical Center v. ARKANSAS HEALTH SERVICES COMMISSION", "name_abbreviation": "Riverways Home Care v. Arkansas Health Services Commission", "decision_date": "1992-05-26", "docket_number": "91-230", "first_page": "452", "last_page": "457", "citations": [ { "type": "official", "cite": "309 Ark. 452" }, { "type": "parallel", "cite": "831 S.W.2d 611" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "295 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893766 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0223-01" ] }, { "cite": "303 Ark. 38", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882785 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0038-01" ] }, { "cite": "284 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878645 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0016-01" ] }, { "cite": "Ark. Code Ann. \u00a7 20-8-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(f) and (h)" } ], "opinion_index": 0 }, { "cite": "281 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742324 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0390-01" ] }, { "cite": "6 Ark. App. 333", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142303 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/6/0333-01" ] }, { "cite": "272 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174942 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0172-01" ] }, { "cite": "285 Ark. 189", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877695 ], "weight": 4, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0189-01" ] }, { "cite": "Ark. Code Ann. \u00a7 20-8-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 511, "char_count": 9987, "ocr_confidence": 0.908, "pagerank": { "raw": 1.6089097846622439e-07, "percentile": 0.6852248914898127 }, "sha256": "feb80d44428d86810d466bee4dfcd8d2e840262b11a6893a18206b31521d4ad7", "simhash": "1:aec78a266ae2d64e", "word_count": 1554 }, "last_updated": "2023-07-14T19:13:54.665869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RIVERWAYS HOME CARE of Ozarks Medical Center v. ARKANSAS HEALTH SERVICES COMMISSION" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellant Riverways, an affiliate of Ozarks Medical Center, a not-for-profit hospital, applied for a permit of approval in order to provide home health services to residents of Fulton County. Spring River Home Health Agency (Spring River), the intervenor in this case, opposed Riverway\u2019s application. Spring River serves the Fulton County area. The Arkansas Health Agency recommended denial of Riverways\u2019 application, and after a hearing, the Arkansas Health Services Commission endorsed the Agency\u2019s recommendation. Riverways appealed to the Commission for reconsideration, but the Commission declined to reverse its decision. Riverways then appealed to the circuit court making the two following arguments for reversal: (1) the Arkansas Health Agency failed to submit its recommendation to the Commission within the ninety-day period required under \u00a7 20-8-104(d), and therefore Riverways\u2019 application was deemed approved as a matter of law; and (2) Riverways was denied due process and a fair hearing because the chairman of the Commission, Dr. Moody, who had an ownership interest in Spring River Home Health Agency, disqualified himself from the proceedings but still participated by speaking at the hearings.\nThe circuit court found that, since Riverways had not presented its argument at the administrative hearings that the ninety-day period had not been complied with, it could not address the argument on appeal. Further, the circuit judge concluded that, while Dr. Moody\u2019s conflict of interest prevented him from participating as a commissioner, it did not prevent him from being a witness or litigant at the hearings. Based on these findings, the circuit court affirmed the Commission\u2019s denial of Riverway\u2019s permit. Riverways appeals the trial court\u2019s two findings and holding.\nA chronology of pertinent events is necessary for our review. Riverways applied for a permit of approval, and the Agency received the application on October 5, 1989. On October 27, 1989, the Agency received additional requested information from Riverways. No further information was requested or received. In accordance with Commission rules, the Agency then published in a newspaper a legal notice for five consecutive days \u2014 December 1-5, 1989 \u2014 announcing it was in receipt of applications for permits of approval review. Riverways\u2019 application was included. The notice further provided \u201cthe applications qualify for a determination of need under the provisions of Act 593 of 1987,\u201d and the Agency would review the applications and submit recommendations on each of the projects to the Commission prior to the close of business on March 1, 1990.\nOn February 14, 1990, Riverways was sent a copy of the Agency\u2019s findings and recommendation denying Riverways\u2019 application for permit. At a hearing on February 21, 1990, the Commission adopted the Agency\u2019s recommendation, and after another hearing on April 11, 1990, the Commission declined to reverse its February 21 decision.\nIn its first point for reversal, Riverways claims the Agency, in reviewing Riverways\u2019 application, failed to meet the time requirement of Ark. Code Ann. \u00a7 20-8-104(d) (1991), which provides, as follows:\n(d) The Health Services Agency shall review all applications for permits of approval and submit their recommendation for action to the commission within ninety (90) days of receipt of the application for permit of approval, without which the application shall be deemed approved.\nIn brief, Riverways argues its application was complete when it was sent to the Agency on October 27, 1989, and under \u00a7 20-8-104(d), the Agency had ninety days from the October 27 date \u2014 on or about January 25,1990 \u2014 to submit its recommendation or else the Riverways\u2019 application was \u201cdeemed approved.\u201d As set out above, the Agency\u2019s recommendation was not made until February 14,1990; thus, under Riverways\u2019 theory, the Agency had no subject matter jurisdiction to act on or deny Riverways\u2019 application, once the aforementioned ninety-day period expired. The trial court rejected this argument because Riverways failed to raise it with the Agency or at the hearings before the Commission. The trial court is correct that this court has repeatedly held it will not set aside an administrative determination upon a ground not presented to the agency because to do so would deprive the agency or commission the opportunity to consider the matter, make its ruling and state the reasons for its action. Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985); see also Arkansas Cemetery Board v. Memorial Properties, Inc., 272 Ark. 172, 616 S.W.2d 713 (1981); Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982).\nRiverways concedes it did not raise this argument before either administrative agency, but contends that, because the ninety-day requirement is jurisdictional, it can raise the argument at any time. Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984). Riverways further argues that, since the ninety-day period had expired in the present case, no purpose would have been served by its having raised this argument because the Agency and Commission no longer had subject matter jurisdiction or any authority to correct their error.\nIntervenor Spring River counters by pointing to the language of \u00a7 20-8-104(d), and submits that, while the statute requires the Agency to review and submit its recommendations to the Commission within ninety days of an applicant\u2019s request for permit of approval, such time period applies only to the Agency, not the Commission. In other words, Spring River urges that, although the Agency might have been precluded from acting on Riverways\u2019 application once the ninety-day period expired, the Commission still had authority to consider the application. Riverways argues Spring River\u2019s interpretation of \u00a7 20-8-104(d) is strained because the statute contemplates both the Agency and Commission must act or the application is \u201cdeemed approved.\u201d Riverways\u2019 argument, however, assumes no further action or review is required if an applicant\u2019s permit request is \u201cdeemed approved\u201d due to the Agency\u2019s inaction. Such an assumption is one which we cannot indulge.\nOur analysis of Ark. Code Ann. \u00a7 20-8-103(f) and (h) and the Commission\u2019s enabling rules supports Spring River\u2019s argument. Under \u00a7 20-8- 103(f), the Commission must review Agency recommendations and either endorse or reject them. The Commission takes such action whether the Agency makes a recommendation on an application or fails to act under \u00a7 20-8-104(d). See also Arkansas Health Services Commission, Arkansas Health Services Commission Policies and Procedures for Permit of Approval Review, Section VII(B)(9) (Dec. 10,1987). In fact, permits of approval will only be issued, denied or withdrawn by the Agency with the Commission\u2019s endorsement or under the direction of an appropriate court. Id., Section III. Clearly, the Commission acted properly in the present case when reviewing Riverways\u2019 application whether the application had been appropriately and timely denied by the Agency or whether it had been deemed approved because of the Agency\u2019s inaction.\nIn summation of the arguments bearing on Riverways\u2019 first point for reversal, we reject Riverways\u2019 argument that the Commission had no jurisdiction to rule on its application, and because Riverways does not otherwise question the merits of the Commission\u2019s ruling, the ruling stands unchallenged. Although the trial court did not employ the reasoning argued to and adopted by this court on appeal, we will affirm the trial court since it reached the correct result. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).\nIn holding as we do, we mention Arkansas Health Services Comm\u2019n v. Area Agency on Aging, 303 Ark. 38, 792 S.W.2d 321 (1990), where we upheld a lower court\u2019s order that automaticallay approved the Area Agency\u2019s application because the Arkansas Health Services Agency failed to submit its recommendation within the ninety-day period required under \u00a7 20-8-104(d) (Supp. 1989). In that decision, the parties made no mention of \u00a7 20-8-103(f) and (h) or the Commission\u2019s rules; nor did the parties raise and develop the ninety-day-period argument before the Agency or Commission. Suffice it to say, to the extent our decision today conflicts with the rationale set out in Area Agency on Aging, that rationale is overruled.\nWe turn next to Riverways\u2019 second argument that the trial court erred in finding the participation of the Commission chairman, Dr. Moody, was not prejudicial and reversible error. At the Commission hearing, Dr. Moody announced he owned an interest in Spring River Home Health Agency and, as a consequence, did not participate in the Commission\u2019s deliberations or decision involving Riverways\u2019 application. He did, however, participate in the discussion of the application during the February 21 hearing. The short answer to Riverways\u2019 concern here is that Riverways simply failed to object to Dr. Moody\u2019s participation. In fact, at the reconsideration hearing of the Commission, Riverways praised Moody for having disqualified. Because Riverways failed to preserve this argument at the administrative hearing, we do not consider it on appeal. Arkansas Contractors Licensing Board v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988); Barnett, 285 Ark. 189, 685 S.W.2d 511.\nFor the reasons set out above, we affirm.\nWe note that Riverways apparently appeared without legal counsel at the hearing where Dr. Moody participated.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Davidson, Horne & Hollingsworth, by: Cyril Hollingsworth and Chet Roberts, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Susan G. Jones, Asst. Att\u2019y Gen., for appellee.", "Simpson & Graham, P.A., by: HaroldH. Simpson & Lynda M. Johnson, for intervenors, Spring River Home Health Agency." ], "corrections": "", "head_matter": "RIVERWAYS HOME CARE of Ozarks Medical Center v. ARKANSAS HEALTH SERVICES COMMISSION\n91-230\n831 S.W.2d 611\nSupreme Court of Arkansas\nOpinion delivered May 26, 1992\nDavidson, Horne & Hollingsworth, by: Cyril Hollingsworth and Chet Roberts, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Susan G. Jones, Asst. Att\u2019y Gen., for appellee.\nSimpson & Graham, P.A., by: HaroldH. Simpson & Lynda M. Johnson, for intervenors, Spring River Home Health Agency." }, "file_name": "0452-01", "first_page_order": 476, "last_page_order": 481 }