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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 THI OF NEW MEXICO AT LAS CRUCES, LLC,
 3 d/b/a, Las Cruces Nursing Center,

 4          Petitioner-Appellant,

 5 v.                                                                                  NO. 31,588

 6 NEW MEXICO HUMAN SERVICES DEPARTMENT,

 7          Respondent-Appellee.


 8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
 9 Barbara J. Vigil, District Judge


10 Pregenzer Baysinger Wideman & Sale, PC
11 Marcy Baysinger
12 Albuquerque, NM

13 Schutjer Bogar LLC
14 Katie Maxwell, Pro Hac Vice
15 Dallas, TX

16 for Appellant

17 New Mexico Human Services Department
18 Robert J. Lennon, Assistant General Counsel
19 Santa Fe, NM

20 for Appellee
 1                             MEMORANDUM OPINION

 2 KENNEDY, Chief Judge.

 3   {1}   THI of New Mexico at Las Cruces, LLC (THI) operates the Las Cruces Nursing

 4 Center (Nursing Center). THI filed an application for Medicaid assistance on behalf

 5 of one of its patients, Manuel Zuniga, which was denied. THI requested a fair hearing

 6 on the denial, and the New Mexico Human Services Department (HSD) responded

 7 that because THI was not a proper party to represent Zuniga’s interests, it could not

 8 appeal the denial of the hearing on his behalf. THI appealed. Eventually, after a brief

 9 hearing, the district court granted HSD’s motion to dismiss the appeal based on THI’s

10 lack of standing and the case being moot due to Zuniga’s death. We affirm the district

11 court’s decision because, at this point, THI cannot acquire the required social security

12 number for Zuniga, which precludes his eligibility from being established.

13 I.      BACKGROUND AND PROCEDURAL HISTORY

14   {2}   Zuniga, a quadriplegic patient requiring long-term skilled nursing care, was

15 admitted to the Nursing Center in November 2008. When admitted, THI asked that

16 he sign the Admission Agreement (Agreement), authorizing the Nursing Center to

17 apply for Medicaid assistance benefits on Zuniga’s behalf and appeal the denial of

18 benefits in the event that he or his representative is not available to act on his behalf.

                                               2
 1 The Agreement was signed by Zuniga’s daughter, Susana Granada, followed by an

 2 “X” for Zuniga. The Agreement states that, if “[Zuniga] is unable to physically sign

 3 his . . . name, [he] will sign below by making a mark” and that a witness must verify

 4 that Zuniga was “aware that he . . . was signing [the] Agreement and that it was his .

 5 . . intent to sign.” The Agreement designated Granada as Zuniga’s “[d]urable [p]ower

 6 of [a]ttorney for [h]ealth [c]are[,] . . . [l]egal [g]uardian[, and] . . . [r]esponsible

 7 [p]arty” for admitting him to its facility. Zuniga’s capacity to make a mark in order

 8 to contract with THI on his own behalf on this or any document is unknown, as is

 9 whether the “X” on the Agreement was executed by him. Neither party addresses

10 these issues, and we are agnostic as to their merits.

11   {3}    Some time after Zuniga was admitted, an Authorization Statement (the

12 Statement) was executed between the Nursing Center and Zuniga that authorized the

13 “Nursing Center, its employees, agents, and/or [THI’s attorneys,] Schutjer Bogar

14 LLC[,] . . . to take those actions that are required to secure Medicaid benefits . . .

15 establishing . . . eligibility and filing necessary appeals to secure such benefits . . . on

16 [Zuniga’s] behalf.” The Statement and its Spanish language counterpart were again

17 signed with an “X” above Zuniga’s name and contain the signatures of two witnesses.1




         1
16         THI represented in the hearing before the district court that it was willing to
17 produce the witnesses who were present when the documents were signed.

                                                3
 1 The Statement assigned the right to appeal any adverse determination as to Zuniga’s

 2 Medicaid application to THI.

 3   {4}   Although no copy appears in the record, it appears that Zuniga subsequently

 4 submitted an application for Medicaid assistance or services that was denied on July

 5 14, 2009. A later document indicates that the application was denied “because of

 6 problems with his household status.” After the denial, THI requested a fair hearing

 7 on behalf of Zuniga to appeal the July 2009 denial of his eligibility on October 12,

 8 2009. HSD responded, stating that THI had no right as a healthcare provider “to a

 9 hearing to assert . . . Zuniga’s rights,” pursuant to 8.353.2.9 NMAC.2 HSD would

10 accordingly dismiss the fair hearing appeal unless it received “a request for [a] hearing

11 from . . . Zuniga or his legal representative by [October 26, 2009].” (Emphasis

12 omitted.) The letter stated that, if the case was dismissed, THI could “seek judicial

13 review” of the dismissal in the district court within thirty days.

14   {5}   THI timely appealed the dismissal of the fair hearing request to the district

15 court. HSD moved to dismiss the appeal. No action was taken in the district court for

16 another year-and-a-half, and neither side pursued judicial resolution of the case. On

17 May 13, 2011, following this delay, the case was reassigned to a new district judge,


         2
18         Reimbursement for services that the Nursing Center provided is outside the
19 purview of this case. See NMSA 1978, § 27-2-45(B)(1) (1990) (permitting hospitals
20 to submit claims for “uncovered hospital charges . . . for an illness of a medically
21 indigent patient”).

                                               4
 1 who reviewed the file and issued an order requesting clarification of the record as to

 2 HSD’s denial of a fair hearing. The district court stated that, if no hearing had been

 3 conducted since October 2009, HSD’s motion to dismiss would be denied, and HSD’s

 4 denial of the fair hearing requested by THI regarding Zuniga’s eligibility would be

 5 reversed.

 6   {6}   HSD responded to this order by stating that, since October 2009, THI had

 7 submitted additional information to HSD with regard to Zuniga’s eligibility. HSD had

 8 issued a second denial of eligibility on January 24, 2011, because a “social security

 9 income has not been verified.” (Emphasis omitted.) THI had submitted another

10 request for a fair hearing on the denial, which HSD stated was still pending. HSD had

11 acknowledged the fair hearing request and set a schedule for submitting evidence and

12 setting a decision due date of June 21, 2011. None of these responses to the district

13 court’s order mentioned that Zuniga died on September 28, 2010.

14   {7}   Upon learning of Zuniga’s death, HSD moved to dismiss for mootness and lack

15 of standing. THI responded by asserting that, because Zuniga had “irrevocably”

16 assigned his right to make claims for and receive Medicaid assistance or services to

17 THI, the right did not expire with him. THI further alleged that, had HSD timely

18 accorded Zuniga a hearing to which he was entitled for the first denial of eligibility,

19 the mootness argument would not exist.



                                              5
 1   {8}    The district court held a hearing and granted HSD’s motion to dismiss. The

 2 district court found that the right to a hearing and appeal of HSD’s decision were

 3 statutory rights belonging to the Medicaid recipient, Zuniga, that are neither

 4 transferable nor assignable. The district court also found that the Agreement “did not

 5 legally or properly assign [Zuniga’s] rights to pursue Medicaid benefits to THI” and

 6 rejected the Statement as impermissible under state law because it was “irrevocable.”

 7 Further, the district court found that “the payment of Medicaid benefits . . . would

 8 require . . . Zuniga to have a valid social security number [and] . . . THI would not be

 9 able to secure [one] . . . on [his] behalf.” The district court concluded that THI’s case

10 was moot and failed for lack of standing and dismissed the case with prejudice.

11 II.      DISCUSSION

12   {9}    We note that the issues of standing and THI's authorization to pursue an

13 eligibility claim on behalf of Zuniga are deemed recognized without being ruled upon

14 by the Court, because we resolve the case on the sole issue of Mr. Zuniga's failure to

15 have a valid social security number at the time of his death. Thus, even if we

16 determined that THI could pursue Mr. Zuniga's eligibility claim, it would ultimately

17 fail for the lack of a valid social security number. “A court’s interpretation of an

18 administrative regulation is a question of law that we review de novo.” Truong v.

19 Allstate Ins. Co., 2010-NMSC-009, ¶ 24, 147 N.M. 583, 227 P.3d 73.

20   {10}   A social security number appears in the record in several places attached to a

21 motion by HSD. One such location is on HSD’s acknowledgment of hearing request,

                                               6
 1 which includes a social security number and lists the reason for denial of eligibility

 2 as “your social security income has not been verified.”           (Emphasis omitted.)

 3 However, despite “income” being listed as the reason for the denial, and the presence

 4 of a social security number, no party disputes that Zuniga’s application still requires

 5 a new social security number.

 6   {11}   At the hearing before the district court, THI confirmed that it was attempting

 7 to get a number on behalf of Zuniga, which was proving difficult after his death. “A

 8 medicaid applicant/recipient must furnish his/her social security account number.”

 9 8.281.400.12 NMAC. Although the applicant does not have to receive the number

10 before applying, “[p]resentation of an application for a social security number or proof

11 that an application has been made at a social security administration office is

12 considered as meeting this requirement.” Id. In addition to an application, the Social

13 Security Administration “will require the applicant to furnish documentary evidence,

14 as necessary, to assist [the Social Security Administration] in establishing the age,

15 U.S. citizenship or alien status, true identity, and previously assigned social security

16 number(s) . . . . A personal interview may be required of the applicant.” 20 C.F.R.

17 § 422.103(c)(1) (2006). At the hearing, THI stated that they were trying to get a new

18 number for Zuniga, but that an in-person interview was required. In light of Zuniga’s

19 death, such a requirement will be impossible to fulfill. Therefore, despite the lack of

20 clarity about why the new number is necessary, we affirm the district court’s decision

21 to the extent that it is based on a determination that THI will ultimately be unable to

22 secure the necessary valid social security number for Zuniga.

                                               7
 1   {12}   We briefly note that there is no merit to HSD’s assertion in its initial rejection

 2 letter that THI could not represent Zuniga based on 8.353.2.9 NMAC.                   This

 3 regulation, relied on by HSD in their first letter rejecting THI, deals with

 4 administrative matters between healthcare providers and HSD, such as “providers who

 5 disagree with HSD decisions concerning their [providers’] participation in the New

 6 Mexico medicaid program, recoupment of overpayments due to provider billing error,

 7 and imposition of sanctions.” Id. It tracks the provision of Section 27-2-9(C), which

 8 entitles hospitals to a hearing should they disagree with HSD’s determination of the

 9 reimbursement due for caring for a Medicaid eligible patient. It states nothing about

10 the rights or eligibility of a patient, or the patient’s ability to pursue an application

11 through his or her representative. We conclude that the regulation is not material to

12 a determination of whether Zuniga’s representative has any ability to seek “a hearing

13 to assert . . . Zuniga’s rights.”

14 III.     CONCLUSION

15   {13}   Because THI admits that it cannot procure the required new social security

16 number for a decedent such as Zuniga, we affirm the district court’s decision. HSD’s

17 denial of THI’s request for a fair hearing will stand.




                                                8
1   {14}   IT IS SO ORDERED.



2                               ____________________________________
3                               RODERICK T. KENNEDY, Chief Judge


4 WE CONCUR:



5 ___________________________
6 MICHAEL E. VIGIL, Judge



7 ___________________________
8 TIMOTHY L. GARCIA, Judge




                                  9
