MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Public Health and Human Services; Ways and Means
By: Representative White
AN ACT TO BE KNOWN AS THE HEALTH CARE COLLABORATION ACT OF 2017; TO DEFINE CERTAIN TERMS; TO AUTHORIZE THE BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING AND THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER TO INCORPORATE HEALTH CARE COLLABORATIVES AND TO SPECIFY THE PROCEDURE FOR INCORPORATION UNDER THE MISSISSIPPI NONPROFIT CORPORATION ACT; TO SPECIFY THE POWERS OF HEALTH CARE COLLABORATIVES; TO AUTHORIZE HEALTH CARE COLLABORATIVES TO BORROW MONEY OR INCUR INDEBTEDNESS AND ISSUE BONDS, NOTES OR OTHER EVIDENCE OF INDEBTEDNESS; TO EXEMPT THE PROPERTY AND CERTAIN ACTIVITIES OF HEALTH CARE COLLABORATIVES FROM SALES TAX, AD VALOREM TAX AND FRANCHISE TAX; TO AUTHORIZE THE STATE, ANY GOVERNMENTAL ENTITY, ANY UNIVERSITY OR ANY PUBLIC CORPORATION TO PLEDGE ITS FULL FAITH AND CREDIT TO OR FOR THE BENEFIT OF A HEALTH CARE COLLABORATIVE OR PLEDGE ANY REVENUES THAT IT IS LEGALLY ENTITLED TO PLEDGE TO OR FOR THE BENEFIT OF A HEALTH CARE COLLABORATIVE; TO PROVIDE THAT HEALTH CARE COLLABORATIVES SHALL BE IMMUNIZED FROM LIABILITY UNDER THE FEDERAL AND STATE ANTITRUST OR COMPETITION LAWS TO THE FULLEST EXTENT ALLOWED BY LAW; TO EXEMPT HEALTH CARE COLLABORATIVES FROM THE ETHICS IN GOVERNMENT LAWS, THE STATE PERSONNEL SYSTEM LAWS, THE OPEN MEETINGS ACT, THE ADMINISTRATIVE PROCEDURES LAW, THE INFORMATION TECHNOLOGY SERVICES LAWS, THE MISSISSIPPI PUBLIC RECORDS ACT, THE MISSISSIPPI ACCOUNTABILITY AND TRANSPARENCY ACT AND THE PUBLIC PURCHASING LAWS; TO PROVIDE THAT HEALTH CARE COLLABORATIVES SHALL NOT HAVE THE RIGHT TO ACQUIRE ANY REAL PROPERTY BY THE EXERCISE OF THE POWER OF EMINENT DOMAIN; TO SPECIFY THE PROCEDURE FOR DISSOLVING A HEALTH CARE COLLABORATIVE; TO ESTABLISH WITHIN THE BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER HEALTH SYSTEM AUTHORITY TO ASSIST THE TRUSTEES IN THEIR MANAGEMENT AND CONTROL OF THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER; TO AMEND SECTIONS 41-13-15, 41-13-35, 11-46-1, 25-4-103, 25-9-107, 25-41-3, 25-43-1.102, 25-53-3, 25-61-3, 27-7-15, 27-13-5, 27-31-1, 27-65-19, 27-65-105, 27-104-153, 31-7-1 AND 41-7-205, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Health Care Collaboration Act of 2017."
SECTION 2. For purposes of this act, the following terms shall have the following meanings:
(a) "Academic medical center" means the teaching, research, and clinical facilities and services provided, established, or operated by a public university under Chapter 115, Title 37, Mississippi Code of 1972.
(b) "Board" means the board of directors of a health care collaborative.
(c) "Director" means a member of the board of a health care collaborative.
(d) "Governmental entity" means the state, a county, a municipality, or any agency, department, board or commission of the state, a county or a municipality.
(e) "Heath care collaborative" means a public corporation organized under the provisions of this act.
(f) "Health care facility" means all property or rights in property, real or personal, tangible or intangible, useful to a health care collaborative in its operations, including without limitation, the following:
(i) Facilities, sites of service or functions necessary or desirable to the operation of an academic medical center, one or more health sciences schools, hospitals, public health care clinics, treatment centers, emergency facilities, outpatient facilities, laboratories, service or support facilities, and any other facilities or sites of service or functions related to the operation of any of the foregoing or any networks with which a health collaborative is associated or any collaborative relationships among providers involving a health care collaborative.
(ii) Biomedical or public health research establishments of any type.
(iii) Ambulance, helicopter and other similar facilities and services for the transportation of sick or injured persons.
(iv) Land necessary or desirable to any of the foregoing, whether presently or in the future.
(v) Machinery, equipment, furniture, and fixtures useful or desirable in the operation of any of the foregoing. Health care facilities may serve or address physical or mental health. A determination by a board that an asset constitutes a health care facility shall be conclusive, absent manifest error.
(g) "Health sciences school" means any school of medicine, dentistry, nursing, pharmacy and any other health care related educational program operated or provided by an academic medical center in this state.
(h) "Health system authority" or "authority" means the University of Mississippi Medical Center Health System Authority created under this act within the Board of Trustees of State Institutions of Higher Learning, as provided for in Article 8, Section 213-A of the Mississippi Constitution of 1890.
(i) "Indebtedness" means bonds, notes, certificates of indebtedness, debt securities, capital lease agreements or any other evidence of indebtedness.
(j) "Nonprofit organization" means any nonprofit corporation, limited liability company, partnership, or other form of business organization in which no part of the income or profit is distributable to any individual or entity other than a university, a health care collaborative, a governmental entity, a public corporation, or a nonprofit corporation that is an organization described in Section 501(c)(3) of the Internal Revenue Code.
(k) "Public corporation" means a (i) nonmember, nonprofit corporation organized under the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972, that is subject to the limitations on distributions set forth in Section 79-11-336(c), or (ii) a nonstock corporation organized for public purposes under any other statutory authority created by the Legislature of the State of Mississippi, which, in either case, is organized by the state, a county, a municipality or any political subdivision of any of the foregoing, or any public board, bureau, commission or authority created by the Legislature, whether acting alone or jointly, under state law.
(l) "Security document" means a trust indenture, loan agreement, lease agreement, mortgage, security instrument or agreement, or other document securing any indebtedness or other obligation of a health care collaborative or by which its assets or revenues are pledged or encumbered in favor of the holder or holders of any such indebtedness or other obligation or a trustee for such holders.
(m) "Sponsoring university" or "university" means the University of Mississippi Medical Center, a department of the University of Mississippi under the management and control of the Board of Trustees of State Institutions of Higher Learning.
(n) "Trustees" means the Board of Trustees of State Institutions of Higher Learning, as provided for in Article 8, Section 213-A of the Mississippi Constitution, or an authority appointed by the trustees, under this act.
SECTION 3. (1) In order to incorporate a health care collaborative, the trustees shall adopt a resolution containing at least the following provisions:
(a) A finding that it is necessary, desirable and in the best interests of the sponsoring university that the proposed collaborative be incorporated.
(b) Approval of the form of articles of incorporation, which shall comply with the provisions of Section 4 of this act.
(c) Approval of bylaws.
(d) Approval of the members of the initial board of directors.
(e) Authorization to proceed to form the proposed collaborative by executing the articles of incorporation approved by the institutional executive officer of the sponsoring university and filing the same with the Secretary of State.
(2) A university, with the approval of the trustees, may incorporate more than one (1) collaborative if it determines that each collaborative promotes the health care mission of the university.
SECTION 4. (1) In addition to the contents of the articles of incorporation required or permitted under Section 79-11-137, other applicable requirements of the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972, and other matters relating to the health care collaborative that the sponsoring university recommends and the trustees choose to insert and that are not inconsistent with state law, the articles of incorporation of a health care collaborative shall include the following provisions:
(a) The name of the collaborative shall include the word "collaborative" and shall include words identifying the sponsoring university.
(b) A statement that the health care collaborative is organized under the provisions of this act.
(c) If not specified in the collaborative's bylaws, the number of directors, which shall be an odd number not less than three (3), and the duration of their respective terms of office, each of which shall not be in excess of three (3) years. Directors may serve multiple terms, consecutive or otherwise, if duly appointed or reappointed in accordance with this act.
(d) If not specified in the collaborative's bylaws, provisions for appointing or removing directors of the health care collaborative, subject to the provisions of Section 6 of this act. In addition, and notwithstanding any provision in this section to the contrary, the initial directors of a health care collaborative shall be selected by the sponsoring university and listed in the initial articles of incorporation submitted to the trustees for its consideration as provided in Section 3 of this act. That list shall expressly classify the directors into three (3) groups, one (1) of which shall serve an initial term of one (1) year, one (1) of which shall serve an initial term of two (2) years and one (1) of which shall serve an initial term of three (3) years.
(2) Consistent with the provisions of Section 79-11-139, upon the filing for record of the articles of incorporation with the Secretary of State, the health care collaborative shall come into existence and, subject to the requirements of this act, it shall constitute a public corporation under the name set forth in its articles of incorporation. The sponsoring university shall provide a copy of the articles of incorporation and bylaws to the trustees within thirty (30) days of filing with the Secretary of State.
SECTION 5. (1) In addition to the applicable requirements for amendment of the articles of incorporation set forth in the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972, the articles of incorporation or the bylaws of any health care collaborative may be amended by filing articles of amendment or amended bylaws with the Secretary of State, but only with the approval of the board of the health care collaborative, the sponsoring university and the trustees in the manner provided in this section.
(2) In order to amend the articles of incorporation or the bylaws, the following steps shall be completed:
(a) The board of the health care collaborative shall first adopt a resolution approving articles of amendment or amendment of the bylaws and recommending approval thereof by the sponsoring university.
(b) After adoption of a resolution approving articles of amendment or amendment of the bylaws by the board of the health care collaborative, the collaborative shall file a written request for approval of the articles of amendment or amendment of the bylaws by the sponsoring university.
(c) As soon as may be practicable after receipt of the request from the health care collaborative, the sponsoring university shall review the application and shall either approve or reject the articles of amendment or amendment of the bylaws as approved and recommended to it by the health care collaborative.
(d) If the proposed articles of amendment or amendment of the bylaws are approved by the sponsoring university, then as soon as may be practicable after the approval of the articles of amendment, the sponsoring university shall submit the articles of amendment or amendment of the bylaws to the Commissioner of Higher Education for his review. The Commissioner of Higher Education shall submit the articles of amendment or amendment of the bylaws to the trustees for further action.
(3) If no objection is communicated in writing to the health care collaborative within sixty (60) days of the submission of the articles of amendment or the amendment of the bylaws to the trustees, the president or vice president of the health care collaborative shall file for record in the Office of the Secretary of State the articles of amendment or amended bylaws.
(4) Upon the filing for record of the articles of amendment in accordance with the foregoing procedures, the articles of amendment or amended bylaws shall become effective.
(5) In addition to the applicable requirements for the amendment and restatement of the articles of incorporation set forth in the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972, the articles of amendment of a health care collaborative may amend and restate the articles of incorporation of a health care collaborative if approved in accordance with this section.
(6) Notwithstanding the provisions of this section, the name and address of the registered agent of a health care collaborative may be changed by the health care collaborative without following the procedure set forth in this section. A health care collaborative shall use any appropriate form promulgated by the Secretary of State for this purpose.
SECTION 6. (1) Subject to the requirements of Section 4(1)(c) of this act, each health care collaborative shall have a board of directors composed of the number of director positions provided in the articles of incorporation or bylaws of the health care collaborative, as applicable.
(2) Consistent with the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972, all powers of a health care collaborative shall be exercised by or under the direction of its board of directors; however, except for (a) duly appointed officers exercising authority delegated to them in the collaborative's bylaws, and (b) duly constituted committees of the board meeting the requirements of Section 79-11-265 and consisting of no less than three (3) directors, a majority of which were appointed (without nomination by any other person) by the sponsoring university, the board shall not be permitted to authorize any person or persons to exercise some or all of its powers under Section 11-79-231(3).
(3) Except for ex-officio directors specified in the articles of incorporation, all directors of a health care collaborative shall be appointed by the sponsoring university, subject to the approval of the trustees. The articles of incorporation or bylaws may provide that specified officers or employees of the sponsoring university shall be ex-officio directors of a health care collaborative, so long as a majority of the directors are appointed by the sponsoring university and approved by the trustees.
(4) The articles of incorporation may provide that a business organization, governmental entity, public corporation, or nonprofit organization may nominate one or more directors of a health care collaborative, provided that the number of directors appointed by the sponsoring university and approved by the trustees without nomination may never be less than a majority of the directors, and the sponsoring university shall not be required to appoint any such nominee and the trustees shall not be required to approve any such nominee. If the sponsoring university does not appoint a nominee or if a nominee is not approved by the trustees, the nominating entity shall provide an alternate nominee for consideration by the sponsoring university.
(5) The appointed membership of the board of a health care collaborative shall be inclusive and reflect the racial, gender, geographic and economic diversity of the state.
(6) All directors appointed by the sponsoring university may be removed by the sponsoring university or the trustees at any time, with or without cause.
(7) If, at the expiration of any term of office of any director, a successor has not been appointed as provided in the articles of incorporation or the bylaws, then the director whose term of office has expired shall continue to hold office until his or her successor is appointed.
(8) Each director shall serve without compensation but may be reimbursed for expenses actually incurred by him or her in connection with the performance of his or her duties.
(9) No vacancy in the membership of the board shall impair the right of a quorum to exercise all the powers and perform all the duties of the board.
(10) The composition of the board of directors of a health care collaborative shall be presumed valid absent a final determination by a court of competent jurisdiction that the board is not constituted in good faith by the sponsoring university.
SECTION 7. A health care collaborative may duly constitute offices of the collaborative and appoint officers to hold such positions so created, in the manner and for any purpose provided in the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972.
SECTION 8. (1) Subject to the approval of the sponsoring university and the trustees, as specified by regulation or otherwise, a health care collaborative shall have and may exercise any power granted nonprofit corporations under the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972, together with all powers incidental thereto or necessary or desirable to the discharge thereof, including, without limitation, the following specific powers:
(a) To adopt, maintain, and amend bylaws and a corporate seal.
(b) To sue and, subject to the limitations in this paragraph, be sued; however, any action against a health care collaborative, or a person acting in its capacity as a board member, officer or employee of the health care collaborative to recover damages as compensation for injuries shall be subject to the provisions of Chapter 46, Title 11, Mississippi Code of 1972.
(c) To acquire, construct, equip, lease, manage, operate, engage in a joint venture or joint operating agreement regarding, or otherwise deal in those health care facilities it considers necessary or desirable.
(d) To enter into contracts and agreements, with contractual terms or respect to such periods of time as the health care collaborative deems necessary or advisable without regard to restrictions associated with terms of public officials or members of public bodies, including contracts or agreements to borrow money, incur indebtedness, and issue bonds, notes, debt securities, or any other evidence of indebtedness.
(e) To pledge the general credit of the health care collaborative or any revenues or income of the health care collaborative to repayment of any of its indebtedness.
(f) To mortgage or pledge its health care facilities or its other assets or any part thereof, whether then owned or thereafter acquired, as security for its indebtedness.
(g) To lend money to, to assume the indebtedness of, or to guarantee the indebtedness of any other health care collaborative, governmental entity, public corporation or nonprofit organization.
(h) To create, establish, acquire, operate or support subsidiaries, networks, joint ventures, and affiliates, either for-profit or nonprofit, to assist a health care collaborative in fulfilling its purposes.
(i) To participate in joint ventures, affiliations, management agreements, or similar endeavors that provide health care or engage in activities related thereto.
(j) To make and arrange for loans, contributions to capital, and other debt and equity financing for the activities of any lawful form of business organization of which the health care collaborative is a member, and to guarantee loans and any other obligations for such purpose.
(k) To enter into any swap agreement.
(l) To provide for and support the educational programs of any university or any other two-year college or four-year college or university in the state.
(m) To establish, collect, and alter charges for services rendered and supplies furnished by it.
(n) To contract for or to accept any gifts, grants, endowments, or any other aid in any form from the federal government, a governmental entity, or any public corporation, or any other source, or any combination thereof, and to comply with the terms and conditions thereof.
(o) To invest its funds in any investment authorized by the sponsoring university for investment of its own funds or in any investment permitted or authorized for state-regulated insurance companies, including, without limitation, investments permitted for domestic insurers and health maintenance organizations under Section 83-19-51.
(p) To seek protection of the federal bankruptcy laws by filing a petition in any United States Bankruptcy Court located in the state.
(q) To organize, or to own an interest in, any other corporation, partnership, limited liability company, joint venture, or other form of business organization, whether for-profit or nonprofit, in furtherance of its health, education, or research mission.
(r) To engage in arrangements, contracts, information sharing, and other collaborative activities with public or private entities and individuals, including, without limitation: joint ventures, joint purchasing arrangements, joint negotiations with physicians, hospitals and payors (whether those negotiations result in separate or combined agreements), leases and agreements that involve delivery system network creation or operation.
(s) To provide such insurance, retirement, and other benefits to employees and other servants as it determines necessary or desirable.
(t) To purchase, sell, exchange, lease, accept, receive or hold title or leasehold interest in real, personal and mixed property from any source whatsoever or to otherwise deal with any such property to the extent reasonable or necessary to accomplish the purposes of the collaborative.
(2) Nothing in this section shall be construed as granting to a health care collaborative the power to levy any taxes.
(3) Nothing in this section shall be construed as authorizing a health care collaborative to convey substantial assets in a single transaction or series of transactions without authorization from the sponsoring university and trustees.
(4) Any of the powers granted under this section may be exercised by a health care collaborative in such manner as it may determine to be consistent with the purposes of this act, notwithstanding that, as a consequence of the exercise of powers it engages in, activities (a) may be deemed anticompetitive, or (b) may result in the acquisition or maintenance of monopoly power in some relevant market, in either case within the meaning of state or federal antitrust or competition laws and notwithstanding that these activities may have the effect of displacing competition in the provision of hospital, physician or other health care or financing related services.
SECTION 9. (1) With approval of the sponsoring university and the trustees, a health care collaborative from time to time may borrow money or incur indebtedness and issue bonds, notes or other evidence of indebtedness in such principal amounts as the board determines by resolution to be necessary, desirable and in the best interests of the health care collaborative in order to provide funds to carry out its corporate powers. Indebtedness may be incurred for any lawful purpose of the health care collaborative, including, without limitation, any of the following:
(a) Indebtedness to finance the acquisition, construction, expansion, renovation and equipping of health care facilities and related improvements thereto.
(b) Indebtedness to provide working capital or funds for operating expenses.
(c) Indebtedness to refund, extend, refinance or restructure any indebtedness of the health care collaborative or any indebtedness assumed or guaranteed by the health care collaborative.
(2) Indebtedness may be any of the following or any combination thereof, or any similar financing structures or instruments common in the market at the time that the indebtedness is incurred, issued, modified, renewed or considered:
(a) A general obligation of the health care collaborative to the payment of which its full faith and credit is pledged.
(b) Payable solely out of specific revenues of the health care collaborative or any of its facilities.
(c) Secured by a pledge of any tax levied by a governmental entity that has been made available to a health care collaborative or any of its facilities.
(3) Indebtedness may provide for any of the following or any combination thereof:
(a) Provide for no interest.
(b) Provide for current interest.
(c) Provide for capitalized interest.
(d) Provide for accretion or other increase in principal amount in lieu of interest.
(4) Any resolution authorizing the issuance of any indebtedness shall create a contract with the holders of the indebtedness issued by the resolution.
(5) Evidence of indebtedness shall be executed and delivered as provided in the resolution of the board authorizing the same.
(6) Indebtedness may be sold at public or private sale or in exchange for indebtedness of the health care collaborative at such price or on such terms as the board may determine.
(7) All indebtedness of a health care collaborative shall be subject to redemption or prepayment on such terms as the board may determine.
(8) No indebtedness of a health care collaborative shall mature more than forty (40) years from the date of issuance, without regard to whether the indebtedness is refunding, extending, refinancing or restructuring existing indebtedness.
(9) The health care collaborative may, subject to security documents or other agreements with holders as may then exist, purchase its indebtedness in the open market, through intermediaries or directly from the holder of an obligation, with any funds available for that purpose. Any obligation so purchased may be cancelled by the health care collaborative or may be resold, as authorized by the board.
SECTION 10. (1) With approval of the sponsoring university and the trustees, any pledge of any revenues of a health care collaborative including, without limitation, tax revenues made available to a health care collaborative, shall be valid and binding from the time it is made, and the revenues or taxes so pledged and thereafter received by the health care collaborative shall immediately become subject to the lien of that pledge without any physical delivery thereof or further act. The lien of that pledge shall be valid and binding against all parties having claims of any kind against the health care collaborative, irrespective of whether the parties have actual notice thereof. The resolution or security document establishing a pledge of revenues may provide that the lien established extends, on a pari passu (equal footing) basis, to any additional indebtedness issued as a parity obligation in accordance with the terms of the financing document.
(2) Any security document relating to any real property, personal property, fixtures, or other tangible property of a health care collaborative may be filed in the office of the chancery clerk of the county in which the property to be secured is located, and the lien of the security document shall be valid and binding against all parties having claims of any kind against the health care collaborative, irrespective of whether any person has actual notice thereof, from the time the security document is so filed, with respect to all property subject to the lien, including, without limitation, after-acquired property.
SECTION 11. (1) With approval of the sponsoring university and the trustees, all agreements and covenants undertaken, and all indebtedness issued, by a health care collaborative shall be solely and exclusively an obligation of the health care collaborative and, except as otherwise provided in a written agreement in accordance with Section 17 of this act, shall not create an obligation or debt of the state, any university or any other governmental entity or public corporation within the meaning of any constitutional or statutory provision.
(2) Neither the directors nor any officer of a health care collaborative executing indebtedness issued under this act shall be personally liable for that indebtedness by reason of the execution or issuance thereof.
(3) The state and the sponsoring university pledge to and agree with the holders of any indebtedness issued under this act that neither the state nor the sponsoring university will limit or alter the rights vested in the health care collaborative to fulfill the terms of any indebtedness or related security documents made with the holders thereof or in any way impair the rights and remedies of the holders until such indebtedness, together with the interest thereon, and all costs and expenses in connection with any action or proceeding by or on behalf of the holders, are fully met and discharged. A health care collaborative is authorized to include this pledge and agreement of this state or sponsoring university in any agreement with the holders of its indebtedness.
SECTION 12. With approval of the sponsoring university and the trustees, indebtedness issued under the provisions of this act is made a legal investment for savings banks and insurance companies organized under state law and for trustees, executors, administrators, guardians, persons or organizations acting in a fiduciary capacity, unless otherwise directed by a court having jurisdiction or by a document providing fiduciary health care collaborative. Any governmental entity or public corporation is authorized, in its discretion, to invest any available funds in securities of the health care collaborative.
SECTION 13. (1) If there is any default in the payment of the principal of, or interest on, any indebtedness issued under this act or of any agreements contained in any security document, and the period for cure of the default has passed, then the holder of the indebtedness and the trustee under any security document, or any one or more of them, subject to the terms of the financing documents authorizing the indebtedness or any security document applicable thereto:
(a) May, by mandamus, injunction or other proceedings, compel performance of any covenant or agreement of the health care collaborative contained in any applicable resolution or security document by its board or its officers.
(b) May be entitled to a judgment against the health care collaborative for the principal of and interest on the indebtedness so in default, together with all reasonable costs of collection.
(c) May, if the indebtedness is secured by a mortgage on, or security interest in, any physical properties of the health care collaborative, foreclose the mortgage or pledge, exercise any powers of sale contained in the security documents, or exercise any possessory or other similar rights as are provided for in the financing documents or security document applicable to the indebtedness.
(d) Regardless of the sufficiency of the security for the obligation in default, may be entitled to the appointment of a receiver upon order of a court of competent jurisdiction who shall, upon that appointment, assume all powers granted in the applicable financing documents or security document applicable to the obligation in default, provided that the income derived from any activity undertaken by a receiver under this section shall be expended solely in accordance with the applicable provisions of any orders of the court by which such receiver is appointed, and absent judicial direction, of the applicable financing documents or security document applicable to the obligation in default.
(2) The remedies specified in this section shall be cumulative to all other remedies that may otherwise be available, by law or contract, for the benefit of the holders of indebtedness of a health care collaborative.
SECTION 14. (1) Notwithstanding any provision of law to the contrary:
(a) Any indebtedness issued by a health care collaborative or any entity controlled by a health care collaborative and the income derived therefrom, including any profit from the sale thereof, shall be exempt from taxation by the state or by any political subdivision, agency or other governmental unit of or within the state.
(b) All properties of a health care collaborative or any entity controlled by a health care collaborative, including all leases, leaseholds or leasehold interests of or with respect to any such properties, whether real, personal, or mixed, and the derived income therefrom, shall be exempt from any and all taxation by the state or by any political subdivision, agency or other governmental unit of or within the state.
(c) The sales and use taxes, franchise taxes, provider taxes or other taxes of similar type levied by this state, or any political subdivision of this state, shall not apply to sales or leases to a health care collaborative or any entity controlled by a health care collaborative of the following when acquired for or used in establishing or operating a health care facility or otherwise carrying on the business and activities of a health care collaborative or any entity controlled by a health care collaborative:
(i) Any personal property or fixtures, including without limitation, sales or leases to such entities of:
1. Furniture, fixtures and equipment (inclusive of all communications, computer, server, software and other hardware equipment);
2. All replacements of, repair parts for or services to repair items described in item 1 of this subparagraph (i);
3. Office and operating materials and supplies;
4. Electricity, current, power, natural gas, liquefied petroleum gas or other fuel for heating, lighting or other use, and potable water; and
5. All services taxable under Section 27-65-23 required to establish, support, operate and/or maintain a health care facility or otherwise operate or carry on the business and activities of a health care collaborative or any entity controlled by a health care collaborative; or
(ii) Any component building materials, machinery and equipment used:
1. In the construction of a health care facility building or other building owned by a health care collaborative or any entity controlled by a health care collaborative; or
2. In making any additions or improvements to such properties.
(2) Notwithstanding the foregoing, no exemption provided in this section shall apply to taxes levied by Section 27-65-21.
SECTION 15. (1) Each health care collaborative shall engage a firm or firms of certified public accountants to conduct an annual audit of the financial affairs of the health care collaborative. Each audit shall be conducted in accordance with generally accepted accounting principles.
(2) The board shall submit all audits required by subsection (1) of this section to the sponsoring university and the trustees as promptly as practicable after the end of each fiscal year of the health care collaborative.
SECTION 16. (1) With approval of the sponsoring university and the trustees, notwithstanding anything to the contrary contained in Chapter 13, Title 41, Mississippi Code of 1972, the state, any university, any governmental entity, any governmental subdivision, any community hospital and any public corporation is authorized to give, transfer, convey or sell to any health care collaborative, on terms and conditions that are fair, just and reasonable to the health care collaborative and the party or parties involved:
(a) Any of its health care facilities, community hospitals and other properties, real or personal, and any funds and assets, tangible or intangible, relative to the ownership or operation of any such health care facilities or community hospitals, including any certificates of need, licenses, or other similar rights appertaining or ancillary thereto, irrespective of whether they have been exercised; and
(b) Any taxes, revenues, or funds owned or controlled by it.
(2) The state, any governmental entity, any university, or any public corporation, with approval of the trustees, may pledge its full faith and credit to or for the benefit of a health care collaborative or may pledge any revenues that it is legally entitled to pledge to or for the benefit of a health care collaborative.
SECTION 17. In support of and in furtherance of the powers granted in Section 8 of this act, the Legislature finds and declares all of the following:
(a) Health care collaboratives organized under this act are performing essential public functions on behalf of the state, the sponsoring university, and other governmental entities in the state.
(b) The nature and scope of the powers conferred on health care collaboratives by this act are such as may compel each health care collaborative, in the course of exercising its powers or by virtue of the exercise of those powers, to engage in activities itself or in collaboration with public or private entities and individuals that may be characterized as anticompetitive or may result in the acquisition or maintenance of monopoly power within the meaning of state and federal antitrust laws or otherwise may have the effect of displacing competition in the provision of hospital, physician, or other health care or finance-related service.
(c) In carrying out its public health mission through the exercise of the powers granted by this act, including, without limitation, the collaborative activities expressly authorized by this act, a health care collaborative, as well as the public or private entities and individuals with which they collaborate, shall be immunized from liability under the federal and state antitrust or competition laws to the fullest extent allowed by law.
(d) As an expression of the public policy of the state with respect to the displacement of competition in the field of health care, each health care collaborative, when exercising its powers under this act, acts as an agency or instrumentality of its university and as a political subdivision of the state, and as such, a health care collaborative shall be subject to what has come to be known in relevant antitrust jurisprudence as "active supervision" by the state in order to enjoy immunity from the application of state and federal antitrust laws.
SECTION 18. Notwithstanding any other provision of law to the contrary:
(a) All members of boards of directors of health care collaboratives shall be subject to the provisions of the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972, governing ethical conduct, including, but not limited to, Section 79-11-269. Health care collaboratives, members of the governing bodies of health care collaboratives, and officers and employees of health care collaboratives shall not be subject to state ethics laws that apply to public employees, public officials and public servants, including, without limitation, the provisions of Chapter 4, Title 25, Mississippi Code of 1972 [Ethics in Government].
(b) All health care collaboratives shall provide copies of all minutes of meetings of the board of directors to the sponsoring university as soon as practical, but not more than thirty (30) days after adoption, and all records of health care collaboratives shall be subject to inspection by the sponsoring university and the trustees. Notwithstanding the foregoing, a health care collaborative shall not be considered a public body for purposes of Chapter 61, Title 25, Mississippi Code of 1972 [Mississippi Public Records Act], including, but not limited to, Section 25-61-3, and Chapter 41, Title 25, Mississippi Code of 1972 [Open Meetings], including, but not limited to, Section 25-41-3.
(c) Deposits of health care collaboratives, supported wholly or in part by the state, shall be made in conformity with Section 7-9-41 [Treasury Withdrawals by Warrant] and Section 7-9-43 [Contracts With Selected State Depositories].
(d) Health care collaboratives, academic medical centers, and health sciences schools shall not be subject to the procurement laws of the state, including, without limitation, the provisions of Chapter 7, Title 31, Mississippi Code of 1972 [Public Purchases]; Chapter 9, Title 25, Mississippi Code of 1972 [Statewide Personnel System]; and Chapter 53, Title 25, Mississippi Code of 1972 [Mississippi Department of Information Technology Services]. However, erection of all buildings, additions, or repairs by a health care collaborative using funds provided by legislative appropriation shall be subject to Chapter 11, Title 31, Mississippi Code of 1972 [State Construction Projects]. Notwithstanding the foregoing, the provisions of this paragraph (d) shall not apply to any architectural or engineering service contract fully paid for by self-generated funds of any of the state institutions of higher learning or funds generated by the health care collaborative, nor shall they apply to health care collaborative projects that are fully funded from local funds or other nonstate sources that are outside the Department of Finance and Administration's appropriations or as directed by the Legislature.
(e) Health care collaboratives shall have the authority to secure accounting, legal and all such personal and professional services on such terms as the board of the health care collaborative deems appropriate; however, all contracts for those services shall be submitted to the sponsoring university within thirty (30) days of approval by the board. Notwithstanding the foregoing, health care collaboratives shall not be subject to the provisions of Chapter 104, Title 27, Mississippi Code of 1972 [Mississippi Accountability and Transparency Act].
(f) All requests for copies of minutes, contracts, audits, or other records of a health care collaborative made to a public body under the Mississippi Public Records Act of 1983 shall be handled in the manner provide for in Section 25-61-9.
(g) No expenditure authorized or permitted by the provisions of this act shall be considered to be a donation, lending of credit or a granting of public money or thing of value to or in aid of any individual, association, or corporation within the meaning of any constitutional or statutory provision.
(h) Nothing in this act shall be construed as allowing a health care collaborative to be exempt from compliance with all applicable laws and regulations of the State Department of Health as they pertain to licensure and the Mississippi Health Care Certificate of Need Law of 1979, Section 171 et seq. of Chapter 7, Title 41, Mississippi Code of 1972; however, the department may determine that no certificate of need is required if the activity, otherwise subject to regulation, is justified by the sponsoring university or health care collaborative's teaching or research mission.
(i) Health care collaboratives shall not be subject to the provisions of Chapter 43, Title 25, Mississippi Code of 1972 [Administrative Procedures Law].
(j) Health care collaboratives shall not have the right to acquire any real property by the exercise of the power of eminent domain, including, but not limited to, those powers conferred by Chapter 27, Title 11, Mississippi Code of 1972 [Eminent Domain].
SECTION 19. No part of the net earnings of a health care collaborative remaining after payment of its expenses shall inure to the benefit of any person other than a university, a governmental entity, or any nonprofit corporation that is an organization described in Section 501(c)(3) of the Internal Revenue Code.
SECTION 20. (1) A health care collaborative may be dissolved in accordance with the applicable provisions and requirements of the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972, but only with the approval of the board of the health care collaborative, the sponsoring university, and the trustees in the manner provided in this section.
(2) In addition to the requirements for dissolution as set forth in the Mississippi Nonprofit Corporation Act, Section 101 et seq. of Chapter 11, Title 79, Mississippi Code of 1972, in order to dissolve a health care collaborative, the following steps shall be completed:
(a) The board shall first adopt a resolution approving proposed articles of dissolution and a related plan of dissolution of the health care collaborative.
(b) After the adoption by the board of a resolution approving articles of dissolution and the related plan of dissolution, the health care collaborative shall file a written request to the sponsoring university that it approve the articles of dissolution and related plan of dissolution of the health care collaborative.
(c) As soon as may be practicable after the receipt of the application from the health care collaborative, the sponsoring university shall review the application, and it shall either approve or reject the proposed articles of dissolution and related plan of dissolution of the health care collaborative as approved and recommended to it by the health care collaborative.
(d) As soon as may be practicable after the sponsoring university approves the proposed articles of dissolution and related plan of dissolution of the health care collaborative the trustees shall review the application, and it shall either approve or reject the proposed articles of dissolution and related plan of dissolution of the health care collaborative as approved and recommended to it by the sponsoring university.
(3) Within thirty (30) days following the approval of dissolution of a health care collaborative by the sponsoring university and the trustees, an authorized representative of the health care collaborative shall file for record in the Office of Secretary of State the articles of dissolution (including the plan of dissolution).
(4) Upon the filing for record of the articles of dissolution (including the plan of dissolution) approved in accordance with the procedures contained in this section, the articles of dissolution shall become effective.
(5) Upon dissolution of the health care collaborative, subject to any contractual obligation the health care collaborative may have entered into for fair disposition of assets and liabilities upon dissolution, title to all assets after provision for liabilities of the health care collaborative shall vest in the sponsoring university.
SECTION 21. (1) There is established within the Board of Trustees of State Institutions of Higher Learning the University of Mississippi Medical Center Health System Authority to assist the trustees in their management and control of the University of Mississippi Medical Center and to, generally, promote the public welfare of the people of Mississippi by forging links between the University of Mississippi Medical Center and other health care stakeholders, including, but not limited to, health care collaboratives, community hospitals, health care providers, accountable care organizations and similar entities, and private health care companies and facilities.
(2) The health system authority shall be composed of twelve (12) or fewer members appointed by the trustees, to serve for staggered three-year terms, with one-third (1/3) expressly specified to serve a one-year term, one-third (1/3) expressly specified to serve a two-year term and the remaining one-third (1/3) expressly specified to serve a three-year term. Thereafter, subject to the authority of the trustees with respect to the membership of the health system authority as set forth above, members of the health system authority shall serve three-year terms. Members of the authority may be appointed to an unlimited number of successive terms. In case of a vacancy among the membership of the authority caused by death, resignation, or removal, the trustees shall appoint his or her successor to serve for the remainder of the unexpired term.
(3) Qualifications for membership in or chair of the authority shall be as provided for by regulation promulgated by the trustees. Trustees or employees of the Board of Trustees of Institutions of Higher Learning shall not be disqualified for membership, solely because of their office or employment status.
(4) Authority members shall receive per diem and reimbursement of travel expenses commensurate with that provided for members of the trustees in Section 37-101-9. All expenses of the authority shall be deducted from the appropriations or the current expenses of the University of Mississippi Medical Center.
(5) The trustees may authorize the employment of such other personnel as may be required from time to time to carry out the functions of the authority and may assign to the personnel so employed such functions and duties and may delegate to the Commissioner of Higher Education or other personnel such powers of the trustees as may be necessary to accomplish the purposes for which the authority was established. All such personnel shall be employed by the commissioner with the approval of the trustees and shall hold office at the pleasure of the commissioner. The trustees shall also have the power to employ on a fee basis such technical and professional assistance as may be necessary to carry out the powers, duties and purposes of the authority.
(6) The trustees, in their discretion, may delegate to the authority such powers of the trustees as may be necessary for the management and control of the University of Mississippi Medical Center and to accomplish the purposes of this act. The trustees may promulgate regulations defining the duties and responsibilities of the authority, including those matters that shall be reserved to the trustees for decision.
SECTION 22. Section 41-13-15, Mississippi Code of 1972, is amended as follows:
41-13-15. (1) Any county and/or any political or judicial subdivision of a county and/or any municipality of the State of Mississippi, acting individually or jointly, may acquire and hold real estate for a community hospital either recognized and/or licensed as such by either the State of Mississippi or the United States Government, and may, after complying with applicable health planning and licensure statutes, construct a community hospital thereon and/or appropriate funds according to the provisions of this chapter for the construction, remodeling, maintaining, equipping, furnishing and expansion of such facilities by the board of trustees upon such real estate.
(2) Where joint ownership of a community hospital is involved, the owners are hereby authorized to contract with each other for determining the pro rata ownership of such community hospital, the proportionate cost of maintenance and operation, and the proportionate financing that each will contribute to the community hospital.
(3) The owners may likewise contract with each other, or on behalf of any subordinate political or judicial subdivision, or with the board of trustees of a community hospital, and/or any agency of the State of Mississippi or the United States Government, or any health care collaborative as defined in Section 2 of this act, for necessary purposes related to the establishment, operation or maintenance of community hospitals and related programs wherever located, and may either accept from, sell or contribute to the other entities, monies, personal property or existing health facilities. The owners or the board of trustees may also receive monies, property or any other valuables of any kind through gifts, donations, devises or other recognized means from any source for the purpose of hospital use.
(4) Owners and boards of trustees, acting jointly or severally, may acquire and hold real estate for offices for physicians and other health care practitioners and related health care or support facilities, provided that any contract for the purchase of real property must be ratified by the owner, and may thereon construct and equip, maintain and remodel or expand such offices and related facilities, and the board of trustees may lease same to members of the hospital staff or others at a rate deemed to be in the best interest of the community hospital.
(5) If any political or judicial subdivision of a county is obligated hereunder, the boundaries of such district shall not be altered in such a manner as to relieve any portion thereof of its obligation hereunder.
(6) Owners may convey to any other owner, or any health care collaborative as defined in Section 2 of this act, any or all property, real or personal, comprising any existing community hospital, including related facilities, wherever located, owned by such conveying owner. Such conveyance shall be upon such terms and conditions as may be agreed upon and may make such provisions for transfers of operating funds and/or for the assumption of liabilities of the community hospital as may be deemed appropriate by the respective owners.
(7) (a) Except as provided for in subsection (11) of this section, owners may lease all or part of the property, real or personal, comprising a community hospital, including any related facilities, wherever located, and/or assets of such community hospital, to any individual, partnership or corporation, whether operating on a nonprofit basis or on a profit basis, or to the board of trustees of such community hospital or any other owner or board of trustees, subject to the applicable provisions of subsections (8), (9) and (10) of this section. The term of such lease shall not exceed fifty (50) years. Such lease shall be conditioned upon (i) the leased facility continuing to operate in a manner safeguarding community health interests; (ii) the proceeds from the lease being first applied against such bonds, notes or other evidence of indebtedness as are issued pursuant to Section 41-13-19 as and when they are due, provided that the terms of the lease shall cover any indebtedness pursuant to Section 41-13-19; and (iii) any surplus proceeds from the lease being deposited in the general fund of the owner, which proceeds may be used for any lawful purpose. Such lease shall be subject to the express approval of the board of trustees of the community hospital, except in the case where the board of trustees of the community hospital will be the lessee. However, owners may not lease any community hospital to the University of Mississippi Medical Center unless first the University of Mississippi Medical Center has obtained authority to lease such hospital under specific terms and conditions from the Board of Trustees of State Institutions of Higher Learning.
If the owner wishes to lease a community hospital without an option to sell it and the approval of the board of trustees of the community hospital is required but is not given within thirty (30) days of the request for its approval by the owner, then the owner may enter such lease as described herein on the following conditions: A resolution by the owner describing its intention to enter such lease shall be published once a week for at least three (3) consecutive weeks in at least one (1) newspaper published in the county or city, as the case may be, or if none be so published, in a newspaper having a general circulation therein. The first publication of such notice shall be made not less than twenty-one (21) days prior to the date fixed in such resolution for the lease of the community hospital and the last publication shall be made not more than seven (7) days prior to such date. If, on or prior to the date fixed in such resolution for the lease of the community hospital, there shall be filed with the clerk of the owner a petition signed by twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified voters of such owner, requesting that an election be called and held on the question of the lease of the community hospital, then it shall be the duty of the owner to call and provide for the holding of an election as petitioned for. In such case, no such lease shall be entered into unless authorized by the affirmative vote of the majority of the qualified voters of such owner who vote on the proposition at such election. Notice of such election shall be given by publication in like manner as hereinabove provided for the publication of the initial resolution. Such election shall be conducted and the return thereof made, canvassed and declared as nearly as may be in like manner as is now or may hereafter be provided by law in the case of general elections in such owner. If, on or prior to the date fixed in the owner's resolution for the lease of the community hospital, no such petition as described above is filed with the clerk of the owner, then the owner may proceed with the lease subject to the other requirements of this section. Subject to the above conditions, the lease agreement shall be upon such terms and conditions as may be agreed upon and may make such provision for transfers of tangible and intangible personal property and operating funds and/or for the assumption of liabilities of the community hospital and for such lease payments, all as may be deemed appropriate by the owners.
(b) Owners may sell and convey all or part of the property, real or personal, comprising a community hospital, including any related facilities, wherever located, and/or assets of such community hospital, to any individual, partnership or corporation, whether operating on a nonprofit basis or on a profit basis, or to the board of trustees of such community hospital or any other owner or board of trustees, subject to the applicable provisions of subsections (8) and (10) of this section. Such sale and conveyance shall be upon such terms and conditions as may be agreed upon by the owner and the purchaser that are consistent with the requirements of this section, and the parties may make such provisions for the transfer of operating funds or for the assumption of liabilities of the facility, or both, as they deem appropriate. However, such sale and conveyance shall be conditioned upon (i) the facility continuing to operate in a manner safeguarding community health interests; (ii) the proceeds from such sale being first applied against such bonds, notes or other evidence of indebtedness as are issued pursuant to Section 41-13-19 as and when they are due, provided that the terms of the sale shall cover any indebtedness pursuant to Section 41-13-19; and (iii) any surplus proceeds from the sale being deposited in the general fund of the owner, which proceeds may be used for any lawful purpose. However, owners may not sell or convey any community hospital to the University of Mississippi Medical Center unless first the University of Mississippi Medical Center has obtained authority to purchase such hospital under specific terms and conditions from the Board of Trustees of State Institutions of Higher Learning.
(8) Whenever any owner decides that it may be in its best interests to sell or lease a community hospital as provided for under subsection (7) of this section, the owner shall first contract with a certified public accounting firm, a law firm or competent professional health care or management consultants to review the current operating condition of the community hospital. The review shall consist of, at minimum, the following:
(a) A review of the community's inpatient facility needs based on current workload, historical trends and projections, based on demographic data, of future needs.
(b) A review of the competitive market for services, including other hospitals which serve the same area, the services provided and the market perception of the competitive hospitals.
(c) A review of the hospital's strengths relative to the competition and its capacity to compete in light of projected trends and competition.
(d) An analysis of the hospital's options, including service mix and pricing strategies. If the study concludes that a sale or lease should occur, the study shall include an analysis of which option would be best for the community and how much revenues should be derived from the lease or sale.
(9) After the review and analysis under subsection (8) of this section, an owner may choose to sell or lease the community hospital. If an owner chooses to sell such hospital or lease the hospital with an option to sell it, the owner shall follow the procedure specified in subsection (10) of this section. If an owner chooses to lease the hospital without an option to sell it, it shall first spread upon its minutes why such a lease is in the best interests of the persons living in the area served by the facility to be leased, and it shall make public any and all findings and recommendations made in the review required under proposals for the lease, which shall state clearly the minimum required terms of all respondents and the evaluation process that will be used when the owner reviews the proposals. The owner shall lease to the respondent submitting the highest and best proposal. In no case may the owner deviate from the process provided for in the request for proposals.
(10) If an owner wishes to sell such community hospital or lease the hospital with an option to sell it, the owner first shall conduct a public hearing on the issue of the proposed sale or lease with an option to sell the hospital. Notice of the date, time, location and purpose of the public hearing shall be published once a week for at least three (3) consecutive weeks in at least one (1) newspaper published in the county or city, as the case may be, or if none be so published, in a newspaper having a general circulation therein. The first publication of the notice shall be made not less than twenty-one (21) days before the date of the public hearing and the last publication shall be made not more than seven (7) days before that date. If, after the public hearing, the owner chooses to sell or lease with an option to sell the hospital, the owner shall adopt a resolution describing its intention to sell or lease with an option to sell the hospital, which shall include the owner's reasons why such a sale or lease is in the best interests of the persons living in the area served by the facility to be sold or leased. The owner then shall publish a copy of the resolution; the requirements for proposals for the sale or lease with an option to sell the hospital, which shall state clearly the minimum required terms of all respondents and the evaluation process that will be used when the owner reviews the proposals; and the date proposed by the owner for the sale or lease with an option to sell the hospital. Such publication shall be made once a week for at least three (3) consecutive weeks in at least one (1) newspaper published in the county or city, as the case may be, or if none be so published, in a newspaper having a general circulation therein. The first publication of the notice shall be made not less than twenty-one (21) days before the date proposed for the sale or lease with an option to sell the hospital and the last publication shall be made not more than seven (7) days before that date. If, on or before the date proposed for the sale or lease of the hospital, there is filed with the clerk of the owner a petition signed by twenty percent (20%) or fifteen hundred (1500), whichever is less, of the qualified voters of the owner, requesting that an election be called and held on the question of the sale or lease with an option to sell the hospital, then it shall be the duty of the owner to call and provide for the holding of an election as petitioned for. In that case, no such sale or lease shall be entered into unless authorized by the affirmative vote of the majority of the qualified voters of the owner who vote on the proposition at such election. Notice of the election shall be given by publication in the same manner as provided for the publication of the initial resolution. The election shall be conducted and the return thereof made, canvassed and declared in the same manner as provided by law in the case of general elections in the owner. If, on or before the date proposed for the sale or lease of the hospital, no such petition is filed with the clerk of the owner, then the owner may sell or lease with an option to sell the hospital. Such sale or lease shall be made to the respondent submitting the highest and best proposal. In no case may the owner deviate from the process provided for in the request for proposals.
(11) A lessee of a community hospital, under a lease entered into under the authority of Section 41-13-15, in effect prior to July 15, 1993, or an affiliate thereof, may extend or renew such lease whether or not an option to renew or extend the lease is contained in the lease, for a term not to exceed fifteen (15) years, conditioned upon (a) the leased facility continuing to operate in a manner safeguarding community health interest; (b) proceeds from the lease being first applied against such bonds, notes or other evidence of indebtedness as are issued pursuant to Section 41-13-19; (c) surplus proceeds from the lease being used for health related purposes; (d) subject to the express approval of the board of trustees of the community hospital; and (e) subject to the express approval of the owner. If no board of trustees is then existing, the owner shall have the right to enter into a lease upon such terms and conditions as agreed upon by the parties. Any lease entered into under this subsection (11) may contain an option to purchase the hospital, on such terms as the parties shall agree.
SECTION 23. Section 41-13-35, Mississippi Code of 1972, is amended as follows:
41-13-35. (1) The board of trustees of any community hospital shall have full authority to appoint an administrator, who shall not be a member of the board of trustees, and to delegate reasonable authority to such administrator for the operation and maintenance of such hospital and all property and facilities otherwise appertaining thereto.
(2) The board of trustees shall have full authority to select from its members, officers and committees and, by resolution or through the board bylaws, to delegate to such officers and committees reasonable authority to carry out and enforce the powers and duties of the board of trustees during the interim periods between regular meetings of the board of trustees; provided, however, that any such action taken by an officer or committee shall be subject to review by the board, and actions may be withdrawn or nullified at the next subsequent meeting of the board of trustees if the action is in excess of delegated authority.
(3) The board of trustees shall be responsible for governing the community hospital under its control and shall make and enforce staff and hospital bylaws and/or rules and regulations necessary for the administration, government, maintenance and/or expansion of such hospitals. The board of trustees shall keep minutes of its official business and shall comply with Section 41-9-68.
(4) The decisions of said board of trustees of the community hospital shall be valid and binding unless expressly prohibited by applicable statutory or constitutional provisions.
(5) The power of the board of trustees shall specifically include, but not be limited to, the following authority:
(a) To deposit and invest funds of the community hospital in accordance with Section 27-105-365;
(b) To establish such equitable wage and salary programs and other employment benefits as may be deemed expedient or proper, and in so doing, to expend reasonable funds for such employee salary and benefits. Allowable employee programs shall specifically include, but not be limited to, medical benefit, life, accidental death and dismemberment, disability, retirement and other employee coverage plans. The hospital may offer and fund such programs directly or by contract with any third party and shall be authorized to take all actions necessary to implement, administer and operate such plans, including payroll deductions for such plans;
(c) To authorize employees to attend and to pay actual expenses incurred by employees while engaged in hospital business or in attending recognized educational or professional meetings;
(d) To enter into loan or scholarship agreements with employees or students to provide educational assistance where such student or employee agrees to work for a stipulated period of time for the hospital;
(e) To devise and implement employee incentive programs;
(f) To recruit and financially assist physicians and other health care practitioners in establishing, or relocating practices within the service area of the community hospital including, without limitation, direct and indirect financial assistance, loan agreements, agreements guaranteeing minimum incomes for a stipulated period from opening of the practice and providing free office space or reduced rental rates for office space where such recruitment would directly benefit the community hospital and/or the health and welfare of the citizens of the service area;
(g) To contract by way of lease, lease-purchase or otherwise, with any agency, department or other office of government or any individual, partnership, corporation, owner, other board of trustees, or other health care facility, for the providing of property, equipment or services by or to the community hospital or other entity or regarding any facet of the construction, management, funding or operation of the community hospital or any division or department thereof, or any related activity, including, without limitation, shared management expertise or employee insurance and retirement programs, and to terminate said contracts when deemed in the best interests of the community hospital;
(h) To file suit on behalf of the community hospital to enforce any right or claims accruing to the hospital and to defend and/or settle claims against the community hospital and/or its board of trustees;
(i) To sell or otherwise dispose of any chattel property of the community hospital by any method deemed appropriate by the board where such disposition is consistent with the hospital purposes or where such property is deemed by the board to be surplus or otherwise unneeded;
(j) To let contracts for the construction, remodeling, expansion or acquisition, by lease or purchase, of hospital or health care facilities, including real property, within the service area for community hospital purposes where such may be done with operational funds without encumbrancing the general funds of the county or municipality, provided that any contract for the purchase of real property must be ratified by the owner;
(k) To borrow money and enter other financing arrangements for community hospital and related purposes and to grant security interests in hospital equipment and other hospital assets and to pledge a percentage of hospital revenues as security for such financings where needed; provided that the owner shall specify by resolution the maximum borrowing authority and maximum percent of revenue which may be pledged by the board of trustees during any given fiscal year;
(l) To expend hospital funds for public relations or advertising programs;
(m) To offer the following inpatient and outpatient services, after complying with applicable health planning, licensure statutes and regulations, whether or not heretofore offered by such hospital or other similar hospitals in this state and whether or not heretofore authorized to be offered, long-term care, extended care, home care, after-hours clinic services, ambulatory surgical clinic services, preventative health care services including wellness services, health education, rehabilitation and diagnostic and treatment services; to promote, develop, operate and maintain a center providing care or residential facilities for the aged, convalescent or handicapped; and to promote, develop and institute any other services having an appropriate place in the operation of a hospital offering complete community health care;
(n) To promote, develop, acquire, operate and maintain on a nonprofit basis, or on a profit basis if the community hospital's share of profits is used solely for community hospital and related purposes in accordance with this chapter, either separately or jointly with one or more other hospitals or health-related organizations, facilities and equipment for providing goods, services and programs for hospitals, other health care providers, and other persons or entities in need of such goods, services and programs and, in doing so, to provide for contracts of employment or contracts for services and ownership of property on terms that will protect the public interest;
(o) To establish and operate medical offices, child care centers, wellness or fitness centers and other facilities and programs which the board determines are appropriate in the operation of a community hospital for the benefit of its employees, personnel and/or medical staff which shall be operated as an integral part of the hospital and which may, in the direction of the board of trustees, be offered to the general public. If such programs are not established in existing facilities or constructed on real estate previously acquired by the owners, the board of trustees shall also have authority to acquire, by lease or purchase, such facilities and real property within the service area, whether or not adjacent to existing facilities, provided that any contract for the purchase of real property shall be ratified by the owner. The trustees shall lease any such medical offices to members of the medical staff at rates deemed appropriate and may, in its discretion, establish rates to be paid for the use of other facilities or programs by its employees or personnel or members of the public whom the trustees may determine may properly use such other facilities or programs;
(p) Provide, at its discretion, ambulance service and/or to contract with any third party, public or private, for the providing of such service;
(q) Establish a fair and equitable system for the billing of patients for care or users of services received through the community hospital, which in the exercise of the board of trustees' prudent fiscal discretion, may allow for rates to be classified according to the potential usage by an identified group or groups of patients of the community hospital's services and may allow for standard discounts where the discount is designed to reduce the operating costs or increase the revenues of the community hospital. Such billing system may also allow for the payment of charges by means of a credit card or similar device and allow for payment of administrative fees as may be regularly imposed by a banking institution or other credit service organization for the use of such cards;
(r) To establish as an
organizational part of the hospital or to aid in establishing as a separate
entity from the hospital, hospital auxiliaries designed to aid the hospital,
its patients, and/or families and visitors of patients, and when the auxiliary
is established as a separate entity from the hospital, the board of trustees
may cooperate with the auxiliary in its operations as the board of trustees
deems appropriate; * * *
(s) To make any
agreements or contracts with the federal government or any agency thereof, the
State of Mississippi or any agency thereof, and any county, city, town,
supervisors district or election district within this state, jointly or
separately, for the maintenance of charity facilities * * *;
(t) To negotiate and enter into contracts and agreements on behalf of the community hospital for the community hospital to become a member of a limited liability company, a joint venturer in a joint venture, or a member in a nonprofit corporation, in furtherance of providing health care services to the public; and
(u) To enter into joint ventures, joint operating agreements, or similar arrangements with other public or private health-related organizations, or with for-profit or nonprofit corporations or other organizations, either directly or through a nonprofit corporation formed by the community hospital, for the joint operation of all or part of the community hospital, or the joint operation of any services or facilities of the community hospital, and in doing so, to agree to an allocation of revenue, income and/or expenses, to convey any community hospital assets, services lines or facilities to the joint venture or to any other organization or entity for fair market value, to establish arrangements for the community hospital to participate in financial integration and/or clinical integration or clinically integrated networks with a joint venture, with other public or private health-related organizations, or with other for-profit or nonprofit corporations or other organizations, or through a joint operating agreement, and to provide for contracts of employment or contracts for services and ownership of property on terms that will protect the public interest.
(6) No board of trustees of any community hospital may accept any grant of money or other thing of value from any not-for-profit or for-profit organization established for the purpose of supporting health care in the area served by the facility unless two-thirds (2/3) of the trustees vote to accept the grant.
(7) No board of trustees, individual trustee or any other person who is an agent or servant of the trustees of any community hospital shall have any personal financial interest in any not-for-profit or for-profit organization which, regardless of its stated purpose of incorporation, provides assistance in the form of grants of money or property to community hospitals or provides services to community hospitals in the form of performance of functions normally associated with the operations of a hospital.
SECTION 24. Section 11-46-1, Mississippi Code of 1972, is amended as follows:
11-46-1. As used in this chapter, the following terms shall have the meanings ascribed unless the context otherwise requires:
(a) "Claim" means any demand to recover damages from a governmental entity as compensation for injuries.
(b) "Claimant" means any person seeking compensation under the provisions of this chapter, whether by administrative remedy or through the courts.
(c) "Board" means the Mississippi Tort Claims Board.
(d) "Department" means the Department of Finance and Administration.
(e) "Director" means the executive director of the department who is also the executive director of the board.
(f) "Employee" means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation, including firefighters who are members of a volunteer fire department that is a political subdivision. The term "employee" shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; and
(i) For purposes of the limits of liability provided for in Section 11-46-15, the term "employee" shall include:
1. Physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering services under the contract;
2. Any physician, dentist or other health care practitioner employed by the University of Mississippi Medical Center (UMMC) and its departmental practice plans who is a faculty member and provides health care services only for patients at UMMC or its affiliated practice sites;
3. Any physician, dentist or other health care practitioner employed by any university under the control of the Board of Trustees of State Institutions of Higher Learning who practices only on the campus of any university under the control of the Board of Trustees of State Institutions of Higher Learning;
4. Any physician, dentist or other health care practitioner employed by the State Veterans Affairs Board and who provides health care services for patients for the State Veterans Affairs Board;
(ii) The term "employee" shall also include Mississippi Department of Human Services licensed foster parents for the limited purposes of coverage under the Tort Claims Act as provided in Section 11-46-8; and
(iii) The term "employee" also shall include any employee or member of the governing board of a charter school but shall not include any person or entity acting in the capacity of an independent contractor to provide goods or services under a contract with a charter school.
(g) "Governmental entity" means the state and political subdivisions.
(h) "Injury" means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that is actionable at law or in equity.
(i) "Political subdivision" means any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any county, municipality, school district, charter school, volunteer fire department that is a chartered nonprofit corporation providing emergency services under contract with a county or municipality, community hospital as defined in Section 41-13-10, airport authority, or other instrumentality of the state, whether or not the body or instrumentality has the authority to levy taxes or to sue or be sued in its own name.
(j) "State" means the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority, health care collaborative as defined in Section 2 of this act or other instrumentality thereof, whether or not the body or instrumentality has the authority to levy taxes or to sue or be sued in its own name.
(k) "Law" means all species of law, including, but not limited to, any and all constitutions, statutes, case law, common law, customary law, court order, court rule, court decision, court opinion, court judgment or mandate, administrative rule or regulation, executive order, or principle or rule of equity.
SECTION 25. Section 25-4-103, Mississippi Code of 1972, is amended as follows:
25-4-103. The following definitions apply in this article unless the context otherwise requires:
(a) "Authority" means any component unit of a governmental entity.
(b) "Benefit" means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.
(c) "Business" means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, holding company, self-employed individual, joint-stock company, receivership, trust or other legal entity or undertaking organized for economic gain, a nonprofit corporation or other such entity, association or organization receiving public funds.
(d) "Business with which he is associated" means any business of which a public servant or his relative is an officer, director, owner, partner, employee or is a holder of more than ten percent (10%) of the fair market value or from which he or his relative derives more than Two Thousand Five Hundred Dollars ($2,500.00) in annual income or over which such public servant or his relative exercises control.
(e) "Compensation" means money or thing of value received, or to be received, from any person for services rendered.
(f) "Contract" means:
(i) Any agreement to which the government is a party; or
(ii) Any agreement on behalf of the government which involves the payment of public funds.
(g) "Government" means the state and all political entities thereof, both collectively and separately, including, but not limited to:
(i) Counties;
(ii) Municipalities;
(iii) All school districts;
(iv) All courts; and
(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.
(h) "Governmental entity" means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state. However, this term does not include a health care collaborative as defined in Section 2 of this act.
(i) "Income" means money or thing of value received, or to be received, from any source derived, including, but not limited to, any salary, wage, advance, payment, dividend, interest, rent, forgiveness of debt, fee, royalty, commission or any combination thereof.
(j) "Intellectual property" means any formula, pattern, compilation, program, device, method, technique or process created primarily as a result of the research effort of an employee or employees of an institution of higher learning of the State of Mississippi.
(k) "Material financial interest" means a personal and pecuniary interest, direct or indirect, accruing to a public servant or spouse, either individually or in combination with each other. Notwithstanding the foregoing, the following shall not be deemed to be a material financial interest with respect to a business with which a public servant may be associated:
(i) Ownership of any interest of less than ten percent (10%) in a business where the aggregate annual net income to the public servant therefrom is less than One Thousand Dollars ($1,000.00);
(ii) Ownership of any interest of less than two percent (2%) in a business where the aggregate annual net income to the public servant therefrom is less than Five Thousand Dollars ($5,000.00);
(iii) The income as an employee of a relative if neither the public servant or relative is an officer, director or partner in the business and any ownership interest would not be deemed material pursuant to subparagraph (i) or (ii) herein; or
(iv) The income of the spouse of a public servant when such spouse is a contractor, subcontractor or vendor with the governmental entity that employs the public servant and the public servant exercises no control, direct or indirect, over the contract between the spouse and such governmental entity.
(l) "Pecuniary benefit" means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.
(m) "Person" means any individual, firm, business, corporation, association, partnership, union or other legal entity, and where appropriate a governmental entity.
(n) "Property" means all real or personal property.
(o) "Public funds" means money belonging to the government.
(p) "Public servant" means:
(i) Any elected or appointed official of the government;
(ii) Any officer, director, commissioner, supervisor, chief, head, agent or employee of the government or any agency thereof, or of any public entity created by or under the laws of the State of Mississippi or created by an agency or governmental entity thereof, any of which is funded by public funds or which expends, authorizes or recommends the use of public funds; or
(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of funds authorized to be expended by the government.
The term "public servant" does not include a member of the board of directors of or an officer or employee of a health care collaborative as defined in Section 2 of this act.
(q) "Relative" means:
(i) The spouse of the public servant;
(ii) The child of the public servant;
(iii) The parent of the public servant;
(iv) The sibling of the public servant; and
(v) The spouse of any of the relatives of the public servant specified in subparagraphs (ii) through (iv).
(r) "Securities" means stocks, bonds, notes, convertible debentures, warrants, evidences of debts or property or other such documents.
SECTION 26. Section 25-9-107, Mississippi Code of 1972, is amended as follows:
25-9-107. The following terms, when used in this chapter, unless a different meaning is plainly required by the context, shall have the following meanings:
(a) "Board" means the State Personnel Board created under the provisions of this chapter.
(b) "State service" means all employees of state departments, agencies and institutions as defined herein, except those officers and employees excluded by this chapter.
(c) "Nonstate service" means the following officers and employees excluded from the state service by this chapter. The following are excluded from the state service:
(i) Members of the State Legislature, their staff and other employees of the legislative branch;
(ii) The Governor and staff members of the immediate Office of the Governor;
(iii) Justices and judges of the judicial branch or members of appeals boards on a per diem basis;
(iv) The Lieutenant Governor, staff members of the immediate Office of the Lieutenant Governor and officers and employees directly appointed by the Lieutenant Governor;
(v) Officers and officials elected by popular vote and persons appointed to fill vacancies in elective offices;
(vi) Members of boards and commissioners appointed by the Governor, Lieutenant Governor or the State Legislature;
(vii) All academic officials, members of the teaching staffs and employees of the state institutions of higher learning, the Mississippi Community College Board, and community and junior colleges;
(viii) Officers and enlisted members of the National Guard of the state;
(ix) Prisoners, inmates, student or patient help working in or about institutions;
(x) Contract personnel; provided, that any agency which employs state service employees may enter into contracts for personal and professional services only if such contracts are approved in compliance with the rules and regulations promulgated by the State Personal Service Contract Review Board under Section 25-9-120(3). Before paying any warrant for such contractual services in excess of One Hundred Thousand Dollars ($100,000.00), the Auditor of Public Accounts, or the successor to those duties, shall determine whether the contract involved was for personal or professional services, and, if so, was approved by the State Personal Service Contract Review Board;
(xi) Part-time employees; provided, however, part-time employees shall only be hired into authorized employment positions classified by the board, shall meet minimum qualifications as set by the board, and shall be paid in accordance with the Variable Compensation Plan as certified by the board;
(xii) Persons appointed on an emergency basis for the duration of the emergency; the effective date of the emergency appointments shall not be earlier than the date approved by the State Personnel Director, and shall be limited to thirty (30) working days. Emergency appointments may be extended to sixty (60) working days by the State Personnel Board;
(xiii) Physicians, dentists, veterinarians, nurse practitioners and attorneys, while serving in their professional capacities in authorized employment positions who are required by statute to be licensed, registered or otherwise certified as such, provided that the State Personnel Director shall verify that the statutory qualifications are met prior to issuance of a payroll warrant by the Auditor;
(xiv) Personnel who are employed and paid from funds received from a federal grant program which has been approved by the Legislature or the Department of Finance and Administration whose length of employment has been determined to be time-limited in nature. This subparagraph shall apply to personnel employed under the provisions of the Comprehensive Employment and Training Act of 1973, as amended, and other special federal grant programs which are not a part of regular federally funded programs wherein appropriations and employment positions are appropriated by the Legislature. Such employees shall be paid in accordance with the Variable Compensation Plan and shall meet all qualifications required by federal statutes or by the Mississippi Classification Plan;
(xv) The administrative head who is in charge of any state department, agency, institution, board or commission, wherein the statute specifically authorizes the Governor, board, commission or other authority to appoint said administrative head; provided, however, that the salary of such administrative head shall be determined by the State Personnel Board in accordance with the Variable Compensation Plan unless otherwise fixed by statute;
(xvi) The State Personnel Board shall exclude top-level positions if the incumbents determine and publicly advocate substantive program policy and report directly to the agency head, or the incumbents are required to maintain a direct confidential working relationship with a key excluded official. Provided further, a written job classification shall be approved by the board for each such position, and positions so excluded shall be paid in conformity with the Variable Compensation Plan;
(xvii) Employees whose employment is solely in connection with an agency's contract to produce, store or transport goods, and whose compensation is derived therefrom;
(xviii) Repealed;
(xix) The associate director, deputy directors and bureau directors within the Department of Agriculture and Commerce;
(xx) Personnel employed by the Mississippi Industries for the Blind; provided, that any agency may enter into contracts for the personal services of MIB employees without the prior approval of the State Personnel Board or the State Personal Service Contract Review Board; however, any agency contracting for the personal services of an MIB employee shall provide the MIB employee with not less than the entry-level compensation and benefits that the agency would provide to a full-time employee of the agency who performs the same services;
(xxi) Personnel employed by the Mississippi Department of Wildlife, Fisheries and Parks and the Mississippi Department of Marine Resources as law enforcement trainees (cadets); such personnel shall be paid in accordance with the Colonel Guy Groff State Variable Compensation Plan.
(d) "Agency" means any state board, commission, committee, council, department or unit thereof created by the Constitution or statutes if such board, commission, committee, council, department, unit or the head thereof, is authorized to appoint subordinate staff by the Constitution or statute, except a legislative or judicial board, commission, committee, council, department or unit thereof. The term "agency" does not include a health care collaborative as defined by Section 2 of this act.
SECTION 27. Section 25-41-3, Mississippi Code of 1972, is amended as follows:
25-41-3. For purposes of this chapter, the following words shall have the meaning ascribed herein, to wit:
(a) "Public body" means any executive or administrative board, commission, authority, council, department, agency, bureau or any other policymaking entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state, whether the entity be created by statute or executive order, which is supported wholly or in part by public funds or expends public funds, and any standing, interim or special committee of the Mississippi Legislature. The term "public body" includes the governing board of a charter school authorized by the Mississippi Charter School Authorizer Board and the board of trustees of a community hospital as defined in Section 41-13-10. There shall be exempted from the provisions of this chapter:
(i) The judiciary, including all jury deliberations;
(ii) Law enforcement officials;
(iii) The military;
(iv) The State Probation and Parole Board;
(v) The Workers' Compensation Commission;
(vi) Legislative subcommittees and legislative conference committees;
(vii) The arbitration council established in Section 69-3-19;
(viii) License
revocation, suspension and disciplinary proceedings held by the Mississippi
State Board of Dental Examiners; * * *
(ix) Hearings and
meetings of the Board of Tax Appeals and of the hearing officers and the board
of review of the Department of Revenue as provided in Section 27-77-15 * * *;
(x) Any health care collaborative as defined in Section 2 of this act.
(b) "Meeting" means an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power, including an assemblage through the use of video or teleconference devices that conforms to Section 25-41-5.
SECTION 28. Section 25-43-1.102, Mississippi Code of 1972, is amended as follows:
25-43-1.102. As used in this chapter, the following terms shall have the meanings ascribed to them in this section unless the context otherwise requires:
(a) "Agency" means a board, commission, department, officer or other administrative unit of this state, including the agency head, and one or more members of the agency head or agency employees directly or indirectly purporting to act on behalf or under the authority of the agency head. The term does not include the Legislature or any of its component units, the judiciary or any of its component units or the Governor. The term does not include a political subdivision of the state or any of the administrative units of a political subdivision. The term does not include a health care collaborative as defined in Section 2 of this act. To the extent it purports to exercise authority subject to any provision of this chapter, an administrative unit otherwise qualifying as an "agency" must be treated as a separate agency even if the unit is located within or subordinate to another agency.
(b) "Agency head" or "head of the agency" means an individual or body of individuals in whom the ultimate legal authority of the agency is vested by any provision of law.
(c) "Agency proceeding" or "proceeding" means the process by which an agency considers:
(i) A declaratory opinion pursuant to Section 25-43-2.103, or
(ii) A rule pursuant to Article III of this chapter.
(d) "Agency record" means the official rule-making record of an agency pursuant to Section 25-43-3.112.
(e) "Declaratory opinion" means an agency opinion rendered in accordance with the provisions of Section 25-43-2.103.
(f) "Order" means an agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of one or more specific persons. An order shall be in writing signed by a person with authority to render the order, or if more than one (1) person has such authority by at least that number of such persons as jointly have the authority to render the order, or by a person authorized to render the order on behalf of all such persons. The term does not include an executive order issued by the Governor pursuant to Section 25-43-1.104, an opinion issued by the Attorney General pursuant to Section 7-5-25, an opinion issued by the Ethics Commission pursuant to Section 25-4-17, or a declaratory opinion rendered in accordance with Section 25-43-2.103.
(g) "Person" means an individual, partnership, corporation, association, governmental subdivision or unit thereof, or public or private organization or entity of any character, and includes another agency.
(h) "Provision of law" or "law" means the whole or a part of the federal or state Constitution, or of any federal or state (i) statute, (ii) case law or common law, (iii) rule of court, (iv) executive order, or (v) rule or order of an administrative agency.
(i) "Rule" means the whole or a part of an agency regulation or other statement of general applicability that implements, interprets or prescribes:
(i) Law or policy, or
(ii) The organization, procedure or practice requirements of an agency. The term includes the amendment, repeal or suspension of an existing rule. "Rule" does not include:
1. A regulation or statement concerning only the internal management of an agency which does not directly and substantially affect the procedural or substantive rights or duties of any segment of the public;
2. A regulation or statement that establishes criteria or guidelines to be used by the staff of an agency in performing audits, investigations or inspections, settling commercial disputes, negotiating commercial arrangements or in the defense, prosecution or settlement of cases, if disclosure of the criteria or guidelines would:
a. Enable law violators to avoid detection;
b. Facilitate disregard of requirements imposed by law; or
c. Give a clearly improper advantage to persons who are in an adverse position to the state;
3. A regulation or statement that only establishes specific prices to be charged for particular goods or services sold by an agency;
4. A regulation or statement concerning only the physical servicing, maintenance or care of agency owned or operated facilities or property;
5. A regulation or statement relating only to the use of a particular facility or property owned, operated or maintained by the state or any of its subdivisions, if the substance of the regulation or statement is adequately indicated by means of signs or signals to persons who use the facility or property;
6. A regulation or statement directly related only to inmates of a correctional or detention facility, students enrolled in an educational institution or patients admitted to a hospital, if adopted by that facility, institution or hospital;
7. A form whose contents or substantive requirements are prescribed by rule or statute, and instructions for the execution or use of the form;
8. An agency budget;
9. A compact or agreement between an agency of this state and one or more agencies of another state or states; or
10. An opinion of the Attorney General pursuant to Section 7-5-25, an opinion of the Ethics Commission pursuant to Section 25-4-17, or an Executive Order of the Governor.
(j) "Rule-making" means the process for formulation and adoption of a rule.
SECTION 29. Section 25-53-3, Mississippi Code of 1972, is amended as follows:
25-53-3. (1) Whenever the term "Central Data Processing Authority" or the term "authority," when referring to the Central Data Processing Authority, is used in any law, rule, regulation, document or elsewhere, it shall be construed to mean the Mississippi Department of Information Technology Services.
(2) For the purposes of this chapter the following terms shall have the meanings ascribed in this section unless the context otherwise requires:
(a) "Central Data Processing Authority" and "CDPA" mean "Mississippi Department of Information Technology Services (MDITS)" and the term "authority" means "board of the MDITS."
(b) "Bureau of Systems Policy and Planning," "Bureau of Telecommunications," "Bureau of Central Data Processing" and "bureau" mean "Mississippi Department of Information Technology Services."
(c) "Computer equipment or services" means any information technology, computer or computer related telecommunications equipment, electronic word processing and office systems, or services utilized in connection therewith, including, but not limited to, all phases of computer software and consulting services, and insurance on all state-owned computer equipment.
(d) "Acquisition" of computer or telecommunications equipment or services means the purchase, lease, rental, or acquisition in any other manner of any such computer or telecommunications equipment or services.
(e) "Agency" means and includes all the various state agencies, officers, departments, boards, commissions, offices and institutions of the state. The term "agency" does not include a health care collaborative as defined under Section 2 of this act.
(f) "Governing authority" means boards of supervisors, governing boards of all school districts, all boards of directors of public water supply districts, boards of directors of master public water supply districts, municipal public utility commissions, governing authorities of all municipalities, port authorities, commissioners and boards of trustees of any public hospitals and any political subdivision of the state supported, wholly or in part, by public funds of the state or political subdivisions thereof.
(g) "Bid" means any of the valid source selection techniques and competitive procurement methods appropriate to information technology procurement in the public sector, including, but not limited to, competitive sealed bidding, competitive sealed proposals, simplified small purchase procedures, sole source procurements, and emergency procurements.
(h) "Telecommunications transmission facility" means any transmission medium, switch, instrument, inside wiring system or other facility which is used, in whole or in part, to provide any transmission.
(i) "Equipment support contract" means a contract which covers a single, specific class or classes of telecommunications equipment or service and all features associated with that class, through which state agencies may purchase or lease the item of equipment or service specified by issuing a purchase order under the terms of the contract without the necessity of further competitive bidding.
(j) "Inside wiring system" means any wiring which:
(i) Directly or indirectly, interconnects any terminal equipment with any other terminal equipment or with any regulated facility or common carrier services; and
(ii) Is located at the premises of the customer and is not inside any terminal equipment.
(k) "Procurement" means the selling, buying, purchasing, renting, leasing or otherwise obtaining telecommunications equipment, system or related services, as well as activities engaged in, resulting in or expected to result in selling, buying, purchasing, renting, leasing or otherwise obtaining telecommunications equipment.
(l) "Telecommunications equipment, systems, related services" are limited to the equipment and means to provide:
(i) Telecommunications transmission facilities.
(ii) Telephone systems, including voice processing systems.
(iii) Facsimile systems.
(iv) Radio paging services.
(v) Mobile telephone services, including cellular mobile telephone service.
(vi) Intercom and paging systems.
(vii) Video teleconferencing systems.
(viii) Personal communications networks and services.
(ix) Any and all systems based on emerging and future telecommunications technologies relative to (i) through (viii) above.
(m) "Telecommunications system lease contract" means a contract between a supplier of telecommunications systems, including equipment and related services, and the Mississippi Department of Information Technology Services through which telecommunications systems, including equipment and related services, may be leased for a term which shall not exceed sixty (60) months for a system lease valued less than One Million Dollars ($1,000,000.00) and shall not exceed one hundred twenty (120) months for a system lease valued One Million Dollars ($1,000,000.00) or more.
(n) "Tariffed or regulated service" means telecommunications service offered by common carriers and subject to control by the Mississippi Public Service Commission or the Federal Communications Commission.
(o) "State Data Center" means one or more facilities operated by the Mississippi Department of Information Technology Services to provide information technology resources requiring enterprise computing resources or any other centrally managed information resources.
SECTION 30. Section 25-61-3, Mississippi Code of 1972, is amended as follows:
25-61-3. The following words shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Public body" shall mean any department, bureau, division, council, commission, committee, subcommittee, board, agency and any other entity of the state or a political subdivision thereof, and any municipal corporation and any other entity created by the Constitution or by law, executive order, ordinance or resolution. The term "public body" includes the governing board of a charter school authorized by the Mississippi Charter School Authorizer Board. Within the meaning of this chapter, the term "entity" shall not be construed to include individuals employed by a public body or any appointed or elected public official. The term "public body" does not include a health care collaborative as defined in Section 2 of this act.
(b) "Public records" shall mean all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body.
(c) "Data processing software" means the programs and routines used to employ and control the capabilities of data processing hardware, including, but not limited to, operating systems, compilers, assemblers, utilities, library routines, maintenance routines, applications and computer networking programs.
(d) "Proprietary software" means data processing software that is obtained under a licensing agreement and is protected by copyright or trade secret laws.
(e) "Incident report" means a narrative description, if such narrative description exists and if such narrative description does not contain investigative information, of an alleged offense, and at a minimum shall include the name and identification of each person charged with and arrested for the alleged offense, the time, date and location of the alleged offense, and the property involved, to the extent this information is known.
(f) "Investigative report" means records of a law enforcement agency containing information beyond the scope of the matters contained in an incident report, and generally will include, but not be limited to, the following matters if beyond the scope of the matters contained in an incident report:
(i) Records that are compiled in the process of detecting and investigating any unlawful activity or alleged unlawful activity, the disclosure of which would harm the investigation which may include crime scene reports and demonstrative evidence;
(ii) Records that would reveal the identity of informants and/or witnesses;
(iii) Records that would prematurely release information that would impede the public body's enforcement, investigative or detection efforts;
(iv) Records that would disclose investigatory techniques and/or results of investigative techniques;
(v) Records that would deprive a person of a right to a fair trial or an impartial adjudication;
(vi) Records that would endanger the life or safety of a public official or law enforcement personnel, or confidential informants or witnesses;
(vii) Records pertaining to quality control or PEER review activities; or
(viii) Records that would impede or jeopardize a prosecutor's ability to prosecute the alleged offense.
(g) "Law enforcement agency" means a public body that performs as one (1) of its principal functions activities pertaining to the enforcement of criminal laws, the apprehension and investigation of criminal offenders, or the investigation of criminal activities.
SECTION 31. Section 27-7-15, Mississippi Code of 1972, is amended as follows:
27-7-15. (1) For the purposes of this article, except as otherwise provided, the term "gross income" means and includes the income of a taxpayer derived from salaries, wages, fees or compensation for service, of whatever kind and in whatever form paid, including income from governmental agencies and subdivisions thereof; or from professions, vocations, trades, businesses, commerce or sales, or renting or dealing in property, or reacquired property; also from annuities, interest, rents, dividends, securities, insurance premiums, reinsurance premiums, considerations for supplemental insurance contracts, or the transaction of any business carried on for gain or profit, or gains, or profits, and income derived from any source whatever and in whatever form paid. The amount of all such items of income shall be included in the gross income for the taxable year in which received by the taxpayer. The amount by which an eligible employee's salary is reduced pursuant to a salary reduction agreement authorized under Section 25-17-5 shall be excluded from the term "gross income" within the meaning of this article.
(2) In determining gross income for the purpose of this section, the following, under regulations prescribed by the commissioner, shall be applicable:
(a) Dealers in property. Federal rules, regulations and revenue procedures shall be followed with respect to installment sales unless a transaction results in the shifting of income from inside the state to outside the state.
(b) Casual sales of property.
(i) Prior to January 1, 2001, federal rules, regulations and revenue procedures shall be followed with respect to installment sales except they shall be applied and administered as if H.R. 3594, the Installment Tax Correction Act of 2000 of the 106th Congress, had not been enacted. This provision will generally affect taxpayers, reporting on the accrual method of accounting, entering into installment note agreements on or after December 17, 1999. Any gain or profit resulting from the casual sale of property will be recognized in the year of sale.
(ii) From and after January 1, 2001, federal rules, regulations and revenue procedures shall be followed with respect to installment sales except as provided in this subparagraph (ii). Gain or profit from the casual sale of property shall be recognized in the year of sale. When a taxpayer recognizes gain on the casual sale of property in which the gain is deferred for federal income tax purposes, a taxpayer may elect to defer the payment of tax resulting from the gain as allowed and to the extent provided under regulations prescribed by the commissioner. If the payment of the tax is made on a deferred basis, the tax shall be computed based on the applicable rate for the income reported in the year the payment is made. Except as otherwise provided in subparagraph (iii) of this paragraph (b), deferring the payment of the tax shall not affect the liability for the tax. If at any time the installment note is sold, contributed, transferred or disposed of in any manner and for any purpose by the original note holder, or the original note holder is merged, liquidated, dissolved or withdrawn from this state, then all deferred tax payments under this section shall immediately become due and payable.
(iii) If the selling price of the property is reduced by any alteration in the terms of an installment note, including default by the purchaser, the gain to be recognized is recomputed based on the adjusted selling price in the same manner as for federal income tax purposes. The tax on this amount, less the previously paid tax on the recognized gain, is payable over the period of the remaining installments. If the tax on the previously recognized gain has been paid in full to this state, the return on which the payment was made may be amended for this purpose only. The statute of limitations in Section 27-7-49 shall not bar an amended return for this purpose.
(c) Reserves of insurance companies. In the case of insurance companies, any amounts in excess of the legally required reserves shall be included as gross income.
(d) Affiliated companies or persons. As regards sales, exchanges or payments for services from one to another of affiliated companies or persons or under other circumstances where the relation between the buyer and seller is such that gross proceeds from the sale or the value of the exchange or the payment for services are not indicative of the true value of the subject matter of the sale, exchange or payment for services, the commissioner shall prescribe uniform and equitable rules for determining the true value of the gross income, gross sales, exchanges or payment for services, or require consolidated returns of affiliates.
(e) Alimony and separate maintenance payments. The federal rules, regulations and revenue procedures in determining the deductibility and taxability of alimony payments shall be followed in this state.
(f) Reimbursement for expenses of moving. There shall be included in gross income (as compensation for services) any amount received or accrued, directly or indirectly, by an individual as a payment for or reimbursement of expenses of moving from one residence to another residence which is attributable to employment or self-employment.
(3) In the case of taxpayers other than residents, gross income includes gross income from sources within this state.
(4) The words "gross income" do not include the following items of income which shall be exempt from taxation under this article:
(a) The proceeds of life insurance policies and contracts paid upon the death of the insured. However, the income from the proceeds of such policies or contracts shall be included in the gross income.
(b) The amount received by the insured as a return of premium or premiums paid by him under life insurance policies, endowment, or annuity contracts, either during the term or at maturity or upon surrender of the contract.
(c) The value of property acquired by gift, bequest, devise or descent, but the income from such property shall be included in the gross income.
(d) Interest upon the obligations of the United States or its possessions, or securities issued under the provisions of the Federal Farm Loan Act of 1916, or bonds issued by the War Finance Corporation, or obligations of the State of Mississippi or political subdivisions thereof.
(e) The amounts received through accident or health insurance as compensation for personal injuries or sickness, plus the amount of any damages received for such injuries or such sickness or injuries, or through the War Risk Insurance Act, or any law for the benefit or relief of injured or disabled members of the military or naval forces of the United States.
(f) Income received by any religious denomination or by any institution or trust for moral or mental improvements, religious, Bible, tract, charitable, benevolent, fraternal, missionary, hospital, infirmary, educational, scientific, literary, library, patriotic, historical or cemetery purposes or for two (2) or more of such purposes, if such income be used exclusively for carrying out one or more of such purposes.
(g) Income received by a domestic corporation which is "taxable in another state" as this term is defined in this article, derived from business activity conducted outside this state. Domestic corporations taxable both within and without the state shall determine Mississippi income on the same basis as provided for foreign corporations under the provisions of this article.
(h) In case of insurance companies, there shall be excluded from gross income such portion of actual premiums received from an individual policyholder as is paid back or credited to or treated as an abatement of premiums of such policyholder within the taxable year.
(i) Income from dividends that has already borne a tax as dividend income under the provisions of this article, when such dividends may be specifically identified in the possession of the recipient.
(j) Amounts paid by the United States to a person as added compensation for hazardous duty pay as a member of the Armed Forces of the United States in a combat zone designated by Executive Order of the President of the United States.
(k) Amounts received as retirement allowances, pensions, annuities or optional retirement allowances paid under the federal Social Security Act, the Railroad Retirement Act, the Federal Civil Service Retirement Act, or any other retirement system of the United States government, retirement allowances paid under the Mississippi Public Employees' Retirement System, Mississippi Highway Safety Patrol Retirement System or any other retirement system of the State of Mississippi or any political subdivision thereof. The exemption allowed under this paragraph (k) shall be available to the spouse or other beneficiary at the death of the primary retiree.
(l) Amounts received as retirement allowances, pensions, annuities or optional retirement allowances paid by any public or governmental retirement system not designated in paragraph (k) or any private retirement system or plan of which the recipient was a member at any time during the period of his employment. Amounts received as a distribution under a Roth Individual Retirement Account shall be treated in the same manner as provided under the Internal Revenue Code of 1986, as amended. The exemption allowed under this paragraph (l) shall be available to the spouse or other beneficiary at the death of the primary retiree.
(m) National Guard or Reserve Forces of the United States compensation not to exceed the aggregate sum of Five Thousand Dollars ($5,000.00) for any taxable year through the 2005 taxable year, and not to exceed the aggregate sum of Fifteen Thousand Dollars ($15,000.00) for any taxable year thereafter.
(n) Compensation received for active service as a member below the grade of commissioned officer and so much of the compensation as does not exceed the maximum enlisted amount received for active service as a commissioned officer in the Armed Forces of the United States for any month during any part of which such members of the Armed Forces (i) served in a combat zone as designated by Executive Order of the President of the United States or a qualified hazardous duty area as defined by federal law, or both; or (ii) was hospitalized as a result of wounds, disease or injury incurred while serving in such combat zone. For the purposes of this paragraph (n), the term "maximum enlisted amount" means and has the same definition as that term has in 26 USCS 112.
(o) The proceeds received from federal and state forestry incentive programs.
(p) The amount representing the difference between the increase of gross income derived from sales for export outside the United States as compared to the preceding tax year wherein gross income from export sales was highest, and the net increase in expenses attributable to such increased exports. In the absence of direct accounting, the ratio of net profits to total sales may be applied to the increase in export sales. This paragraph (p) shall only apply to businesses located in this state engaging in the international export of Mississippi goods and services. Such goods or services shall have at least fifty percent (50%) of value added at a location in Mississippi.
(q) Amounts paid by the federal government for the construction of soil conservation systems as required by a conservation plan adopted pursuant to 16 USCS 3801 et seq.
(r) The amount deposited in a medical savings account, and any interest accrued thereon, that is a part of a medical savings account program as specified in the Medical Savings Account Act under Sections 71-9-1 through 71-9-9; provided, however, that any amount withdrawn from such account for purposes other than paying eligible medical expense or to procure health coverage shall be included in gross income.
(s) Amounts paid by the Mississippi Soil and Water Conservation Commission from the Mississippi Soil and Water Cost-Share Program for the installation of water quality best management practices.
(t) Dividends received by a holding corporation, as defined in Section 27-13-1, from a subsidiary corporation, as defined in Section 27-13-1.
(u) Interest, dividends, gains or income of any kind on any account in the Mississippi Affordable College Savings Trust Fund, as established in Sections 37-155-101 through 37-155-125, to the extent that such amounts remain on deposit in the MACS Trust Fund or are withdrawn pursuant to a qualified withdrawal, as defined in Section 37-155-105.
(v) Interest, dividends or gains accruing on the payments made pursuant to a prepaid tuition contract, as provided for in Section 37-155-17.
(w) Income resulting from transactions with a related member where the related member subject to tax under this chapter was required to, and did in fact, add back the expense of such transactions as required by Section 27-7-17(2). Under no circumstances may the exclusion from income exceed the deduction add-back of the related member, nor shall the exclusion apply to any income otherwise excluded under this chapter.
(x) Amounts that are subject to the tax levied pursuant to Section 27-7-901, and are paid to patrons by gaming establishments licensed under the Mississippi Gaming Control Act.
(y) Amounts that are subject to the tax levied pursuant to Section 27-7-903, and are paid to patrons by gaming establishments not licensed under the Mississippi Gaming Control Act.
(z) Interest, dividends, gains or income of any kind on any account in a qualified tuition program and amounts received as distributions under a qualified tuition program shall be treated in the same manner as provided under the United States Internal Revenue Code, as amended. For the purposes of this paragraph (z), the term "qualified tuition program" means and has the same definition as that term has in 26 USCS 529.
(aa) The amount deposited in a health savings account, and any interest accrued thereon, that is a part of a health savings account program as specified in the Health Savings Accounts Act created in Sections 83-62-1 through 83-62-9; however, any amount withdrawn from such account for purposes other than paying qualified medical expenses or to procure health coverage shall be included in gross income, except as otherwise provided by Sections 83-62-7 and 83-62-9.
(bb) Amounts received as qualified disaster relief payments shall be treated in the same manner as provided under the United States Internal Revenue Code, as amended.
(cc) Amounts received as a "qualified Hurricane Katrina distribution" as defined in the United States Internal Revenue Code, as amended.
(dd) Amounts received by an individual which may be excluded from income as foreign earned income for federal income tax purposes.
(ee) Amounts received by a qualified individual, directly or indirectly, from an employer or nonprofit housing organization that are qualified housing expenses associated with an employer-assisted housing program. For purposes of this paragraph (ee):
(i) "Qualified individual" means any individual whose household income does not exceed one hundred twenty percent (120%) of the area median gross income (as defined by the United States Department of Housing and Urban Development), adjusted for household size, for the area in which the housing is located.
(ii) "Nonprofit housing organization" means an organization that is organized as a not-for-profit organization under the laws of this state or another state and has as one of its purposes:
1. Homeownership education or counseling;
2. The development of affordable housing; or
3. The development or administration of employer-assisted housing programs.
(iii) "Employer-assisted housing program" means a separate written plan of any employer (including, without limitation, tax-exempt organizations and public employers) for the exclusive benefit of the employer's employees to pay qualified housing expenses to assist the employer's employees in securing affordable housing.
(iv) "Qualified housing expenses" means:
1. With respect to rental assistance, an amount not to exceed Two Thousand Dollars ($2,000.00) paid for the purpose of assisting employees with security deposits and rental subsidies; and
2. With respect to homeownership assistance, an amount not to exceed the lesser of Ten Thousand Dollars ($10,000.00) or six percent (6%) of the purchase price of the employee's principal residence that is paid for the purpose of assisting employees with down payments, payment of closing costs, reduced interest mortgages, mortgage guarantee programs, mortgage forgiveness programs, equity contribution programs, or contributions to home buyer education and/or homeownership counseling of eligible employees.
(ff) For the 2010 taxable year and any taxable year thereafter, amounts converted in accordance with the United States Internal Revenue Code, as amended, from a traditional Individual Retirement Account to a Roth Individual Retirement Account. The exemption allowed under this paragraph (ff) shall be available to the spouse or other beneficiary at the death of the primary retiree.
(gg) Amounts received for the performance of disaster or emergency-related work as defined in Section 27-113-5.
(hh) The amount deposited in a catastrophe savings account established under Sections 27-7-1001 through 27-7-1007, interest income earned on the catastrophe savings account, and distributions from the catastrophe savings account; however, any amount withdrawn from a catastrophe savings account for purposes other than paying qualified catastrophe expenses shall be included in gross income, except as otherwise provided by Sections 27-7-1001 through 27-7-1007.
(ii) Amounts received from the activities described in Section 14(a) and (b) of this act by a health care collaborative as defined in Section 2 of this act or an entity controlled by a health care collaborative, except amounts that are subject to the tax levied under Section 27-65-21.
(5) Prisoners of war, missing in action-taxable status.
(a) Members of the Armed Forces. Gross income does not include compensation received for active service as a member of the Armed Forces of the United States for any month during any part of which such member is in a missing status, as defined in paragraph (d) of this subsection, during the Vietnam Conflict as a result of such conflict.
(b) Civilian employees. Gross income does not include compensation received for active service as an employee for any month during any part of which such employee is in a missing status during the Vietnam Conflict as a result of such conflict.
(c) Period of conflict. For the purpose of this subsection, the Vietnam Conflict began February 28, 1961, and ends on the date designated by the President by Executive Order as the date of the termination of combatant activities in Vietnam. For the purpose of this subsection, an individual is in a missing status as a result of the Vietnam Conflict if immediately before such status began he was performing service in Vietnam or was performing service in Southeast Asia in direct support of military operations in Vietnam. "Southeast Asia," as used in this paragraph, is defined to include Cambodia, Laos, Thailand and waters adjacent thereto.
(d) "Missing status" means the status of an employee or member of the Armed Forces who is in active service and is officially carried or determined to be absent in a status of (i) missing; (ii) missing in action; (iii) interned in a foreign country; (iv) captured, beleaguered or besieged by a hostile force; or (v) detained in a foreign country against his will; but does not include the status of an employee or member of the Armed Forces for a period during which he is officially determined to be absent from his post of duty without authority.
(e) "Active service" means active federal service by an employee or member of the Armed Forces of the United States in an active duty status.
(f) "Employee" means one who is a citizen or national of the United States or an alien admitted to the United States for permanent residence and is a resident of the State of Mississippi and is employed in or under a federal executive agency or department of the Armed Forces.
(g) "Compensation" means (i) basic pay; (ii) special pay; (iii) incentive pay; (iv) basic allowance for quarters; (v) basic allowance for subsistence; and (vi) station per diem allowances for not more than ninety (90) days.
(h) If refund or credit of any overpayment of tax for any taxable year resulting from the application of this subsection (5) is prevented by the operation of any law or rule of law, such refund or credit of such overpayment of tax may, nevertheless, be made or allowed if claim therefor is filed with the Department of Revenue within three (3) years after the date of the enactment of this subsection.
(i) The provisions of this subsection shall be effective for taxable years ending on or after February 28, 1961.
(6) A shareholder of an S corporation, as defined in Section 27-8-3(1)(g), shall take into account the income, loss, deduction or credit of the S corporation only to the extent provided in Section 27-8-7(2).
SECTION 32. Section 27-13-5, Mississippi Code of 1972, is amended as follows:
27-13-5. (1) (a) Franchise tax levy. Except as
otherwise provided in subsections (3), (4), (5), * * * (7) and (8) of this section, there
is hereby imposed, to be paid and collected as hereinafter provided, a
franchise or excise tax upon every corporation, association or joint-stock
company or partnership treated as a corporation under the income tax laws or
regulations, organized or created for pecuniary gain, having privileges not
possessed by individuals, and having authorized capital stock now existing in
this state, or hereafter organized, created or established, under and by virtue
of the laws of the State of Mississippi, equal to:
(i) For tax years beginning before January 1, 2018, Two Dollars and Fifty Cents ($2.50) for each One Thousand Dollars ($1,000.00), or fraction thereof, of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(ii) For tax years beginning on or after January 1, 2018, but before January 1, 2019, Two Dollars and Fifty Cents ($2.50) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(iii) For tax years beginning on or after January 1, 2019, but before January 1, 2020, Two Dollars and Twenty-five Cents ($2.25) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(iv) For tax years beginning on or after January 1, 2020, but before January 1, 2021, Two Dollars ($2.00) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(v) For tax years beginning on or after January 1, 2021, but before January 1, 2022, One Dollar and Seventy-five Cents ($1.75) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(vi) For tax years beginning on or after January 1, 2022, but before January 1, 2023, One Dollar and Fifty Cents ($1.50) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(vii) For tax years beginning on or after January 1, 2023, but before January 1, 2024, One Dollar and Twenty-five Cents ($1.25) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(viii) For tax years beginning on or after January 1, 2024, but before January 1, 2025, One Dollar ($1.00) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(ix) For tax years beginning on or after January 1, 2025, but before January 1, 2026, Seventy-five Cents (75¢) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(x) For tax years beginning on or after January 1, 2026, but before January 1, 2027, Fifty Cents (50¢) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(xi) For tax years beginning on or after January 1, 2027, but before January 1, 2028, Twenty-five Cents (25¢) for each One Thousand Dollars ($1,000.00), or fraction thereof, in excess of One Hundred Thousand Dollars ($100,000.00), of the value of the capital used, invested or employed in the exercise of any power, privilege or right enjoyed by such organization within this state, except as hereinafter provided.
(b) In no case shall the franchise tax due for the accounting period be less than Twenty-five Dollars ($25.00).
(c) It is the purpose of this section to require the payment to the State of Mississippi of this tax for the right granted by the laws of this state to exist as such organization, and to enjoy, under the protection of the laws of this state, the powers, rights, privileges and immunities derived from the state by the form of such existence.
(2) Annual report of domestic corporations. Each domestic corporation shall file an annual report as required by the provisions of Section 79-4-16.22.
(3) (a) A corporation that has negotiated a fee-in-lieu as defined in Section 57-75-5 shall not be subject to the tax levied by this section on such project; however, the fee-in-lieu payment shall be otherwise treated in the same manner as the payment of franchise taxes.
(b) (i) As used in this paragraph:
1. "Authority" shall have the meaning ascribed to such term in Section 57-75-5(b);
2. "Project" shall have the meaning ascribed to such term in Section 57-75-5(f)(xxix); and
3. "Enterprise" shall mean the corporation authorized for the project pursuant to Section 57-75-5(f)(xxix).
(ii) The term of the franchise tax fee-in-lieu agreement negotiated under this subsection and authorized by Section 57-75-5(j), between the authority and the enterprise for the project shall not exceed twenty-five (25) years. The franchise tax fee-in-lieu agreement shall apply only to new franchise tax liability attributable to the project, and shall not apply to any existing franchise tax liability of the enterprise in connection with any current operations in this state.
(iii) In the event that the annual number of full-time jobs maintained by the enterprise falls below the minimum annual number of full-time jobs required by the authority pursuant to a written agreement between the authority and the enterprise for two (2) consecutive years, the franchise tax fee-in-lieu for the project shall be suspended until the first tax year during which the annual number of full-time jobs maintained by the enterprise reaches the minimum annual number of full-time jobs required by the authority pursuant to a written agreement between the authority and the enterprise.
(iv) The enterprise shall be entitled to utilize a single sales apportionment factor in the calculation of its liability for franchise tax imposed by this chapter which is attributable to the project for any year for which it files a Mississippi franchise tax return. The enterprise shall be entitled to continue to utilize such single sales apportionment factor notwithstanding a suspension of the franchise tax fee-in-lieu pursuant to subparagraph (iii) of this paragraph.
(4) An approved business enterprise as defined in the Growth and Prosperity Act shall not be subject to the tax levied by this section on the value of capital used, invested or employed by the approved business enterprise in a growth and prosperity county or supervisors district as provided in the Growth and Prosperity Act.
(5) A business enterprise operating a project as defined in Section 57-64-33, in a county that is a member of a regional economic development alliance created under the Regional Economic Development Act shall not be subject to the tax levied by this section on the value of capital used, invested or employed by the business enterprise in such a county as provided in Section 57-64-33.
(6) The tax levied by this chapter and paid by a business enterprise located in a redevelopment project area under Sections 57-91-1 through 57-91-11 shall be deposited into the Redevelopment Project Incentive Fund created in Section 57-91-9.
(7) A business enterprise as defined in Section 57-113-1 that is exempt from certain state taxes under Section 57-113-5 shall not be subject to the tax levied by this section on the value of capital used, invested or employed by the business enterprise.
(8) A health care collaborative as defined in Section 2 of this act or an entity controlled by a health care collaborative shall not be subject to the tax levied by this section on the value of capital used, invested or employed by the health care collaborative or entity in establishing, operating or otherwise carrying on the business and activities of the health care collaborative or entity.
SECTION 33. Section 27-31-1, Mississippi Code of 1972, is amended as follows:
27-31-1. The following shall be exempt from taxation:
(a) All cemeteries used exclusively for burial purposes.
(b) All property, real or personal, belonging to the State of Mississippi or any of its political subdivisions, except property of a municipality not being used for a proper municipal purpose and located outside the county or counties in which such municipality is located. A proper municipal purpose within the meaning of this section shall be any authorized governmental or corporate function of a municipality.
(c) All property, real or personal, owned by units of the Mississippi National Guard, or title to which is vested in trustees for the benefit of any unit of the Mississippi National Guard; provided such property is used exclusively for such unit, or for public purposes, and not for profit.
(d) All property, real or personal, belonging to any religious society, or ecclesiastical body, or any congregation thereof, or to any charitable society, or to any historical or patriotic association or society, or to any garden or pilgrimage club or association and used exclusively for such society or association and not for profit; not exceeding, however, the amount of land which such association or society may own as provided in Section 79-11-33. All property, real or personal, belonging to any rural waterworks system or rural sewage disposal system incorporated under the provisions of Section 79-11-1. All property, real or personal, belonging to any college or institution for the education of youths, used directly and exclusively for such purposes, provided that no such college or institution for the education of youths shall have exempt from taxation more than six hundred forty (640) acres of land; provided, however, this exemption shall not apply to commercial schools and colleges or trade institutions or schools where the profits of same inure to individuals, associations or corporations. All property, real or personal, belonging to an individual, institution or corporation and used for the operation of a grammar school, junior high school, high school or military school. All property, real or personal, owned and occupied by a fraternal and benevolent organization, when used by such organization, and from which no rentals or other profits accrue to the organization, but any part rented or from which revenue is received shall be taxed.
(e) All property, real or personal, held and occupied by trustees of public schools, and school lands of the respective townships for the use of public schools, and all property kept in storage for the convenience and benefit of the State of Mississippi in warehouses owned or leased by the State of Mississippi, wherein said property is to be sold by the Alcoholic Beverage Control Division of the Department of Revenue of the State of Mississippi.
(f) All property, real or personal, whether belonging to religious or charitable or benevolent organizations, which is used for hospital purposes, and nurses' homes where a part thereof, and which maintain one or more charity wards that are for charity patients, and where all the income from said hospitals and nurses' homes is used entirely for the purposes thereof and no part of the same for profit.
(g) The wearing apparel of every person; and also jewelry and watches kept by the owner for personal use to the extent of One Hundred Dollars ($100.00) in value for each owner.
(h) Provisions on hand for family consumption.
(i) All farm products grown in this state for a period of two (2) years after they are harvested, when in the possession of or the title to which is in the producer, except the tax of one-fifth of one percent (1/5 of 1%) per pound on lint cotton now levied by the Board of Commissioners of the Mississippi Levee District; and lint cotton for five (5) years, and cottonseed, soybeans, oats, rice and wheat for one (1) year regardless of ownership.
(j) All guns and pistols kept by the owner for private use.
(k) All poultry in the hands of the producer.
(l) Household furniture, including all articles kept in the home by the owner for his own personal or family use; but this shall not apply to hotels, rooming houses or rented or leased apartments.
(m) All cattle and oxen.
(n) All sheep, goats and hogs.
(o) All horses, mules and asses.
(p) Farming tools, implements and machinery, when used exclusively in the cultivation or harvesting of crops or timber.
(q) All property of agricultural and mechanical associations and fairs used for promoting their objects, and where no part of the proceeds is used for profit.
(r) The libraries of all persons.
(s) All pictures and works of art, not kept for or offered for sale as merchandise.
(t) The tools of any mechanic necessary for carrying on his trade.
(u) All state, county, municipal, levee, drainage and all school bonds or other governmental obligations, and all bonds and/or evidences of debts issued by any church or church organization in this state, and all notes and evidences of indebtedness which bear a rate of interest not greater than the maximum rate per annum applicable under the law; and all money loaned at a rate of interest not exceeding the maximum rate per annum applicable under the law; and all stock in or bonds of foreign corporations or associations shall be exempt from all ad valorem taxes.
(v) All lands and other property situated or located between the Mississippi River and the levee shall be exempt from the payment of any and all road taxes levied or assessed under any road laws of this state.
(w) Any and all money on deposit in either national banks, state banks or trust companies, on open account, savings account or time deposit.
(x) All wagons, carts, drays, carriages and other horse-drawn vehicles, kept for the use of the owner.
(y) (i) Boats, seines and fishing equipment used in fishing and shrimping operations and in the taking or catching of oysters.
(ii) All towboats, tugboats and barges documented under the laws of the United States, except watercraft of every kind and character used in connection with gaming operations.
(z) All materials used in the construction and/or conversion of vessels in this state; vessels while under construction and/or conversion; vessels while in the possession of the manufacturer, builder or converter, for a period of twelve (12) months after completion of construction and/or conversion, and as used herein the term "vessel" shall include ships, offshore drilling equipment, dry docks, boats and barges, except watercraft of every kind and character used in connection with gaming operations.
(aa) Sixty-six and two-thirds percent (66-2/3%) of nuclear fuel and reprocessed, recycled or residual nuclear fuel by-products, fissionable or otherwise, used or to be used in generation of electricity by persons defined as public utilities in Section 77-3-3.
(bb) All growing nursery stock.
(cc) A semitrailer used in interstate commerce.
(dd) All property, real or personal, used exclusively for the housing of and provision of services to elderly persons, disabled persons, mentally impaired persons or as a nursing home, which is owned, operated and managed by a not-for-profit corporation, qualified under Section 501(c)(3) of the Internal Revenue Code, whose membership or governing body is appointed or confirmed by a religious society or ecclesiastical body or any congregation thereof.
(ee) All vessels while in the hands of bona fide dealers as merchandise and which are not being operated upon the waters of this state shall be exempt from ad valorem taxes. As used in this paragraph, the terms "vessel" and "waters of this state" shall have the meaning ascribed to such terms in Section 59-21-3.
(ff) All property, real or personal, owned by a nonprofit organization that: (i) is qualified as tax exempt under Section 501(c)(4) of the Internal Revenue Code of 1986, as amended; (ii) assists in the implementation of the national contingency plan or area contingency plan, and which is created in response to the requirements of Title IV, Subtitle B of the Oil Pollution Act of 1990, Public Law 101-380; (iii) engages primarily in programs to contain, clean up and otherwise mitigate spills of oil or other substances occurring in the United States coastal or tidal waters; and (iv) is used for the purposes of the organization.
(gg) If a municipality changes its boundaries so as to include within the boundaries of such municipality the project site of any project as defined in Section 57-75-5(f)(iv)1, Section 57-75-5(f)(xxi) or Section 57-75-5(f)(xxviii) or Section 57-75-5(f)(xxix), all real and personal property located on the project site within the boundaries of such municipality that is owned by a business enterprise operating such project, shall be exempt from ad valorem taxation for a period of time not to exceed thirty (30) years upon receiving approval for such exemption by the Mississippi Major Economic Impact Authority. The provisions of this paragraph shall not be construed to authorize a breach of any agreement entered into pursuant to Section 21-1-59.
(hh) All leases, lease contracts or lease agreements (including, but not limited to, subleases, sublease contracts and sublease agreements), and leaseholds or leasehold interests (including, but not limited to, subleaseholds and subleasehold interests), of or with respect to any and all property (real, personal or mixed) constituting all or any part of a facility for the manufacture, production, generation, transmission and/or distribution of electricity, and any real property related thereto, shall be exempt from ad valorem taxation during the period as the United States is both the title owner of the property and a sublessee of or with respect to the property; however, the exemption authorized by this paragraph (hh) shall not apply to any entity to whom the United States sub-subleases its interest in the property nor to any entity to whom the United States assigns its sublease interest in the property. As used in this paragraph, the term "United States" includes an agency or instrumentality of the United States of America. This paragraph (hh) shall apply to all assessments for ad valorem taxation for the 2003 calendar year and each calendar year thereafter.
(ii) All property, real, personal or mixed, including fixtures and leaseholds, used by Mississippi nonprofit entities qualified, on or before January 1, 2005, under Section 501(c)(3) of the Internal Revenue Code to provide support and operate technology incubators for research and development start-up companies, telecommunication start-up companies and/or other technology start-up companies, utilizing technology spun-off from research and development activities of the public colleges and universities of this state, State of Mississippi governmental research or development activities resulting therefrom located within the State of Mississippi.
(jj) All property, real, personal or mixed, including fixtures and leaseholds, of start-up companies (as described in paragraph (ii) of this section) for the period of time, not to exceed five (5) years, that the start-up company remains a tenant of a technology incubator (as described in paragraph (ii) of this section).
(kk) All leases, lease contracts or lease agreements (including, but not limited to, subleases, sublease contracts and sublease agreements), and leaseholds or leasehold interests, of or with respect to any and all property (real, personal or mixed) constituting all or any part of an auxiliary facility, and any real property related thereto, constructed or renovated pursuant to Section 37-101-41, Mississippi Code of 1972.
(ll) Equipment brought into the state temporarily for use during a disaster response period as provided in Sections 27-113-1 through 27-113-9 and subsequently removed from the state on or before the end of the disaster response period as defined in Section 27-113-5.
(mm) All property of a health care collaborative as defined in Section 2 of this act or an entity controlled by a health care collaborative, as provided in Section 14(b) of this act.
SECTION 34. Section 27-65-19, Mississippi Code of 1972, is amended as follows:
27-65-19. (1) (a) (i) Except as otherwise provided in this subsection, upon every person selling to consumers, electricity, current, power, potable water, steam, coal, natural gas, liquefied petroleum gas or other fuel, there is hereby levied, assessed and shall be collected a tax equal to seven percent (7%) of the gross income of the business. Provided, gross income from sales to consumers of electricity, current, power, natural gas, liquefied petroleum gas or other fuel for residential heating, lighting or other residential noncommercial or nonagricultural use, and sales of potable water for residential, noncommercial or nonagricultural use shall be excluded from taxable gross income of the business. Provided further, upon every such seller using electricity, current, power, potable water, steam, coal, natural gas, liquefied petroleum gas or other fuel for nonindustrial purposes, there is hereby levied, assessed and shall be collected a tax equal to seven percent (7%) of the cost or value of the product or service used.
(ii) Gross income from sales to a church that is exempt from federal income taxation under 26 USCS Section 501(c)(3) of electricity, current, power, natural gas, liquefied petroleum gas or other fuel for heating, lighting or other use, and sales of potable water to such a church shall be excluded from taxable gross income of the business if the electricity, current, power, natural gas, liquefied petroleum gas or potable water is utilized on property that is primarily used for religious or educational purposes.
(iii) Gross income from sales of electricity, current, power, natural gas, liquefied petroleum gas or other fuel for heating, lighting or other use, and sales of potable water to a health care collaborative as defined in Section 2 of this act or an entity controlled by a health care collaborative, as provided in Section 14(c) of this act.
(b) (i) There is hereby levied, assessed and shall be collected a tax equal to one and one-half percent (1-1/2%) of the gross income of the business from the sale of naturally occurring carbon dioxide and anthropogenic carbon dioxide lawfully injected into the earth for:
1. Use in an enhanced oil recovery project, including, but not limited to, use for cycling, repressuring or lifting of oil; or
2. Permanent sequestration in a geological formation.
(ii) The one and one-half percent (1-1/2%) rate provided for in this subsection shall apply to electricity, current, power, steam, coal, natural gas, liquefied petroleum gas or other fuel that is sold to a producer of oil and gas for use directly in enhanced oil recovery using carbon dioxide and/or the permanent sequestration of carbon dioxide in a geological formation.
(c) The one and one-half percent (1-1/2%) rate provided for in this subsection shall not apply to sales of fuel for automobiles, trucks, truck-tractors, buses, farm tractors or airplanes.
(d) (i) Upon every person providing services in this state, there is hereby levied, assessed and shall be collected:
1. A tax equal to seven percent (7%) of the gross income received from all charges for intrastate telecommunications services.
2. A tax equal to seven percent (7%) of the gross income received from all charges for interstate telecommunications services.
3. A tax equal to seven percent (7%) of the gross income received from all charges for international telecommunications services.
4. A tax equal to seven percent (7%) of the gross income received from all charges for ancillary services.
5. A tax equal to seven percent (7%) of the gross income received from all charges for products delivered electronically, including, but not limited to, software, music, games, reading materials or ring tones.
(ii) A person, upon proof that he has paid a tax in another state on an event described in subparagraph (i) of this paragraph (d), shall be allowed a credit against the tax imposed in this paragraph (d) on interstate telecommunications service charges to the extent that the amount of such tax is properly due and actually paid in such other state and to the extent that the rate of sales tax imposed by and paid in such other state does not exceed the rate of sales tax imposed by this paragraph (d).
(iii) Charges by one (1) telecommunications provider to another telecommunications provider holding a permit issued under Section 27-65-27 for services that are resold by such other telecommunications provider, including, but not limited to, access charges, shall not be subject to the tax levied pursuant to this paragraph (d).
(iv) For purposes of this paragraph (d):
1. "Telecommunications service" means the electronic transmission, conveyance or routing of voice, data, audio, video or any other information or signals to a point, or between points. The term "telecommunications service" includes such transmission, conveyance or routing in which computer processing applications are used to act on the form, code or protocol of the content for purposes of transmission, conveyance or routing without regard to whether such service is referred to as voice over Internet protocol services or is classified by the Federal Communications Commission as enhanced or value added. The term "telecommunications service" shall not include:
a. Data processing and information services that allow data to be generated, acquired, stored, processed or retrieved and delivered by an electronic transmission to a purchaser where such purchaser's primary purpose for the underlying transaction is the processed data or information;
b. Installation or maintenance of wiring or equipment on a customer's premises;
c. Tangible personal property;
d. Advertising, including, but not limited to, directory advertising;
e. Billing and collection services provided to third parties;
f. Internet access service;
g. Radio and television audio and video programming services regardless of the medium, including the furnishing of transmission, conveyance and routing of such services by the programming service provider. Radio and television audio and video programming services shall include, but not be limited to, cable service as defined in 47 USCS 522(6) and audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 CFR 20.3;
h. Ancillary services; or
i. Digital products delivered electronically, including, but not limited to, software, music, video, reading materials or ring tones.
2. "Ancillary services" means services that are associated with or incidental to the provision of telecommunications services, including, but not limited to, detailed telecommunications billing, directory assistance, vertical service and voice mail service.
a. "Conference bridging" means an ancillary service that links two (2) or more participants of an audio or video conference call and may include the provision of a telephone number. Conference bridging does not include the telecommunications services used to reach the conference bridge.
b. "Detailed telecommunications billing service" means an ancillary service of separately stating information pertaining to individual calls on a customer's billing statement.
c. "Directory assistance" means an ancillary service of providing telephone number information and/or address information.
d. "Vertical service" means an ancillary service that is offered in connection with one or more telecommunications services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services.
e. "Voice mail service" means an ancillary service that enables the customer to store, send or receive recorded messages. Voice mail service does not include any vertical services that the customer may be required to have in order to utilize the voice mail service.
3. "Intrastate" means telecommunications service that originates in one (1) United States state or United States territory or possession, and terminates in the same United States state or United States territory or possession.
4. "Interstate" means a telecommunications service that originates in one (1) United States state or United States territory or possession, and terminates in a different United States state or United States territory or possession.
5. "International" means a telecommunications service that originates or terminates in the United States and terminates or originates outside the United States, respectively.
(v) For purposes of paragraph (d), the following sourcing rules shall apply:
1. Except for the defined telecommunications services in item 3 of this subparagraph, the sales of telecommunications services sold on a call-by-call basis shall be sourced to:
a. Each level of taxing jurisdiction where the call originates and terminates in that jurisdiction, or
b. Each level of taxing jurisdiction where the call either originates or terminates and in which the service address is also located.
2. Except for the defined telecommunications services in item 3 of this subparagraph, a sale of telecommunications services sold on a basis other than a call-by-call basis, is sourced to the customer's place of primary use.
3. The sale of the following telecommunications services shall be sourced to each level of taxing jurisdiction as follows:
a. A sale of mobile telecommunications services other than air-to-ground radiotelephone service and prepaid calling service is sourced to the customer's place of primary use as required by the Mobile Telecommunication Sourcing Act.
A. A home service provider shall be responsible for obtaining and maintaining the customer's place of primary use. The home service provider shall be entitled to rely on the applicable residential or business street address supplied by such customer, if the home service provider's reliance is in good faith; and the home service provider shall be held harmless from liability for any additional taxes based on a different determination of the place of primary use for taxes that are customarily passed on to the customer as a separate itemized charge. A home service provider shall be allowed to treat the address used for purposes of the tax levied by this chapter for any customer under a service contract in effect on August 1, 2002, as that customer's place of primary use for the remaining term of such service contract or agreement, excluding any extension or renewal of such service contract or agreement. Month-to-month services provided after the expiration of a contract shall be treated as an extension or renewal of such contract or agreement.
B. If the commissioner determines that the address used by a home service provider as a customer's place of primary use does not meet the definition of the term "place of primary use" as defined in subitem a.A. of this item 3, the commissioner shall give binding notice to the home service provider to change the place of primary use on a prospective basis from the date of notice of determination; however, the customer shall have the opportunity, prior to such notice of determination, to demonstrate that such address satisfies the definition.
C. The department has the right to collect any taxes due directly from the home service provider's customer that has failed to provide an address that meets the definition of the term "place of primary use" which resulted in a failure of tax otherwise due being remitted.
b. A sale of postpaid calling service is sourced to the origination point of the telecommunications signal as first identified by either:
A. The seller's telecommunications system; or
B. Information received by the seller from its service provider, where the system used to transport such signals is not that of the seller.
c. A sale of a prepaid calling service or prepaid wireless calling service shall be subject to the tax imposed by this paragraph if the sale takes place in this state. If the customer physically purchases a prepaid calling service or prepaid wireless calling service at the vendor's place of business, the sale is deemed to take place at the vendor's place of business. If the customer does not physically purchase the service at the vendor's place of business, the sale of a prepaid calling card or prepaid wireless calling card is deemed to take place at the first of the following locations that applies to the sale:
A. The customer's shipping address, if the sale involves a shipment;
B. The customer's billing address;
C. Any other address of the customer that is known by the vendor; or
D. The address of the vendor, or alternatively, in the case of a prepaid wireless calling service, the location associated with the mobile telephone number.
4. A sale of a private communication service is sourced as follows:
a. Service for a separate charge related to a customer channel termination point is sourced to each level of jurisdiction in which such customer channel termination point is located.
b. Service where all customer termination points are located entirely within one (1) jurisdiction or levels of jurisdiction is sourced in such jurisdiction in which the customer channel termination points are located.
c. Service for segments of a channel between two (2) customer channel termination points located in different jurisdictions and which segments of a channel are separately charged is sourced fifty percent (50%) in each level of jurisdiction in which the customer channel termination points are located.
d. Service for segments of a channel located in more than one (1) jurisdiction or levels of jurisdiction and which segments are not separately billed is sourced in each jurisdiction based on the percentage determined by dividing the number of customer channel termination points in such jurisdiction by the total number of customer channel termination points.
5. A sale of ancillary services is sourced to the customer's place of primary use.
(vi) For purposes of subparagraph (v) of this paragraph (d):
1. "Air-to-ground radiotelephone service" means a radio service, as that term is defined in 47 CFR 22.99, in which common carriers are authorized to offer and provide radio telecommunications service for hire to subscribers in aircraft.
2. "Call-by-call basis" means any method of charging for telecommunications services where the price is measured by individual calls.
3. "Communications channel" means a physical or virtual path of communications over which signals are transmitted between or among customer channel termination points.
4. "Customer" means the person or entity that contracts with the seller of telecommunications services. If the end user of telecommunications services is not the contracting party, the end user of the telecommunications service is the customer of the telecommunications service. Customer does not include a reseller of telecommunications service or for mobile telecommunications service of a serving carrier under an agreement to serve the customer outside the home service provider's licensed service area.
5. "Customer channel termination point" means the location where the customer either inputs or receives the communications.
6. "End user" means the person who utilizes the telecommunications service. In the case of an entity, "end user" means the individual who utilizes the service on behalf of the entity.
7. "Home service provider" has the meaning ascribed to such term in Section 124(5) of Public Law 106-252 (Mobile Telecommunications Sourcing Act).
8. "Mobile telecommunications service" has the meaning ascribed to such term in Section 124(7) of Public Law 106-252 (Mobile Telecommunications Sourcing Act).
9. "Place of primary use" means the street address representative of where the customer's use of the telecommunications service primarily occurs, which must be the residential street address or the primary business street address of the customer. In the case of mobile telecommunications services, the place of primary use must be within the licensed service area of the home service provider.
10. "Post-paid calling service" means the telecommunications service obtained by making a payment on a call-by-call basis either through the use of a credit card or payment mechanism such as a bank card, travel card, credit card or debit card, or by charge made to a telephone number which is not associated with the origination or termination of the telecommunications service. A post-paid calling service includes a telecommunications service, except a prepaid wireless calling service that would be a prepaid calling service except it is not exclusively a telecommunications service.
11. "Prepaid calling service" means the right to access exclusively telecommunications services, which must be paid for in advance and which enables the origination of calls using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount.
12. "Prepaid wireless calling service" means a telecommunications service that provides the right to utilize mobile wireless service as well as other nontelecommunications services, including the download of digital products delivered electronically, content and ancillary service, which must be paid for in advance that is sold in predetermined units or dollars of which the number declines with use in a known amount.
13. "Private communication service" means a telecommunications service that entitles the customer to exclusive or priority use of a communications channel or group of channels between or among termination points, regardless of the manner in which such channel or channels are connected, and includes switching capacity, extension lines, stations and any other associated services that are provided in connection with the use of such channel or channels.
14. "Service address" means:
a. The location of the telecommunications equipment to which a customer's call is charged and from which the call originates or terminates, regardless of where the call is billed or paid.
b. If the location in subitem a of this item 14 is not known, the origination point of the signal of the telecommunications services first identified by either the seller's telecommunications system or in information received by the seller from its service provider, where the system used to transport such signals is not that of the seller.
c. If the location in subitems a and b of this item 14 are not known, the location of the customer's place of primary use.
(vii) 1. For purposes of this subparagraph (vii), "bundled transaction" means a transaction that consists of distinct and identifiable properties or services which are sold for a single nonitemized price but which are treated differently for tax purposes.
2. In the case of a bundled transaction that includes telecommunications services, ancillary services, Internet access, or audio or video programming services taxed under this chapter in which the price of the bundled transaction is attributable to properties or services that are taxable and nontaxable, the portion of the price that is attributable to any nontaxable property or service shall be subject to the tax unless the provider can reasonably identify that portion from its books and records kept in the regular course of business.
3. In the case of a bundled transaction that includes telecommunications services, ancillary services, Internet access, audio or video programming services subject to tax under this chapter in which the price is attributable to properties or services that are subject to the tax but the tax revenue from the different properties or services are dedicated to different funds or purposes, the provider shall allocate the price among the properties or services:
a. By reasonably identifying the portion of the price attributable to each of the properties and services from its books and records kept in the regular course of business; or
b. Based on a reasonable allocation methodology approved by the department.
4. This subparagraph (vii) shall not create a right of action for a customer to require that the provider or the department, for purposes of determining the amount of tax applicable to a bundled transaction, allocate the price to the different portions of the transaction in order to minimize the amount of tax charged to the customer. A customer shall not be entitled to rely on the fact that a portion of the price is attributable to properties or services not subject to tax unless the provider elects, after receiving a written request from the customer in the form required by the provider, to provide verifiable data based upon the provider's books and records that are kept in the regular course of business that reasonably identifies the portion of the price attributable to the properties or services not subject to the tax.
(2) Persons making sales to consumers of electricity, current, power, natural gas, liquefied petroleum gas or other fuel for residential heating, lighting or other residential noncommercial or nonagricultural use or sales of potable water for residential, noncommercial or nonagricultural use shall indicate on each statement rendered to customers that such charges are exempt from sales taxes.
(3) There is hereby levied, assessed and shall be paid on transportation charges on shipments moving between points within this state when paid directly by the consumer, a tax equal to the rate applicable to the sale of the property being transported. Such tax shall be reported and paid directly to the Department of Revenue by the consumer.
SECTION 35. Section 27-65-105, Mississippi Code of 1972, is amended as follows:
27-65-105. The exemption from the provisions of this chapter which are of a governmental nature or which are more properly classified as governmental exemptions than any other exemption classification of this chapter shall be confined to those persons or property exempted by this section or by provisions of the Constitutions of the United States or the State of Mississippi. No governmental exemption as now provided by any other section shall be valid as against the tax herein levied. Any subsequent governmental exemption from the tax levied hereunder shall be provided by amendment to this section.
No exemption provided in this section shall apply to taxes levied by Section 27-65-15 or 27-65-21, Mississippi Code of 1972, except as provided by paragraph (f) of this section.
The tax levied by this chapter shall not apply to the following:
(a) Sales of property, labor, services or products taxable under Sections 27-65-17, 27-65-19, 27-65-23 and 27-19-26, when sold to and billed directly to and payment therefor is made directly by the United States government, the State of Mississippi and its departments, institutions, counties and municipalities or departments or school districts of said counties and municipalities.
The exemption from the tax imposed under this chapter shall not apply to sales of tangible personal property or specified digital products, labor or services to contractors purchasing in the performance of contracts with the United States, the State of Mississippi, counties and municipalities.
(b) Sales to schools, when such schools are supported wholly or in part by funds provided by the State of Mississippi, provided that this exemption does not apply to sales of property which is not to be used in the ordinary operation of the school, or which is to be resold to the students or the public.
(c) Amounts received from the sale of school textbooks to students.
(d) Sales to the Mississippi Band of Choctaw Indians, but not to Indians individually.
(e) Sales of firefighting equipment to governmental fire departments or volunteer fire departments for their use.
(f) Sales of any gas from any project, as defined in the Municipal Gas Authority of Mississippi Law, to any municipality shall not be subject to sales, use or other tax.
(g) Sales of home medical equipment and home medical supplies listed as eligible for payment under Title XVIII of the Social Security Act or under the state plan for medical assistance under Title XIX of the Social Security Act, prosthetics, orthotics, hearing aids, hearing devices, prescription eyeglasses, oxygen and oxygen equipment, when ordered or prescribed by a licensed physician for medical purposes of a patient, and when payment for such equipment or supplies, or both, is made, in part or in whole, under the provisions of the Medicare or Medicaid program, then the entire sale shall be exempt from the taxes imposed by this chapter. Payment does not have to be made, in whole or in part, by any particular person to be eligible for this exemption. Purchases of home medical equipment and supplies by a provider of home health services or a provider of hospice services are eligible for this exemption if the purchases otherwise meet the requirements of this paragraph.
(h) Sales to regional educational service agencies established under Section 37-7-345.
(i) Sales of buses and other motor vehicles, and parts and labor used to maintain and/or repair such buses and motor vehicles, to an entity that (a) has entered into a contract with a school board under Section 37-41-31 for the purpose of transporting students to and from schools and (b) uses or will use the buses and other motor vehicles for such transportation purposes. This paragraph (i) shall apply to contracts entered into or renewed on or after July 1, 2010.
(j) Parking at events held solely for religious or charitable purposes at livestock facilities, agriculture facilities or other facilities constructed, renovated or expanded with funds for the grant program authorized under Section 18, Chapter 530, Laws of 1995.
(k) Sales of tangible personal property, labor, services or products to schools and school districts under a program that is administered by or coordinated with an agency, commission, department or other instrumentality of the United States government when payment for the tangible personal property, labor, services or products is made by or through a nonprofit organization or other entity established by or for the benefit of the agency, commission, department or other instrumentality of the United States government administering or coordinating such program.
(l) Sales to a health care collaborative as defined in Section 2 of this act or an entity controlled by a health care collaborative, as provided in Section 14(c) of this act.
SECTION 36. Section 27-104-153, Mississippi Code of 1972, is amended as follows:
27-104-153. As used in Sections 27-104-151 through 27-104-159:
(a) "Searchable website" means an Internet site that:
(i) Allows the public to access information identified in Sections 27-104-151 through 27-104-159 without any fee or charge to the public for that access;
(ii) Provides keyword or other efficient search capability to support the public's ability to find, aggregate and display that information with reasonable ease by accessing a single website; and
(iii) Allows the public to programmatically search and access all data in a serialized machine readable format, such as XML, via a Web-services application programming interface.
(b) "Agency" means a state agency, department, institution, board, commission, council, office, bureau, division, committee or subcommittee of the state. The term "agency" includes individual agencies and programs as well as multiple agencies whenever programs and activities involve more than one (1) agency. The term "agency" includes all elective offices in the executive, legislative and judicial branches of state government. The term "agency" does not include counties or municipalities, and does not include a health care collaborative as defined in Section 2 of this act.
(c) "Entity" or "recipient" means a corporation, association, union, limited liability company, limited liability partnership, grantee, contractor, county, municipality or other local government entity, or any other legal business entity, including a nonprofit entity. The term "entity" or "recipient" does not include an individual recipient of state public assistance.
(d) "Expenditure of state funds" means the disbursement or transfer of any funds, from any source or funds, whether appropriated or nonappropriated, from any agency. The term "expenditure of state funds" includes the expenditures from bond proceeds.
(e) "Funding action" means the transfer of funds from a state agency to another entity for a specific purpose. These would include subgranting of funds for specific purposes or the funding through bonds or other authority specific projects and actions.
(f) "Funding source" means the state account against which an expenditure is recorded.
(g) "State audit or report" means any audit or report issued by the State Auditor, Joint Legislative Committee on Performance Evaluation and Expenditure Review (PEER) or an executive body relating to the entity or recipient of funds or to the budget program or activity or agency.
SECTION 37. Section 31-7-1, Mississippi Code of 1972, is amended as follows:
31-7-1. The following terms are defined for the purposes of this chapter to have the following meanings:
(a) "Agency" means any state board, commission, committee, council, university, department or unit thereof created by the Constitution or statutes if such board, commission, committee, council, university, department, unit or the head thereof is authorized to appoint subordinate staff by the Constitution or statute, except a legislative or judicial board, commission, committee, council, department or unit thereof; except a charter school authorized by the Mississippi Charter School Authorizer Board; and except the Mississippi State Port Authority. The term "agency" does not include a health care collaborative as defined in Section 2 of this act.
(b) "Governing authority" means boards of supervisors, governing boards of all school districts, all boards of directors of public water supply districts, boards of directors of master public water supply districts, municipal public utility commissions, governing authorities of all municipalities, port authorities, Mississippi State Port Authority, commissioners and boards of trustees of any public hospitals, boards of trustees of public library systems, district attorneys, school attendance officers and any political subdivision of the state supported wholly or in part by public funds of the state or political subdivisions thereof, including commissions, boards and agencies created or operated under the authority of any county or municipality of this state. The term "governing authority" shall not include economic development authorities supported in part by private funds, or commissions appointed to hold title to and oversee the development and management of lands and buildings which are donated by private individuals to the public for the use and benefit of the community and which are supported in part by private funds. The term "governing authority" also shall not include the governing board of a charter school.
(c) "Purchasing agent" means any administrator, superintendent, purchase clerk or other chief officer so designated having general or special authority to negotiate for and make private contract for or purchase for any governing authority or agency, including issue purchase orders, invitations for bid, requests for proposals, and receive and accept bids.
(d) "Public funds" means and includes any appropriated funds, special funds, fees or any other emoluments received by an agency or governing authority.
(e) "Commodities" means and includes the various commodities, goods, merchandise, furniture, equipment, automotive equipment of every kind, and other personal property purchased by the agencies of the state and governing authorities, but not commodities purchased for resale or raw materials converted into products for resale.
(i) "Equipment" shall be construed to include: automobiles, trucks, tractors, office appliances and all other equipment of every kind and description.
(ii) "Furniture" shall be construed to include: desks, chairs, tables, seats, filing cabinets, bookcases and all other items of a similar nature as well as dormitory furniture, appliances, carpets and all other items of personal property generally referred to as home, office or school furniture.
(f) "Emergency" means any circumstances caused by fire, flood, explosion, storm, earthquake, epidemic, riot, insurrection or caused by any inherent defect due to defective construction, or when the immediate preservation of order or of public health is necessary by reason of unforeseen emergency, or when the immediate restoration of a condition of usefulness of any public building, equipment, road or bridge appears advisable, or in the case of a public utility when there is a failure of any machine or other thing used and useful in the generation, production or distribution of electricity, water or natural gas, or in the transportation or treatment of sewage; or when the delay incident to obtaining competitive bids could cause adverse impact upon the governing authorities or agency, its employees or its citizens; or in the case of a public airport, when the delay incident to publishing an advertisement for competitive bids would endanger public safety in a specific (not general) manner, result in or perpetuate a specific breach of airport security, or prevent the airport from providing specific air transportation services.
(g) "Construction" means the process of building, altering, improving, renovating or demolishing a public structure, public building, or other public real property. It does not include routine operation, routine repair or regularly scheduled maintenance of existing public structures, public buildings or other public real property.
(h) "Purchase" means buying, renting, leasing or otherwise acquiring.
(i) "Certified purchasing office" means any purchasing office in which fifty percent (50%) or more of the purchasing agents hold a certification from the Universal Public Purchasing Certification Council or other nationally recognized purchasing certification, and in which, in the case of a state agency purchasing office, in addition to the national certification, one hundred percent (100%) of the purchasing officials hold a certification from the State of Mississippi's Basic or Advanced Purchasing Certification Program.
(j) "Certified Mississippi Purchasing Agent" means a state agency purchasing official who holds a certification from the Mississippi Basic Purchasing Certification Program as established by the Office of Purchasing, Travel and Fleet Management.
(k) "Certified Mississippi Procurement Manager" means a state agency purchasing official who holds a certification from the Mississippi Advanced Purchasing Certification Program as established by the Office of Purchasing, Travel and Fleet Management.
SECTION 38. Section 41-7-205, Mississippi Code of 1972, is amended as follows:
41-7-205. An applicant proposing a project which may be governed by the provisions of Section 41-7-171 et seq. may submit a determination of reviewability request to obtain a written declaratory opinion regarding the reviewability of the proposed project. If such opinion is sought, the requestor and department shall abide by the provisions of Section 25-43-2.103 as they are effective on July 1, 2016, except that the department's response shall be provided within forty-five (45) days of the request. A health care collaborative as defined in Section 2 of this act may seek an opinion from the department about whether a certificate of need is not required for a project of the health care collaborative because of the sponsoring university or health care collaborative's teaching or research mission, as provided in Section 18(8) of this act.
SECTION 39. The provisions of this act are cumulative and shall not be deemed to repeal existing laws, except to the extent such laws are clearly inconsistent with the provisions of this act.
SECTION 40. This act shall take effect and be in force from and after July 1, 2017.