                                                                                           Filed
                                                                                     Washington State
                                                                                     Court of Appeals
                                                                                      Division Two

                                                                                    December 10, 2019

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
    HERITAGE GROVE, a Washington not-for-                        No. 52393-1-II
    profit corporation; PRESTIGE CARE, INC., a
    Washington corporation; CARE CENTER
    (YAKIMA), INC., a Washington corporation;
    and YAKIMA VALLEY VENTURES, LLC, a
    Washington limited liability company.

                               Appellants,

          v.

    DEPARTMENT OF HEALTH; STATE OF                           PUBLISHED OPINION
    WASHINGTON and SELAH CARE AND
    REHABILITATION; LANDMARK CARE
    AND   REHABILITATION;     EMERALD
    CARE; GOOD SAMARITAN HEALTH
    CARE CENTER; WILLOW SPRINGS CARE
    AND   REHABILITATION;    CRESCENT
    HEALTH CARE, INC.; and SUMMITVIEW
    HEALTHCARE CENTER,

                               Respondents.

         MELNICK, J. — Heritage Grove submitted a certificate of need (CN) application to the

Department of Health (DOH). DOH initially approved the application, but a group of nursing

homes in Yakima (collectively Respondent Nursing Homes1) administratively challenged the CN.

At the conclusion of the administrative proceedings, DOH issued findings of fact, conclusions of




1
  Selah Care and Rehabilitation, Landmark Care and Rehabilitation, Emerald Care, Good
Samaritan Health Care Center, Willow Springs Care and Rehabilitation, Crescent Health Care,
Inc., and Summitview Healthcare Center.
52393-1-II


law, and final order (Final Order) denying it. Heritage Grove and others2 petitioned for judicial

review of the Final Order. The superior court affirmed the Final Order and also dismissed the

petition for judicial review on mootness grounds.

        Concluding that the case is moot, we affirm.

                                               FACTS

I.      OVERVIEW OF THE CN APPLICATION PROCESS

        Washington created the CN program (the Program) to “promote, maintain, and assure the

health of all citizens in the state, provide accessible health services, health manpower, health

facilities, and other resources while controlling increases in costs, and recognize prevention as a

high priority in health programs.” RCW 70.38.015(1). DOH administers the Program. RCW

70.38.105(1). Health care providers may open certain health care facilities, including nursing

homes, only after receiving a CN from DOH. RCW 70.38.025(6), .105(4)(a).

        In determining whether to issue a CN for a new health care facility, DOH usually considers

the following four criteria: (1) need, (2) financial feasibility, (3) structure and process of care, and

(4) cost containment. WAC 246-310-200(1); see WAC 246-310-210 to -240. However, RCW

70.38.115(13)(b) provides that “[w]hen an entire nursing home ceases operation, the licensee or

any other party who has secured an interest in the beds may reserve his or her interest in the beds

for eight years or until a [CN] to replace them is issued, whichever occurs first.” This procedure

is referred to as “banking” beds. The statute and regulations then allow the party who has banked

their beds to “unbank” them in a new facility. For providers filing a CN application seeking to

unbank beds, assuming certain conditions are met including that the new beds are located in the



2
  Numerous entities jointly filed the petition for judicial review: Heritage Grove, Prestige Care,
Inc., Care Center (Yakima), Inc., and Yakima Valley Ventures, LLC.


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same planning area where they were before they were banked, the applicant does not need to prove

the “need” criterion, WAC 246-310-210, in their CN application. RCW 70.38.115(13)(b); WAC

246-310-396.

II.    HERITAGE GROVE’S APPLICATION

       Until October 15, 2009, Heritage Grove operated a 97-bed nursing home facility in Yakima

County. The facility closed, and Heritage Grove sent a letter to DOH requesting to bank its beds.

DOH granted Heritage Grove’s request and stated that Heritage Grove’s reservation of the beds

would expire on October 15, 2017, unless it issued a CN before then.

       In December 2014, Heritage Grove submitted an application for a CN. Heritage Grove

sought to build a facility focused on post-acute care and sought to unbank its 97 beds. The

application stated that the facility would open as Heritage Grove but would be managed by Prestige

Care, Inc. It also stated that Prestige had “a Purchase and Sale Agreement with the current owners

of the property . . . [which] allow[ed] for the purchase to be finalized once certain contingencies

[were] met, including the approval of the [CN] application.” Admin. Record (AR) at 2494.

       After one round of screening questions, the Program began its review of Heritage Grove’s

application. It received public comments, including those by Respondent Nursing Homes, and

rebuttal comments. The Program also held a public hearing.

       On July 15, 2015, the Program completed review of the proposed facility. The Program

conditionally approved Heritage Grove’s CN application, provided that Heritage Grove agreed to

five conditions. Heritage Grove accepted all five conditions, and shortly thereafter, in August, the

Program approved Heritage Grove’s CN application. The document it sent stated: “ISSUANCE

OF THIS CERTIFICATE OF NEED IS BASED ON THE DEPARTMENT’S RECORD AND




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52393-1-II


EVALUATION.” AR at 3153. The Director of the Office of Community Health Systems authored

the approval.

       Respondent Nursing Homes then requested an adjudicative proceeding to contest the CN

approval. After a hearing, a health law judge affirmed the Program’s approval of the CN.

Respondent Nursing Homes then administratively appealed the decision.

       On August 25, 2017, at the end of the administrative appeal process, the Secretary of DOH,

via a designee, issued the Final Order denying the CN because the application failed both the

financial feasibility and cost containment criteria. Heritage Grove did not petition the secretary’s

designee to stay the Final Order.

       On September 21, 2017, Heritage Grove sought judicial review of the Final Order in

superior court. Heritage Grove did not file a petition to stay the Final Order before October 15,

2017, which was eight years from when Heritage Grove “banked” its beds.

       On August 16, 2018, the superior court affirmed the Final Order on the merits. It also

dismissed the petition on mootness grounds. Heritage Grove appeals.

                                            ANALYSIS

I.     STATUTORY INTERPRETATION

       We review questions of statutory interpretation de novo. Flight Options, LLC v. Dep’t of

Revenue, 172 Wn.2d 487, 495, 259 P.3d 234 (2011). In interpreting statutes, “[t]he goal . . . is to

ascertain and carry out the legislature’s intent.” Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d

1003 (2014). We give effect to the plain meaning of the statute as “derived from the context of

the entire act as well as any ‘related statutes which disclose legislative intent about the provision

in question.’” Jametsky, 179 Wn.2d at 762 (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC,

146 Wn.2d 1, 11, 43 P.3d 4 (2002)).



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52393-1-II


       If a statute’s meaning is plain on its face, “we must give effect to that meaning as an

expression of legislative intent.” Blomstrom v. Tripp, 189 Wn.2d 379, 390, 402 P.3d 831 (2017).

However, if “after this inquiry, the statute remains ambiguous or unclear, it is appropriate to resort

to canons of construction and legislative history.” Blomstrom, 189 Wn.2d at 390. “A statute is

ambiguous if ‘susceptible to two or more reasonable interpretations,’ but ‘a statute is not

ambiguous merely because different interpretations are conceivable.’” HomeStreet, Inc. v. Dep’t

of Revenue, 166 Wn.2d 444, 452, 210 P.3d 297 (2009) (quoting State v. Hahn, 83 Wn. App. 825,

831, 924 P.2d 392 (1996)).

II.    MOOTNESS

       The parties’ mootness arguments involve two issues. First, they dispute whether, under

RCW 70.38.115, DOH “issued” a CN to Heritage Grove within eight years. If we conclude that

DOH did not issue a CN to Heritage Grove within eight years, then they next dispute whether

RCW 34.05.574 of the Administrative Procedure Act (APA) enables this court to order specific

performance and require that DOH overturn the Final Order and reinstate the Program’s initial

approval of Heritage Grove’s CN application.

       A.      Legal Principles

       “A case is moot if a court can no longer provide effective relief.” SEIU Healthcare 775NW

v. Gregoire, 168 Wn.2d 593, 602, 229 P.3d 774 (2010). “When an appeal is moot, it should be

dismissed.” Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d

619, 631, 860 P.2d 390, 866 P.2d 1256 (1993). “‘The central question of all mootness problems

is whether changes in the circumstances that prevailed at the beginning of litigation have

forestalled any occasion for meaningful relief.’” City of Sequim v. Malkasian, 157 Wn.2d 251,




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52393-1-II


259, 138 P.3d 943 (2006) (quoting 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD

H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533.3, at 261 (2d ed. 1984)).

       It is undisputed that Heritage Grove’s CN application failed to prove “need.” Heritage

Grove’s CN application relied on the RCW 70.38.115(13)(b) exception so that its application did

not have to prove the “need” criterion. And if DOH never “issued” Heritage Grove a CN within

eight years, then Heritage Grove’s need-exempt status expired.              RCW 70.38.115(13)(b).

Therefore, if Heritage Grove’s need-exempt status expired and we are bound to remand to the

agency for it to reconsider the Final Order, DOH would simply deny Heritage Grove’s CN

application because the application failed to prove “need” and, in turn, failed to prove all of the

requisite CN application criteria.

       B.      DOH Did Not Issue a CN with Its Initial Approval

       Heritage Grove contends that DOH issued a CN when the Program approved Heritage

Grove’s application in August 2015. According to Heritage Grove, the issuance of that CN is

simply in the appeals process. We disagree.

       RCW 70.38.115(13)(b) allows a party to bank beds, but only “for eight years or until a

[CN] to replace them is issued, whichever occurs first.” In other words, a party’s reservation of

beds expires after eight years unless they are “issued” a CN within those eight years.

       Here, the only way Heritage Grove was “issued” a CN within eight years is if the Program’s

August 2015 initial approval of Heritage Grove’s CN application counted as such.3

       Our goal in interpreting statutes is to determine the legislature’s intent, and it is unlikely

that the legislature intended for a subordinate order, later overruled, to constitute the issuance of a



3
 Neither party argues that the health law judge’s decision affirming the Program’s initial approval
of Heritage Grove’s CN application constituted the “issuance” of a CN.


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52393-1-II


CN such to preserve Heritage Grove’s banked-bed status. Therefore, we conclude that the

Program’s initial approval of Heritage Grove’s CN application did not constitute the issuance of a

CN for the purposes of RCW 70.38.115(13)(b).

       The principles of finality illustrate our conclusion. “An administrative determination is not

a final order where it is a mere preliminary step in the administrative process, but it becomes final

when a legal relationship is subsequently fixed upon ‘consummation of the administrative

process.’” Lewis County v. Pub. Emp’t Relations Comm’n, 31 Wn. App. 853, 862, 644 P.2d 1231

(1982) (quoting Dep’t of Ecology v. Kirkland, 84 Wn.2d 25, 30, 523 P.2d 1181 (1974)). Here, the

initial approval was merely a preliminary step in the administrative process. Thus, Heritage Grove

could not justifiably rely on the subordinate order because that order was appealable, was in fact

appealed, and was later overruled. Additionally, the appeal to the superior court and to this court

is from the Final Order, not the subordinate order.

       We recognize that the subordinate order contained language indicating that it was the

“issuance” of a CN. However, the nomenclature used in that subordinate order does not overrule

the fact that the subordinate order was appealable and thus subject to be overturned, which it later

was. Cf. Kirkland, 84 Wn.2d at 29 (“[W]hether or not the statutory requirements of finality are

satisfied in any given case depends not upon the label affixed to its action by the administrative

agency, but rather upon a realistic appraisal of the consequences of such action.”).

       Furthermore, Heritage Grove did not file a stay of the Final Order as permitted under the

APA. See RCW 34.05.467. It had approximately two months, from the time the Final Order

issued and the time its banked-bed status expired, to do so.4


4
 Heritage Grove does not argue that there should be any tolling of the eight-year statutory time
period; therefore, we decide this issue strictly on statutory interpretation of RCW
70.30.115(13)(b).


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52393-1-II


       Accordingly, we conclude that DOH did not issue a CN to Heritage Grove within eight

years from when Heritage Grove banked its beds. Therefore, Heritage Grove’s reservation of beds

expired.

       C.       This Court Cannot Provide Meaningful Relief

       Heritage Grove argues that this court can nonetheless provide meaningful relief because it

has the authority under RCW 34.05.574 to correct the Final Order’s errors and reinstate the

Program’s initial approval of the CN. We disagree.

       Under the relief provisions of the APA,

       [A] court may (a) affirm the agency action or (b) order an agency to take action
       required by law, order an agency to exercise discretion required by law, set aside
       agency action, enjoin or stay the agency action, remand the matter for further
       proceedings, or enter a declaratory judgment order. . . . In reviewing matters within
       agency discretion, the court shall limit its function to assuring that the agency has
       exercised its discretion in accordance with law, and shall not itself undertake to
       exercise the discretion that the legislature has placed in the agency. The court shall
       remand to the agency for modification of agency action, unless remand is
       impracticable or would cause unnecessary delay.

RCW 34.05.574(1).

       The dispositive question here is whether the issuance of a CN is within DOH’s discretion.

If so, we “shall not . . . undertake to exercise the [agency’s] discretion.” RCW 34.05.574(1)(b).

       Pursuant to RCW 70.38.105(1), DOH “is authorized and directed to implement the [CN]

program in this state pursuant to the provisions of this chapter.” DOH “shall specify information

to be required for [CN] applications.” RCW 70.38.115(6). Additionally, CNs “shall be issued . .

. by the designee of the secretary in accord with the provisions of this chapter and rules of the

department which establish review procedures and criteria for the [CN] program.”                RCW

70.38.115(1).




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       We conclude that the legislature has vested the discretion to issue CNs solely with DOH.

Accordingly, we will not and cannot exercise the agency’s discretion on its behalf. Because

Heritage Grove’s CN application is based on a now-expired exception to showing the “need”

criterion, on remand, DOH would not consider granting the CN application. In other words,

agreeing substantively with Heritage Grove that the Final Order was unlawful would not provide

Heritage Grove meaningful relief. Accordingly, we conclude that this case is moot.5

       We affirm.




                                                          Melnick, J.

We concur:




       Worswick, J.




       Lee, A.C.J.




5
 Heritage Grove requests attorney fees and costs under the Equal Access to Justice Act. Because
we conclude that Heritage Grove does not prevail, we decline to award fees.


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