ABC Home Health of Arkansas, Inc. v. Arkansas Health Servs.

ABC HOME HEALTH OF ARKANSAS, INC., Appellant
v. ARKANSAS HEALTH SERVICES COMMISSION,
Appellee; Care Network, Inc., Intervenor;
Visiting Nurse Association of Arkansas,
Intervenor

96-486                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 11, 1996


1.   Administrative law & procedure -- limited review of agency
     decision. -- On review of an agency decision, the circuit
     court is limited to a review of the evidence to determine
     whether there was substantial evidence to support the agency's
     decision; on appeal, the supreme court's review is similarly
     limited. 

2.   Administrative law & procedure -- administrative action --
     appellant's burden on appeal. -- To set aside the Arkansas
     Health Services Commission's denial of appellant's home-
     health-sevices permits as an arbitrary and capricious agency
     decision, appellant was required to demonstrate that the
     decision was a willful and unreasoning action, made without
     consideration, and with a disregard of the facts or
     circumstances of the case.

3.   Appeal & error -- Commission's decision not abstracted --
     circuit court's order affirmed. -- The supreme court did not
     address the merits of appellant's arguments because it did not
     have an abstract of the Health Services Commission's decision;
     the Commission's decision was necessary for an understanding
     of the questions presented, and its omission from the abstract
     rendered the abstract flagrantly deficient; when an abstract's
     deficiencies are so flagrant that a decision is well nigh
     impossible, the supreme court will affirm; accordingly, the
     order of the circuit court was affirmed.


     Appeal from Pulaski Circuit Court, First Division; affirmed.
     William H. Trice, III, and Scott G. Lauck, for appellant.
     Winston Bryant, Att'y Gen., by:  Harold W. Hamlin, Asst. Att'y
Gen., for appellee Arkansas Health Services Commission.
     Jack, Lyon & Jones, P.A., by: John W. Fink, for intervenor
Visiting Nurse Association of Arkansas.

     Donald L. Corbin, Justice.
     Appellant, ABC Home Health of Arkansas, Inc., appeals the
order of the Pulaski County Circuit Court affirming the decision of
Appellee, Arkansas Health Services Commission, to deny Appellant's
applications for permits to operate a home health services company
in numerous Arkansas counties.  This appeal requires our
interpretation of the statute on the powers and duties of the
Arkansas Health Services Commission and the Arkansas Health
Services Agency, Ark. Code Ann.  20-8-103 and 20-8-104 (Repl.
1991).  Therefore, jurisdiction is in this court pursuant to Ark.
Sup. Ct. R. 1-2(a)(17)(vi).  We cannot reach the merits of the
appeal, however, due to a flagrantly deficient abstract. 
Accordingly, we affirm pursuant to Ark. Sup. Ct. R. 4-2(a)(6).
     Appellant makes two arguments for reversal.  First, Appellant
contends the Commission exceeded its statutory authority when it
denied Appellant's applications based on Appellant's inability to
demonstrate need.  Second, Appellant contends alternatively that
the Commission arbitrarily and capriciously applied its review
criteria and methodology for determining need when it denied
Appellant's applications.  On review of an agency decision, the
circuit court is limited to a review of the evidence to determine
whether there was substantial evidence to support the agency's
decision, and on appeal, this court's review is similarly limited. 
Beverly Enter.--Ark., Inc. v. Health Servs. Comm'n, 308 Ark. 221,
824 S.W.2d 363 (1992).  To set aside the Commission's denial of
Appellant's permits as an arbitrary and capricious agency decision,
Appellant must demonstrate that the decision was a willful and
unreasoning action, made without consideration and with a disregard
of the facts or circumstances of the case.  Id.
     We cannot address the merits of Appellant's arguments because
we do not have an abstract of the Commission's decision.  Although
the abstract does contain a summary of the trial court's decision
to affirm the Commission's decision, that is not sufficient for our
review as it is the Commission's decision that is at issue on
appeal.  Id.  It is impossible for us to determine whether the
Commission's decision exceeded the scope of its statutory authority
or whether the Commission's decision was arbitrary and capricious
when we do not know what the Commission's decision was or the
factors that led to it.  The abstract of the trial court's decision
lends no clarity in this regard.  The Commission's decision is
therefore necessary for an understanding of the questions presented
for our decision, and its omission from the abstract renders the
abstract flagrantly deficient.  Rule 4-2(a)(6).  We have said that
"[w]hen an abstract's deficiencies are so flagrant that a decision
is well nigh impossible, we will affirm."  Carmical v. City of
Beebe, 316 Ark. 208, 212, 871 S.W.2d 386, 389 (1994) (quoting
Haynes v. State, 313 Ark. 407, 409, 855 S.W.2d 313, 315 (1993)). 
Accordingly, we affirm the order of the circuit court.