MISSISSIPPI LEGISLATURE

2019 Regular Session

To: Judiciary A

By: Representative Gunn

House Bill 626

AN ACT TO AMEND SECTION 41-7-201, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT APPEALS OF ORDERS OF THE STATE DEPARTMENT OF HEALTH PERTAINING TO HEALTH CARE CERTIFICATES OF NEED SHALL BE MADE DIRECTLY TO THE MISSISSIPPI COURT OF APPEALS; TO AMEND SECTIONS 41-7-197 AND 9-4-3, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; TO REPEAL SECTION 41-7-202, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR A STAY OF PROCEEDINGS OF ANY WRITTEN DECISION OF THE DEPARTMENT OF HEALTH PERTAINING TO A CERTIFICATE OF NEED FOR CERTAIN HEALTH CARE FACILITIES; AND FOR RELATED PURPOSES.

     WHEREAS, in order to significantly reduce the time for a final decision in appeals of orders of the State Department of Health pertaining to health care certificates of need, the Legislature in 2011 enacted a law that amended Section 41-7-201 of the Mississippi Code to provide for a direct appeal of those orders to the Mississippi Supreme Court; and

     WHEREAS, in case of Dialysis Solutions, LLC v. Mississippi State Department of Health, 96 So.3rd 713 (Miss. 2012), the Mississippi Supreme Court decided that the amended Section 41-7-201 was unconstitutional because it violated Section 146 of the Mississippi Constitution of 1890 by impermissibly conferring original jurisdiction upon the Supreme Court; and

     WHEREAS, Section 146 of the Constitution provides for the jurisdiction of the Mississippi Supreme Court and it states that "[t]he Supreme Court shall have such jurisdiction as properly belongs to a court of appeals, and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law. [...]"; and

     WHEREAS, in 1993 the Legislature created another appellate court in addition to the Mississippi Supreme Court, the Court of Appeals of the State of Mississippi, which was given the power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme Court; and

     WHEREAS, unlike the Mississippi Supreme Court, which was created in the Mississippi Constitution and whose jurisdiction is specified in and limited by Section 146 of the Constitution, the Court of Appeals was created by statute and its jurisdiction is determined solely by the Legislature and is not subject to the restrictions of Section 146 of the Constitution; and

     WHEREAS, the jurisdiction of the Court of Appeals is specified by Section 9-4-3 of the Mississippi Code and is currently limited to appeals or other proceedings assigned to it by the Supreme Court, but because the Court of Appeals is not a constitutional court with constitutionally limited jurisdiction but instead is a statutory court with statutory jurisdiction, the Legislature may revise the jurisdiction of the Court of Appeals by amendment to Section 9-4-3; and

     WHEREAS, because direct appeals of orders of the State Department of Health pertaining to health care certificates of need cannot constitutionally be made to Mississippi Supreme Court, and the Legislature still desires to significantly reduce the time for a final decision in appeals of those orders, the Legislature has determined that Sections 41-7-201 and 9-4-3 can be amended consistent with the Constitution to provide for a direct appeal of those orders to the Court of Appeals; NOW, THEREFORE,

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Section 41-7-201, Mississippi Code of 1972, is amended as follows:

     41-7-201.  * * *(1)  The provisions of this subsection (1) shall apply to any party appealing any final order of the State Department of Health pertaining to a certificate of need for a home health agency, as defined in Section 41‑7‑173(h)(ix):

  (a)  In addition to other remedies now available at law or in equity, any party aggrieved by any such final order of the State Department of Health shall have the right of appeal to the Chancery Court of the First Judicial District of Hinds County, Mississippi, which appeal must be filed within thirty (30) days after the date of the final order.  Provided, however, that any appeal of an order disapproving an application for such a certificate of need may be made to the chancery court of the county where the proposed construction, expansion or alteration was to be located or the new service or purpose of the capital expenditure was to be located.  Such appeal must be filed in accordance with the thirty (30) days for filing as heretofore provided.  Any appeal shall state briefly the nature of the proceedings before the State Department of Health and shall specify the order complained of.  Any appeal shall state briefly the nature of the proceedings before the State Department of Health and shall specify the order complained of.  Any person whose rights may be materially affected by the action of the State Department of Health may appear and become a party or the court may, upon motion, order that any such person, organization or entity be joined as a necessary party.

  (b)  Upon the filing of such an appeal, the clerk of the chancery court shall serve notice thereof upon the State Department of Health, whereupon the State Department of Health shall, within thirty (30) days or within such additional time as the court may by order for cause allow from the service of such notice, certify to the chancery court the record in the case, which records shall include a transcript of all testimony, together with all exhibits or copies thereof, all pleadings, proceedings, orders, findings and opinions entered in the case; provided, however, that the parties and the State Department of Health may stipulate that a specified portion only of the record shall be certified to the court as the record on appeal.

  (c)  The court may dispose of the appeal in termtime or vacation and may sustain or dismiss the appeal, modify or vacate the order complained of, in whole or in part, as the case may be; but in case the order is wholly or partly vacated, the court may also, in its discretion, remand the matter to the State Department of Health for such further proceedings, not inconsistent with the court's order, as, in the opinion of the court, justice may require.  The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal.  Provided, however, an order of the chancery court reversing the denial of a certificate of need by the State Department of Health shall not entitle the applicant to effectuate the certificate of need until either:

   (i)  Such order of the chancery court has become final and has not been appealed to the Supreme Court; or

   (ii)  The Supreme Court has entered a final order affirming the chancery court.

  (d)  Appeals in accordance with law may be had to the Supreme Court of the State of Mississippi from any final judgment of the chancery court. The provisions of this * * *subsection (2) section shall apply to any party appealing any final order of the State Department of Health pertaining to a certificate of need for any health care facility as defined in Section 41-7-173(h) * * *, with the exception of any home health agency as defined in Section 41‑7‑173(h)(ix):

          (a)  There shall be a "stay of proceedings" of any final order issued by the State Department of Health pertaining to the issuance of a certificate of need for the establishment, construction, expansion or replacement of a health care facility for a period of thirty (30) days from the date of the order, if an existing provider located in the same service area where the health care facility is or will be located has requested a hearing during the course of review in opposition to the issuance of the certificate of need.  The stay of proceedings shall expire at the termination of thirty (30) days; however, no construction, renovation or other capital expenditure that is the subject of the order shall be undertaken, no license to operate any facility that is the subject of the order shall be issued by the licensing agency, and no certification to participate in the Title XVII or Title XIX programs of the Social Security Act shall be granted, until all statutory appeals have been exhausted or the time for * * *such those appeals has expired.  Notwithstanding the foregoing, the filing of an appeal from a final order of the State Department of Health or a final decision of the * * *chancery court Court of Appeals for the issuance of a certificate of need shall not prevent the purchase of medical equipment or development or offering of institutional health services granted in a certificate of need issued by the State Department of Health.

          (b)  In addition to other remedies now available at law or in equity, any party aggrieved by such final order of the State Department of Health shall have the right of direct appeal to the * * *Chancery Court of the First Judicial District of Hinds County, Mississippi Mississippi Court of Appeals, which appeal must be filed within twenty (20) days after the date of the final order.  * * *Provided, however, that any appeal of an order disapproving an application for such a certificate of need may be made to the chancery court of the county where the proposed construction, expansion or alteration was to be located or the new service or purpose of the capital expenditure was to be located.  Such appeal must be filed in accordance with the twenty (20) days for filing as heretofore provided. Any appeal shall state briefly the nature of the proceedings before the State Department of Health and shall specify the order complained of.

          (c)  Upon the filing of such an appeal, the clerk of the * * *chancery court Court of Appeals shall serve notice thereof upon the State Department of Health, whereupon the State Department of Health shall, within thirty (30) days of the date of the filing of the appeal, certify to the * * *chancery court the record in the case, which records shall include a transcript of all testimony, together with all exhibits or copies thereof, all proceedings, orders, findings and opinions entered in the case; * * *provided, however, * * *that the parties and the State Department of Health may stipulate that a specified portion only of the record shall be certified to the court as the record on appeal.  * * *The chancery court shall give preference to any such appeal from a final order by the State Department of Health in a certificate of need proceeding, and shall render a final order regarding such appeal no later than one hundred twenty (120) days from the date of the final order by the State Department of Health.  If the chancery court has not rendered a final order within this one‑hundred‑twenty‑day period, then the final order of the State Department of Health shall be deemed to have been affirmed by the chancery court, and any party to the appeal shall have the right to appeal from the chancery court to the Supreme Court on the record certified by the State Department of Health as otherwise provided in paragraph (g) of this subsection.  In the event the chancery court has not rendered a final order within the one‑hundred‑twenty‑day period and an appeal is made to the Supreme Court as provided herein, the Supreme Court shall remand the case to the chancery court to make an award of costs, fees, reasonable expenses and attorney's fees incurred in favor of appellee payable by the appellant(s) should the Supreme Court affirm the order of the State Department of Health.

(d)  Any appeal of a final order by the State Department of Health in a certificate of need proceeding shall require the giving of a bond by the appellant(s) sufficient to secure the appellee against the loss of costs, fees, expenses and attorney's fees incurred in defense of the appeal, approved by the chancery court within five (5) days of the date of filing the appeal.

          ( * * *ed)  No new or additional evidence shall be introduced in the * * *chancery court Court of Appeals but the case shall be determined upon the record certified to the court.

          ( * * *fe)  The * * *court may dispose of the appeal in termtime or vacation and Court of Appeals may sustain or dismiss the appeal, or modify or vacate the order complained of in whole or in part * * *and may make an award of costs, fees, expenses and attorney's fees, as the case may be; but in case.  When the order is wholly or partly vacated, the court may also, in its discretion, remand the matter to the State Department of Health for * * *such any further proceedings, not inconsistent with the court's * * *order decision, as, in the opinion of the court, justice may require.  * * *The court, as part of the final order, shall make an award of costs, fees, reasonable expenses and attorney's fees incurred in favor of appellee payable by the appellant(s) should the court affirm the order of the State Department of Health.  The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal.  * * *Provided, However, * * *an order a decision of the * * *chancery court Court of Appeals reversing the denial of a certificate of need by the State Department of Health shall not entitle the applicant to effectuate the certificate of need until either:

              (i)  * * *Such order of the chancery court The decision of the Court of Appeals has become final and * * *has not been appealed to the Supreme Court has not granted certiorari review of the decision; or

              (ii)  The Supreme Court has entered a final * * *order decision affirming the * * *chancery court Court of Appeals.

          ( * * *gf)  * * *Appeals in accordance with law may be had to Any final decision of the Court of Appeals may be reviewed by the Supreme Court * * *of the State of Mississippi from any final judgment of the chancery court by writ of certiorari as provided in Section 9-4-3(2).

          ( * * *hg)  Within thirty (30) days from the date of a final * * *order by decision of the Supreme Court or a final * * *order decision of the * * *chancery court not appealed to Court of Appeals for which the Supreme Court has not granted certiorari review that modifies or wholly or partly vacates the final order of the State Department of Health granting a certificate of need, the State Department of Health shall issue another order in conformity with the final * * *order decision of the Supreme Court, or the final * * *order decision of the * * *chancery court not appealed to Court of Appeals for which the Supreme Court has not granted certiorari review.

     SECTION 2.  Section 41-7-197, Mississippi Code of 1972, is amended as follows:

     41-7-197.  (1)  The State Department of Health shall adopt and utilize procedures for conducting certificate of need reviews. Such procedures shall include, inter alia, the following:  (a) written notification to the applicant; (b) written notification to health care facilities in the same health service area as the proposed service; (c) written notification to other persons who prior to the receipt of the application have filed a formal notice of intent to provide the proposed services in the same service area; and (d) notification to members of the public who reside in the service area where the service is proposed, which may be provided through newspapers or public information channels.

     (2)  All notices provided shall include, inter alia, the following:  (a) the proposed schedule for the review; (b) written notification of the period within which a public hearing during the course of the review may be requested in writing by one or more affected persons, such request to be made within ten (10) days of the department's staff recommendation for approval or disapproval of an application; and (c) the manner in which notification will be provided of the time and place of any hearing so requested.  Any such hearing shall be commenced by an independent hearing officer designated by the State Department of Health within sixty (60) days of the filing of the hearing request unless all parties to the hearing agree to extend the time for the commencement of the hearing.  At such hearing, the hearing officer and any person affected by the proposal being reviewed may conduct reasonable questioning of persons who make relevant factual allegations concerning the proposal.  The hearing officer shall require that all persons be sworn before they may offer any testimony at the hearing, and the hearing officer is authorized to administer oaths.  Any person so choosing may be represented by counsel at the hearing.  A record of the hearing shall be made, which shall consist of a transcript of all testimony received, all documents and other material introduced by any interested person, the staff report and recommendation and such other material as the hearing officer considers relevant, including his own recommendation, which he shall make, after reviewing, studying and analyzing the evidence presented during the hearing, within a reasonable period of time after the hearing is closed, which in no event shall exceed forty-five (45) days.  The completed record shall be certified to the State Health Officer, who shall consider only the record in making his decision, and shall not consider any evidence or material which is not included therein.  All final decisions regarding the issuance of a certificate of need shall be made by the State Health Officer.  The State Health Officer shall make his or her written findings and issue his or her order after reviewing said record.  The findings and decision of the State Health Officer shall not be deferred to any later date.

 * * * (3)  Unless a hearing is held, if review by the State Department of Health concerning the issuance of a certificate of need is not complete with a final decision issued by the State Health Officer within the time specified by rule or regulation, which shall not exceed ninety (90) days from the filing of the application for a certificate of need, the proponent of the proposal may, within thirty (30) days after the expiration of the specified time for review, commence such legal action as is necessary, in the Chancery Court of the First Judicial District of Hinds County or in the chancery court of the county in which the service or facility is proposed to be provided, to compel the State Health Officer to issue written findings and written order approving or disapproving the proposal in question.

     SECTION 3.  Section 9-4-3, Mississippi Code of 1972, is amended as follows:

     9-4-3.  (1)  The Court of Appeals shall have the power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme Court and any appeal made to it under Section 41-7-201.

     The jurisdiction of the Court of Appeals is limited to those matters which have been assigned to it by the Supreme Court and appeals made to it under Section 41-7-201.

     The Supreme Court shall prescribe rules for the assignment of matters to the Court of Appeals.  These rules may provide for the selective assignment of individual cases and may provide for the assignment of cases according to subject matter or other general criteria.  However, the Supreme Court shall retain appeals in cases imposing the death penalty, or cases involving utility rates, annexations, bond issues, election contests, or a statute held unconstitutional by the lower court.

     (2)  Decisions of the Court of Appeals are final and are not subject to review by the Supreme Court, except by writ of certiorari.  The Supreme Court may grant certiorari review only by the affirmative vote of four (4) of its members.  At any time before final decision by the Court of Appeals, the Supreme Court may, by order, transfer to the Supreme Court any case pending before the Court of Appeals.

     (3)  The Court of Appeals shall have jurisdiction to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition or any other process when this may be necessary in any case assigned to it by the Supreme Court.

     (4)  The Court of Appeals shall issue a decision in every case heard before the Court of Appeals within two hundred seventy (270) days after the final briefs have been filed with the court.

     (5)  The Supreme Court shall issue a decision in every case within its original jurisdiction, including all direct and post-conviction collateral relief appeals or applications in cases imposing the death penalty, within two hundred seventy (270) days after the final briefs have been filed with the court.  The Supreme Court shall issue a decision in every case received on certiorari from the Court of Appeals within one hundred eighty (180) days after the final briefs have been filed with the court.

     SECTION 4.  Section 41-7-202, Mississippi Code of 1972, which provides for a stay of proceedings of any written decision of the Department of Health pertaining to a certificate of need for certain health care facilities, is repealed.

     SECTION 5.  This act shall take effect and be in force from and after July 1, 2019.