{ "id": 1580237, "name": "STATE of New Mexico ex rel. PILOT DEVELOPMENT NORTHWEST, INC., Petitioner-Appellee, v. STATE of New Mexico HEALTH PLANNING & DEVELOPMENT BUREAU, and Kirby D. Monroe, Chief of State Health Planning & Development Bureau, Respondent-Appellee, and Americare Southwest, Inc., Intervenor-Appellant; AMERICARE SOUTHWEST, INC., Appellant, v. STATE HEALTH PLANNING AND DEVELOPMENT BUREAU and Pilot Development Northwest, Inc., Appellees", "name_abbreviation": "State ex rel. Pilot Development Northwest, Inc. v. State", "decision_date": "1985-05-09", "docket_number": "Nos. 7914, 7933", "first_page": "791", "last_page": "801", "citations": [ { "type": "official", "cite": "102 N.M. 791" }, { "type": "parallel", "cite": "701 P.2d 390" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "97 N.M. 318", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555095 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0318-01" ] }, { "cite": "80 N.M. 310", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362726 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0310-01" ] }, { "cite": "42 C.F.R. \u00a7 100", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "42 C.F.R. \u00a7 100.102", "category": "laws:admin_compilation", "reporter": "C.F.R.", "pin_cites": [ { "page": "(e)(4) and (5)" } ], "opinion_index": 0 }, { "cite": "436 A.2d 1329", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1981, "opinion_index": 0 }, { "cite": "121 N.H. 928", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4449900 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nh/121/0928-01" ] }, { "cite": "71 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346758 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0194-01" ] }, { "cite": "637 P.2d 542", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1555108 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/97/0111-01" ] }, { "cite": "84 N.M. 91", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770756 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0091-01" ] }, { "cite": "34 P. 190", "category": "reporters:state_regional", "reporter": "P.", "year": 1893, "opinion_index": 0 }, { "cite": "7 N.M. 223", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4658574 ], "year": 1893, "opinion_index": 0, "case_paths": [ "/nm/7/0223-01" ] }, { "cite": "650 P.2d 838", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "98 N.M. 549", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582458 ], "opinion_index": 0, "case_paths": [ "/nm/98/0549-01" ] }, { "cite": "51 N.M. 311", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1578356 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/nm/51/0311-01" ] }, { "cite": "54 N.M. 18", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582021 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/54/0018-01" ] }, { "cite": "84 N.M. 589", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2762425 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0589-01" ] }, { "cite": "84 N.M. 193", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2762376 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0193-01" ] }, { "cite": "102 N.M. 144", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580162 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0144-01" ] }, { "cite": "102 N.M. 241", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580064 ], "weight": 3, "pin_cites": [ { "page": "1275" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0241-01" ] }, { "cite": "101 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586378 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nm/101/0470-01" ] }, { "cite": "78 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324652 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0297-01" ] }, { "cite": "77 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802007 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0309-01" ] }, { "cite": "326 U.S. 327", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157057 ], "weight": 3, "year": 1945, "opinion_index": 0, "case_paths": [ "/us/326/0327-01" ] }, { "cite": "416 So.2d 1279", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9593221 ], "opinion_index": 0, "case_paths": [ "/so2d/416/1279-01" ] }, { "cite": "102 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580048 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0201-01" ] }, { "cite": "42 C.F.R. \u00a7 100.106", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 2, "year": 1984, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1036, "char_count": 30738, "ocr_confidence": 0.774, "pagerank": { "raw": 1.3770737150997278e-07, "percentile": 0.6397465643749887 }, "sha256": "e8c1e99a235bc6829845bd349cc204229cf7af8fe107ac6aab54b62a29e03c68", "simhash": "1:c51bb3315536db4e", "word_count": 4877 }, "last_updated": "2023-07-14T22:42:54.117025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVINS and ALARID, JJ., concur." ], "parties": [ "STATE of New Mexico ex rel. PILOT DEVELOPMENT NORTHWEST, INC., Petitioner-Appellee, v. STATE of New Mexico HEALTH PLANNING & DEVELOPMENT BUREAU, and Kirby D. Monroe, Chief of State Health Planning & Development Bureau, Respondent-Appellee, and Americare Southwest, Inc., Intervenor-Appellant. AMERICARE SOUTHWEST, INC., Appellant, v. STATE HEALTH PLANNING AND DEVELOPMENT BUREAU and Pilot Development Northwest, Inc., Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nSection 1122 of the Social Security Act, 42 U.S.C.S. Section 1320a-l (Law.Coop.1973 & Supp.1984), provides a limitation on federal reimbursement of capital expenditures for health care facilities. The purpose of the statute is to assure that funding for specified programs under the Social Security Act is \u201cnot used to support unnecessary capital expenditures made by or on behalf of health care facilities which are reimbursed\u201d by the federal government. 42 U.S.C.S. \u00a7 1320a-l(a).\nThese consolidated appeals involve the competing applications of Americare Southwest, Inc. (Americare) and Pilot Development Northwest, Inc. (Pilot) for Section 1122 approval of proposed health care facilities. Pilot\u2019s application was approved; Americare\u2019s was denied. Americare appealed both the approval of Pilot\u2019s application and the denial of its application. The appeal was to be heard by a hearing officer. Americare and the State Health Planning and Development Bureau (SHPDB) \u201csettled\u201d Americare\u2019s appeals, and the appeals were dismissed.\nPilot sought, and the district court granted, a peremptory writ of mandamus which was made permanent. Cause No. 7914 is Americare\u2019s appeal of the mandamus decision.\nAmericare then moved that the hearing officer vacate the orders dismissing its administrative appeals. The hearing officer refused to vacate the order dismissing Americare\u2019s appeal of SHPDB\u2019s approval of Pilot\u2019s application. Americare moved for reconsideration of the refusal to vacate. The motion to reconsider was denied. Cause No. 7933 is Americare\u2019s appeal from the denial of the motion to reconsider. The hearing officer has taken no action on that part of Americare\u2019s motion which sought vacation of the order dismissing its appeal from the denial of Americare\u2019s application.\nWe (a) state the background, (b) dispose of the appeal in No. 7933 on a jurisdictional ground, and (c) consider the propriety of the district court\u2019s mandamus decision.\nBACKGROUND\nThe limitation on federal reimbursement for capital expenditures for health care facilities is accomplished through a cooperative program of state and federal review. Under this program, a state agency meeting certain criteria makes recommendations to the Secretary of Health, Education and Welfare (Secretary) with respect to proposed capital expenditures. The state agency acts pursuant to an agreement between the state and federal governments. 42 U.S.C.S. \u00a7 1320a-l(b). 42 U.S.C.S. Section 1320a-l(b)(3) requires that a participating state provide for the administrative appeal of a party which received an adverse recommendation to its capital expenditure proposal. The Secretary can reduce payments to health care facilities which did not comply with the review program. 42 U.S. C.S. \u00a7 1320a-l(d).\nNew Mexico participates in the Section 1122 cooperative program on the basis of written agreements. The agreements provide that SHPDB is the agency charged with reviewing Section 1122 applications.\nSHPDB received the applications of Americare and Pilot for Section 1122 approval of health care facilities in Health Planning District I, which is not defined but appears to cover San Juan and McKinley Counties. Americare applied for approval of 84 intermediate care nursing home beds (ICF) and 36 skilled nursing home beds (SNF) to be located in Farmington, San Juan County. Pilot applied for approval of 90 ICF to be located in Bloomfield, San Juan County.\nSHPDB referred the applications to the Health Systems Agency (HSA). The application of Pilot was reviewed by a Subarea Council (SAC) for District I. The SAC approved Pilot\u2019s application. The SAC did not review Americare\u2019s application.\nA court order required SHPDB to \u201cbatch\u201d Americare\u2019s application with Pilot\u2019s application. The governing body of HSA reviewed the two applications. The governing body recommended approval of Pilot\u2019s application and recommended disapproval of Americare\u2019s application. After receiving the HSA recommendation, SHPDB considered the criteria for Section 1122 applications and, on the basis of a comparative review of the applications, accepted the HSA recommendations. SHPDB\u2019s letter decision was June 6, 1983.\nOn June 30, 1983, Americare wrote to SHPDB demanding a \u201cfair hearing of the SHPDB findings and recommendations\u201d which denied Americare\u2019s application and approved Pilot\u2019s application. No one contends the letter was insufficient to invoke an appeal before a hearing officer. See 42 U.S.C.S. \u00a7 1320a-l(b)(3) and 42 C.F.R. \u00a7 100.106(c) (1984). A hearing officer was appointed.\nIn August 1983 (the administrative record does not consistently show filing dates), Pilot moved to dismiss Americare\u2019s administrative appeal insofar as the appeal involved SHPDB\u2019s approval of Pilot\u2019s application. The motion alleged that Section 1122 did not afford Americare the right to appeal the decision on Pilot\u2019s application. The hearing officer set the motion to dismiss for hearing on October 13, 1983.\nThe motion to dismiss was not heard on October 13, 1983. Instead, two orders of dismissal were entered.\nThe hearing officer entered an order dismissing Americare\u2019s appeal of SHPDB\u2019s denial of Americare\u2019s application. The order recites that Americare and SHPDB \u201chave settled and compromised their dispute * * Two exhibits were incorporated as a part of the order of dismissal. These exhibits reveal \u201cdiscussions\u201d between SHPDB and Americare, Americare\u2019s \u201cmodifications in Americare\u2019s original proposal,\u201d a \u201cnew total capital expenditure\u201d of $3,500,000 of which $3,000,000 would be allocated to 72 ICF and 24 SNF. Thus, settlement was reached by amending Americare\u2019s original proposal by decreasing ICF beds by 12 and SNF beds by 12. \u201cThe above figures do not work a change in the daily cost and charges * * *.\u201d Pilot was not a participant in the \u201cdiscussions\u201d between Americare and SHPDB and was not a party to the settlement.\nThe hearing officer entered a separate order dismissing Americare\u2019s appeal of SHPDB\u2019s approval of Pilot\u2019s application. This order recites that the matter before the hearing officer was Pilot\u2019s motion to dismiss Americare\u2019s appeal of SHPDB\u2019s approval of Pilot\u2019s application, \u201c[t]hat Americare no longer opposes Pilot\u2019s motion\u201d and consents to the dismissal of its appeal against Pilot. The order recites \u201cthat the disposition of Americare\u2019s appeal as against Pilot in no way affects Pilot\u2019s right to appear or speak as an interested person with respect to Americare\u2019s application for 1122 approval.\u201d\nOn November 1, 1983, Pilot moved for reconsideration of the hearing officer\u2019s order of October 13,1983, approving the \u201csettlement\u201d between SHPDB and Americare. The motion alleges \u201cthat the settlement and its approval are beyond the authority of SHPDB and the hearing officer and that the procedural irregularities involved in the settlement require that it be disapproved.\u201d Pilot\u2019s memorandum supporting its motion identified three items allegedly disregarded by SHPDB in settling with Americare. These items are pertinent to the mandamus appeal and are: (1) disregard of established notification procedures; (2) the right of an applicant to have its application \u201cbatched\u201d with a competing application; and (3) the procedure for local review of applications. The motion to reconsider was denied by the hearing officer by an order entered on November 15, 1983.\nThe denial was apparently known by Pilot prior to November 15, 1983, because on November 14, 1983 it sought, and the district court issued, a peremptory writ of mandamus. Americare was permitted to intervene. The permanent writ, filed April 27, 1984, declared the settlement void, held that Americare\u2019s amendment of its application during the appeal process was invalid and that the amendment \u201cmust be submitted as a new application subject to the entire 1122 review process.\u201d\nThe issuance of a permanent writ was apparently anticipated by Americare because, in January 1984, it moved to vacate the orders of October 13, 1983, which dismissed its two administrative appeals. Notice of hearing on this motion was given for March 7, 1984. The hearing officer\u2019s order was entered either April 12, 17 or 18, 1984. We cannot read the date with any certainty. This order denied the motion to vacate the dismissal of Americare\u2019s appeal of SHPDB\u2019s approval of Pilot\u2019s application \u201cbecause the Order * * * dismissing such appeal was not dependent upon nor entered in consideration of * * * the settlement\u201d between Americare and SHPDB.\nOn April 24, 1984, Americare moved for reconsideration of the order denying the motion to vacate. An order denying the motion to reconsider was entered May 7, 1984. A \u201cNOTICE OF JUDICIAL APPEAL\u201d appears in the administrative record, but with no date of entry. The certification on the notice recites delivery of the notice to counsel on June 6, 1984. SHPDB did receive the notice on June 6, 1984. No independent notice of appeal was filed with this court. A copy of the notice of appeal appearing in the administrative record is included in a \u201cskeleton transcript\u201d filed with this court on July 5, 1984.\nJURISDICTION IN NO. 7933\nPilot moved to dismiss Americare\u2019s appeal in No. 7933 for lack of jurisdiction. The motion asserts that no right of appeal exists from an order of the hearing officer issued during a review of determinations of SHPDB. The motion was held in abeyance until the consolidated appeals were submitted on the merits. We now have considered this motion and hold that it should be granted.\nBefore stating our reasons, we outline, but do not decide, problems with the appeal. Identification of these problems emphasizes the wisdom of a policy of reluctance in expanding the scope of judicial review unless specifically authorized. See Kelly v. St. Vincent Hospital, 102 N.M. 201, 692 P.2d 1350 (Ct.App.1984). This case does not involve the quality or sufficiency of health care to be provided. Rather, it involves the competition of Americare and Pilot for access to federal money. Both applicants can build the facility they propose; they want an assurance of federal money before proceeding. Americare, the loser in the competition, asks this court to review the merits of administrative decisions and reach a result which excludes Pilot from federal reimbursement for Pilot\u2019s capital expenditures. The federal statute does not provide for federal court review of the merits. See 42 U.S.C.S. \u00a7 1320a-l(b). Americare advances no reason why New Mexico courts should do so. Compare our supreme court\u2019s order, not reported, in State ex rel. National Medical Enterprises v. Scarborough, Sup.Ct. No. 15,669 (Filed January 17, 1985).\nIf there was a right to appeal the merits of the hearing officer\u2019s decision, there are the following problems:\n(a) Americare had the right to appeal SHPDB\u2019s decision to a hearing officer because its application was disapproved. 42 U.S.C.S. \u00a7 1320a-l(d)(l)(B)(ii)(II); 42 C.F.R. \u00a7 100.106(c). But, did Americare have the right to appeal SHPDB\u2019s decision approving the application of Pilot? Compare Lifemark Corp. v. Guissinger, 416 So.2d 1279 (La.1982) with Ashbacker Radio Corp. v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945).\n(b) If Americare had an administrative appeal from the approval of Pilot\u2019s application, was Pilot a party to that appeal? If Pilot was a party to Americare\u2019s appeal from the approval of Pilot\u2019s application, was Pilot also a party to Americare\u2019s appeal of the denial of Americare\u2019s application? If Pilot was a party to Americare\u2019s appeal of the denial of Americare\u2019s application, could Americare and SHPDB \u201csettle\u201d that appeal without the participation of Pilot?\n(c) The hearing officer denied Americare\u2019s motion to vacate the order dismissing Americare\u2019s appeal of the approval of Pilot\u2019s application. The hearing officer took no action on Americare\u2019s motion to vacate the order dismissing Americare\u2019s appeal of the denial of its application. If the two administrative appeals are mutually exclusive, see Ashbacker, and one aspect of the motion to vacate has not been ruled on, is there an appealable order in connection with the motion to vacate?\n(d) Americare has not appealed from the denial of the motion to vacate. Rather, it has appealed from the denial of its motion to reconsider the denial of its motion to vacate the order dismissing Americare\u2019s appeal of the approval of Pilot\u2019s application. Is the denial of a motion to reconsider an appealable order?\n(e) What time was allowed for appealing to this court? No rule or statute provides an answer. NMSA 1978, Civ.App. Rule 13 (Repl.Pamp.1984) does not state a time for taking an appeal. NMSA 1978, Civ.App. Rule 3(a) (Repl.Pamp.1984) provides thirty days for appeals in civil actions, which means court cases, not appeals from administrative actions. Where an appeal is authorized, but no time for taking the appeal is specified, the time allowed is a reasonable time. Board of Education, Pe\u00f1asco Independent School District No. 4 v. Rodriguez, 77 N.M. 309, 422 P.2d 351 (1966). A reasonable time would be the time provided by rule for appeals from the district court. See Roberson v. Board of Education of City of Santa Fe, 78 N.M. 297, 430 P.2d 868 (1967). Thus, if there was a right to appeal, and if denial of the motion to reconsider was an appealable order, Americare had thirty days to take an appeal \u201cby filing notice of appeal with the appellate court * * Civ.App.R. 13. The motion to reconsider was denied May 7,1984. No notice of appeal was filed with this court until July 5, 1984.\n(f) If Americare\u2019s appeal is properly in this court, what is this court\u2019s standard for review? No statute provides a standard for this case. No case law addresses the standard for reviewing this type of case. See Groendyke Transport, Inc. v. New Mexico State Corporation Commission, 101 N.M. 470, 684 P.2d 1135 (1984).\nThe foregoing matters are worthy of consideration should a right to appeal be conferred.\nWe began the discussion of this issue by indicating that Americare had no right of appeal from the denial of the motion to reconsider. Americare recognizes that 42 U.S.C.S. Section 1320a-l does not provide a right to appeal; it argues only that the statute does not withdraw a right to appeal. Similarly, 42 C.F.R. Section 100.106(c)(4) does not provide a right to appeal; the regulation refers to \u201cwhere judicial review * * * is obtained * *\nThis court has no jurisdiction to consider appeals from administrative decisions absent a statute authorizing an appeal. State ex rel. Department of Human Services v. Manfre, 102 N.M. 241, 693 P.2d 1273 (Ct.App.1984); Eastern Indemnity Co. of Maryland v. Heller, 102 N.M. 144, 692 P.2d 530 (Ct.App.1984); Kennecott Copper Corp. v. Environmental Improvement Board, 84 N.M. 193, 500 P.2d 1316 (Ct.App.1972).\nAmericare recognizes that an appeal must be authorized because that right is a matter of substantive law. See Heller. It asserts a right of appeal was authorized by the amendment to NMSA 1978, Section 34-5-8 by N.M.Laws 1983, ch. 333. Section 34-5-8 pertains to the subject matter jurisdiction of the court of appeals. Prior to the 1983 amendment, Section 34-5-8(F) (Repl.Pamp.1981) authorized this court to review decisions of administrative agencies \u201cwhere direct review by the court of appeals is provided by law[.]\u201d After the 1983 amendment, Section 34-5-8(A)(6) (Cum. Supp.1984) authorized this court to review \u201cdecisions of administrative agencies of the state[.]\u201d\nAmericare contends that this court has never considered the effect of the 1983 amendment and that the effect of the amendment was to authorize appeals to this court from all administrative agency decisions. We disagree with both contentions.\nCiting Section 34-5-8, as amended, Manfre states: \u201cThe statute defining our jurisdiction allows us to review, on appeal, decisions of administrative agencies of the state when express legislative authorization specifies a right of direct appeal.\u201d 693 P.2d at 1275.\nThe 1983 amendment to Section 34-5-8 increased the subject matter jurisdiction of the court of appeals. This is apparent when one compares this court\u2019s jurisdiction in civil actions before the amendment, Section 34-5-8(A) (Repl.Pamp.1981), and after the amendment, Section 34-5-8(A)(l) (Cum. Supp.1984). Prior to the 1983 amendment, Section 34-5-8 authorized this court to review administrative decisions as provided by law; Section 34-5-8 did not, in itself, confer subject matter jurisdiction. After the 1983 amendment, this court has subject matter jurisdiction to review decisions of administrative agencies.\nOur subject matter jurisdiction is not the issue here. The issue is Americare\u2019s right to appeal. If there is a right to appeal, this court has jurisdiction over the subject matter. However, this court does not have jurisdiction over an appeal that is not authorized. There being no statute authorizing the appeal, the motion to dismiss is granted. City of Truth of Consequences v. State Department of Alcoholic Beverage Control, 84 N.M. 589, 506 P.2d 333 (1973); Taggader v. Montoya, 54 N.M. 18, 212 P.2d 1049 (1949); State v. Arnold, 51 N.M. 311, 183 P.2d 845 (1947).\nTHE MANDAMUS DECISION\nNone of the parties question this court\u2019s jurisdiction to review the district court\u2019s mandamus decision. In 1982 we raised, but did not decide, this jurisdictional question. State ex rel. New Mexico State Highway Department v. Silva, 98 N.M. 549, 650 P.2d 838 (Ct.App.1982). In 1983 Section 34-5-8 was amended to confer appellate jurisdiction on the court of appeals in \u201cany civil action not specifically reserved to the jurisdiction of the supreme court by the constitution or by law[.]\u201d Section 34-5-8(A)(l). Mandamus is a civil action. Perez v. Barber, 7 N.M. 223, 34 P. 190 (1893). See NMSA 1978, \u00a7 44-2-11. Jurisdiction in mandamus appeals is not reserved to the supreme court by N.M. Const, art. VI, \u00a7 2, nor by NMSA 1978, Section 44-2-14. This court has subject matter jurisdiction in the mandamus appeal.\nWe summarily answer two of Americare\u2019s contentions directed to the permanent writ of mandamus. 1. Americare asserts mandamus was an improper remedy because Pilot had an adequate remedy by appeal. NMSA 1978, \u00a7 44-2-5; Montoya v. Blackhurst, 84 N.M. 91, 500 P.2d 176 (1972). Americare claims Pilot could have appealed the hearing officer\u2019s order approving the \u201csettlement\u201d between Americare and SHPDB. Americare fails to identify any statute authorizing an appeal. See our discussion in the preceding issue. 2. The trial court orally indicated what it would find and requested that Pilot draft findings for the court to sign. It stated that it would review Pilot\u2019s draft before signing to insure the draft reflected the court\u2019s views. Americare claims the trial court did not exercise its independent judgment in adopting findings and conclusions drafted by Pilot. The trial court\u2019s remarks are to the contrary. Regardless, the adoption, verbatim, of findings requested by counsel is not error if the findings are supported by the record. In Re Hamilton, 97 N.M. Ill, 637 P.2d 542 (1981).\nAmericare\u2019s third contention, directed to the permanent writ, goes to the basis for a writ of mandamus. NMSA 1978, Section 44-2-4 provides that the writ may be issued \u201cto compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station * * Mandamus will compel the performance of ministerial acts or duties imposed by law upon a public officer to do a particular act. A ministerial act is an act which a public officer is required to perform by direction of the law upon a given state of facts being shown to exist. State ex rel. Reynolds v. Board of County Commissioners, County of Guadalupe, 71 N.M. 194, 376 P.2d 976 (1962).\nThe writ was directed to SHPDB and Monroe, its employee. It is not disputed that these defendants are within the meaning of public office, officer or station. SHPDB\u2019s duties under the law are set forth in the federal statute and regulations, and its agreement to carry out the federal requirements. SHPDB is not free to do as it wishes, it must comply with the law. SHPDB had no authority to \u201csettle\u201d Americare\u2019s administrative appeal except in accordance with law.\nIn connection with initial applications for Section 1122 approval, 42 U.S.C.S. Section 1320a-l and 42 C.F.R. Sections 100.101 to 100.109 (1984) require certain procedures to be followed. These procedures include specified notices with specified time limits. One of the purposes of notice is to encourage competing applications which are reviewed comparatively by a local agency, in this case HSA, which makes recommendations to SHPDB. There is no claim that these procedures were not followed in connection with Americare\u2019s and Pilot\u2019s initial proposals. Mandamus was issued because these procedures \u2014notice, an opportunity for competing applications and HSA and SHPDB review of any competing applications \u2014 were not followed in connection with the settlement between' Americare and SHPDB. If the procedural requirements applied to the settlement, the writ was proper.\nIn assessing Section 1122 applications, SHPDB considers \u201cbed ceilings\u201d established by projected need. At the time of the initial applications, the projected bed need for ICF was 90. Pilot applied for approval of 90 ICF. Americare originally applied for 96 ICF and 24 SNF. This was changed, prior to SHPDB\u2019s decision, to 84 ICF and 36 SNF.\nHSA reviewed the competing applications of Americare and Pilot on the basis of a projected need for 90 ICF. However, SHPDB\u2019s decision of June 6, 1983, which approved Pilot\u2019s application and disapproved Americare\u2019s, was on the basis of 162 ICF, an increase in the projected need of 72 ICF.\nThereafter, Americare took the administrative appeals identified in our discussion of the first issue. Those appeals were dismissed by the hearing officer and a settlement between Americare and SHPDB was approved, over Pilot\u2019s objection. The settlement was that SHPDB approve a capital expenditure by Americare for 72 ICF, 24 SNF and 24 personal care beds. The personal care beds are not subject to Section 1122.\nThe trial court found that the additional 72 ICF were not available when Americare and Pilot made their initial applications.\nThe trial court found that SHPDB summarily granted approval to Americare for 72 ICF without notice to any interested party that the beds were available \u201cwithout the close scrutiny for local public comment, disclosure and hearings, and without affording other entities any opportunity to compete for approval to construct said beds.\u201d It found that Americare\u2019s proposal for a capital expenditure to construct 72 ICF, 24 SNF and the 24 personal care beds was a substantially different proposal than the initial proposal to construct 84 ICF and 36 SNF. It found that this different proposal \u201cmust be treated as a new application, subject to all of the procedures and the entire review process under section 1122 so that other entities receive notice of such proposal and an opportunity to compete with it [Americare] and that SHPDB takes [sic] into consideration the findings and recommendations of local agencies, including the HSA.\u201d As to the 72 ICF beds, it found that they \u201cmay not be awarded without allowing all interested persons to submit competing applications for such beds.\u201d It found that the settlement between Americare and SHPDB was \u201cnull and void\u201d and that SHPDB had no authority to enter the settlement.\nAmericare attacks the findings referred to in the preceding paragraph, and additional findings, as unsupported by substantial evidence. Accordingly, it reviews the evidence as to each of the findings attacked. We need not review the evidence in relation to the findings made nor need we parse the findings to determine which are factual and which are really conclusions of law. The terms of the settlement are not disputed. If the approval given to Americare\u2019s proposal (the settlement) was subject to the procedures for obtaining approval of an initial application, SHPDB was required to follow those procedures. If required to follow those procedures, SHPDB made the settlement without authority, and the settlement was void because it was contrary to law.\nTwo undisputed facts are pertinent. They are (1) the procedures required for initial application were not followed; and (2) if Pilot had known at the time of its initial application that an additional 72 ICF were available it would not have limited its application to 90 ICF, but would have requested additional beds in its initial application. This second fact establishes that Pilot was a competitor for the 72 ICF beds awarded to Americare, without notice, without local review and without consideration of competing applications by SHPDB.\n42 U.S.C.S. Section 1320a-l(g) defines \u201ccapital expenditure\u201d as\nan expenditure which, under generally accepted accounting principles, is not properly chargeable as an expense of operation and maintenance and which (1) exceeds $600,000 (or such lesser amount as the State may establish), (2) changes the bed capacity of the facility with respect to which such expenditure is made, or (3) substantially changes the services of the facility with respect to which such expenditure is made.\nA similar definition appears in 42 C.F.R. Section 100.103(a)(1).\n42 C.F.R. Section 100.103 explains the applicability of the definition. 42 C.F.R. Section 100.103(a)(2)(iii) applies the definition to changes in bed capacity: \u201c[A] capital expenditure which \u2018changes the bed capacity\u2019 of a facility means a capital expenditure which results in any increase or decrease in licensed capacity under applicable State or local law * * 42 C.F.R. Section 100.103(a)(2)(v) applies the definition to changes in a proposed capital expenditure. We quote this subsection in full:\n(v) Any change in a proposed capital expenditure which itself meets the criteria set forth in this paragraph, shall, for purposes of this subpart, be deemed a capital expenditure; Provided, That an increase or decrease in the cost of a proposed capital expenditure which increase or decrease is not related to a change in bed capacity or a substantial change in services may, at the option of the designated planning agency, be exempt from review under this subpart.\n42 C.F.R. Section 100.103 states, with certain exceptions, that any capital expenditure is subject to the regulations. A change in a proposed capital expenditure that meets the criteria of 42 C.F.R. Section 100.103 shall \u201cbe deemed a capital expenditure.\u201d 42 C.F.R. Section 100.103(a)(2)(iii) applies to a capital expenditure \u201cwhich results in any increase or decrease in licensed capacity * * Thus the proposed capital expenditure for a decrease of 12 ICF and 12 SNF beds was a capital expenditure subject to the Section 1122 review process. Cf Appeal of Behavior Science Institute, 121 N.H. 928, 436 A.2d 1329 (1981).\nSHPDB knew of this required review at the time it \u201csettled\u201d with Americare. Its agreement with the federal government, in effect at the time of the \u201csettlement,\u201d identifies three situations where review is required: \u201cIf any one of these three conditions is met, review is required.\u201d One of the situations requiring review occurs when the capital expenditure \u201cchanges the bed capacity of the facility with respect to which such expenditure is made * *\nAmericare\u2019s contentions, which seek to avoid the result we have reached, and our answers, follow:\n(a) There has been no change in bed capacity, that the total beds in its initial application and the total beds in the settlement are the same \u2014 120. This argument is spurious. The initial application sought approval of specified beds for two separate categories \u2014 ICF and SNF. See 42 C.F.R. \u00a7 100.102(e)(4) and (5) and 42 C.F.R. \u00a7 100.-103(a)(2)(iii). The initial application sought approval of 84 ICF and 36 SNF. The settlement approved 72 ICF and 24 SNF. The 24 personal care beds of the settlement were not subject to approval and, thus, were not to be counted in bed capacity requiring approval. For bed capacity requiring approval, the settlement decreased the bed capacity by 12 in each of two categories.\n(b) The regulations, particularly 42 C.F.R. Section 100.103(a)(2)(v), apply only to proposed capital expenditures in connection with an existing facility, not a proposed facility. According to Americare there is an existing facility once an obligation is incurred for a proposed capital expenditure. This argument leads to the absurd result that the federal statute and regulations provide no limitation on the expenditure of federal funds for new facilities. Such a result is contrary to the purpose stated in 42 U.S.C.S. Section 1320a-1(a).\n(c) The federal statute and regulations do not refer to settlement of an administrative appeal, therefore the settlement was not prohibited. Authority for the settlement is found in the implied powers of SHPDB. Winston v. New Mexico State Police Board, 80 N.M. 310, 311, 454 P.2d 967 (1969), states: \u201c[T]he authority of the agency is not limited to those powers expressly granted by statute, but includes, also, all powers that may fairly be implied therefrom.\u201d (Citations omitted.) What Americare overlooks is that this implied power must be derived from the statute. SHPDB had no implied power to \u201csettle\u201d by approving a bed allocation to Americare when the bed allocation was subject to statutory review procedures. Cf. La Jara Land Developers, Inc. v. Bernalillo County Assessor, 97 N.M. 318, 639 P.2d 605 (Ct.App.1982).\nAmericare\u2019s attempted appeal in No. 7933 is dismissed for lack of jurisdiction. The trial court\u2019s order making the writ of mandamus permanent is affirmed. Americare shall bear its appellate costs in both appeals.\nIT IS SO ORDERED.\nBIVINS and ALARID, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Earl R. Norris, Oldaker & Oldaker, Albuquerque, for appellant, Americare Southwest, Inc.", "Diane Fisher, Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for appellee Pilot Development Northwest, Inc.", "Paul G. Bardacke, Atty. Gen., William G. Walker, Gen. Counsel of 'Health & Environment Dept., Jerry Dickinson, Sp. Asst. Atty. Gen., Santa Fe, for appellee State Health Planning & Development Bureau." ], "corrections": "", "head_matter": "701 P.2d 390\nSTATE of New Mexico ex rel. PILOT DEVELOPMENT NORTHWEST, INC., Petitioner-Appellee, v. STATE of New Mexico HEALTH PLANNING & DEVELOPMENT BUREAU, and Kirby D. Monroe, Chief of State Health Planning & Development Bureau, Respondent-Appellee, and Americare Southwest, Inc., Intervenor-Appellant. AMERICARE SOUTHWEST, INC., Appellant, v. STATE HEALTH PLANNING AND DEVELOPMENT BUREAU and Pilot Development Northwest, Inc., Appellees.\nNos. 7914, 7933.\nCourt of Appeals of New Mexico.\nMay 9, 1985.\nEarl R. Norris, Oldaker & Oldaker, Albuquerque, for appellant, Americare Southwest, Inc.\nDiane Fisher, Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for appellee Pilot Development Northwest, Inc.\nPaul G. Bardacke, Atty. Gen., William G. Walker, Gen. Counsel of 'Health & Environment Dept., Jerry Dickinson, Sp. Asst. Atty. Gen., Santa Fe, for appellee State Health Planning & Development Bureau." }, "file_name": "0791-01", "first_page_order": 829, "last_page_order": 839 }