The opinion
Mr. Ray Hanley, Chairman Long Term Care Facility Advisory Board Arkansas Department of Human Services Division of Medical Services Donaghey Plaza South P.O. Box 1437 Little Rock, AR 72203-1437
Dear Mr. Hanley:
This is in response to your request for an opinion regarding whether certain actions taken by the Office of Long Term Care of the Arkansas Department of Human Services give rise to an appealable issue before the Long Term Care Facility Advisory Board ("Board"). Your specific question is:
Does Ark. Code Ann. § 20-10-303 create a right under which a nursing home may appeal deficiencies other than `out of substantial compliance' deficiencies, or does it merely authorize the Board to hear appeals regarding rights created in other?
You have provided copies of various documents filed in Medi-Home, Inc. v. Arkansas Department of Human Services, et al., a matter currently pending before the Board, including the transcript of the Board's meeting of February 12, 1997, at which the parties presented arguments. At issue is the question of the Petitioner's right to appeal a particular deficiency and imposition of a remedy to the Board.
It is apparent from a review of the transcript that the question on which you seek an opinion is the precise question pending before the Board in this particular appeal involving Medi-Homes, the Petitioner. These circumstances prevent me from rendering an opinion in this matter. It is this office's long-standing policy not to render opinions with respect to matters that are currently in litigation. This policy has also been consistently applied to matters that are the subject of administrative proceedings. See Op. Att'y Gen. Nos. 96-137 , 92-360, and 90-114. I must therefore decline to issue the requested opinion. Questions raised in a quasi-judicial proceeding before an administrative agency are properly addressed in that forum. 1 An opinion from this office would merely amount to my comment on a matter that is appropriately before the Board.
This office will, of course, in its capacity as legal advisor to the Board, offer assistance as requested through our Civil Division.
Sincerely,
WINSTON BRYANT Attorney General
WB:EAW/cyh
1 Final action by the Board is subject to judicial review in circuit court in accordance with the Administrative Procedure Act, A.C.A. § 25-15-201 et seq. ("APA"). See A.C.A. § 20-10-303 (d) (providing that appeals under § 20-10-303 shall be conducted in accordance with the APA).