Valencia County Commissioner Georgia Otero-Kirkham, who is a member of the health commons board of directors, said during last week’s county commission meeting that the health commons has interviewed all of the service providers that submitted proposals in June.

Otero-Kirkham said the health commons board will select a service provider this month and hold a press conference to announce the selection.

She also said the health commons will work with the selected service provider to determine what information the provider will need before moving forward with a groundbreaking in December.

She expects the service provider to take a look at the location of the hospital, which healthcare services will be provided by the hospital, and the size of the hospital.

A lawsuit challenging actions by the county commission related to the project is still awaiting a district court hearing.

Health commons board member Georgia Otero-Kirkham, who is also a county commissioner, said during Wednesday night’s county commission meeting that the health commons has accepted a number of proposals from service providers.

She said the health commons board also was given scoring sheets to help rank each service provider.

The health commons board will discuss and possibly select a service provider on Wednesday, with negotiations on an agreement to follow.

Holding the proposals in the air for the public to see, Otero-Kirkham refused to disclose which service providers had submitted a proposal, saying in order to participate on the board, she signed a confidentiality agreement with Valencia Health Commons.

In response, Commissioner Pedro Rael called on Valencia Health Commons, including Otero-Kirkham, to provide full disclosure of its activities, including releasing the names of the service providers.

“It’s outrageous to withhold that information,” Rael said, adding, “We’re entitled to know what’s going on.”

The hospital project management contract Valencia Health Commons signed with Valencia County requires the health commons to provide annual reports and financial audits, as well as any reasonable reporting requested by Valencia County.

The site proposal provides a detailed look at what the city is calling the Healthcare Hub, the area of clustered medical facilities near the Camino del Llano interchange.

The Healthcare Hub includes Presbyterian Urgent Care, Belen Meadows Healthcare and Rehabilitation Center and the private medical practice of Roland Sanchez, among other medical-related facilities.

More than $22 million of infrastructure has been invested in the Healthcare Hub during recent years by the city and Belen Consolidated Schools — things like roadwork, waterlines, drainage and the Belen High School Career Academy’s nursing program.

At least four sites will be under consideration:

• Approximately 60 acres owned by the Valley Improvement Association near the intersection of Hillandale Avenue and the Manzano Expressway in Rio Communities;
• Approximately 14 acres owned by the City of Belen near the intersection of Christopher Road and Camino del Llano in Belen;
• Approximately 20 acres owned by a private individual near the intersection of Christopher Road and Camino del Llano in Belen;
• Approximately 10 acres owned by a private individual near the intersection of Don Luis Trujillo Boulevard and the Interstate 25 (I-25) Bypass in Belen.

The hospital is expected to need three acres, plus parking.

Three of the four proposed sites have been offered as a donation, if possible. The site near the I-25 Bypass has a price.

“The city is interested in a comprehensive comparison of all of the proposed sites,” Belen City Councilor Jerah Cordova told the Valencia County Commission on Wednesday night.

During the county commission meeting, Commissioner Pedro Rael cautioned the city about trying to donate land to Valencia Health Commons, a private nonprofit corporation, because the New Mexico Constitution typically disallows donations to corporations.

Internally, city officials have had extensive discussions of the law to ensure compliance, should the city’s proposed site be selected.

While that initial lawsuit was resolved when the New Mexico Supreme Court refused to hear an appeal of the case, a new lawsuit challenging the contract and a $30,000 donation by the county to Valencia Health Commons was filed on Monday.

Otero-Kirkham, who was appointed to the health commons board last month, said the board discussed alternative sites for the hospital. Right now, the proposed location for the hospital is near the intersection of Hillandale Avenue and the Manzano Expressway in Rio Communities.

She said the board also approved the language of a request for proposal for healthcare service providers, as well as a memorandum of understanding that eventually would be signed with the chosen provider.

The board took action despite the lawsuit pending in district court.

The lawsuit filed Monday afternoon in district court says the county commission’s donation of $30,000 to update a feasibility study of the proposed hospital, which was approved at a meeting last month, is illegal under the anti-donation clause of the constitution, which prohibits governments from making “any donation to or in aid of any person, association or public or private corporation.”

The donation was made to Valencia Health Commons, a private nonprofit corporation. The anti-donation clause, however, has exceptions.

The lawsuit also questions the validity of the contract Valencia County signed with Valencia Health Commons.

The original lawsuit, which was recently ended after the New Mexico Supreme Court refused to hear to case, also challenged the validity of the contract. Previously, the New Mexico Court of Appeals held that the contract was valid under the New Mexico Hospital Funding Act.

Last month, the county commission amended the contract to extend it by 20 months, giving Valencia Health Commons 56 months instead of 36 months to build a hospital.

Specifically, the new lawsuit alleges the contract is invalid because it “imposes no obligation or duty on Valencia Health Commons to actually construct a hospital in Valencia County,” or what the court filing calls “a lack of mutuality of obligation.”

The attorney for the plaintiffs, James L. Sanchez, is seeking declaratory and injunctive relief from district court, asking the court to find a violation of the anti-donation clause, as well as to void the contract between Valencia County and Valencia Health Commons.

The court denied the plaintiffs’ writ of certiorari on Thursday, posting a document on its website showing the denial.

Not hearing the case is often considered the supreme court’s way of affirming previous court decisions.

In February, the New Mexico Court of Appeals affirmed an earlier district court decision, validating a project management contract that Valencia County signed with a local nonprofit, among other things.

It’s unclear what effect the end of the litigation will have on the construction of a hospital.

One remaining area of contention is whether or not the nonprofit, Valencia Health Commons, has enough time under the terms of its contract with the county to fulfill its obligations under the contract.

Valencia Health Commons needs to find financing to construct the facility, with estimates between $12 and $15 million.

The county is still collecting the mill levy for the hospital, but that money can be used only for operation and maintenance of a hospital.

The New Mexico Court of Appeals ruled early last month that the health care facilities contract Valencia County signed with a local nonprofit complied with state law. The plaintiffs had argued that the contract was illegal under the New Mexico Hospital Funding Act because the nonprofit — Valencia Health Commons — isn’t a hospital located in New Mexico, which the plaintiffs say is a requirement of the act.

The decision by the appellate court upheld an earlier district court ruling.

James L. Sanchez, the attorney for the plaintiffs, filed a writ of certiorari with the supreme court requesting the court review the case, reverse the court of appeals decision and remand it to the district court to invalidate the contract through injunctive relief.

In the filing, Sanchez argues that the court of appeals committed error when it provided a flexible interpretation of the Hospital Funding Act instead of a strict interpretation.

Strict interpretation, or what Sanchez calls “strict construction,” is key to the plaintiffs’ argument that the contract, which would give approximately $21-million in mill levy funds to Valencia Health Commons, could only be signed with a hospital in New Mexico.

“The plain meaning mean of the Act clearly requires an actual existing physical facility as Plaintiffs claim,” Sanchez writes.

Under its flexible interpretation, the court of appeals said the contract could be signed with Valencia Health Commons, even though it has no physical hospital, because it would have a physical hospital at the time the mill levy money is turned over to the health commons for operation and maintenance.

Sanchez writes that the court of appeals decision essentially legislates from the bench, adding words and powers to the Hospital Funding Act that the legislature didn’t intend.

“The combined effect of adding the words ‘pledge’ and ‘escrow’ to the Act, and by not requiring a contracting hospital to have ‘physical facilities’ is to amend the Hospital Funding Act and the power to issue a mill levy under the Act, so that mill levy funds will be available to pay for the construction of a hospital without voter approval,” Sanchez writes.

The supreme court could take approximately four months to decide if it’ll review the case.

Related document:

(Valencia! redacted one phone number and five addresses.)

The attorney for the nine plaintiffs who filed the lawsuit against the county — James L. Sanchez — has said he intends to request the supreme court take up the case, just a week after the New Mexico Court of Appeals ruled against his clients. The case was first heard by district court, which also ruled against the plaintiffs.

The plaintiffs first argued that the hospital mill levy passed by voters in 2006 couldn’t be used for construction of a hospital but only hospital operation and maintenance. The county agreed to use the money only for operation and maintenance.

After the district court allowed the county to enter into a health care facilities contract with a local nonprofit, Valencia Health Commons, the plaintiffs appealed to the New Mexico Court of Appeals, arguing the contract is a violation of the New Mexico Hospital Funding Act because the health commons isn’t a hospital located in New Mexico, which they say is a requirement in the act.

“You’ve now had two courts look at the contract and say it’s OK,” Duane Brown with Mondrall Sperling, who represents the county, told the county commissioners.

He said the plaintiffs can ask the appellate court to rehear the case or ask the supreme court to review the appellate court’s decision.

“They would be asking the supreme court to review this decision by the court of appeals to see if the court of appeals had made a mistake,” Brown said.

He said the supreme court can reject the case within approximately 90 days after Sanchez files a writ of certiorari requesting the court review the case.

If the supreme court decides to to hear it, the time frame is much longer.

“Should the supreme court say, ‘Yes, this decision by the court of appeals deserves a second look,’ then it could be much longer than three to four months,” Brown said.

Commissioner Ron Gentry has frequently decried delays in constructing a hospital that are caused by the lawsuit.

“If the supreme court decides they don’t want to hear the issue, then do you appeal it to the pope?” Gentry quipped.

Brown said if the supreme court refuses to hear it the case has nowhere else to go within the New Mexico court system.

“There is an end in sight,” Gentry said.

None of the other commissioners, a couple of whom are usually outspoken on the hospital issue, said a word about the hospital or decision during the commission meeting.

The New Mexico Court of Appeals ruled on Thursday that the county holds a valid contract with a local nonprofit for management of the hospital project, a contract that had been challenged in a lawsuit appeal by nine county residents.

“They’ve had us in court about two and a half years, holding up the process so we can’t start building the hospital,” he said, speaking last night at a meeting of the Rio Communities Association.

He said the court ruled the local nonprofit, Valencia Health Commons, was properly constituted, and the contract between the health commons and the county for management of the project has been upheld.

“The appellate court said 100 percent the plaintiffs were wrong,” Gentry said.

Gentry said an effort by the plaintiffs to have the case heard by the New Mexico Supreme Court would be an attempt to overturn the decision of both the district court and the court of appeals.

He said the supreme court likely won’t hear the “frivolous” case, finding that the appeal doesn’t have merit.

“Every one of the courts has ruled that the project was done the right way,” he said.

Gentry said the project will simply be stalled another 30 to 45 days before the supreme court decides if it’ll hear the case.

He said he wants the plaintiffs “to put up a bond for all the work, all the expense and all the stalling they are causing us.”

“They read the law wrong. They interpreted the law wrong. They presented the law wrong. The courts did not agree with them and ruled against them,” he said.

“The district court found that Defendant did not exceed its authority under the Hospital Funding Act. We agree and affirm,” Appellate Judge James J. Wechsler wrote in the appeals court’s 13-page opinion.

The act regulates how hospitals are funded, including the construction, maintenance and operation of hospitals.

In 2006, voters in Valencia County approved a hospital mill levy, regulated by the act, which will be used for maintenance and operation of a hospital in the county. Shortly after, a lawsuit was filed.

The plaintiffs-appellants, a group of nine county residents, argued the health care facilities contract with the nonprofit, Valencia Health Commons, was invalid because the health commons wasn’t a hospital located in New Mexico, which the plaintiffs said state law required the contracting entity to be.

The appeals court said the contract complies with state law because Valencia Health Commons won’t receive mill levy money until the nonprofit has achieved “substantial completion” of a hospital in Valencia County.

“The contract at issue does not pledge mill levy proceeds for anything other than the performance of a health care facilities contract for a hospital located in New Mexico, albeit one that will be operating at some point in the future,” the appeals court writes.

The court also pointed to a conflict between the plaintiff’s “limited interpretation” of the Hospital Funding Act versus the “legislative intent” of the act.

“Plaintiffs’ argument does not comport with the expressed purpose of the Hospital Funding Act ‘to provide flexibility in financing construction, operation and maintenance of necessary hospital facilities,’” the court writes.

The ruling means Valencia Health Commons has a valid contract and can begin to move forward with seeking financing for the construction of a hospital.

The plaintiffs have the option to appeal the decision to the New Mexico Supreme Court.

Related Documents:

(Valencia! redacted fax information and three signatures.)