Judges: WRITTEN BY: Paul L. Douglas, Attorney General; Marilyn B. Hutchinson, Assistant Attorney General.
Filed Date: 7/12/1979
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: John E. Knight, Director, State Department of Public Welfare, Lincoln, Nebraska. Does the license of a nursing home remain in full force and effect pending a decision on a timely appeal from revocation by the Department of Health?
Yes, as discussed below.
If the Department of Health suspends or revokes the license of a nursing home, its decision is final unless the licensee makes a timely request for an evidentiary hearing before the department. After such a hearing, a decision of the department affirming the revocation is final unless the licensee makes a timely appeal to the district court as provided in sections
There is no requirement that the licensee post bond to appeal. Section
The evidentiary hearing before it under section
The Court in Porter v. Investors Syndicate,
". . . It would be strange indeed if the commissioner's action thus subject to alteration were nevertheless to be made as effective to harm the parties in interest as if no further administrative procedure existed. We cannot so read the act in the absence of clear and unambiguous phraseology requiring that course, or of a decision of the state court so construing it." Supra at 471.
Under section
A similar result was reached by our court in Rhoadesv. State Real Estate Commission,
"The purpose and effect of furnishing an appeal or supersedeas bond when permitted by law is to stay proceedings and preserve the status quo pending final determination of the litigation. If the result of the first hearing in the district court had agreed with the order of the commission and if it had been affirmed by this court, the time of commencement of the period of suspension of the license of appellee would have been automatically advanced until the judgment providing for the suspension became final and enforceable. . . ." Supra at 627.
We have concluded that when an appeal is taken under section
We have concluded that the licensee can continue to operate its facility as though its license were in full force and effect pending a final determination of its appeal. If the order of the department is affirmed on appeal, the suspension or revocation will commence at the time of the final judgment, not at the time of the department's order.