SPEARMAN, J.

¶ 1 We are asked to determine whether a Health Law Judge (HLJ) acted arbitrarily and capriciously in entering a final order approving a settlement between the Department of Health (Department) and Odyssey Healthcare. The central component of the settlement was the Department's approval of Odyssey's 2006 Certificate of Need (CN) application to provide hospice care in King County. Evergreen and other competing providers filed a petition for review of the HLJ's order in superior court. The superior court reversed the HLJ's order on the grounds that (1) Evergreen had not received a full adjudicative hearing; (2) the Department acted arbitrarily and capriciously in settling Odyssey's federal lawsuit by granting Odyssey's 2006 CN application based on evidence obtained long after the record for that application was closed; and (3) the HLJ acted arbitrarily and capriciously in adopting the settlement without finding that Odyssey had met all four of the CN criteria. The court revoked the CN and remanded to the HLJ. Odyssey appeals. We hold that the HLJ's approval of the settlement was not arbitrary and capricious for the reasons asserted by Evergreen on appeal. We reverse and remand.

FACTS

¶ 2 In Washington, hospice care can be offered only by holders of CNs, which are nonexclusive licenses. RCW 70.38.025(6); RCW 70.38.105. To obtain a CN, a provider's proposal must meet four criteria: (1) need for the proposed program, (2) financial feasibility of the program, (3) structure and process of care, and (4) cost containment. WAC 246-310-210 through -240. The CN process involves an application by a provider; notification to certain interested parties, such as competitors, and an opportunity for public comment (including a hearing, if requested); and a decision by the Department. See RCW 70.38.115. An applicant denied a CN has the right to an adjudicative proceeding. RCW 70.38.115(10)(a). If the Department wishes to settle with an applicant prior to the conclusion of the adjudicative proceeding, the Department must inform competitors and afford them an opportunity to comment, in advance, on the proposed settlement. RCW 70.38.115(10)(c).

¶ 3 In October 2006, Odyssey filed CN applications to offer hospice services in King, Snohomish, and Pierce counties. This was Odyssey's second attempt to obtain CNs for these counties; its 2003 applications had been denied.1 The Department denied the 2006 applications in August 2007. Odyssey requested adjudicative proceedings to appeal the denials before an HLJ. Evergreen's request to intervene was granted. The HLJ, John F. Kuntz, granted various stays, one due to Odyssey's plan to file a federal lawsuit. On April 7, 2009, Odyssey filed a lawsuit against the Department in federal district court, alleging violations of the Sherman Anti-Trust Act, 15 U.S.C. § 1; the dormant commerce clause, U.S. Const. art. I, § 8, Cl. 3; and 42 U.S.C. § 1983.2.

¶ 4 The Department and Odyssey entered into settlement negotiations to resolve the federal lawsuit and the adjudicative proceedings. On September 25, 2009 they reached an agreement, memorialized in two documents: (1) a settlement to resolve the federal lawsuit and (2) a proposed settlement and stipulation to resolve the adjudicative proceeding. The settlement in the federal lawsuit required the parties to enter into the settlement and stipulation in the adjudicative proceeding.3 The settlement also contained a release provision to ensure that the Department would act in good faith in deciding whether to present the proposed settlement in the adjudicative proceeding to the HLJ and support the HLJ's approval of it.4

¶ 5 Under the proposed settlement in the adjudicative proceeding, the parties proposed approval of Odyssey's CN application based on more recent data showing that need now existed for a new hospice in King County (2008 methodology).5 The Department agreed to provide appropriate entities notice and an opportunity to comment on the proposed settlement. The proposed settlement stated that the Department would then "(i) present the Stipulation to the Health Law Judge for entry of an Order approving the proposed settlement and granting the King County application . . . , or (ii) notify Odyssey of its decision not to present the Stipulation to the Health Law Judge. . . ." Odyssey agreed to withdraw its request for adjudicative proceedings to appeal the denials for CNs for Pierce and Snohomish counties.

¶ 6 On September 29, 2009, the Department issued a "Notice of Possible Settlement and Opportunity to Comment," announcing that the Department and Odyssey proposed a settlement that would approve of Odyssey's 2006 CN application for King County. The notice requested comment within 14 days. The Department received comments from several competing providers, including Evergreen and the other appellants, opposing approval of a CN for Odyssey. The competitors contested the Department's use of the 2008 methodology, arguing that the Department could not use data obtained 15 months after its decision in order to grant the 2006 application. They contended that the Department properly evaluated Odyssey's application in August 2007 using the same methodology upheld by this court in the appeal of Odyssey's 2003 CN application and that a deviation would require rulemaking. They also claimed that the Department failed to include some approved hospice providers and artificially extended the forecast horizon applicable for the need methodology. Finally, they asserted that the Department failed to evaluate how Odyssey satisfied the non-need criteria.

¶ 7 Providence renewed its motion to intervene, and Swedish and Franciscan also filed motions to intervene. The HLJ granted the motions, but only for the limited purpose of submitting written evidence and legal argument on the proposed settlement. The HLJ stated:

¶ 8 On October 30, 2009, the Department submitted its proposed settlement to the HLJ and recommended approval of Odyssey's CN application. The Department noted that the need criterion was the only contested issue in the approval of Odyssey's 2006 CN application and that the competitors did not contest the non-need criteria. It stated that the application failed the three other criteria "only because Odyssey had not demonstrated need" and that "the Program would have approved the application had Odyssey demonstrated need." The Department then analyzed why the need criterion was met based on the 2008 methodology. The competitors filed responses opposing the proposed settlement, arguing that it contravened CN laws and departmental policy.

¶ 9 The HLJ approved the proposed settlement and the Department's proposed order to grant Odyssey's CN application for King County, issuing a final order on December 8, 2009. The HLJ found:

The HLJ held: (1) there was proper notice and opportunity to comment on the proposed settlement and the proposed settlement was properly presented to the HLJ; (2) Odyssey's hospice application met all four criteria for the issuance of a CN under RCW 70.38.115(2) and WAC 246-310-210 through -240; (3) the Department, in an "exercise of discretion," could use the 2008 methodology to decide "that need exists for Odyssey's proposed hospice in King County"; and (4) Odyssey's requests for adjudicative proceedings to challenge the denials for CNs in Pierce and Snohomish counties would be voluntarily dismissed. Id. The HLJ ordered that "[w]ith the stated conditions in the proposed settlement," Odyssey's CN application for a hospice agency in King County was approved.

¶ 10 The competitors filed a petition for review of the HLJ's final order in superior court on January 7, 2010. On January 13, the Department issued a CN to Odyssey. On October 29, the superior court reversed the HLJ's final order, entering findings of fact and the following conclusions of law:

Odyssey appeals, assigning error to all of the superior court's conclusions of law. The Department submits briefing to defend its final order.6

DISCUSSION7

¶ 11 In reviewing the HLJ's final order, we "sit in the same position as the superior court, applying [Washington's Administrative Procedure Act] to the record before the agency." DaVita, Inc. v. Wash. State Dep't of Health, 137 Wn.App. 174, 180, 151 P.3d 1095 (2007) (citing Towle v. Dep't of Fish and Wildlife, 94 Wn.App. 196, 203, 971 P.2d 591 (1999)). The standard of review for CN cases specifically is stated as follows:

Univ. of Wash. Med. Ctr. v. Dep't of Health, 164 Wn.2d 95, 102-03, 187 P.3d 243 (2008) (UWMC) (internal citations omitted). Thus, the challenger has the burden of showing the department misunderstood or violated the law, or made decisions without substantial evidence. We do not reweigh the evidence. Id.

¶ 12 The scope of review under the arbitrary and capricious standard "is very narrow," "highly deferential" to the agency and the party challenging an agency decision carries "a heavy burden." Alpha Kappa Lambda Fraternity v. Wash. St. Univ., 152 Wn.App. 401, 418-22, 216 P.3d 451 (2009) (citing Pierce County Sheriff v. Civil Serv. Comm'n, 98 Wn.2d 690, 695, 658 P.2d 648 (1983)). "[W]here there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous." Wash. Indep. Tel. Ass'n v. Wash. Utils. & Transp. Comm'n, 148 Wn.2d 887, 904, 64 P.3d 606 (2003).

¶ 13 Evergreen contends the HLJ's final order was arbitrary and capricious because: (1) in approving Odyssey's 2006 CN application, the Department relied on evidence not available until long after the application was made; (2) notwithstanding the use of the 2008 methodology, the Department did not conduct any analysis of the three non-need criteria for a CN application; and (3) notwithstanding the use of the 2008 methodology, the need criterion was not met.8 We consider these arguments in turn.

Considering 2008 methodology

¶ 14 Evergreen contends that, in approving Odyssey's CN application, the Department impermissibly relied on the 2008 methodology, evidence that was not available until two years after the original application was made and more than a year after the record closed. Evergreen claims this violated the Department's general policy—as explained in a memorandum from the Department's secretary and in the Department's answer in the federal lawsuit—and case law, citing UWMC.9 It also argues that considering new data is contrary to the legislative goal, stated in RCW 70.38.015(2), of overseeing the development of health and medical resources in a planned, orderly fashion because providers would be unable to rely on the Department to apply CN rules in a planned, orderly fashion.

¶ 15 Odyssey argues that prohibiting consideration of the new evidence would thwart the Department's broad authority to settle under RCW 70.38.115(10)(c); improperly limit an HLJs' discretion to consider new evidence under UWMC; allow use of the Department's prior, incorrect projections of need; and preclude Odyssey from presenting evidence showing its need projections were accurate. Odyssey argues that neither the Secretary's memorandum nor the Department's denials of liability in an answer to the complaint have the force of law to overrule UWMC.

¶ 16 We conclude that the HLJ's order approving the settlement was not arbitrary and capricious on the ground that the Department agreed to consider the 2008 methodology. The critical fact is that the Department considered this new evidence in the context of a settlement.10 Evergreen cites no authority precluding the Department, in a situation where it desires to settle a case, from deviating from its general policy in adjudicative proceedings of not considering evidence available after the review period. Furthermore, chapter 70.38 RCW, as we have noted, imposes no substantive or evidentiary limitations on settlements. Finally, the Department described, in its notice of possible settlement, the "special circumstances" that existed for considering the new evidence:

Given this explanation and the circumstances under which the new evidence was considered, Evergreen does not meet its burden of overcoming the presumption that the HLJ's approval of the settlement was correct.

Non-need criteria

¶ 17 Evergreen next contends that, notwithstanding the use of the 2008 methodology, the Department did not conduct any analysis of the three non-need criteria and the record does not support the HLJ's findings that those criteria were met. It contends the Department did not address the concerns it had about these criteria when it rejected Odyssey's applications in 2007 and, to the extent it articulated certain requirements in 2007, did not explain how they had since been met or no longer needed to be met.

¶ 18 Odyssey contends the HLJ found that its application met all four CN criteria. It contends that the Department's initial evaluation states that the non-need criteria were not satisfied solely because the need criterion had not been satisfied. The Department agrees with Odyssey.

¶ 19 We conclude the record supports Odyssey's (and the Department's) contention that the three non-need criteria were initially found to be unmet in 2007 because the need criterion was not met. Though the Department was required to make findings regarding Odyssey's CN application, there is no apparent requirement for how detailed the findings must be. WAC 246-310-490 states, "The findings of the department's review of a certificate of need application shall be stated in writing and include the basis for the decision of the secretary's designee as to whether a certificate of need is to be issued or denied for the proposed project." Here, the HLJ found in his final order: "For reasons stated by the [CN] Program in its evaluation and settlement proposal . . . Odyssey's hospice application for King County meets the requirements of WAC 246-310-210, 246-310-220, 246-310-230, and 246-310-240." The cited WAC provisions contain the four CN criteria. In its settlement proposal, the Department stated:

¶ 20 The Department's written evaluation initially denying the CN in August 2007 supports the foregoing statement. In its evaluation, the Department first explained why the need criterion was not met. It then addressed the financial feasibility criterion, with its three sub-criteria: (1) the immediate and long-range capital and operating costs of the project can be met; (2) the costs of the project, including any construction costs, will probably not result in an unreasonable impact on the costs and charges for health services, (3) and the project can be appropriately financed. The evaluation found that the first and second of these sub-criteria were not met. The first was not met, the evaluation explained, because:

As for the second sub-criterion, the evaluation explained:

¶ 21 Next, regarding the "structure and process (quality) of care" criterion, the Department's 2007 evaluation concluded that only the following sub-criterion, out of five, was not met: "The proposed project will promote continuity in the provision of health care, not result in an unwarranted fragmentation of services, and have an appropriate relationship to the service area's existing health care system." The evaluation explained:

¶ 22 Finally, with respect to the cost containment criterion, the 2007 evaluation concluded:

¶ 23 Evergreen does not show that the HLJ's approval of the settlement was arbitrary and capricious given that the record supports the Department's statement to the HLJ that had the need criterion been met in the initial evaluation, the other criteria would have been met as well.

Need criterion

¶ 24 Finally, Evergreen argues that, notwithstanding the consideration of the 2008 methodology, the Department's analysis of the need criterion was incomplete and faulty.13 Odyssey and the Department disagree, claiming that Odyssey's application satisfied the need criteria under WAC 246-310-210 and 246-310-290.14

¶ 25 Regarding whether the need criterion was or was not met, we note that we do not retry factual issues but instead accept administrative findings "unless we determine them to be clearly erroneous, that is, the entire record leaves us with a definite and firm conviction that a mistake has been made." UWMC, 164 Wash.2d at 102-03, 187 P.3d 243. The record reflects that the Department submitted to the HLJ an extensive analysis as to why the need criterion was met based on more recent data. Evergreen presented arguments as to why the criterion was not met to both the Department and the HLJ. Evergreen repeats those arguments on appeal but fails to meet its burden of showing that the Department's finding of need for an additional hospice agency was clearly erroneous or that the HLJ acted arbitrarily and capriciously in finding that the need criterion had been met where the Department's analysis showed that it was.

¶ 26 We conclude that the HLJ's final order approving the settlement between the Department and Odyssey was not arbitrary and capricious for the reasons asserted by Evergreen, and therefore reverse the trial court and remand for further proceedings.

¶ 27 Reversed and remanded.

WE CONCUR: APPELWICK and ELLINGTON, JJ.