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Living Cross Ambulance Service, Inc. v. New Mexico Public Regulation Commission

Supreme Court of New Mexico

January 5, 2017

LIVING CROSS AMBULANCE SERVICE, INC., Appellant,
v.
NEW MEXICO PUBLIC REGULATION COMMISSION and AMERICAN MEDICAL RESPONSE AMBULANCE SERVICE, INC., d/b/a AMERICAN MEDICAL RESPONSE, EMERGICARE, Appellees.

         APPEAL FROM THE NEW MEXICO PUBLIC REGULATION COMMISSION

          Joseph E. Earnest Tesuque, NM for Appellant

          Russell R. Fisk Santa Fe, NM for Appellee New Mexico Public Regulation Commission

          Miller Stratvert P.A. Jennifer Davis Hall Stephen B. Waller Albuquerque, NM for Appellee American Medical Response Ambulance Service, Inc., d/b/a American Medical Response, Emergicare

          DECISION

          EDWARD L. CHÁVEZ, Justice

         {1} The New Mexico Public Regulation Commission (PRC) granted Appellee American Medical Response Ambulance Service, Inc., d/b/a American Medical Response, Emergicare (AMR) a permanent certificate to provide ambulance service in Valencia County under the provisions of the Motor Carrier Act, NMSA 1978, §§ 65-2A-1 to -41 (2003, as amended through 2013). Valencia County is a rural county that has recently experienced population growth, with most of its population concentrated in Los Lunas. Despite this recent growth, patients who live in Valencia County and require ambulance transportation to a hospital must be transported to Albuquerque, which can be a 20 to 35 mile trip that occupies an ambulance for two or more hours.

         {2} From 1987 until April 5, 2013, Appellant Living Cross Ambulance Service, Inc. (Living Cross) had been the sole and primary provider of ambulance services in Valencia County, with the exception of a brief period between 1999 and 2000 when Superior Ambulance Company (Superior) was granted authority to operate in Valencia County. In December 2012, Living Cross reduced its fleet from three 24hour ambulances and two 12-hour ambulances to three 24-hour ambulances and one 12-hour ambulance. Living Cross subsequently reduced its fleet to two 24-hour ambulances in April 2013 to coincide with a grant of temporary authority from the PRC allowing AMR to operate in Valencia County.

         {3} After the administrative proceedings in this case, the hearing examiner concluded that Living Cross did not provide continuous and adequate service from 2011 through 2013, prior to AMR's entry into Valencia County, and Living Cross was not able to provide continuous and adequate service at the time of the proceeding. Section 65-2A-13(D)(1). The hearing examiner further concluded that Living Cross did not adequately show that it would be able to provide continuous and adequate service in the future if AMR's application were denied, and also found that Living Cross did not show that its prior financial difficulties were substantially impacted by the entry of AMR. Id.; § 65-2A-8(D). With respect to AMR, the hearing examiner concluded that (1) AMR was fit, willing, and able to provide ambulance services in Valencia County, § 65-2A-8(B)(1); (2) AMR was in compliance with relevant safety and financial responsibility requirements, § 65-2A-8(B)(2); and (3) granting AMR permanent authority to provide ambulance services would "meet an ongoing public demand or need and thereby serve a useful public purpose, " § 65-2A-8(B)(3). The PRC adopted the hearing officer's findings and conclusions in full and issued a certificate allowing AMR "to provide ambulance service from points and places in Valencia County to points and places in Valencia and Bernalillo Counties, New Mexico." Living Cross appealed the PRC's decision on numerous grounds. We conclude that Living Cross's arguments lack merit, and the PRC's decision in this case was not arbitrary, capricious, or an abuse of discretion. Accordingly, we affirm the PRC.

         DISCUSSION

         1. Standard of review

         {4} We may only reverse the PRC's order if we determine that it is "(1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not in accordance with law." Section 65-2A-35(C). "[W]e apply a de novo standard of review to the PRC's rulings regarding statutory construction." Albuquerque Bernalillo Cty. Water Util. Auth. v. N.M. Pub. Regulation Comm'n, 2010-NMSC-013, ¶ 50, 148 N.M. 21, 229 P.3d 494. "With respect to questions of fact, we look to the whole record to determine whether substantial evidence supports the [PRC's] decision." N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm'n, 2007-NMSC-053, ¶ 24, 142 N.M. 533, 168 P.3d 105. Although we view the evidence in the light most favorable to the PRC's decision, we uphold the decision only if it is supported by substantial evidence. Id. "Substantial evidence on the record as a whole is evidence demonstrating the reasonableness of an agency's decision, and we neither reweigh the evidence nor replace the fact finder's conclusions with our own." Albuquerque Bernalillo Cty. Water Util. Auth., 2010-NMSC-013, ¶ 24 (internal quotation marks and citation omitted).

         2. The PRC did not err by granting operating authority to AMR for non- emergency service without considering the need for such service

         {5} Living Cross contends that the PRC should not have granted AMR the authority to provide non-emergency ambulance service because AMR did not introduce evidence supporting the need for such service, a showing which Living Cross claims is required by the Motor Carrier Act. Under the Motor Carrier Act, an applicant seeking authority to provide ambulance service has "the burden of proving that the ambulance service that currently exists in the territory sought in the application is inadequate and that the proposed service is directly responsive to a public need and demand for the service proposed." Section 65-2A-13(C)(1). The PRC shall not grant an application

for a certificate or permit for ambulance service, or for amendment, lease or transfer of such a certificate or permit, if it finds after hearing that the existing ambulance service is provided on a reasonably continuous and adequate basis in the territory in which the new service is sought or that the holder of the certificate or lessee providing the existing ambulance service in such territory is willing and able to provide, and does subsequently provide, reasonably continuous and adequate service within such territory, as specified by commission order.

         Section 65-2A-13(D)(1). "[A]mbulance service" is "the intrastate transportation of sick or injured persons in an ambulance meeting the standards established by the [PRC]." Section 65-2A-3(B). The Motor Carrier Act does not make any distinction between emergency and non-emergency services.

         {6} Despite the plain language of the Motor Carrier Act, Living Cross contends that the PRC has in the past granted authority only for non-emergency ambulance service, and therefore there is precedent for the practice. Living Cross is correct that the PRC previously granted an applicant under severe financial stress permission to provide only non-emergency ambulance service. See Bernalillo Cty. Health Care Corp. v. N.M. Pub. Regulation Comm'n, 2014-NMSC-008, ¶ 5, 319 P.3d 1284. Although we vacated the PRC's order because it was arbitrary and capricious, we found substantial evidence to support the PRC's determination in that case that there was a public need for additional non-emergency ambulance services only. Id. ¶¶ 27-28.

         {7} However, our approval of the PRC's exercise of its discretion in one case involving financial hardship does not require the PRC to reach an identical result in all such cases. In this case, AMR applied for a certificate to provide ambulance services. The question was whether AMR met its burden of proving that the ambulance service provided by Living Cross is inadequate and that AMR's proposed service is directly responsive to a public need and demand. Section 65-2A-13(C)(1) & (D)(1). The hearing examiner found that "[N]o party presented evidence indicating that there [was] not a need for non-emergency service or that the certificate should be narrowed for any other reason to emergency service, " and therefore recommended that the PRC issue a certificate to AMR for "ambulance service." By contrast, in Bernalillo County Health Care, the applicants provided 39 affidavits and other testimony to specifically support the need for non-emergency services. 2014-NMSC-008, ΒΆ 27. Because there was no specific showing in this case that it was necessary to conduct distinct analyses of emergency and ...


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