MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Public Health and Welfare; Appropriations

By: Representative Holland

AN ACT TO AMEND SECTION 41-7-175, MISSISSIPPI CODE OF 1972, TO CREATE THE MISSISSIPPI HEALTH PLANNING AND DEVELOPMENT COMMISSION TO ADMINISTER THE HEALTH CARE CERTIFICATE OF NEED PROGRAM; TO PROVIDE FOR THE APPOINTMENT OF THE MEMBERS OF THE COMMISSION; TO TRANSFER ALL OF THE POWERS, DUTIES, PROPERTY AND EMPLOYEES OF THE STATE DEPARTMENT OF HEALTH RELATING TO THE HEALTH PLANNING AND CERTIFICATE OF NEED PROGRAM TO THE MISSISSIPPI HEALTH PLANNING AND DEVELOPMENT COMMISSION; TO CREATE NEW SECTION 41-7-179, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE APPOINTMENT OF AN EXECUTIVE DIRECTOR OF THE COMMISSION; TO AMEND SECTIONS 41-7-173, 41-7-183, 41-7-185, 41-7-187, 41-7-189, 41-7-191, 41-7-193, 41-7-195, 41-7-197, 41-7-201, 41-7-202, 41-7-205, 41-7-207 AND 41-7-209, MISSISSIPPI CODE OF 1972, AND SECTION 9 OF CHAPTER 482, LAWS OF 1982, AS LAST AMENDED BY SECTION 10 OF CHAPTER 515, LAWS OF 1987, TO CONFORM TO THE PRECEDING PROVISIONS; TO REPEAL SECTION 8 OF CHAPTER 482, LAWS OF 1982, AS LAST AMENDED BY SECTION 32 OF CHAPTER 500, LAWS OF 1986, WHICH AUTHORIZES THE CHARGING OF CERTAIN FEES FOR CERTIFICATE OF NEED HEARINGS; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 41-7-175, Mississippi Code of 1972, is amended as follows:

41-7-175. (1) There is created the Mississippi Health Planning and Development Commission, which shall be the sole and official agency of the State of Mississippi to administer and supervise, as prescribed by the Legislature, all responsibilities of the State Health Planning and Development Agency. The commission shall consist of nine (9) members, seven (7) of which shall be appointed by the Governor, and two (2) ex officio members. The Governor shall appoint one (1) member of the commission from each congressional district as constituted on July 1, 2000, and two (2) members of the commission from the state at large, each with the advice and consent of the Senate. The Executive Officer of the State Department of Health and the Executive Director of the Division of Medicaid shall be ex officio members of the commission, with full voting authority. At least three (3) of the appointed members of the commission shall be persons who are not providers or representative of any provider of health care services or have any financial or other interest in any provider of health care services. All appointed members of the commission shall be persons who have some knowledge or experience in matters under the jurisdiction of the commission.

(2) The initial members of the commission shall be appointed for staggered terms, as follows: Two (2) members shall be appointed for terms that end on June 30, 2002; three (3) members shall be appointed for terms that end on June 30, 2004; and two (2) members shall be appointed for terms that end on June 30, 2006. All subsequent appointments to the commission shall be for terms of six (6) years from the expiration date of the previous term. No person shall be appointed to the commission for more than two (2) consecutive terms. Any vacancy on the commission shall be filled by appointment of the Governor, with the advice and consent of the Senate, and the person appointed to fill the vacancy shall serve for the remainder of the unexpired term.

(3) The members of the commission shall select one (1) member to serve as chairman of the commission. The commission shall select a chairman once every two (2) years, and any person who has previously served as chairman may be reelected as chairman.

(4) Five (5) members of the commission shall constitute a quorum for the transaction of any business. The commission shall hold regular monthly meetings, and other meetings as may be necessary for the purpose of conducting such business as may be required. Members of the commission shall receive the per diem authorized under Section 25-3-69 for each day actually spent discharging their official duties, and shall receive reimbursement for mileage and necessary travel expenses incurred as provided in Section 25-3-41.

(5) All of the powers and duties of the State Department of Health relating to the health planning and certificate of need program under Section 41-7-171 et seq. are transferred to the Mississippi Health Planning and Development Commission. Employees of the State Department of Health whose primary duties relate to the health planning and certificate of need program under Section 41-7-171 et seq. and who hold positions on June 30, 2000, shall be employees of the Mississippi Health Planning and Development Commission on July 1, 2000. Any property, contractual rights and obligations and unexpended funds of the State Department of Health relating to the health planning and certificate of need program under Section 41-7-171 et seq. are transferred to the Mississippi Health Planning and Development Commission.

SECTION 2. The following shall be codified as Section 41-7-179, Mississippi Code of 1972:

41-7-179. The commission shall appoint a full-time executive director who shall hold a graduate degree in medical care administration, public health, hospital administration or the equivalent, and who shall have no financial or other interest in any health care provider. The executive director shall serve for a term of four (4) years and may only be removed for good cause shown by a majority vote of the commission, but only after a hearing before the commission. The executive director shall be the agent of the commission for the purpose of receiving all services of process, summonses and notices directed to the commission, shall direct the daily operations of the commission, and shall perform such other duties as the commission may delegate to him under the provisions of Section 41-7-171 et seq., or any other law of the state, the federal government, or any political subdivision or either, under which the commission is empowered with authority. Once appointed by the commission, the executive director shall have the authority to hire and, for just cause, discharge all other staff of the commission. All new positions, before staff is hired to fill them, must be authorized and approved by the commission itself in accordance with the laws and regulations as set by the State Personnel Board. The executive director shall employ such professional, administrative, stenographic, secretarial, clerical and technical assistance as may be necessary to perform the duties required by the commission in administering all laws and regulations over which the commission has authority, and set the compensation therefor, all in accordance with the state personnel system. The organizational structure of the staff shall provide for the performance of assigned functions and shall be subject to the approval of the commission.

SECTION 3. Section 41-7-173, Mississippi Code of 1972, is amended as follows:

41-7-173. For the purposes of Section 41-7-171 et seq., the following words shall have the meanings ascribed herein, unless the context otherwise requires:

(a) "Affected person" means (i) the applicant; (ii) a person residing within the geographic area to be served by the applicant's proposal; (iii) a person who regularly uses health care facilities or HMO's located in the geographic area of the proposal that provide similar service to that which is proposed; (iv) health care facilities and HMO's that have, before receipt of the application under review, formally indicated an intention to provide service similar to that of the proposal being considered at a future date; (v) third-party payers who reimburse health care facilities located in the geographical area of the proposal; or (vi) any agency that establishes rates for health care services or HMO's located in the geographic area of the proposal.

(b) "Certificate of need" means a written order of the commission setting forth the affirmative finding that a proposal in prescribed application form, sufficiently satisfies the plans, standards and criteria prescribed for that service or other project by Section 41-7-171 et seq., and by rules and regulations promulgated under those sections by the commission.

(c) (i) "Capital expenditure" when pertaining to defined major medical equipment, * * * means an expenditure that, under generally accepted accounting principles consistently applied, is not properly chargeable as an expense of operation and maintenance and that exceeds One Million Five Hundred Thousand Dollars ($1,500,000.00).

(ii) "Capital expenditure," when pertaining to other than major medical equipment, * * * means any expenditure that under generally accepted accounting principles consistently applied is not properly chargeable as an expense of operation and maintenance and that exceeds Two Million Dollars ($2,000,000.00).

(iii) A "capital expenditure" * * * includes the acquisition, whether by lease, sufferance, gift, devise, legacy, settlement of a trust or other means, of any facility or part thereof, or equipment for a facility, the expenditure for which would have been considered a capital expenditure if acquired by purchase. Transactions that are separated in time but are planned to be undertaken within twelve (12) months of each other and are components of an overall plan for meeting patient care objectives shall, for purposes of this definition, be viewed in their entirety without regard to their timing.

(iv) In those instances where a health care facility or other provider of health services proposes to provide a service in which the capital expenditure for major medical equipment or other than major medical equipment or a combination of the two (2) may have been split between separate parties, the total capital expenditure required to provide the proposed service shall be considered in determining the necessity of certificate of need review and in determining the appropriate certificate of need review fee to be paid. The capital expenditure associated with facilities and equipment to provide services in Mississippi shall be considered regardless of where the capital expenditure was made, in state or out of state, and regardless of the domicile of the party making the capital expenditure, in state or out of state.

(d) "Change of ownership" includes, but is not limited to, inter vivos gifts, purchases, transfers, lease arrangements, cash and/or stock transactions or other comparable arrangements whenever any person or entity acquires or controls a majority interest of the facility or service. Changes of ownership from partnerships, single proprietorships or corporations to another form of ownership are specifically included. However, "change of ownership" shall not include any inherited interest acquired as a result of a testamentary instrument or under the laws of descent and distribution of the State of Mississippi.

(e) "Commencement of construction" means that all of the following have been completed with respect to a proposal or project proposing construction, renovating, remodeling or alteration:

(i) A legally binding written contract has been consummated by the proponent and a lawfully licensed contractor to construct and/or complete the intent of the proposal within a specified period of time in accordance with final architectural plans that have been approved by the licensing authority of the State Department of Health;

(ii) Any and all permits and/or approvals deemed lawfully necessary by all authorities with responsibility for such have been secured; and

(iii) Actual bona fide undertaking of the subject proposal has commenced, and a progress payment of at least one percent (1%) of the total cost price of the contract has been paid to the contractor by the proponent, and the requirements of this paragraph (e) have been certified to in writing by the commission.

Force account expenditures, such as deposits, securities, bonds, et cetera, may, in the discretion of the commission, be excluded from any or all of the provisions of defined commencement of construction.

(f) "Consumer" means an individual who is not a provider of health care as defined in paragraph (q) of this section.

(g) "Develop," when used in connection with health services, means to undertake those activities that, on their completion, will result in the offering of a new institutional health service or the incurring of a financial obligation as defined under applicable state law in relation to the offering of those services.

(h) "Health care facility" includes hospitals, psychiatric hospitals, chemical dependency hospitals, skilled nursing facilities, end stage renal disease (ESRD) facilities, including freestanding hemodialysis units, intermediate care facilities, ambulatory surgical facilities, intermediate care facilities for the mentally retarded, home health agencies, psychiatric residential treatment facilities, pediatric skilled nursing facilities, long-term care hospitals, comprehensive medical rehabilitation facilities, including facilities owned or operated by the state or a political subdivision or instrumentality of the state, but does not include Christian Science sanatoriums operated or listed and certified by the First Church of Christ, Scientist, Boston, Massachusetts. This definition shall not apply to facilities for the private practice, either independently or by incorporated medical groups, of physicians, dentists or health care professionals except where those facilities are an integral part of an institutional health service. The various health care facilities listed in this paragraph shall be defined as follows:

(i) "Hospital" means an institution that is primarily engaged in providing to inpatients, by or under the supervision of physicians, diagnostic services and therapeutic services for medical diagnosis, treatment and care of injured, disabled or sick persons, or rehabilitation services for the rehabilitation of injured, disabled or sick persons. This term does not include psychiatric hospitals.

(ii) "Psychiatric hospital" means an institution that is primarily engaged in providing to inpatients, by or under the supervision of a physician, psychiatric services for the diagnosis and treatment of mentally ill persons.

(iii) "Chemical dependency hospital" means an institution that is primarily engaged in providing to inpatients, by or under the supervision of a physician, medical and related services for the diagnosis and treatment of chemical dependency such as alcohol and drug abuse.

(iv) "Skilled nursing facility" means an institution or a distinct part of an institution that is primarily engaged in providing to inpatients skilled nursing care and related services for patients who require medical or nursing care or rehabilitation services for the rehabilitation of injured, disabled or sick persons.

(v) "End stage renal disease (ESRD) facilities" means kidney disease treatment centers, which includes freestanding hemodialysis units and limited care facilities. The term "limited care facility" generally refers to an off-hospital-premises facility, regardless of whether it is provider or nonprovider operated, that is engaged primarily in furnishing maintenance hemodialysis services to stabilized patients.

(vi) "Intermediate care facility" means an institution that provides, on a regular basis, health related care and services to individuals who do not require the degree of care and treatment that a hospital or skilled nursing facility is designed to provide, but who, because of their mental or physical condition, require health related care and services (above the level of room and board).

(vii) "Ambulatory surgical facility" means a facility primarily organized or established for the purpose of performing surgery for outpatients and is a separate identifiable legal entity from any other health care facility. This term does not include the offices of private physicians or dentists, whether for individual or group practice, and does not include any abortion facility as defined in Section 41-75-1(e).

(viii) "Intermediate care facility for the mentally retarded" means an intermediate care facility that provides health or rehabilitative services in a planned program of activities to the mentally retarded, also including, but not limited to, cerebral palsy and other conditions covered by the Federal Developmentally Disabled Assistance and Bill of Rights Act, Public Law 94-103.

(ix) "Home health agency" means a public or privately owned agency or organization, or a subdivision of such an agency or organization, properly authorized to conduct business in Mississippi, that is primarily engaged in providing to individuals at the written direction of a licensed physician, in the individual's place of residence, skilled nursing services provided by or under the supervision of a registered nurse licensed to practice in Mississippi, and one or more of the following services or items:

1. Physical, occupational or speech therapy;

2. Medical social services;

3. Part-time or intermittent services of a home health aide;

4. Other services as approved by the licensing agency for home health agencies;

5. Medical supplies, other than drugs and biologicals, and the use of medical appliances; or

6. Medical services provided by an intern or resident-in-training at a hospital under a teaching program of the hospital.

Further, all skilled nursing services and those services listed in items 1. through 4. of this subparagraph (ix) must be provided directly by the licensed home health agency. For purposes of this subparagraph, "directly" means either through an agency employee or by an arrangement with another individual not defined as a health care facility.

This subparagraph (ix) shall not apply to health care facilities that had contracts for the above services with a home health agency on January 1, 1990.

(x) "Psychiatric residential treatment facility" means any nonhospital establishment with permanent licensed facilities that provides a twenty-four-hour program of care by qualified therapists including, but not limited to, duly licensed mental health professionals, psychiatrists, psychologists, psychotherapists and licensed certified social workers, for emotionally disturbed children and adolescents referred to the facility by a court, local school district or by the Department of Human Services, who are not in an acute phase of illness requiring the services of a psychiatric hospital, and are in need of those restorative treatment services. For purposes of this paragraph, the term "emotionally disturbed" means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects educational performance:

1. An inability to learn that cannot be explained by intellectual, sensory or health factors;

2. An inability to build or maintain satisfactory relationships with peers and teachers;

3. Inappropriate types of behavior or feelings under normal circumstances;

4. A general pervasive mood of unhappiness or depression; or

5. A tendency to develop physical symptoms or fears associated with personal or school problems. An establishment furnishing primarily domiciliary care is not within this definition.

(xi) "Pediatric skilled nursing facility" means an institution or a distinct part of an institution that is primarily engaged in providing to inpatients skilled nursing care and related services for persons under twenty-one (21) years of age who require medical or nursing care or rehabilitation services for the rehabilitation of injured, disabled or sick persons.

(xii) "Long-term care hospital" means a freestanding, Medicare-certified hospital that has an average length of inpatient stay greater than twenty-five (25) days, that is primarily engaged in providing chronic or long-term medical care to patients who do not require more than three (3) hours of rehabilitation or comprehensive rehabilitation per day, and has a transfer agreement with an acute care medical center and a comprehensive medical rehabilitation facility. Long-term care hospitals shall not use rehabilitation, comprehensive medical rehabilitation, medical rehabilitation, sub-acute rehabilitation, nursing home, skilled nursing facility, or sub-acute care facility in association with its name.

(xiii) "Comprehensive medical rehabilitation facility" means a hospital or hospital unit that is licensed and/or certified as a comprehensive medical rehabilitation facility that provides specialized programs that are accredited by the Commission on Accreditation of Rehabilitation Facilities and supervised by a physician board certified or board eligible in Physiatry or other doctor of medicine or osteopathy with at least two (2) years of training in the medical direction of a comprehensive rehabilitation program that:

1. Includes evaluation and treatment of individuals with physical disabilities;

2. Emphasizes education and training of individuals with disabilities;

3. Incorporates at least the following core disciplines:

(i) Physical Therapy;

(ii) Occupational Therapy;

(iii) Speech and Language Therapy;

(iv) Rehabilitation Nursing; and

4. Incorporates at least three (3) of the following disciplines:

(i) Psychology;

(ii) Audiology;

(iii) Respiratory Therapy;

(iv) Therapeutic Recreation;

(v) Orthotics;

(vi) Prosthetics;

(vii) Special Education;

(viii) Vocational Rehabilitation;

(ix) Psychotherapy;

(x) Social Work;

(xi) Rehabilitation Engineering.

These specialized programs include, but are not limited to: spinal cord injury programs, head injury programs and infant and early childhood development programs.

(i) "Health maintenance organization" or "HMO" means a public or private organization organized under the laws of this state or the federal government that:

(i) Provides or otherwise makes available to enrolled participants health care services, including substantially the following basic health care services: usual physician services, hospitalization, laboratory, x-ray, emergency and preventive services, and out-of-area coverage;

(ii) Is compensated (except for copayments) for the provision of the basic health care services listed in subparagraph (i) of this paragraph to enrolled participants on a predetermined basis; and

(iii) Provides physician services primarily:

1. Directly through physicians who are either employees or partners of that organization; or

2. Through arrangements with individual physicians or one or more groups of physicians (organized on a group practice or individual practice basis).

(j) "Health service area" means a geographic area of the state designated in the State Health Plan as the area to be used in planning for specified health facilities and services and to be used when considering certificate of need applications to provide health facilities and services.

(k) "Health services" means clinically related (i.e., diagnostic, treatment or rehabilitative) services and includes alcohol, drug abuse, mental health and home health care services.

(l) "Institutional health services" shall mean health services provided in or through health care facilities and shall include the entities in or through which those services are provided.

(m) "Major medical equipment" means medical equipment designed for providing medical or any health related service that costs in excess of One Million Five Hundred Thousand Dollars ($1,500,000.00). However, this definition shall not be applicable to clinical laboratories if they are determined by the commission to be independent of any physician's office, hospital or other health care facility or otherwise not so defined by federal or state law, or rules and regulations promulgated under those laws.

(n) "Commission" * * * means the Mississippi Health Planning and Development Commission created under Section 41-7-175, which shall be considered to be the State Health Planning and Development Agency, as defined in paragraph (t) of this section. Whenever the term "State Department of Health" or "department," when referring to the State Department of Health, is used in any law of the State of Mississippi or in any rule, regulation or document in connection with the department's former powers and duties relating to the health planning and certificate of need program under Section 41-7-171 et seq., it shall mean the Mississippi Health Planning and Development Commission.

(o) "Offer," when used in connection with health services, means that it has been determined by the commission that the health care facility is capable of providing specified health services.

(p) "Person" means an individual, a trust or estate, partnership, corporation (including associations, joint stock companies and insurance companies), the state or a political subdivision or instrumentality of the state.

(q) "Provider" * * * means any person who is a provider or representative of a provider of health care services requiring a certificate of need under Section 41-7-171 et seq., or who has any financial or indirect interest in any provider of services.

(r) "Secretary" means the Secretary of Health and Human Services, and any officer or employee of the Department of Health and Human Services to whom the authority involved has been delegated.

(s) "State Health Plan" means the sole and official statewide health plan for Mississippi that identifies priority state health needs and establishes standards and criteria for health-related activities that require certificate of need review in compliance with Section 41-7-191.

(t) "State Health Planning and Development Agency" means the agency of state government designated to perform health planning and resource development programs for the State of Mississippi.

SECTION 4. Section 41-7-183, Mississippi Code of 1972, is amended as follows:

41-7-183. The commission shall have the duty of administering all functions and responsibilities of the designated State Health Planning and Development Agency as prescribed by the Legislature, and shall serve as the designated planning agency of the state for purposes of Section 1122 of Public Law 92-603 for the period of time that a contract is in effect between the secretary and the commission for those purposes.

SECTION 5. Section 41-7-185, Mississippi Code of 1972, is amended as follows:

41-7-185. In carrying out its functions under Section 41-7-171 et seq., the commission may:

(a) Make applications for and accept funds from any federal and state agencies and * * * receive and administer such other funds for the planning or provision of health facilities or health care as are appropriate to the accomplishment of the purposes of Section 41-7-171 et seq.; and may contract with any federal and state agencies to accept funds to administer planning activities on the community, regional or state level;

(b) * * * Delegate to or contract with any mutually agreeable department, division or agency of the state, the federal government, or any political subdivision of either, or any private corporation, organization or association chartered by the Secretary of State of Mississippi, authority for administering any programs, duties or functions provided for in Section 41-7-171 et seq.;

(c) Prescribe and promulgate such reasonable rules and regulations as may be necessary to the implementation of the purposes of Section 41-7-171 et seq., complying with the Administrative Procedures Law (Section 25-43-1 et seq.);

(d) Require providers of institutional health services and home health care services provided through a home health agency and any other provider of health care requiring a certificate of need to submit or make available statistical information or such other information requested by the commission, but not information that would constitute an unwarranted invasion of the personal privacy of any individual person or place the provider in jeopardy of legal action by a third party;

(e) Conduct such other hearing or hearings in addition to those provided for in Section 41-7-197, and enter such further order or orders, and * * * enter into such agreement or agreements with any federal agencies as may be reasonably necessary to the realization by the people of Mississippi of the full benefits of acts of Congress;

(f) In its discretion, contract with the secretary, or terminate any such contract, for the administration of the provisions, programs, duties and functions of Section 1122 of Public Law 92-603; but the commission shall not be relieved of matters of accountability, obligation or responsibility that accrued to the commission by virtue of prior contracts and/or statutes;

(g) Prepare, review at least triennially, and revise, as necessary, a State Health Plan, as defined in Section 41-7-173 * * *.

SECTION 6. Section 41-7-187, Mississippi Code of 1972, is amended as follows:

41-7-187. The commission shall develop and implement a statewide health certificate of need program. The commission shall adopt by rule and regulation:

(a) Criteria, standards and plans to be used in evaluating applications for certificates of need;

(b) Effective standards to determine when a person, facility or organization must apply for a certificate of need;

(c) Standards to determine when a change of ownership has occurred or will occur; and

(d) Review procedures for conducting reviews of applications for certificates of need.

SECTION 7. Section 41-7-189, Mississippi Code of 1972, is amended as follows:

41-7-189. (1) Before review of new institutional health services or other proposals requiring a certificate of need, the commission shall disseminate to all health care facilities * * * within the state, and shall publish in one or more newspapers of general circulation in the state, a description of the scope of coverage of the commission's certificate of need program. Whenever the scope of that coverage is revised, the commission shall disseminate and publish a revised description of the scope of the coverage in the same manner.

(2) Selected statistical data and information obtained by the State Department of Health as the licensing agency for health care facilities requiring licensure by the state and as the agency that provides certification for the Medicaid and/or Medicare program, may be utilized by the commission in performing the statutory duties imposed upon it by any law over which it has authority, and regulations necessarily promulgated for those facilities to participate in the Medicaid and/or Medicare program; * * * however, * * * the names of individual patients shall not be revealed except in hearings or judicial proceedings regarding questions of licensure.

SECTION 8. Section 41-7-191, Mississippi Code of 1972, is amended as follows:

41-7-191. (1) No person shall engage in any of the following activities without obtaining the required certificate of need:

(a) The construction, development or other establishment of a new health care facility;

(b) The relocation of a health care facility or portion thereof, or major medical equipment, unless the relocation of a health care facility or portion of the facility, or major medical equipment, which does not involve a capital expenditure by or on behalf of a health care facility, is within one thousand three hundred twenty (1,320) feet from the main entrance of the health care facility;

(c) A change over a period of two (2) years' time, as established by the commission, in existing bed complement through the addition of more than ten (10) beds or more than ten percent (10%) of the total bed capacity of a designated licensed category or subcategory of any health care facility, whichever is less, from one physical facility or site to another; the conversion over a period of two (2) years' time, as established by the commission, of existing bed complement of more than ten (10) beds or more than ten percent (10%) of the total bed capacity of a designated licensed category or subcategory of any such health care facility, whichever is less; or the alteration, modernizing or refurbishing of any unit or department in which those beds may be located; * * * however, * * * from and after July 1, 1994, no health care facility shall be authorized to add any beds or convert any beds to another category of beds without a certificate of need under the authority of subsection (1)(c) of this section unless there is a projected need for those beds in the planning district in which the facility is located, as reported in the most current State Health Plan;

(d) Offering of the following health services if those services have not been provided on a regular basis by the proposed provider of those services within the period of twelve (12) months before the time the services would be offered:

(i) Open heart surgery services;

(ii) Cardiac catheterization services;

(iii) Comprehensive inpatient rehabilitation services;

(iv) Licensed psychiatric services;

(v) Licensed chemical dependency services;

(vi) Radiation therapy services;

(vii) Diagnostic imaging services of an invasive nature, i.e. invasive digital angiography;

(viii) Nursing home care as defined in subparagraphs (iv), (vi) and (viii) of Section 41-7-173(h);

(ix) Home health services;

(x) Swing-bed services;

(xi) Ambulatory surgical services;

(xii) Magnetic resonance imaging services;

(xiii) Extracorporeal shock wave lithotripsy services;

(xiv) Long-term care hospital services;

(xv) Positron Emission Tomography (PET) Services;

(e) The relocation of one or more health services from one physical facility or site to another physical facility or site, unless the relocation, which does not involve a capital expenditure by or on behalf of a health care facility, (i) is to a physical facility or site within one thousand three hundred twenty (1,320) feet from the main entrance of the health care facility where the health care service is located, or (ii) is the result of an order of a court of appropriate jurisdiction or a result of pending litigation in that court, or by order of the commission, or by order of any other agency or legal entity of the state, the federal government, or any political subdivision of either, whose order is also approved by the commission;

(f) The acquisition or otherwise control of any major medical equipment for the provision of medical services; * * * however, (i) the acquisition of any major medical equipment used only for research purposes, and (ii) the acquisition of major medical equipment to replace medical equipment for which a facility is already providing medical services and for which the commission has been notified before the date of the acquisition shall be exempt from this paragraph; an acquisition for less than fair market value must be reviewed, if the acquisition at fair market value would be subject to review;

(g) Changes of ownership of existing health care facilities in which a notice of intent is not filed with the commission at least thirty (30) days before the date that the change of ownership occurs, or a change in services or bed capacity as prescribed in paragraph (c) or (d) of this subsection as a result of the change of ownership; an acquisition for less than fair market value must be reviewed, if the acquisition at fair market value would be subject to review;

(h) The change of ownership of any health care facility defined in subparagraphs (iv), (vi) and (viii) of Section 41-7-173(h), in which a notice of intent as described in paragraph (g) has not been filed and if the Executive Director of the Division of Medicaid, Office of the Governor, has not certified in writing that there will be no increase in allowable costs to Medicaid from revaluation of the assets or from increased interest and depreciation as a result of the proposed change of ownership;

(i) Any activity described in paragraphs (a) through (h) if undertaken by any person if that same activity would require certificate of need approval if undertaken by a health care facility;

(j) Any capital expenditure or deferred capital expenditure by or on behalf of a health care facility not covered by paragraphs (a) through (h);

(k) The contracting of a health care facility as defined in subparagraphs (i) through (viii) of Section 41-7-173(h) to establish a home office, subunit, or branch office in the space operated as a health care facility through a formal arrangement with an existing health care facility as defined in subparagraph (ix) of Section 41-7-173(h).

(2) The commission shall not grant approval for or issue a certificate of need to any person proposing the new construction of, addition to, or expansion of any health care facility defined in subparagraphs (iv) (skilled nursing facility) and (vi) (intermediate care facility) of Section 41-7-173(h) or the conversion of vacant hospital beds to provide skilled or intermediate nursing home care, except as hereinafter authorized:

(a) The commission may issue a certificate of need to any person proposing the new construction of any health care facility defined in subparagraphs (iv) and (vi) of Section 41-7-173(h) as part of a life care retirement facility, in any county bordering on the Gulf of Mexico in which is located a National Aeronautics and Space Administration facility, not to exceed forty (40) beds. From and after July 1, 1999, there shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the beds in the health care facility that were authorized under this paragraph (a).

(b) The commission may issue certificates of need in Harrison County to provide skilled nursing home care for Alzheimer's Disease patients and other patients, not to exceed one hundred fifty (150) beds. From and after July 1, 1999, there shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the beds in the nursing facilities that were authorized under this paragraph (b).

(c) The commission may issue a certificate of need for the addition to or expansion of any skilled nursing facility that is part of an existing continuing care retirement community located in Madison County, provided that the recipient of the certificate of need agrees in writing that the skilled nursing facility will not at any time participate in the Medicaid program (Section 43-13-101 et seq.) or admit or keep any patients in the skilled nursing facility who are participating in the Medicaid program. This written agreement by the recipient of the certificate of need shall be fully binding on any subsequent owner of the skilled nursing facility, if the ownership of the facility is transferred at any time after the issuance of the certificate of need. Agreement that the skilled nursing facility will not participate in the Medicaid program shall be a condition of the issuance of a certificate of need to any person under this paragraph (c), and if the skilled nursing facility at any time after the issuance of the certificate of need, regardless of the ownership of the facility, participates in the Medicaid program or admits or keeps any patients in the facility who are participating in the Medicaid program, the commission shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall deny or revoke the license of the skilled nursing facility, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has failed to comply with any of the conditions upon which the certificate of need was issued, as provided in this paragraph and in the written agreement by the recipient of the certificate of need. The total number of beds that may be authorized under the authority of this paragraph (c) shall not exceed sixty (60) beds.

(d) The commission may issue a certificate of need to any hospital located in DeSoto County for the new construction of a skilled nursing facility, not to exceed one hundred twenty (120) beds, in DeSoto County. From and after July 1, 1999, there shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the beds in the nursing facility that were authorized under this paragraph (d).

(e) The commission may issue a certificate of need for the construction of a nursing facility or the conversion of beds to nursing facility beds at a personal care facility for the elderly in Lowndes County that is owned and operated by a Mississippi nonprofit corporation, not to exceed sixty (60) beds. From and after July 1, 1999, there shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the beds in the nursing facility that were authorized under this paragraph (e).

(f) The commission may issue a certificate of need for conversion of a county hospital facility in Itawamba County to a nursing facility, not to exceed sixty (60) beds, including any necessary construction, renovation or expansion. From and after July 1, 1999, there shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the beds in the nursing facility that were authorized under this paragraph (f).

(g) The commission may issue a certificate of need for the construction or expansion of nursing facility beds or the conversion of other beds to nursing facility beds in either Hinds, Madison or Rankin Counties, not to exceed sixty (60) beds. From and after July 1, 1999, there shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the beds in the nursing facility that were authorized under this paragraph (g).

(h) The commission may issue a certificate of need for the construction or expansion of nursing facility beds or the conversion of other beds to nursing facility beds in either Hancock, Harrison or Jackson Counties, not to exceed sixty (60) beds. From and after July 1, 1999, there shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the beds in the facility that were authorized under this paragraph (h).

(i) The commission may issue a certificate of need for the new construction of a skilled nursing facility in Leake County, provided that the recipient of the certificate of need agrees in writing that the skilled nursing facility will not at any time participate in the Medicaid program (Section 43-13-101 et seq.) or admit or keep any patients in the skilled nursing facility who are participating in the Medicaid program. This written agreement by the recipient of the certificate of need shall be fully binding on any subsequent owner of the skilled nursing facility, if the ownership of the facility is transferred at any time after the issuance of the certificate of need. Agreement that the skilled nursing facility will not participate in the Medicaid program shall be a condition of the issuance of a certificate of need to any person under this paragraph (i), and if the skilled nursing facility at any time after the issuance of the certificate of need, regardless of the ownership of the facility, participates in the Medicaid program or admits or keeps any patients in the facility who are participating in the Medicaid program, the commission shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall deny or revoke the license of the skilled nursing facility, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has failed to comply with any of the conditions upon which the certificate of need was issued, as provided in this paragraph and in the written agreement by the recipient of the certificate of need. The provision of Section 43-7-193(1) regarding substantial compliance of the projection of need as reported in the current State Health Plan is waived for the purposes of this paragraph. The total number of nursing facility beds that may be authorized by any certificate of need issued under this paragraph (i) shall not exceed sixty (60) beds. If the skilled nursing facility authorized by the certificate of need issued under this paragraph is not constructed and fully operational within eighteen (18) months after July 1, 1994, the commission, after a hearing complying with due process, shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall not issue a license for the skilled nursing facility at any time after the expiration of the eighteen-month period.

(j) The commission may issue certificates of need to allow any existing freestanding long-term care facility in Tishomingo County and Hancock County that on July 1, 1995, is licensed with fewer than sixty (60) beds. For the purposes of this paragraph (j), the provision of Section 41-7-193(1) requiring substantial compliance with the projection of need as reported in the current State Health Plan is waived. From and after July 1, 1999, there shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the beds in the long-term care facilities that were authorized under this paragraph (j).

(k) The commission may issue a certificate of need for the construction of a nursing facility at a continuing care retirement community in Lowndes County, provided that the recipient of the certificate of need agrees in writing that the nursing facility will not at any time participate in the Medicaid program (Section 43-13-101 et seq.) or admit or keep any patients in the nursing facility who are participating in the Medicaid program. This written agreement by the recipient of the certificate of need shall be fully binding on any subsequent owner of the nursing facility, if the ownership of the facility is transferred at any time after the issuance of the certificate of need. Agreement that the nursing facility will not participate in the Medicaid program shall be a condition of the issuance of a certificate of need to any person under this paragraph (k), and if the nursing facility at any time after the issuance of the certificate of need, regardless of the ownership of the facility, participates in the Medicaid program or admits or keeps any patients in the facility who are participating in the Medicaid program, the commission shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall deny or revoke the license of the nursing facility, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has failed to comply with any of the conditions upon which the certificate of need was issued, as provided in this paragraph and in the written agreement by the recipient of the certificate of need. The total number of beds that may be authorized under the authority of this paragraph (k) shall not exceed sixty (60) beds.

(l) Provided that funds are specifically appropriated therefor by the Legislature, the commission may issue a certificate of need to a rehabilitation hospital in Hinds County for the construction of a sixty-bed long-term care nursing facility dedicated to the care and treatment of persons with severe disabilities including persons with spinal cord and closed-head injuries and ventilator-dependent patients. The provision of Section 41-7-193(1) regarding substantial compliance with projection of need as reported in the current State Health Plan is * * * waived for the purpose of this paragraph.

(m) The commission may issue a certificate of need to a county-owned hospital in the Second Judicial District of Panola County for the conversion of not more than seventy-two (72) hospital beds to nursing facility beds, provided that the recipient of the certificate of need agrees in writing that none of the beds at the nursing facility will be certified for participation in the Medicaid program (Section 43-13-101 et seq.), and that no claim will be submitted for Medicaid reimbursement in the nursing facility in any day or for any patient in the nursing facility. This written agreement by the recipient of the certificate of need shall be a condition of the issuance of the certificate of need under this paragraph, and the agreement shall be fully binding on any subsequent owner of the nursing facility if the ownership of the nursing facility is transferred at any time after the issuance of the certificate of need. After this written agreement is executed, the Division of Medicaid and the State Department of Health shall not certify any of the beds in the nursing facility for participation in the Medicaid program. If the nursing facility violates the terms of the written agreement by admitting or keeping in the nursing facility on a regular or continuing basis any patients who are participating in the Medicaid program, the State Department of Health shall revoke the license of the nursing facility, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the nursing facility has violated the condition upon which the certificate of need was issued, as provided in this paragraph and in the written agreement. If the certificate of need authorized under this paragraph is not issued within twelve (12) months after July 1, 2001, the commission shall deny the application for the certificate of need and shall not issue the certificate of need at any time after the twelve-month period, unless the issuance is contested. If the certificate of need is issued and substantial construction of the nursing facility beds has not commenced within eighteen (18) months after July 1, 2001, the commission, after a hearing complying with due process, shall revoke the certificate of need if it is still outstanding, and the State Department of Health shall not issue a license for the nursing facility at any time after the eighteen-month period. * * * However, * * * if the issuance of the certificate of need is contested, the commission shall require substantial construction of the nursing facility beds within six (6) months after final adjudication on the issuance of the certificate of need.

(n) The commission may issue a certificate of need for the new construction, addition or conversion of skilled nursing facility beds in Madison County, provided that the recipient of the certificate of need agrees in writing that the skilled nursing facility will not at any time participate in the Medicaid program (Section 43-13-101 et seq.) or admit or keep any patients in the skilled nursing facility who are participating in the Medicaid program. This written agreement by the recipient of the certificate of need shall be fully binding on any subsequent owner of the skilled nursing facility, if the ownership of the facility is transferred at any time after the issuance of the certificate of need. Agreement that the skilled nursing facility will not participate in the Medicaid program shall be a condition of the issuance of a certificate of need to any person under this paragraph (n), and if the skilled nursing facility at any time after the issuance of the certificate of need, regardless of the ownership of the facility, participates in the Medicaid program or admits or keeps any patients in the facility who are participating in the Medicaid program, the commission shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall deny or revoke the license of the skilled nursing facility, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has failed to comply with any of the conditions upon which the certificate of need was issued, as provided in this paragraph and in the written agreement by the recipient of the certificate of need. The total number of nursing facility beds that may be authorized by any certificate of need issued under this paragraph (n) shall not exceed sixty (60) beds. If the certificate of need authorized under this paragraph is not issued within twelve (12) months after July 1, 1998, the commission shall deny the application for the certificate of need and shall not issue the certificate of need at any time after the twelve-month period, unless the issuance is contested. If the certificate of need is issued and substantial construction of the nursing facility beds has not commenced within eighteen (18) months after the effective date of July 1, 1998, the commission, after a hearing complying with due process, shall revoke the certificate of need if it is still outstanding, and the State Department of Health shall not issue a license for the nursing facility at any time after the eighteen-month period. * * * However, * * * if the issuance of the certificate of need is contested, the commission shall require substantial construction of the nursing facility beds within six (6) months after final adjudication on the issuance of the certificate of need.

(o) The commission may issue a certificate of need for the new construction, addition or conversion of skilled nursing facility beds in Leake County, provided that the recipient of the certificate of need agrees in writing that the skilled nursing facility will not at any time participate in the Medicaid program (Section 43-13-101 et seq.) or admit or keep any patients in the skilled nursing facility who are participating in the Medicaid program. This written agreement by the recipient of the certificate of need shall be fully binding on any subsequent owner of the skilled nursing facility, if the ownership of the facility is transferred at any time after the issuance of the certificate of need. Agreement that the skilled nursing facility will not participate in the Medicaid program shall be a condition of the issuance of a certificate of need to any person under this paragraph (o), and if the skilled nursing facility at any time after the issuance of the certificate of need, regardless of the ownership of the facility, participates in the Medicaid program or admits or keeps any patients in the facility who are participating in the Medicaid program, the commission shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall deny or revoke the license of the skilled nursing facility, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has failed to comply with any of the conditions upon which the certificate of need was issued, as provided in this paragraph and in the written agreement by the recipient of the certificate of need. The total number of nursing facility beds that may be authorized by any certificate of need issued under this paragraph (o) shall not exceed sixty (60) beds. If the certificate of need authorized under this paragraph is not issued within twelve (12) months after July 1, 2001, the commission shall deny the application for the certificate of need and shall not issue the certificate of need at any time after the twelve-month period, unless the issuance is contested. If the certificate of need is issued and substantial construction of the nursing facility beds has not commenced within eighteen (18) months after the effective date of July 1, 2001, the commission, after a hearing complying with due process, shall revoke the certificate of need if it is still outstanding, and the State Department of Health shall not issue a license for the nursing facility at any time after the eighteen-month period. * * * However, * * * if the issuance of the certificate of need is contested, the commission shall require substantial construction of the nursing facility beds within six (6) months after final adjudication on the issuance of the certificate of need.

(p) The commission may issue a certificate of need for the construction of a municipally owned nursing facility within the Town of Belmont in Tishomingo County, not to exceed sixty (60) beds, provided that the recipient of the certificate of need agrees in writing that the skilled nursing facility will not at any time participate in the Medicaid program (Section 43-13-101 et seq.) or admit or keep any patients in the skilled nursing facility who are participating in the Medicaid program. This written agreement by the recipient of the certificate of need shall be fully binding on any subsequent owner of the skilled nursing facility, if the ownership of the facility is transferred at any time after the issuance of the certificate of need. Agreement that the skilled nursing facility will not participate in the Medicaid program shall be a condition of the issuance of a certificate of need to any person under this paragraph (p), and if the skilled nursing facility at any time after the issuance of the certificate of need, regardless of the ownership of the facility, participates in the Medicaid program or admits or keeps any patients in the facility who are participating in the Medicaid program, the commission shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall deny or revoke the license of the skilled nursing facility, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has failed to comply with any of the conditions upon which the certificate of need was issued, as provided in this paragraph and in the written agreement by the recipient of the certificate of need. The provision of Section 43-7-193(1) regarding substantial compliance of the projection of need as reported in the current State Health Plan is waived for the purposes of this paragraph. If the certificate of need authorized under this paragraph is not issued within twelve (12) months after July 1, 1998, the commission shall deny the application for the certificate of need and shall not issue the certificate of need at any time after the twelve-month period, unless the issuance is contested. If the certificate of need is issued and substantial construction of the nursing facility beds has not commenced within eighteen (18) months after July 1, 1998, the commission, after a hearing complying with due process, shall revoke the certificate of need if it is still outstanding, and the State Department of Health shall not issue a license for the nursing facility at any time after the eighteen-month period. * * * However, * * * if the issuance of the certificate of need is contested, the commission shall require substantial construction of the nursing facility beds within six (6) months after final adjudication on the issuance of the certificate of need.

(q) (i) Beginning on July 1, 1999, the commission shall issue certificates of need during each of the next four (4) fiscal years for the construction or expansion of nursing facility beds or the conversion of other beds to nursing facility beds in each county in the state having a need for fifty (50) or more additional nursing facility beds, as shown in the fiscal year 1999 State Health Plan, in the manner provided in this paragraph (q). The total number of nursing facility beds that may be authorized by any certificate of need authorized under this paragraph (q) shall not exceed sixty (60) beds.

(ii) Subject to the provisions of subparagraph (v), during each of the next four (4) fiscal years, the commission shall issue six (6) certificates of need for new nursing facility beds, as follows: During fiscal years 2000, 2001 and 2002, one (1) certificate of need shall be issued for new nursing facility beds in the county in each of the four (4) Long-Term Care Planning Districts designated in the fiscal year 1999 State Health Plan that has the highest need in the district for those beds; and two (2) certificates of need shall be issued for new nursing facility beds in the two (2) counties from the state at large that have the highest need in the state for those beds, when considering the need on a statewide basis and without regard to the Long-Term Care Planning Districts in which the counties are located. During fiscal year 2003, one (1) certificate of need shall be issued for new nursing facility beds in any county having a need for fifty (50) or more additional nursing facility beds, as shown in the fiscal year 1999 State Health Plan, that has not received a certificate of need under this paragraph (q) during the three (3) previous fiscal years. During fiscal year 2000, in addition to the six (6) certificates of need authorized in this subparagraph, the commission also shall issue a certificate of need for new nursing facility beds in Amite County and a certificate of need for new nursing facility beds in Carroll County.

(iii) Subject to the provisions of subparagraph (v), the certificate of need issued under subparagraph (ii) for nursing facility beds in each Long-Term Care Planning District during each fiscal year shall first be available for nursing facility beds in the county in the district having the highest need for those beds, as shown in the fiscal year 1999 State Health Plan. If there are no applications for a certificate of need for nursing facility beds in the county having the highest need for those beds by the date specified by the commission, then the certificate of need shall be available for nursing facility beds in other counties in the district in descending order of the need for those beds, from the county with the second highest need to the county with the lowest need, until an application is received for nursing facility beds in an eligible county in the district.

(iv) Subject to the provisions of subparagraph (v), the certificate of need issued under subparagraph (ii) for nursing facility beds in the two (2) counties from the state at large during each fiscal year shall first be available for nursing facility beds in the two (2) counties that have the highest need in the state for those beds, as shown in the fiscal year 1999 State Health Plan, when considering the need on a statewide basis and without regard to the Long-Term Care Planning Districts in which the counties are located. If there are no applications for a certificate of need for nursing facility beds in either of the two (2) counties having the highest need for those beds on a statewide basis by the date specified by the commission, then the certificate of need shall be available for nursing facility beds in other counties from the state at large in descending order of the need for those beds on a statewide basis, from the county with the second highest need to the county with the lowest need, until an application is received for nursing facility beds in an eligible county from the state at large.

(v) If a certificate of need is authorized to be issued under this paragraph (q) for nursing facility beds in a county on the basis of the need in the Long-Term Care Planning District during any fiscal year of the four-year period, a certificate of need shall not also be available under this paragraph (q) for additional nursing facility beds in that county on the basis of the need in the state at large, and that county shall be excluded in determining which counties have the highest need for nursing facility beds in the state at large for that fiscal year. After a certificate of need has been issued under this paragraph (q) for nursing facility beds in a county during any fiscal year of the four-year period, a certificate of need shall not be available again under this paragraph (q) for additional nursing facility beds in that county during the four-year period, and that county shall be excluded in determining which counties have the highest need for nursing facility beds in succeeding fiscal years.

(r) (i) Beginning on July 1, 1999, the commission shall issue certificates of need during each of the next two (2) fiscal years for the construction or expansion of nursing facility beds or the conversion of other beds to nursing facility beds in each of the four (4) Long-Term Care Planning Districts designated in the fiscal year 1999 State Health Plan, to provide care exclusively to patients with Alzheimer's disease.

(ii) Not more than twenty (20) beds may be authorized by any certificate of need issued under this paragraph (r), and not more than a total of sixty (60) beds may be authorized in any Long-Term Care Planning District by all certificates of need issued under this paragraph (r). However, the total number of beds that may be authorized by all certificates of need issued under this paragraph (r) during any fiscal year shall not exceed one hundred twenty (120) beds, and the total number of beds that may be authorized in any Long-Term Care Planning District during any fiscal year shall not exceed forty (40) beds. Of the certificates of need that are issued for each Long-Term Care Planning District during the next two (2) fiscal years, at least one (1) shall be issued for beds in the northern part of the district, at least one (1) shall be issued for beds in the central part of the district, and at least one (1) shall be issued for beds in the southern part of the district.

(iii) The State Department of Health, in consultation with the Department of Mental Health and the Division of Medicaid, shall develop and prescribe the staffing levels, space requirements and other standards and requirements that must be met with regard to the nursing facility beds authorized under this paragraph (r) to provide care exclusively to patients with Alzheimer's disease.

(3) The commission may grant approval for and issue certificates of need to any person proposing the new construction of, addition to, conversion of beds of or expansion of any health care facility defined in subparagraph (x) (psychiatric residential treatment facility) of Section 41-7-173(h). The total number of beds that may be authorized by such certificates of need shall not exceed two hundred seventy-four (274) beds for the entire state.

(a) Of the total number of beds authorized under this subsection, the commission shall issue a certificate of need to a privately owned psychiatric residential treatment facility in Simpson County for the conversion of sixteen (16) intermediate care facility for the mentally retarded (ICF-MR) beds to psychiatric residential treatment facility beds, provided that facility agrees in writing that the facility shall give priority for the use of those sixteen (16) beds to Mississippi residents who are presently being treated in out-of-state facilities.

(b) Of the total number of beds authorized under this subsection, the commission may issue a certificate or certificates of need for the construction or expansion of psychiatric residential treatment facility beds or the conversion of other beds to psychiatric residential treatment facility beds in Warren County, not to exceed sixty (60) psychiatric residential treatment facility beds, provided that the facility agrees in writing that no more than thirty (30) of the beds at the psychiatric residential treatment facility will be certified for participation in the Medicaid program (Section 43-13-101 et seq.) for the use of any patients other than those who are participating only in the Medicaid program of another state, and that no claim will be submitted to the Division of Medicaid for Medicaid reimbursement for more than thirty (30) patients in the psychiatric residential treatment facility in any day or for any patient in the psychiatric residential treatment facility who is in a bed that is not Medicaid-certified. This written agreement by the recipient of the certificate of need shall be a condition of the issuance of the certificate of need under this paragraph, and the agreement shall be fully binding on any subsequent owner of the psychiatric residential treatment facility if the ownership of the facility is transferred at any time after the issuance of the certificate of need. After this written agreement is executed, the Division of Medicaid and the State Department of Health shall not certify more than thirty (30) of the beds in the psychiatric residential treatment facility for participation in the Medicaid program for the use of any patients other than those who are participating only in the Medicaid program of another state. If the psychiatric residential treatment facility violates the terms of the written agreement by admitting or keeping in the facility on a regular or continuing basis more than thirty (30) patients who are participating in the Mississippi Medicaid program, the State Department of Health shall revoke the license of the facility, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has violated the condition upon which the certificate of need was issued, as provided in this paragraph and in the written agreement.

(c) Of the total number of beds authorized under this subsection, the commission shall issue a certificate of need to a hospital currently operating Medicaid-certified acute psychiatric beds for adolescents in DeSoto County, for the establishment of a forty-bed psychiatric residential treatment facility in DeSoto County, provided that the hospital agrees in writing (i) that the hospital shall give priority for the use of those forty (40) beds to Mississippi residents who are presently being treated in out-of-state facilities, and (ii) that no more than fifteen (15) of the beds at the psychiatric residential treatment facility will be certified for participation in the Medicaid program (Section 43-13-101 et seq.), and that no claim will be submitted for Medicaid reimbursement for more than fifteen (15) patients in the psychiatric residential treatment facility in any day or for any patient in the psychiatric residential treatment facility who is in a bed that is not Medicaid-certified. This written agreement by the recipient of the certificate of need shall be a condition of the issuance of the certificate of need under this paragraph, and the agreement shall be fully binding on any subsequent owner of the psychiatric residential treatment facility if the ownership of the facility is transferred at any time after the issuance of the certificate of need. After this written agreement is executed, the Division of Medicaid and the State Department of Health shall not certify more than fifteen (15) of the beds in the psychiatric residential treatment facility for participation in the Medicaid program. If the psychiatric residential treatment facility violates the terms of the written agreement by admitting or keeping in the facility on a regular or continuing basis more than fifteen (15) patients who are participating in the Medicaid program, the State Department of Health shall revoke the license of the facility, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has violated the condition upon which the certificate of need was issued, as provided in this paragraph and in the written agreement.

(d) Of the total number of beds authorized under this subsection, the commission may issue a certificate or certificates of need for the construction or expansion of psychiatric residential treatment facility beds or the conversion of other beds to psychiatric treatment facility beds, not to exceed thirty (30) psychiatric residential treatment facility beds, in either Alcorn, Tishomingo, Prentiss, Lee, Itawamba, Monroe, Chickasaw, Pontotoc, Calhoun, Lafayette, Union, Benton or Tippah Counties.

(e) Of the total number of beds authorized under this subsection (3) the commission shall issue a certificate of need to a privately owned, nonprofit psychiatric residential treatment facility in Hinds County for an eight-bed expansion of the facility, provided that the facility agrees in writing that the facility shall give priority for the use of those eight (8) beds to Mississippi residents who are presently being treated in out-of-state facilities.

(4) (a) From and after July 1, 1993, the commission shall not issue a certificate of need to any person for the new construction of any hospital, psychiatric hospital or chemical dependency hospital that will contain any child/adolescent psychiatric or child/adolescent chemical dependency beds, or for the conversion of any other health care facility to a hospital, psychiatric hospital or chemical dependency hospital that will contain any child/adolescent psychiatric or child/adolescent chemical dependency beds, or for the addition of any child/adolescent psychiatric or child/adolescent chemical dependency beds in any hospital, psychiatric hospital or chemical dependency hospital, or for the conversion of any beds of another category in any hospital, psychiatric hospital or chemical dependency hospital to child/adolescent psychiatric or child/adolescent chemical dependency beds, except as hereinafter authorized:

(i) The commission may issue certificates of need to any person for any purpose described in this subsection, provided that the hospital, psychiatric hospital or chemical dependency hospital does not participate in the Medicaid program (Section 43-13-101 et seq.) at the time of the application for the certificate of need and the owner of the hospital, psychiatric hospital or chemical dependency hospital agrees in writing that the hospital, psychiatric hospital or chemical dependency hospital will not at any time participate in the Medicaid program or admit or keep any patients who are participating in the Medicaid program in the hospital, psychiatric hospital or chemical dependency hospital. This written agreement by the recipient of the certificate of need shall be fully binding on any subsequent owner of the hospital, psychiatric hospital or chemical dependency hospital, if the ownership of the facility is transferred at any time after the issuance of the certificate of need. Agreement that the hospital, psychiatric hospital or chemical dependency hospital will not participate in the Medicaid program shall be a condition of the issuance of a certificate of need to any person under this subparagraph (a)(i), and if the hospital, psychiatric hospital or chemical dependency hospital at any time after the issuance of the certificate of need, regardless of the ownership of the facility, participates in the Medicaid program or admits or keeps any patients in the hospital, psychiatric hospital or chemical dependency hospital who are participating in the Medicaid program, the commission shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall deny or revoke the license of the hospital, psychiatric hospital or chemical dependency hospital, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the hospital, psychiatric hospital or chemical dependency hospital has failed to comply with any of the conditions upon which the certificate of need was issued, as provided in this subparagraph and in the written agreement by the recipient of the certificate of need.

(ii) The commission may issue a certificate of need for the conversion of existing beds in a county hospital in Choctaw County from acute care beds to child/adolescent chemical dependency beds. For purposes of this subparagraph, the provisions of Section 41-7-193(1) requiring substantial compliance with the projection of need as reported in the current State Health Plan is waived. The total number of beds that may be authorized under authority of this subparagraph shall not exceed twenty (20) beds. There shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the hospital receiving the certificate of need authorized under this subparagraph (a)(ii) or for the beds converted under the authority of that certificate of need.

(iii) The commission may issue a certificate or certificates of need for the construction or expansion of child/adolescent psychiatric beds or the conversion of other beds to child/adolescent psychiatric beds in Warren County. For purposes of this subparagraph, the provisions of Section 41-7-193(1) requiring substantial compliance with the projection of need as reported in the current State Health Plan are waived. The total number of beds that may be authorized under the authority of this subparagraph shall not exceed twenty (20) beds. There shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the person receiving the certificate of need authorized under this subparagraph (a)(iii) or for the beds converted under the authority of that certificate of need.

(iv) The commission shall issue a certificate of need to the Region 7 Mental Health/Retardation Commission for the construction or expansion of child/adolescent psychiatric beds or the conversion of other beds to child/adolescent psychiatric beds in any of the counties served by the commission. For purposes of this subparagraph, the provisions of Section 41-7-193(1) requiring substantial compliance with the projection of need as reported in the current State Health Plan is waived. The total number of beds that may be authorized under the authority of this subparagraph shall not exceed twenty (20) beds. There shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the person receiving the certificate of need authorized under this subparagraph (a)(iv) or for the beds converted under the authority of that certificate of need.

(v) The commission may issue a certificate of need to any county hospital located in Leflore County for the construction or expansion of adult psychiatric beds or the conversion of other beds to adult psychiatric beds, not to exceed twenty (20) beds, provided that the recipient of the certificate of need agrees in writing that the adult psychiatric beds will not at any time be certified for participation in the Medicaid program and that the hospital will not admit or keep any patients who are participating in the Medicaid program in any of those adult psychiatric beds. This written agreement by the recipient of the certificate of need shall be fully binding on any subsequent owner of the hospital if the ownership of the hospital is transferred at any time after the issuance of the certificate of need. Agreement that the adult psychiatric beds will not be certified for participation in the Medicaid program shall be a condition of the issuance of a certificate of need to any person under this subparagraph (a)(v), and if the hospital at any time after the issuance of the certificate of need, regardless of the ownership of the hospital, has any of those adult psychiatric beds certified for participation in the Medicaid program or admits or keeps any Medicaid patients in those adult psychiatric beds, the commission shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall deny or revoke the license of the hospital at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the hospital has failed to comply with any of the conditions upon which the certificate of need was issued, as provided in this subparagraph and in the written agreement by the recipient of the certificate of need.

(vi) The commission may issue a certificate or certificates of need for the expansion of child psychiatric beds or the conversion of other beds to child psychiatric beds at the University of Mississippi Medical Center. For purposes of this subparagraph (a)(vi), the provision of Section 41-7-193(1) requiring substantial compliance with the projection of need as reported in the current State Health Plan is waived. The total number of beds that may be authorized under the authority of this subparagraph (a)(vi) shall not exceed fifteen (15) beds. There shall be no prohibition or restrictions on participation in the Medicaid program (Section 43-13-101 et seq.) for the hospital receiving the certificate of need authorized under this subparagraph (a)(vi) or for the beds converted under the authority of that certificate of need.

(b) From and after July 1, 1990, no hospital, psychiatric hospital or chemical dependency hospital shall be authorized to add any child/adolescent psychiatric or child/adolescent chemical dependency beds or convert any beds of another category to child/adolescent psychiatric or child/adolescent chemical dependency beds without a certificate of need under the authority of subsection (1)(c) of this section.

(5) The commission may issue a certificate of need to a county hospital in Winston County for the conversion of fifteen (15) acute care beds to geriatric psychiatric care beds.

(6) The commission shall issue a certificate of need to a Mississippi corporation qualified to manage a long-term care hospital as defined in Section 41-7-173(h)(xii) in Harrison County, not to exceed eighty (80) beds, including any necessary renovation or construction required for licensure and certification, provided that the recipient of the certificate of need agrees in writing that the long-term care hospital will not at any time participate in the Medicaid program (Section 43-13-101 et seq.) or admit or keep any patients in the long-term care hospital who are participating in the Medicaid program. This written agreement by the recipient of the certificate of need shall be fully binding on any subsequent owner of the long-term care hospital, if the ownership of the facility is transferred at any time after the issuance of the certificate of need. Agreement that the long-term care hospital will not participate in the Medicaid program shall be a condition of the issuance of a certificate of need to any person under this subsection (6), and if the long-term care hospital at any time after the issuance of the certificate of need, regardless of the ownership of the facility, participates in the Medicaid program or admits or keeps any patients in the facility who are participating in the Medicaid program, the commission shall revoke the certificate of need, if it is still outstanding, and the State Department of Health shall deny or revoke the license of the long-term care hospital, at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has failed to comply with any of the conditions upon which the certificate of need was issued, as provided in this subsection and in the written agreement by the recipient of the certificate of need. For purposes of this subsection, the provision of Section 41-7-193(1) requiring substantial compliance with the projection of need as reported in the current State Health Plan is * * * waived.

(7) The commission may issue a certificate of need to any hospital in the state to utilize a portion of its beds for the "swing-bed" concept. Any such hospital must be in conformance with the federal regulations regarding the swing-bed concept at the time it submits its application for a certificate of need to the commission, except that the hospital may have more licensed beds or a higher average daily census (ADC) than the maximum number specified in federal regulations for participation in the swing-bed program. Any hospital meeting all federal requirements for participation in the swing-bed program that receives a certificate of need under this subsection shall render services provided under the swing-bed concept to any patient eligible for Medicare (Title XVIII of the Social Security Act) who is certified by a physician to be in need of those services, and no such hospital shall permit any patient who is eligible for both Medicaid and Medicare or eligible only for Medicaid to stay in the swing beds of the hospital for more than thirty (30) days per admission unless the hospital receives prior approval for the patient from the Division of Medicaid, Office of the Governor. Any hospital having more licensed beds or a higher average daily census (ADC) than the maximum number specified in federal regulations for participation in the swing-bed program that receives a certificate of need under this subsection shall develop a procedure to insure that before a patient is allowed to stay in the swing beds of the hospital, there are no vacant nursing home beds available for that patient located within a fifty-mile radius of the hospital. When any such hospital has a patient staying in the swing beds of the hospital and the hospital receives notice from a nursing home located within that radius that there is a vacant bed available for that patient, the hospital shall transfer the patient to the nursing home within a reasonable time after receipt of the notice. Any hospital that is subject to the requirements of the two (2) preceding sentences of this subsection may be suspended from participation in the swing-bed program for a reasonable period of time by the commission if the commission, after a hearing complying with due process, determines that the hospital has failed to comply with any of those requirements.

(8) The commission shall not grant approval for or issue a certificate of need to any person proposing the new construction of, addition to or expansion of a health care facility as defined in subparagraph (viii) of Section 41-7-173(h).

(9) The commission shall not grant approval for or issue a certificate of need to any person proposing the establishment of, or expansion of the currently approved territory of, or the contracting to establish a home office, subunit or branch office within the space operated as a health care facility as defined in Section 41-7-173(h)(i) through (viii) by a health care facility as defined in subparagraph (ix) of Section 41-7-173(h).

(10) Health care facilities owned and/or operated by the state or its agencies are exempt from the restraints in this section against issuance of a certificate of need if the addition or expansion consists of repairing or renovation necessary to comply with the state licensure law. This exception shall not apply to the new construction of any building by the state facility. This exception shall not apply to any health care facilities owned and/or operated by counties, municipalities, districts, unincorporated areas, other defined persons, or any combination thereof.

(11) The new construction, renovation or expansion of or addition to any health care facility defined in subparagraph (ii) (psychiatric hospital), subparagraph (iv) (skilled nursing facility), subparagraph (vi) (intermediate care facility), subparagraph (viii) (intermediate care facility for the mentally retarded) and subparagraph (x) (psychiatric residential treatment facility) of Section 41-7-173(h) that is owned by the State of Mississippi and under the direction and control of the State Department of Mental Health, and the addition of new beds or the conversion of beds from one category to another in any such defined health care facility that is owned by the State of Mississippi and under the direction and control of the State Department of Mental Health, shall not require the issuance of a certificate of need under Section 41-7-171 et seq., notwithstanding any provision in Section 41-7-171 et seq. to the contrary.

(12) The new construction, renovation or expansion of or addition to any veterans homes or domiciliaries for eligible veterans of the State of Mississippi as authorized under Section 35-1-19 shall not require the issuance of a certificate of need, notwithstanding any provision in Section 41-7-171 et seq. to the contrary.

(13) The new construction of a nursing facility or nursing facility beds or the conversion of other beds to nursing facility beds shall not require the issuance of a certificate of need, notwithstanding any provision in Section 41-7-171 et seq. to the contrary, if the conditions of this subsection are met.

(a) Before any construction or conversion may be undertaken without a certificate of need, the owner of the nursing facility, in the case of an existing facility, or the applicant to construct a nursing facility, in the case of new construction, first must file a written notice of intent and sign a written agreement with the commission that the entire nursing facility will not at any time participate in or have any beds certified for participation in the Medicaid program (Section 43-13-101 et seq.), will not admit or keep any patients in the nursing facility who are participating in the Medicaid program, and will not submit any claim for Medicaid reimbursement for any patient in the facility. This written agreement by the owner or applicant shall be a condition of exercising the authority under this subsection without a certificate of need, and the agreement shall be fully binding on any subsequent owner of the nursing facility if the ownership of the facility is transferred at any time after the agreement is signed. After the written agreement is signed, the Division of Medicaid and the State Department of Health shall not certify any beds in the nursing facility for participation in the Medicaid program. If the nursing facility violates the terms of the written agreement by participating in the Medicaid program, having any beds certified for participation in the Medicaid program, admitting or keeping any patient in the facility who is participating in the Medicaid program, or submitting any claim for Medicaid reimbursement for any patient in the facility, the State Department of Health shall revoke the license of the nursing facility at the time that the department receives notification from the commission that it has determined, after a hearing complying with due process, that the facility has violated the terms of the written agreement.

(b) For the purposes of this subsection, participation in the Medicaid program by a nursing facility includes Medicaid reimbursement of coinsurance and deductibles for recipients who are qualified Medicare beneficiaries and/or those who are dually eligible. Any nursing facility exercising the authority under this subsection may not bill or submit a claim to the Division of Medicaid for services to qualified Medicare beneficiaries and/or those who are dually eligible.

(c) The new construction of a nursing facility or nursing facility beds or the conversion of other beds to nursing facility beds described in this subsection must be either a part of a completely new continuing care retirement community, as described in the latest edition of the Mississippi State Health Plan, or an addition to existing personal care and independent living components, and so that the completed project will be a continuing care retirement community, containing (i) independent living accommodations, (ii) personal care beds, and (iii) the nursing home facility beds. The three (3) components must be located on a single site and be operated as one (1) inseparable facility. The nursing facility component must contain a minimum of thirty (30) beds. Any nursing facility beds authorized by this subsection will not be counted against the bed need set forth in the State Health Plan, as identified in Section 41-7-171 et seq.

This subsection (13) shall stand repealed from and after July 1, 2001.

(14) The commission shall issue a certificate of need to any hospital that is currently licensed for two hundred fifty (250) or more acute care beds and is located in any general hospital service area not having a comprehensive cancer center, for the establishment and equipping of such a center that provides facilities and services for outpatient radiation oncology therapy, outpatient medical oncology therapy, and appropriate support services including the provision of radiation therapy services. The provision of Section 41-7-193(1) regarding substantial compliance with the projection of need as reported in the current State Health Plan is waived for the purpose of this subsection.

(15) Nothing in this section or in any other provision of Section 41-7-171 et seq. shall prevent any nursing facility from designating an appropriate number of existing beds in the facility as beds for providing care exclusively to patients with Alzheimer's disease.

SECTION 9. Section 41-7-193, Mississippi Code of 1972, is amended as follows:

41-7-193. (1) No person may enter into any financing arrangement or commitment for financing a new institutional health service or any other project requiring a certificate of need unless the certificate has been granted for that purpose. A certificate of need shall not be granted or issued to any person for any proposal, cause or reason, unless the proposal has been reviewed for consistency with the specifications and the criteria established by the commission and substantially complies with the projection of need as reported in the State Health Plan in effect at the time the application for the proposal was submitted.

(2) An application for a certificate of need for an institutional health service, medical equipment or any proposal requiring a certificate of need shall specify the time, within that granted, when the proposal will be functional or operational according to a time schedule submitted with the application. Each certificate of need shall specify the maximum amount of capital expenditure that may be obligated. The commission shall periodically review the progress and time schedule of any person issued or granted a certificate of need for any purpose.

SECTION 10. Section 41-7-195, Mississippi Code of 1972, is amended as follows:

41-7-195. (1) A certificate of need shall be valid only for the defined scope, physical location and person named in the application. A certificate of need shall not be transferable or assignable nor shall a project or capital expenditure project be transferred from one person to another, except with the approval of the commission. A certificate of need shall be valid for the period of time specified in the certificate.

(2) A certificate of need shall be issued for a period of twelve (12) months, or such other lesser period as specified by the commission.

(3) The commission may define by regulation, not to exceed six (6) months, the time for which a certificate of need may be extended.

(4) If commencement of construction or other preparation is not substantially undertaken during a valid certificate of need period or the commission determines the applicant is not making a good faith effort to obligate the approved expenditure, the commission may withdraw, revoke or rescind the certificate.

(5) The commission may approve or disapprove a proposal for a certificate of need as originally presented in final form, or it may approve a certificate of need by a modification, by reduction only, of the proposal if the proponent agrees to the modification.

SECTION 11. Section 41-7-197, Mississippi Code of 1972, is amended as follows:

41-7-197. (1) The commission shall adopt and utilize procedures for conducting certificate of need reviews. Those 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 before 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, the request to be made within twenty (20) days of the notification; 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 conducted by a hearing officer designated by the commission. At the 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 within a reasonable period of time after the hearing is closed and after he has had an opportunity to review, study and analyze the evidence presented during the hearing. The completed record shall be certified to the commission, who shall consider only the record in making its decision, and shall not consider any evidence or material that is not included in the record. All final decisions regarding the issuance of a certificate of need shall be made by the commission. The commission shall make its written findings and issue its order after reviewing the record. The findings and decision of the commission shall not be deferred to any later date, and any deferral shall result in an automatic order of disapproval.

(3) If review by the commission concerning the issuance of a certificate of need is not complete within the time specified by rule or regulation, which shall not, to the extent practicable, exceed ninety (90) days, the certificate of need shall not be granted. 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 new institutional health service is proposed to be provided, to compel the commission to issue written findings and written order approving or disapproving the proposal in question.

SECTION 12. 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 commission 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 commission 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. * * * However, * * * 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. The 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 commission and shall specify the order complained of. Any person whose rights may be materially affected by the action of the commission 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 commission, after which the commission shall, within fifty (50) days or within such additional time as the court may by order for cause allow from the service of the 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; * * * however, * * * the parties and the commission may stipulate that a specified portion only of the record shall be certified to the court as the record on appeal.

(c) No new or additional evidence shall be introduced in the chancery court but the case shall be determined upon the record certified to the court.

(d) 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 commission 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 commission 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 commission, or violates any vested constitutional rights of any party involved in the appeal. * * * However, an order of the chancery court reversing the denial of a certificate of need by the commission shall not entitle the applicant to effectuate the certificate of need until either:

(i) The 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.

(e) 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.

(2) The provisions of this subsection (2) shall apply to any party appealing any final order of the commission 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 commission 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 XVIII or Title XIX programs of the Social Security Act shall be granted, until all statutory appeals have been exhausted or the time for those appeals has expired. Notwithstanding the foregoing, the filing of an appeal from a final order of the commission or the chancery court 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 commission.

(b) In addition to other remedies now available at law or in equity, any party aggrieved by any such final order of the commission 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 twenty (20) days after the date of the final order. * * * However, * * * 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. The appeal must be filed in accordance with the twenty (20) days for filing as * * * provided in this paragraph. Any appeal shall state briefly the nature of the proceedings before the commission and shall specify the order complained of.

(c) Upon the filing of such an appeal, the clerk of the chancery court shall serve notice thereof upon the commission, after which the commission 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 pleadings, proceedings, orders, findings and opinions entered in the case; * * * however, * * * the parties and the commission 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 commission in a certificate of need proceeding, and shall render a final order regarding the appeal no later than one hundred twenty (120) days from the date of the final order by the commission. If the chancery court has not rendered a final order within this one-hundred-twenty-day period, then the final order of the commission 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 commission as otherwise provided in paragraph (g) of this subsection. If 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 in this paragraph, 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) if the Supreme Court affirms the order of the commission.

(d) Any appeal of a final order by the commission 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.

(e) No new or additional evidence shall be introduced in the chancery court but the case shall be determined upon the record certified to the court.

(f) 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 and may make an award of costs, fees, expenses and attorney's fees, 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 commission for such further proceedings, not inconsistent with the court's order, 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) if the court affirms the order of the commission. 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 commission 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 commission, or violates any vested constitutional rights of any party involved in the appeal. * * * However, an order of the chancery court reversing the denial of a certificate of need by the commission shall not entitle the applicant to effectuate the certificate of need until either:

(i) The 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.

(g) 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.

(h) Within thirty (30) days from the date of a final order by the Supreme Court or a final order of the chancery court not appealed to the Supreme Court that modifies or wholly or partly vacates the final order of the commission granting a certificate of need, the commission shall issue another order in conformity with the final order of the Supreme Court, or the final order of the chancery court not appealed to the Supreme Court.

SECTION 13. Section 41-7-202, Mississippi Code of 1972, is amended as follows:

41-7-202. There shall be a "stay of proceedings" of any written decision of the commission pertaining to a certificate of need for a home health agency, as defined in Section 41-7-173(h)(ix), for a period of thirty (30) days from the date of that decision. The stay of proceedings shall expire at the termination of thirty (30) days; however, no license to operate any such home health agency that is the subject of the decision shall be issued by the State Department of Health, and no certification for the home health agency to participate in the Title XVIII or Title XIX programs of the Social Security Act shall be granted until all statutory appeals have been exhausted or the time for the appeals has expired. The stay of proceedings provided for in this section shall not apply to any party appealing any final order of the commission 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).

SECTION 14. Section 41-7-205, Mississippi Code of 1972, is amended as follows:

41-7-205. The commission shall provide an expedited review for those projects that it determines to warrant such action. All requests for such an expedited review by the applicant must be made in writing to the commission. The commission shall make a determination as to whether expedited review is appropriate within fifteen (15) days after receipt of a written request. The commission shall render its decision concerning the issuance of a certificate of need within ninety (90) days after the receipt of a completed application. A project is subject to expedited review only if it meets one (1) of the following criteria:

(a) A transfer or change of ownership of a health care facility in which the facility continues to operate under the same category of license or permit as it possessed before the date of the proposed change of ownership and none of the other activities described in Section 41-7-191(1) take place in conjunction with the transfer;

(b) Replacement of equipment with used equipment of similar capability if the equipment is included in the facility's annual capital expenditure budget or plan;

(c) A request for project cost overruns that exceed the rate of inflation as determined by the commission;

(d) A request for relocation of services or facilities if the relocation of those services or facilities (i) involves a capital expenditure by or on behalf of a health care facility, or (ii) is more than one thousand three hundred twenty (1,320) feet from the main entrance of the health care facility or the facility where the service is located;

(e) A request for a certificate of need to comply with duly recognized fire, building, or life safety codes, or to comply with state licensure standards or accreditation standards required for reimbursements.

SECTION 15. Section 41-7-207, Mississippi Code of 1972, is amended as follows:

41-7-207. Notwithstanding any other provisions of Section 41-7-171 et seq., when the need for any emergency replacement occurs, the certificate of need review process may be expedited by promulgation of administrative procedures for expenditures necessary to alleviate an emergency condition. Emergency replacement means the replacement of partial facilities or equipment the replacement of which is not exempt from certificate of need review under the medical equipment replacement exemption provided in Section 41-7-191(1)(f), without which the operation of the facility and the health and safety of patients would be immediately jeopardized. Expenditures under this section shall be limited to the replacement of those necessary facilities or equipment, the loss of which constitutes an emergency.

SECTION 16. Section 41-7-209, Mississippi Code of 1972, is amended as follows:

41-7-209. (1) Any person or entity violating the provisions of Section 41-7-171 et seq., or regulations promulgated under those sections, by not obtaining a certificate of need, by deviating from the provisions of a certificate of need, or by refusing or failing to cooperate with the commission in its exercise or execution of its functions, responsibilities and powers shall be subject to the following:

(a) Revocation of the license of a health care facility or a designated section, component or bed service thereof, or revocation of the license of any other person by the State Department of Health, after the commission shows cause to the department that the license should be revoked;

(b) Nonlicensure by the State Department of Health of a specific or designated bed service offered by the entity or person, after the commission shows cause to the department that the license should not be issued;

(c) Nonlicensure by the State Department of Health where infractions occur concerning the acquisition or control of major medical equipment, after the commission shows cause to the department that the license should not be issued;

(d) Revoking, rescinding or withdrawing a certificate of need previously issued.

(2) Violations of Section 41-7-171 et seq., or any rules or regulations promulgated in furtherance of those sections by intent, fraud, deceit, unlawful design, willful and/or deliberate misrepresentation, or by careless, negligent or incautious disregard for those statutes or rules and regulations, either by persons acting individually or in concert with others, shall constitute a misdemeanor and, upon conviction, shall be punishable by a fine not to exceed One Thousand Dollars ($l,000.00) for each such offense. Each day of continuing violation shall be considered a separate offense. The venue for prosecution of any such violation shall be in any county of the state in which any such violation, or portion thereof, occurred.

(3) The Attorney General, upon certification by the commission, shall seek injunctive relief in a court of proper jurisdiction to prevent violations of Section 41-7-171 et seq. or any rules or regulations promulgated in furtherance of those sections * * * in cases where other administrative penalties and legal sanctions imposed have failed to prevent or cause a discontinuance of any such violation.

(4) Major third party payers, public or private, shall be notified of any violation or infraction under this section and shall be requested to take such appropriate punitive action as is provided by law.

SECTION 17. Section 9 of Chapter 482, Laws of 1982, as

amended by Chapter 306, Laws of 1984, as amended by Section 50 of Chapter 437, Laws of 1986, as amended by Section 33 of Chapter 500, Laws of 1986, as amended by Section 10 of Chapter 515, Laws of 1987, is amended as follows:

Section 9. (1) The commission may assess fees for reviewing applications for certificates of need. The commission shall promulgate such rules and regulations as are necessary to effectuate the intent of this section in keeping with the following standards * * *:

(a) The fees assessed shall be uniform to all applicants.

(b) The fees assessed shall be nonrefundable.

(c) The fee shall be five-tenths of one percent (.5 of 1%) of the amount of a proposed capital expenditure.

(d) The minimum fee shall not be less than Five Hundred Dollars ($500.00), regardless of the amount of the proposed capital expenditure, and the maximum fee permitted shall not exceed Twenty-five Thousand Dollars ($25,000.00), regardless of category.

(e) No application shall be deemed complete for the review process until the required fee is received by the commission.

(f) The required fee shall be paid to the commission and may be paid by check, draft or money order.

(g) There shall be no filing fee requirement for any application submitted by an agency, department, institution or facility that is operated, owned by and/or controlled by the State of Mississippi and that received operating and/or capital expenditure funds solely by appropriations from the Legislature * * *.

(h) There shall be no filing fee requirement for any

health care facility submitting an application for repairs or renovations determined by the commission, in writing, to be necessary in order to avoid revocation of license and/or loss of certification for participation in the Medicaid and/or Medicare programs. Any proposed expenditure in excess of the amount determined by the commission to be necessary to accomplish the stated purposes shall be subject to the fee requirements of this section.

(2) The commission may impose fees or assess costs to those defined persons permitted to and requesting hearings during the course of a review as provided for in Section 41-7-197(1), payable to the commission, before any such hearing. Those charges, fees and/or costs must be applicable to all persons requesting these hearings and uniform in all cases.

(3) The revenue derived from the fees imposed in subsections (1) and (2) of this section shall be deposited by the commission in a special fund that is created in the State Treasury, which shall be earmarked for use by the commission in conducting its health planning and certificate of need review activities under Section 41-7-171 et seq.

(4) It is the intent of the Legislature that the health planning and certificate of need programs be continued for the protection of the individuals within the state requiring health care.

SECTION 18. Section 8 of Chapter 482, Laws of 1982, as amended by Section 10 of Chapter 484, Laws of 1983, as amended by Section 49 of Chapter 437, Laws of 1986, as amended by Section 32 of Chapter 500, Laws of 1986, which authorizes the charging of certain fees for certificate of need hearings, is repealed.

SECTION 19. Section 17 of this act shall be codified as Section 41-7-198, Mississippi Code of 1972.

SECTION 20. This act shall take effect and be in force from and after July 1, 2000.