Qualicare, Inc. v. Department of Health & Human Resources

DENNIS, Justice,

assigning additional reasons.

It appears that the applicant has standing to apply for supervisory relief in this court. A person who could have intervened in the trial court may appeal. La.C.C.P. art. 2086. An interested person has a right to appeal from an injunction judgment whether he was a party or not to the injunction suit. Cloud v. Bushnell, 168 So.2d 275, writ denied 247 La. 249, 170 So.2d 509 (1965). The failure of a foreign corporation to obtain a certificate of authority to transact business in this state does not prevent it from defending any action, suit or proceeding in any court of this state. La.R.S. 12:314(B).

Serious questions exist as to whether the district court has jurisdiction of the case in its present stage. The administrative decisions complained of probably are not final decisions nor adjudications, but only recommendations to be sent to the Department of Health, Education and Welfare. The final determination on Section 1122 qualification and capital expenditure benefit eligibility rests with the Secretary of Health, Education and Welfare and not with a state agency. Mallard Assoc. v. Pennsylvania, 422 A.2d 1178 (Commonwealth Court of Pa. 1980). Viewed as preliminary or intermediate agency actions the administrative decisions may not be susceptible to immediate judicial review because irreparable injury will not be sustained thereby. La.R.S. 49:964(A). The Secretary makes the final determinations involved and the facilities may still be constructed absent the approval of the Secretary, although the projects may become less financially desirable. 42 U.S.C. § 1320A-l(b). Moreover, the designated planning agency must grant to a person proposing a capital expenditure an opportunity for a fair hearing with respect to its findings and recommendations. 42 C.F.R. 100.106(c). Apparently this administrative remedy has not been exhausted. Even if no reviewing agency has been designated, it is by no means clear that a request for a review would not have prompted the Governor to designate an agency in time to conduct a review. See, Southern Indiana Health Systems v. State Board of Health, 391 N.E.2d 845 (Ind.Ct. of App.1979).