
    QUALICARE, INC. v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, State of Louisiana, et al.
    No. 82-C-1376.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re National Medical Enterprises, Inc. applying for writs of Prohibition, Certiorari and Mandamus, Parish of East Baton Rouge No. 256,546.

The applications for writs are granted in # 82-C-1366 and 82-C-1376. The cases are fixed for expedited hearing at 10:00 a. m. Tuesday, June 8, 1982. The cases are consolidated for argument.

Because it appears that the trial judge exceeded his jurisdiction, the stay order signed by the district judge on May 27,1982 at about 3:25 p. m. in these cases is recalled and vacated, as are any other stay orders issued in these proceedings, the effect of which is to recall and vacate the decision of the Department of Health and Human Resources awarding National Medical Enterprises, Inc. certification under the Social Security Act, Section 1122, and further recalling and vacating any orders the effect of which is to notify the United States Department of Health and Human Services to return Form HRA-45 (record of state and local action pursuant to 1122 of the Social Security Act regarding the proposed Southern Diagnostic Center of National Medical Enterprises, Inc. in Slidell, Louisiana). All other proceedings in these cases are stayed pending further orders of this Court.

CALOGERO, J., recused.

DENNIS, J., concurs in the order and assigns additional concurring reasons.

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).  