MISSISSIPPI LEGISLATURE
2002 Regular Session
To: Judiciary
By: Senator(s) Bryan, Dawkins
AN ACT TO AMEND SECTION 49-17-29, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPELLATE REVIEW BY THE COURT OF APPEALS OF CERTAIN ADMINISTRATIVE ACTIONS OF THE PERMIT BOARD OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY; TO AMEND SECTION 49-17-41, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPELLATE REVIEW BY THE COURT OF APPEALS OF CERTAIN ADMINISTRATIVE ACTIONS OF THE COMMISSION ON ENVIRONMENTAL QUALITY; TO AMEND SECTIONS 77-1-47, 77-1-53, 77-3-67, 77-3-69, 77-3-71 AND 77-3-75, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPEAL OF CERTAIN DECISIONS OF THE PUBLIC SERVICE COMMISSION TO THE COURT OF APPEALS; TO AMEND SECTIONS 73-14-39, 73-23-63, 73-24-25, 73-38-27 AND 73-57-33, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPEAL OF CERTAIN DECISIONS OF THE STATE BOARD OF HEALTH TO THE COURT OF APPEALS CONCERNING HEARING AID DEALER LICENSES, PHYSICAL THERAPIST LICENSES, OCCUPATIONAL THERAPY LICENSES, SPEECH PATHOLOGIST AND AUDIOLOGIST LICENSES AND RESPIRATORY CARE THERAPIST LICENSES; TO AMEND SECTIONS 41-7-197 AND 41-7-201, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPEAL TO THE COURT OF APPEALS OF CERTAIN DECISIONS CONCERNING HEALTH CARE CERTIFICATES OF NEED; TO AMEND SECTION 41-9-31, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPEAL TO THE COURT OF APPEALS OF CERTAIN DECISIONS OF THE STATE BOARD OF HEALTH AFFECTING HOSPITALS; TO AMEND SECTION 41-26-21, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPEAL TO THE COURT OF APPEALS FOR DECISIONS UNDER THE SAFE DRINKING WATER ACT; TO AMEND SECTION 41-83-23, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPEAL TO THE COURT OF APPEALS OF CERTAIN DECISIONS CONCERNING HEALTH CARE UTILIZATION REVIEW; TO AMEND SECTION 45-23-59, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A PERSON AGGRIEVED AT A DECISION OF THE STATE BOARD OF HEALTH CONCERNING BOILER AND PRESSURE VESSEL SAFETY MAY APPEAL TO THE COURT OF APPEALS; TO AMEND SECTION 9-4-3, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 49-17-29, Mississippi Code of 1972, is amended as follows:
49-17-29. (1) (a) Except as in compliance with paragraph (b) of this subsection, it is unlawful for any person to cause pollution of the air in the state or to place or cause to be placed any wastes or other products or substances in a location where they are likely to cause pollution of the air. It is also unlawful to discharge any wastes, products or substances into the air of the state which exceed standards of performance, hazardous air pollutant standards, other emission standards set by the commission, or which reduce the quality of the air below the air quality standards or increments established by the commission or prevent attainment or maintenance of those air quality standards. Any such action is hereby declared to be a public nuisance.
(b) It is unlawful for any person to build, erect, alter, replace, use or operate any equipment which will cause the issuance of air contaminants unless that person holds a permit from the Permit Board (except repairs or maintenance of equipment for which a permit has been previously issued), or unless that person is exempted from holding a permit by a regulation promulgated by the commission. Concentrated animal feeding operations may be a source or a category of sources exempted under this paragraph. However, no new or existing applications relating to swine concentrated animal feeding operations within a county shall be exempted from regulations and ordinances which have been duly passed by the county's board of supervisors and which are in force on June 1, 1998.
(2) (a) Except as in compliance with paragraph (b) of this subsection, it is unlawful for any person to cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the state. It is also unlawful to discharge any wastes into any waters of the state which reduce the quality of those waters below the water quality standards established by the commission; or to violate any applicable pretreatment standards or limitations, technology-based effluent limitations, toxic standards or any other limitations established by the commission. Any such action is declared to be a public nuisance.
(b) It is unlawful for any person to carry on any of the following activities, unless that person holds a current permit for that activity from the Permit Board as may be required for the disposal of all wastes which are or may bedischarged into the waters of the state, or unless that person is exempted from holding a permit by a regulation promulgated by the commission: (i) the construction, installation, modification or operation of any disposal system or part thereof or any extension or addition thereto, including, but not limited to, systems serving agricultural operations; (ii) the increase in volume or strength of any wastes in excess of the permissive discharges specified under any existing permit; (iii) the construction, installation or operation of any industrial, commercial or other establishment, including irrigation projects or any extension or modification thereof or addition thereto, the operation of which would cause an increase in the discharge of wastes into the waters of the state or would otherwise alter the physical, chemical or biological properties of any waters of the state in any manner not already lawfully authorized; (iv) the construction or use of any new outlet for the discharge of any wastes into the waters of the state. However, no new or existing applications relating to swine concentrated animal feeding operations within a county shall be exempted from regulations and ordinances which have been duly passed by the county's board of supervisors and which are in force on June 1, 1998.
(3) (a) Except as otherwise provided in this section, the Permit Board created by Section 49-17-28 shall be the exclusive administrative body to make decisions on permit issuance, reissuance, denial, modification or revocation of air pollution control and water pollution control permits and permits required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17), and all other permits within the jurisdiction of the Permit Board. After consideration of alternative waste treatment technologies available to control air and water pollution and odor, including appropriate siting criteria, the commission may promulgate regulations establishing conditions, limitations and exemptions under which the Permit Board shall make these decisions. Regulations promulgated by the commission which establish exemptions as authorized under Senate Bill No. 2895, 1998 Regular Session [Laws, 1998, Ch. 537], shall apply to any applicable facility in operation on the effective date of that regulation and to any applicable facility constructed or operated after the effective date of that regulation. The Permit Board may issue multiple permits for the same facility or operation simultaneously or in the sequence that it deems appropriate consistent with the commission's regulations. Except as otherwise provided in this paragraph, the Permit Board, under any conditions that the board may prescribe, may authorize the Executive Director of the Department of Environmental Quality to make decisions on permit issuance, reissuance, denial, modification or revocation. The executive director shall not be authorized to make decisions on permit issuance, reissuance, denial, modification or revocation for a commercial hazardous waste management facility or a municipal solid waste landfill or incinerator. A decision by the executive director shall be a decision of the Permit Board and shall be subject to formal hearing and appeal as provided in this section. The executive director shall report all permit decisions to the Permit Board at its next regularly scheduled meeting and those decisions shall be recorded in the minutes of the Permit Board. The decisions of the Permit Board shall be recorded in minutes of the Permit Board and shall be kept separate and apart from the minutes of the commission. The decision of the Permit Board or the executive director to issue, reissue, deny, modify or revoke permits shall not be construed to be an order or other action of the commission.
(b) The Executive Director of the Department of Environmental Quality shall also be the Executive Director of the Permit Board and shall have available to him, as Executive Director of the Permit Board, all resources and personnel otherwise available to him as executive director of the department.
(c) All persons required to obtain an air pollution control or water pollution control permit, a permit under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17) or any other permit within the jurisdiction of the Permit Board shall make application for that permit with the Permit Board. The Permit Board, under any regulations as the commission may prescribe, may require the submission of those plans, specifications and other information as it deems necessary to carry out Sections 49-17-1 through 49-17-43 and Title 17, Chapter 17, or to carry out the commission's regulations adopted under those sections. The Permit Board, based upon any information as it deems relevant, shall issue, reissue, deny, modify or revoke air pollution control or water pollution control permit or permits required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17) or any other permit within the jurisdiction of the Permit Board under any conditions as it deems necessary that are consistent with the commission's regulations. The Permit Board's action of issuance, reissuance, denial, modification or revocation of a permit as recorded in its minutes shall constitute a complete decision of the board. All permits issued by the Permit Board shall remain in full force and effect until the board makes a final determination regarding any reissuance, modification, or revocation thereof. The Permit Board shall take action upon an application within one hundred eighty (180) days following its receipt in the board's principal office. No action which affects revocation of an existing permit shall take effect until the thirty (30) days mentioned in paragraph (4)(b) of this section has expired or until a formal hearing as prescribed in that paragraph is held, whichever is later.
(d) The Permit Board may adopt rules of practice and procedure governing its proceedings that are consistent with the commission's regulations. All hearings in connection with permits issued, reissued, denied, modified or revoked and all appeals from decisions of the Permit Board shall be as provided in this section.
(e) Upon any conditions that are consistent with the commission's regulations and subject to those procedures for public notice and hearings as provided by law, not inconsistent with federal law and regulations, the Permit Board may issue general permits and, where appropriate, may consolidate multiple permits for the same facility or operation into a single permit.
(f) The Permit Board shall not issue any permit for a new swine concentrated animal feeding operation or the expansion of an existing swine concentrated animal feeding operation before January 1, 2000, unless the department received the application for that operation's new or modified permit before February 28, 1998, or except as provided in this paragraph (f). In issuing or modifying any permit for which the department received an application before February 28, 1998, the Permit Board shall apply those siting criteria adopted or used by the commission before February 28, 1998, unless federal law or regulations require more stringent criteria. The moratorium established in this paragraph shall not apply to the issuance of any permit for a new swine concentrated animal feeding operation or the expansion of an existing swine concentrated animal feeding operation that uses an animal waste management system which the applicant demonstrates to the Permit Board is innovative in significantly reducing the effects of the operation on the public health, welfare or the environment and which is approved by the Permit Board. The Permit Board shall not issue or modify more than five (5) permits under this innovative animal waste management system technology exemption to the moratorium.
(4) (a) Except as required by this section, before the issuance, reissuance, denial, modification or revocation of any air pollution control or water pollution control permit, permit required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17) or any other permit within its jurisdiction, the Permit Board, in its discretion, may hold a public hearing or meeting to obtain comments from the public on its proposed action. Before the issuance, reissuance, denial, modification pertaining to the expansion of a facility, transfer or revocation of a permit for a commercial hazardous waste management facility or a commercial municipal solid waste landfill or incinerator, the Permit Board shall conduct a public hearing or meeting to obtain comments from the public on the proposed action. That hearing or meeting shall be informal in nature and conducted under those procedures as the Permit Board may deem appropriate consistent with the commission's regulations.
(b) Within thirty (30) days after the date the Permit Board takes action upon permit issuance, reissuance, denial, modification or revocation, as recorded in the minutes of the Permit Board, any interested party aggrieved by that action may file a written request for a formal hearing before the Permit Board. An interested party is any person claiming an interest relating to the property or project which is the subject of the permit action, and who is so situated that the person may be affected by the disposition of that action.
The Permit Board shall fix the time and place of the formal hearing and shall notify the permittee of that time and place.
In conducting the formal hearing, the Permit Board shall have the same full powers as to subpoenaing witnesses, administering oaths, examining witnesses under oath and conducting the hearing, as is now vested by law in the Mississippi Public Service Commission, as to the hearings before it, with the additional power that the Executive Director of the Permit Board may issue all subpoenas at the instance of the Permit Board or at the instance of any interested party. Any subpoenas shall be served by any lawful officer in any county to whom the subpoena is directed and return made thereon as provided by law, with the cost of service being paid by the party on whose behalf the subpoena was issued. Witnesses summoned to appear at the hearing shall be entitled to the same per diem and mileage as witnesses attending the circuit court and shall be paid by the person on whose behalf the witness was called. Sufficient sureties for the cost of service of the subpoena and witness fees shall be filed with the Executive Director of the Permit Board at the time that issuance of the subpoena is requested. At a hearing, any interested party may present witnesses and submit evidence and cross-examine witnesses.
The Permit Board may designate a hearing officer to conduct the formal hearing on all or any part of the issues on behalf of the Permit Board. The hearing officer shall prepare the record of the formal hearing conducted by that officer for the Permit Board and shall submit the record to the Permit Board.
Upon conclusion of the formal hearing, the Permit Board shall enter in its minutes the board's decision affirming, modifying or reversing its prior decision to issue, reissue, deny, modify or revoke a permit. The Permit Board shall prepare and record in its minutes findings of fact and conclusions of law supporting its decision. That decision, as recorded in its minutes with its findings of fact and conclusions of law, shall be final unless an appeal, as provided in this section, is taken * * * within twenty (20) days following the date the decision is entered in the board's minutes.
(c) Within twenty (20) days after the date the Permit Board takes action upon permit issuance, reissuance, denial, modification or revocation after a formal hearing under this subsection as recorded in the minutes of the Permit Board, any person aggrieved of that action may appeal the action as provided in subsection (5) of this section.
(5) (a) Appeals from any decision or action of the Permit Board shall be * * * to the Court of Appeals as provided in this subsection.
(b) Any person who is aggrieved by any decision of the Permit Board issuing, reissuing, denying, revoking or modifying a permit after a formal hearing may appeal that decision within the period specified in subsection (4)(c) of this section to the Court of Appeals. The appellant shall give a cost bond with sufficient sureties, payable to the state in the sum of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), to be fixed by the Permit Board and to be filed with and approved by the Executive Director of the Permit Board, who shall forthwith certify the filing of the bond together with a certified copy of the record of the Permit Board in the matter to the * * * court * * *, which shall thereupon become the record of the cause. An appeal * * * as provided in this section shall not stay the decision of the Permit Board. The aggrieved party may, within twenty (20) days following the date the board's decision after a formal hearing is entered on the board's minutes, petition the * * * court for an appeal with supersedeas and the court shall grant a hearing on that petition. Upon good cause shown, the court may grant that appeal with supersedeas. If granted, the appellant shall be required to post a bond with sufficient sureties according to law in an amount to be determined by the chancellor. Appeals shall be considered only upon the record as made before the Permit Board. The * * * court shall always be deemed open for hearing of an appeal * * *, and the appeal shall have precedence over all civil cases, except election contests. The * * * court shall review all questions of law and of fact. If no prejudicial error is found, the matter shall be affirmed. If prejudicial error is found the decision of the board shall be reversed and the * * * court shall remand the matter to the Permit Board for appropriate action as may be indicated or necessary under the circumstances. Appeals may be taken from the Court of Appeals to the Supreme Court in the manner as now required by law, except that if a supersedeas is desired by the party appealing * * *, that party may apply for a supersedeas * * *, without additional bond, if in the court's judgment material damage is not likely to result thereby; but otherwise, thecourt shall require a supersedeas bond as the court deems proper, which shall be liable to the state for any damage.
SECTION 2. Section 49-17-41, Mississippi Code of 1972, is amended as follows:
49-17-41. In addition to any other remedies that might now be available, any person or interested party aggrieved by any order of the commission or the executive director shall have a right to file a sworn petition with the commission within thirty (30) days after the order was issued setting forth the grounds and reasons for his complaint and asking for a hearing of the matter involved, provided that no hearing on the same subject matter shall have been previously held before the commission or its designated hearing officer. The commission shall thereupon fix the time and place of such hearing and shall notify the petitioners thereof. In such pending matters, the commission shall have the same full powers as to subpoenaing witnesses, administering oaths, examining witnesses under oath and conducting the hearing, as is now vested by law in the Mississippi Public Service Commission, as to hearings before it, with the additional power that the executive director may issue all subpoenas, both at the instance of the petitioner and of the commission. At such hearings the petitioner, and any other interested party, may offer, present witnesses and submit evidence.
Following such hearing, the final order of determination of the commission upon such matters shall be conclusive, unless the petitioner, or such other interested party appearing at the hearing, shall, within fifteen (15) days after the adjournment of the meeting at which said final order was made, appeal to the Court of Appeals by giving a cost bond with sufficient sureties, payable to the state in the sum of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), to be fixed in the order appealed from, to be filed with and approved by the executive director of the commission, who shall forthwith certify the same together with a certified copy of the record of the commission in the matter to the Court of Appeals, which shall thereupon become the record of the cause. An appeal to the Court of Appeals as provided herein shall not stay the execution of an order of the commission. Any party aggrieved by an order of the commission may, within said fifteen (15) days after the adjournment of the commission meeting at which said final order was entered, petition the Court of Appeals for an appeal with supersedeas, and the court shall grant a hearing on said petition and upon good cause shown may grant said appeal with supersedeas; the appellant shall be required to post a bond with sufficient sureties according to law in an amount to be determined by the court. Appeals shall be considered only upon the record as made before the commission. The Court of Appeals shall always be deemed open for hearing of such appeals * * *, and the same shall have precedence over all civil cases, except election contests. The * * * court shall review all questions of law and of fact. If no prejudicial error be found, the matter shall be affirmed and remanded to the commission for enforcement. If prejudicial error be found, the same shall be reversed and the * * * court shall remand the matter to the commission for appropriate action as may be indicated or necessary under the circumstances. Appeals may be taken from the Court of Appeals to the Supreme Court in the manner as now required by law, except that if a supersedeas is desired by the party appealing, * * * he may apply therefor to the Court of Appeals, who shall award a writ of supersedeas, without additional bond, if * * * material damage is not likely to result thereby, but otherwise * * * such supersedeas bond shall be required as deemed proper, which shall be liable to the state for such damage.
SECTION 3. Section 77-1-47, Mississippi Code of 1972, is amended as follows:
77-1-47. Appeals from any final finding, order or judgment of the commission shall be taken and perfected by the filing of a bond in the sum of Five Hundred Dollars ($500.00) with two (2) sureties, or with a surety company qualified to do business in Mississippi as the surety, conditioned to pay the cost of such appeal. Said bond shall be approved by the chairman or secretary of the commission, or by the judge of the court * * * in case the chairman or secretary of the commission refuses to approve a proper bond tendered to them within the time limited for taking appeals. The commission may grant a supersedeas bond on any appeal, in such penalty and with such surety thereon as it may deem sufficient, and may, during the pendency of any appeal, at any time, require the increase of any such supersedeas bond or additional securities thereon. The Court of Appeals may on petition therefor by any party entitled to an appeal, presented * * * within six (6) months of the date of the final finding, order, or judgment of the commission appealed from, award a writ of supersedeas to any such final finding, order, or judgment of the commission, upon the filing of a supersedeas bond in an amount to be fixed by said judge. All appeal bonds for the payment of costs, and all supersedeas bonds, shall be made payable to the state and may be enforced in the name of the state by motion or other legal proceedings or remedy in any circuit court of this state having jurisdiction of a motion or action on such bond, and the process and proceedings thereon shall be as provided by law upon bonds of like character required and taken by any court of this state. Such circuit court may render and enter like judgments upon such bonds as may, by law, be rendered and entered upon bonds of like character, and process of execution shall issue upon such judgments, and may be levied and executed as provided by law in other cases.
SECTION 4. Section 77-1-53, Mississippi Code of 1972, is amended as follows:
77-1-53. (1) Whenever the commission, an employee of the commission or any employee of the Public Utilities Staff has reason to believe that a willful and knowing violation of any statute administered by the commission or any regulation or any order of the commission has occurred, the commission may cause a written complaint to be served upon the alleged violator or violators. The complaint shall specify the provisions of such statute, regulation or order alleged to be violated and the facts alleged to constitute a violation thereof and shall require that the alleged violator appear before the commission at a time and place specified in the notice and answer the charges complained of. The time of appearance before the commission shall not be less than twenty (20) days from the date of the service of the complaint, unless the commission finds that the public convenience or necessity requires that such hearing be held at an earlier date.
(2) The commission shall afford an opportunity for a fair hearing to the alleged violator or violators at the time and place specified in the complaint. On the basis of the evidence produced at the hearing, the commission shall make findings of fact and conclusions of law and enter its order, which in its opinion will be in the best interests of the consuming public. Failure to appear at any such hearing, without prior authorization to do so from the commission, may result in the commission finding the alleged violator guilty of the charges complained of by default, and at such time an order may be entered, including the assessment of a penalty. The commission shall give written notice of such order to the alleged violator and to such other persons as shall have appeared at the hearing or made written request for notice of the order. The commission may assess such penalties as provided in subsection (3) of this section.
(3) Any person found by the commission, pursuant to a hearing or by default as provided in this section, violating any statute administered by the commission, or any regulation or order of the commission in pursuance thereof, shall be subject to a civil penalty of not more than Five Thousand Dollars ($5,000.00) for each violation, to be assessed and collected by the commission. Each day that a violation continues shall constitute a separate violation. In lieu of, or in addition to, the monetary penalty, the commission, for any violation by a certificate holder, may impose a penalty in accordance with Section 77-3-21, Mississippi Code of 1972, if it finds that the violator is not rendering reasonably adequate service. Appeals from the imposition of the civil penalty may be taken to the Court of Appeals in the same manner as appeals from orders of the commission constituting judicial findings.
(4) All penalties collected by the commission under this section shall be deposited in the Public Service Commission Regulation Fund.
(5) No portion of any penalty or costs associated with an administrative or court proceeding which results in the assessment of a penalty against a public utility for violation of any statute administered by the commission, or any regulation or order of the commission shall be considered by the commission in fixing any rates or charges of such public utility.
(6) This section shall be in addition to any other law which provides for the imposition of penalties for the violation of any statute administered by the commission or any regulation or order of the commission.
SECTION 5. Section 77-3-67, Mississippi Code of 1972, is amended as follows:
77-3-67. (1) In addition to other remedies now available at law or in equity, any party aggrieved by any final finding, order or judgment of the commission, except those final findings, orders or judgments specified in Section 77-3-72, shall have the right, regardless of the amount involved, of appeal to the Court of Appeals. * * * If an application for rehearing has been filed, an appeal must be filed within thirty (30) days after the application for rehearing has been refused or deemed refused because of the commission's failure to act thereon within the time specified in Section 77-3-65 or, if the application is granted, within thirty (30) days after the rendition of the decision on rehearing. If an application for rehearing has not been filed, an appeal must be filed within thirty (30) days after the entry of the commission's order. Every 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 directly affected by said appeal may appear and become a party, or the court may upon proper notice order any person to be joined as a party.
(2) Upon the filing of an appeal the clerk of the * * * court shall serve notice thereof upon the commission, whereupon the commission shall, within sixty (60) days (or within such additional time as the court may for cause allow) from the service of such notice, certify to the * * * court the record in the case, which record 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.
(3) No new or additional evidence shall be introduced in the * * * court but the case shall be determined upon the record and evidence transferred.
(4) The court may hear and dispose of the appeal in termtime or vacation and the court may sustain or dismiss the appeal, modify or vacate the order complained of in whole or in part, as the case may be. 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 constitutional rights.
SECTION 6. Section 77-3-69, Mississippi Code of 1972, is amended as follows:
77-3-69. (1) The pendency of proceedings to review shall not of itself stay or suspend the operation of the order of the commission. However, any party may, as a matter of right, secure from the court in which a review of or an appeal from the order of the commission not related to changing rates or rate design is sought, an order suspending or staying the operation of the order of the commission pending a review of such order, by adequately securing the other parties against loss due to the delay in the enforcement of the order in case the order under review is affirmed, the security to be in such form and amount as shall be directed by the court granting the stay or suspension.
(2) If an appeal to the Court of Appeals be taken from an order of the commission reducing existing rates or refusing to approve rates proposed by a utility, the utility, if it is not then collecting under refunding bond rates in excess of rates which have been ordered by the commission, may request upon motion filed in the Court of Appeals an order allowing the utility to place into effect forthwith interim rates which may be charged and collected, subject to refund as hereinafter provided, pending final determination of the rate proceeding. The court may, in its discretion, upon a finding that undue hardship or irreparable injury to the utility or the public interest would probably result otherwise, allow the utility to place into effect such interim rates at a revenue level up to, but not exceeding, the proposed rates. The court may allow the utility to collect all or part of a proposed rate increase. However, before such increased rates can take effect, the utility shall file with the court a bond in a reasonable amount approved by the court, with sureties approved by the court, conditioned upon the refund, with interest at the same rate prescribed in Section 77-3-39, Section 77-3-69 and Section 77-3-71, to the parties entitled thereto, of the amount of the excess if the existing rate or rates or the rate or rates so put into effect are finally determined to be excessive. In lieu of payment, the utility may credit the service account with the amount due under this subsection if the consumer entitled to the refund is, at that time, a consumer of the utility. If the court does not dispose of the motion for interim rates as contemplated herein within thirty (30) days of the filing of such motion, then the public utility, as a matter of right, may place into effect forthwith fifty percent (50%) of that portion of the proposed rate schedule not allowed by the commission's order, pending final determination of the appeal, upon filing with the court a surety bond in the same manner as previously provided for herein.
(3) If the court does not make a final determination and adjudication of the rate proceeding within one hundred eighty (180) days after the record has been certified and filed, or if the court remands the matter to the commission for further proceedings and the commission has not entered its order allowing rates within forty-five (45) days from the time of receipt of the mandate of the court, or if the commission has at any time entered its order after remand and an appeal therefrom has been taken, then, in any such case, the public utility may, as a matter of right, place into effect the entire proposed rate schedule, under refunding bond, as provided for in this section or in Section 77-3-39, whichever is applicable. Interim rates under refunding bond charged by the utility under this subsection shall terminate upon final disposition of the rate proceeding without timely appeal.
SECTION 7. Section 77-3-71, Mississippi Code of 1972, is amended as follows:
77-3-71. Appeals in accordance with law may be had to the Supreme Court of the State of Mississippi from any final judgment of the Court of Appeals.
(a) If the party taking the appeal has theretofore furnished security as provided in Sections 77-3-39 and 77-3-69, and has filed a bond conditioned as provided in Sections 77-3-39 and 77-3-69, the taking of an appeal to the Supreme Court shall operate as a supersedeas without the furnishing of further security or bond. In such cases the Supreme Court may, upon application to it, require such additional security, or such additional bond conditioned as provided in Sections 77-3-39 and 77-3-69, as in its opinion will adequately secure the other party to the appeal, or parties who may become entitled to refunds, against loss in the event the judgment under review is affirmed.
(b) If an appeal to the Supreme Court be taken from a final judgment of the Court of Appeals which alters an order of the commission by approving a level of revenue in excess of that allowed by the commission's order, the public utility may, as a matter of right, place such level of revenue which has been so approved by the Court of Appeals in such final judgment into effect, pending final determination of the appeal to the Supreme Court, upon filing with the Supreme Court a bond in a reasonable amount approved by such court, with sureties approved by such court, conditioned upon the refund with interest at the lawful rate to the parties entitled thereto, of the amount of the excess if the rates so put into effect are finally determined to be excessive. In lieu of payment, the utility may credit the service account with the amount due under this section if the consumer entitled to the refund, is at that time, a consumer of the utility.
(c) In addition to the foregoing, if an appeal to the Supreme Court be taken from a final judgment of the Court of Appeals with respect to a proceeding for determination of rates, and the public utility is not then collecting under refunding bond rates in excess of rates which have been ordered by the commission, such utility may request upon motion filed in the Supreme Court an order allowing the utility to place into effect forthwith interim rates which may be charged and collected, subject to refund as hereinafter provided, pending final determination of the rate proceeding. The court may, in its discretion, upon a hearing by not fewer than three (3) justices and upon a finding that undue hardship or irreparable injury to the utility or the public interest would probably result otherwise, allow the utility to place into effect such interim rates at a revenue level up to, but not exceeding, the proposed rates. The court may allow the utility to collect all or part of a proposed rate increase. However, before such increased rates can take effect, the utility shall file with the court a bond in a reasonable amount approved by the court, with sureties approved by the court, conditioned upon the refund, with interest at the lawful rate, to the parties entitled thereto, of the amount of the excess after the existing rate or rates or the rate or rates so put into effect are finally determined to be excessive. In lieu of payment, the utility may credit the service account with the amount due under this section if the consumer entitled to the refund is, at that time, a consumer of the utility.
If the court does not dispose of the motion for interim rates as contemplated herein within thirty (30) days of the filing of such motion, then the public utility, as a matter of right, may place into effect forthwith fifty percent (50%) of that portion of the proposed rate schedule not allowed by the commission's order, pending final determination of the appeal, upon filing with the court a surety bond in the same manner as previously provided for herein. If the court does not make a final determination and adjudication of the rate proceeding within one hundred eighty (180) days after the record has been certified and filed, or if the court remands the matter to the commission for further proceedings and the commission has not entered its order allowing rates within forty-five (45) days from the time of receipt of the mandate of the court, or if the commission has at any time entered its order after remand and an appeal therefrom has been taken, then, in any such case, the public utility may, as a matter of right, place into effect the entire proposed rate schedule, under refunding bond, as provided for in this section or in Section 77-3-39, whichever is applicable. Interim rates under refunding bond charged by the utility under this subsection shall terminate upon final disposition of the rate proceeding without timely appeal.
SECTION 8. Section 77-3-75, Mississippi Code of 1972, is amended as follows:
77-3-75. The commission may apply to the Court of Appeals for enforcement, by mandamus, injunction or other appropriate remedy, of any order of the commission.
SECTION 9. Section 73-14-39, Mississippi Code of 1972, is amended as follows:
73-14-39. (1) From any revocation, the person charged may, within thirty (30) days thereof, appeal to the Court of Appeals.
(2) Notice of appeals shall be filed in the office of the clerk of the court, who shall issue a writ of certiorari directed to the board, commanding it within ten (10) days after service thereof to certify to such court its entire record in the matter in which the appeal has been taken. The appeal shall thereupon be heard in the due course by the court * * * and the court shall review the record and make its determination of the cause between the parties.
(3) Any order, rule or decision of the board shall not take effect until after the time of appeal in the * * * court shall have expired. If there is an appeal, such appeal may, in the discretion of and on motion to the Court of Appeals, act as a supersedeas. The Court of Appeals shall dispose of the appeal and enter its decision promptly. * * *
(4) Any person taking an appeal shall post a satisfactory bond in the amount of Two Hundred Dollars ($200.00) for payment of any costs which may be adjudged against him.
(5) Actions taken by the board in suspending a certificate of registration when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a suspension of a certificate that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.
SECTION 10. Section 73-23-63, Mississippi Code of 1972, is amended as follows:
73-23-63. (1) Any person whose application for a license is denied shall be entitled to a hearing before the board if he submits a written request to the board. Such hearing shall be conducted at the earliest possible date. A subcommittee of the council shall attend and may offer relevant evidence at any such hearing. The board shall fix a time and place for the hearing and shall cause a written copy of the reason for denial of the license, together with a notice of the time and place fixed for the hearing to be served on the applicant requesting the hearing and shall serve notice of such hearing on the council. Service of and notice of the hearing may be given by certified mail to the last known address of the licensee or applicant. For purposes of the hearing, the board, acting by and through the Executive Director of the State Board of Health shall have the power to subpoena persons and compel the production of records, papers and other documents.
(2) (a) All complaints concerning a licensee's business or professional practice shall be received by the board. Each complaint received shall be logged, recording at a minimum the following information: (i) licensee's name; (ii) name of the complaining party, if known; (iii) date of complaint; (iv) brief statement of complaint; and (v) disposition.
(b) Following the investigative process, the board may file formal charges against the licensee. Such formal complaint shall, at a minimum, inform the licensee of the facts which are the basis of the charge and which are specific enough to enable the licensee to defend against the charges.
(c) Each licensee whose conduct is the subject of a formal charge which seeks to impose disciplinary action against the licensee shall be served notice of the formal charge at least thirty (30) days before the date of the hearing, which hearing shall be presided over by the board or the board's designee. Service shall be considered to have been given if the notice was personally received by the licensee or if the notice was mailed certified, return receipt requested, to the licensee at the licensee's last known address as listed with the state agency.
(d) The notice of the formal charge shall consist at a minimum of the following information:
(i) The time, place and date of the hearing;
(ii) That the licensee shall appear personally at the hearing and may be represented by counsel;
(iii) That the licensee shall have the right to produce witnesses and evidence in the licensee's behalf and shall have the right to cross-examine adverse witnesses and evidence;
(iv) That the hearing could result in disciplinary action being taken against the licensee's license;
(v) That rules for the conduct of these hearings exist and it may be in the licensee's best interest to obtain a copy;
(vi) That the board or its designee shall preside at the hearing and following the conclusion of the hearing shall make findings of facts, conclusions of law and recommendations, separately stated, to the board as to what disciplinary action, if any, should be imposed on the licensee;
(vii) The board or its designee shall hear evidence produced in support of the formal charges and contrary evidence produced by the licensee. At the conclusion of the hearing, the board shall issue an order; and
(viii) All proceedings pursuant to this section are matters of public record and shall be preserved pursuant to state law.
(3) In addition to other remedies provided by law or in equity, any applicant or licensee aggrieved by any action of the board may appeal the action of the board to the Court of Appeals, and the court after a hearing may modify, affirm or reverse the judgment of the board or may remand the case to the board for further proceedings. An appeal shall be filed within thirty (30) days immediately following the mailing or delivery to the applicant or licensee of a copy of the order of judgment of the board, unless the court, for good cause shown, extends the time. Appeals may be had to the Supreme Court of the State of Mississippi as provided by law * * *. If the board appeals from any judgment of the Court of Appeals, no bond shall be required of it in order to perfect its appeal. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.
SECTION 11. Section 73-24-25, Mississippi Code of 1972, is amended as follows:
73-24-25. (1) Any person whose application for a license is denied shall be entitled to a hearing before the board if he submits a written request to the board. Such hearing shall be conducted at the earliest possible date. A subcommittee of the council shall attend and may offer relevant evidence at any such hearing. The board shall fix a time and place for the hearing and shall cause a written copy of the reason for denial of the license, together with a notice of the time and place fixed for the hearing, to be served on the applicant requesting the hearing and shall serve notice of such hearing on the council. Service of and notice of the hearing may be given by United States certified mail, return receipt requested, to the last known address of the licensee or applicant. For purposes of the hearing, the board, acting by and through the Executive Director of the State Board of Health, shall have the power to subpoena persons and compel the production of records, papers and other documents.
(2) (a) All complaints concerning a licensee's business or professional practice shall be received by the board. Each complaint received shall be registered, recording at a minimum the following information: (i) licensee's name; (ii) name of the complaining party, if known; (iii) date of complaint; (iv) brief statement of complaint; and (v) disposition.
(b) Following the investigative process, the board may file formal charges against the licensee. Such formal complaint, at a minimum, shall inform the licensee of the facts which are the basis of the charge and which are specific enough to enable the licensee to defend against the charges.
(c) Each licensee whose conduct is the subject of a formal charge which seeks to impose disciplinary action against the licensee shall be served notice of the formal charge at least thirty (30) days before the date of the hearing, which hearing shall be presided over by the board or the board's designee. Service shall be considered to have been given if the notice was personally received by the licensee or if the notice was sent by United States certified mail, return receipt requested, to the licensee at the licensee's last known address as listed with the state agency.
(d) The notice of the formal charge shall consist, at a minimum, of the following information:
(i) The time, place and date of the hearing;
(ii) Notification that the licensee shall appear personally at the hearing and may be represented by counsel;
(iii) Notification that the licensee shall have the right to produce witnesses and evidence in his behalf and shall have the right to cross-examine adverse witnesses and evidence;
(iv) Notification that the hearing could result in disciplinary action being taken against the licensee;
(v) Notification that rules for the conduct of the hearing exist, and it may be in the licensee's best interest to obtain a copy;
(vi) Notification that the board or its designee shall preside at the hearing, and following the conclusion of the hearing, shall make findings of facts, conclusions of law and recommendations, separately stated, to the board as to what disciplinary action, if any, should be imposed on the licensee;
(vii) The board or its designee shall hear evidence produced in support of the formal charges and contrary evidence produced by the licensee. At the conclusion of the hearing, the board shall issue an order; and
(viii) All proceedings under this section are matters of public record and shall be preserved in accordance with state law.
(3) In addition to other remedies provided by law or in equity, any applicant or licensee aggrieved by any action of the board may appeal the action of the board to the Court of Appeals. An appeal shall be filed within thirty (30) days immediately following the mailing or delivery to the applicant or licensee of a copy of the order of judgment of the board, unless the court, for good cause shown, extends the time. The court after a hearing may modify, affirm or reverse the judgment of the board or may remand the case to the board for further proceedings. An appeal from the Court of Appeals may be had to the Supreme Court of the State of Mississippi as provided by law * * *. If the board appeals a judgment of the Court of Appeals, no bond shall be required of it in order to perfect its appeal.
(4) The board may impose any of the following sanctions, singly or in combination, when it finds that a licensee is guilty of any such offense:
(a) Revoke the license;
(b) Suspend the license, for any period of time;
(c) Censure the licensee;
(d) Impose a monetary penalty of not more than Two Hundred Dollars ($200.00);
(e) Place a licensee on probationary status and requiring the licensee to submit to any of the following: (i) report regularly to the board, or its designee, upon matters which are the basis of probation; (ii) continue to renew professional education until a satisfactory degree of skill has been attained in those areas which are the basis of probation; or (iii) such other reasonable requirement or restrictions as the board deems proper;
(f) Refuse to renew a license; or
(g) Revoke probation which has been granted and impose any other disciplinary action under this subsection when the requirements of probation have not been fulfilled or have been violated.
(5) The board summarily may suspend a license under this chapter without the filing of a formal complaint, notice or a hearing, if the board finds that the continued practice in the profession by the licensee would constitute an immediate danger to the public. If the board summarily suspends a license under the provisions of this subsection a hearing must be held within twenty (20) days after suspension begins, unless the hearing date is continued at the request of the licensee.
(6) Disposition of any formal complaint may be made by consent order or stipulation between the board and the licensee.
(7) The board may reinstate any licensee to good standing under this chapter if, after hearing, the board is satisfied that the applicant's renewed practice is in the public interest.
(8) The board may seek the counsel of the Occupational Therapy Advisory Council regarding disciplinary actions.
(9) The board shall seek to achieve consistency in the application of the foregoing sanctions, and significant departure from prior decisions involving similar conduct shall be explained by the board.
(10) In addition, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 12. Section 73-38-27, Mississippi Code of 1972, is amended as follows:
73-38-27. (1) The board may refuse to issue or renew a license, or may suspend or revoke a license where the licensee or applicant for license has been guilty of unprofessional conduct which has endangered or is likely to endanger the health, welfare or safety of the public. Such unprofessional conduct may result from:
(a) Obtaining a license by means of fraud, misrepresentation or concealment of material facts;
(b) Being guilty of unprofessional conduct as defined by the rules established by the board;
(c) Being convicted of a felony in any court of the United States if the acts for which he is convicted are found by the board to have a direct bearing on whether he should be entrusted to serve the public in the capacity of a speech-language pathologist or audiologist;
(d) Violating any lawful order, rule or regulation rendered or adopted by the board;
(e) Violating any provisions of this chapter.
(2) The board may deny an application for, or suspend, revoke or impose probationary conditions upon a license upon recommendations of the council made after a hearing as provided in this chapter. One (1) year from the date of revocation of a license under this section, application may be made to the board for reinstatement. The board shall have discretion to accept or reject an application for reinstatement and may require an examination for such reinstatement.
(3) A plea or verdict of guilty, or a conviction following a plea of nolo contendere, made to a charge of a felony or of any offense involving moral turpitude is a conviction within the meaning of this section. After due notice and administrative hearing, the license of the person so convicted shall be suspended or revoked or the board shall decline to issue a license when:
(a) The time for appeal has elapsed;
(b) The judgment of conviction has been affirmed on appeal; or
(c) An order granting probation has been made suspending the imposition of sentence, without regard to a subsequent order allowing the withdrawal of a guilty plea and the substitution therefor of a not guilty plea, or the setting aside of a guilty verdict, or the dismissal of the acquisition, information or indictment.
(4) Within thirty (30) days after any order or act of the board, any person aggrieved thereby may appeal to the Court of Appeals.
(5) Notice of appeals shall be filed in the office of the clerk of the court, who shall issue a writ of certiorari directed to the board, commanding it within ten (10) days after service thereof to certify to such court its entire record in the matter in which the appeal has been taken. The appeal shall thereupon be heard in the due course by said court, and the court shall review the record and make its determination of the cause between the parties.
(6) Any order, rule or decision of the board shall not take effect until after the time of appeal in the said court shall have expired. In the event an appeal is taken by a defendant, such appeal shall not act as a supersedeas, and the court shall enter its decision promptly.
(7) Any person taking an appeal shall post a satisfactory bond in the amount of Two Hundred Dollars ($200.00) for payment of any cost which may be adjudged against him.
(8) In addition to the reasons specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. Actions taken by the board in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 13. Section 73-57-33, Mississippi Code of 1972, is amended as follows:
73-57-33. (1) Upon the filing of a written complaint with the board, charging a person with having committed any of the acts described in Section 73-59-31, the administrative secretary, or other authorized employee of the board, shall make an investigation. If the board finds reasonable grounds for the complaint, a time and place for a hearing will be set, notice of which shall be served on the licensee, permit holder or applicant at least fifteen (15) calendar days prior thereto. The notice shall be by personal service or by certified or registered mail sent to the last known address of the person.
(2) The board may petition the * * * court * * * to issue subpoenas for the attendance of witnesses and the production of necessary evidence in any hearing before it. Upon request of the respondent or his counsel, the board shall petition the court to issue subpoenas in behalf of the respondent. The * * * court upon petition may issue such subpoenas as it deems necessary.
(3) At the hearing the board shall administer oaths as may be necessary for the proper conduct of the hearing. The accused shall have the right to appear either personally or by counsel, or both, to produce witnesses or evidence in his or her behalf and to cross-examine witnesses. All hearings before the board shall be conducted by the board, which shall not be bound by strict rules of procedure or by the laws of evidence in the conduct of its proceedings, but the determination shall be based upon sufficient legal evidence to sustain it. A final decision by the board shall include findings of fact and conclusions of law, separately stated, of which the accused shall receive a copy.
(4) If the board determined that probable cause and sufficient legal evidence exist to believe that an applicant does not possess the qualifications required by this chapter or that an accused has violated any of the provisions of Section 73-57-31 of this chapter, the board may refuse to issue a license to the applicant, or revoke, suspend or refuse to renew a license.
(5) The right to appeal from the action of the board in denying, revoking, suspending or refusing to renew any license issued by the board is hereby granted. Such appeal shall be to the Court of Appeals on the record made, including a verbatim transcript of the testimony at the hearing. The appeal must be taken within thirty (30) days after notice of the action of the board in denying, revoking, suspending or refusing to renew the license. The appeal is perfected upon filing notice of the appeal, together with a bond in the sum of One Hundred Dollars ($100.00), with two (2) sureties, conditioned that if the action of the board in denying, revoking, suspending or refusing to renew the license be affirmed by the Court of Appeals, the licensee will pay the costs of the appeal and the action in the Court of Appeals. Such bond shall be approved by the president of the board. Appeals may be had to the Supreme Court of the State of Mississippi as provided by law * * *. Actions taken by the board in suspending a license or permit when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license or permit suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.
SECTION 14. Section 41-7-197, Mississippi Code of 1972, is amended as follows:
41-7-197. (1) The State Department of Health shall adopt and utilize procedures for conducting certificate of need reviews. Such procedures shall include, inter alia, the following: (a) written notification to the applicant; (b) written notification to health care facilities in the same health service area as the proposed service; (c) written notification to other persons who prior to the receipt of the application have filed a formal notice of intent to provide the proposed services in the same service area; and (d) notification to members of the public who reside in the service area where the service is proposed, which may be provided through newspapers or public information channels.
(2) All notices provided shall include, inter alia, the following: (a) the proposed schedule for the review; (b) written notification of the period within which a public hearing during the course of the review may be requested in writing by one or more affected persons, such request to be made within twenty (20) days of said 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 State Department of Health. At such hearing, the hearing officer and any person affected by the proposal being reviewed may conduct reasonable questioning of persons who make relevant factual allegations concerning the proposal. The hearing officer shall require that all persons be sworn before they may offer any testimony at the hearing, and the hearing officer is authorized to administer oaths. Any person so choosing may be represented by counsel at the hearing. A record of the hearing shall be made, which shall consist of a transcript of all testimony received, all documents and other material introduced by any interested person, the staff report and recommendation and such other material as the hearing officer considers relevant, including his own recommendation, which he shall make 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 State Health Officer, who shall consider only the record in making his decision, and shall not consider any evidence or material which is not included therein. All final decisions regarding the issuance of a certificate of need shall be made by the State Health Officer. The State Health Officer shall make his written findings and issue his order after reviewing said record. The findings and decision of the State Health Officer shall not be deferred to any later date, and any deferral shall result in an automatic order of disapproval.
(3) If review by the State Department of Health 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 Court of Appeals, to compel the State Health Officer to issue written findings and written order approving or disapproving the proposal in question.
SECTION 15. Section 41-7-201, Mississippi Code of 1972, is amended as follows:
41-7-201. (1) The provisions of this subsection (1) shall apply to any party appealing any final order of the State Department of Health pertaining to a certificate of need for a home health agency, as defined in Section 41-7-173(h)(ix):
(a) In addition to other remedies now available at law or in equity, any party aggrieved by any such final order of the State Department of Health shall have the right of appeal to the Court of Appeals, which appeal must be filed within thirty (30) days after the date of the final order. * * * Such appeal must be filed in accordance with the thirty (30) days for filing as heretofore provided. Any appeal shall state briefly the nature of the proceedings before the State Department of Health and shall specify the order complained of. Any person whose rights may be materially affected by the action of the State Department of Health may appear and become a party or the court may, upon motion, order that any such person, organization or entity be joined as a necessary party.
(b) Upon the filing of such an appeal, the clerk of the * * * court shall serve notice thereof upon the State Department of Health, whereupon the State Department of Health shall, within fifty (50) days or within such additional time as the court may by order for cause allow from the service of such notice, certify to the Court of Appeals the record in the case, which records shall include a transcript of all testimony, together with all exhibits or copies thereof, all pleadings, proceedings, orders, findings and opinions entered in the case; provided, however, that the parties and the State Department of Health may stipulate that a specified portion only of the record shall be certified to the court as the record on appeal.
(c) No new or additional evidence shall be introduced in the Court of Appeals but the case shall be determined upon the record certified to the court.
(d) The court may dispose of the appeal, * * * sustain or dismiss the appeal, modify or vacate the order complained of in whole or in part as the case may be; but in case the order is wholly or partly vacated, the court may also, in its discretion, remand the matter to the State Department of Health for such further proceedings, not inconsistent with the court's order, as, in the opinion of the court, justice may require. The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal. Provided, however, an order of the * * * court reversing the denial of a certificate of need by the State Department of Health shall not entitle the applicant to effectuate the certificate of need until either:
(i) Such order of the * * * 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 Court of Appeals.
(e) Appeals in accordance with law may be had to the Supreme Court * * *.
(2) The provisions of this subsection (2) shall apply to any party appealing any final order of the State Department of Health pertaining to a certificate of need for any health care facility as defined in Section 41-7-173(h), with the exception of any home health agency as defined in Section 41-7-173(h)(ix):
(a) There shall be a "stay of proceedings" of any final order issued by the State Department of Health pertaining to the issuance of a certificate of need for the establishment, construction, expansion or replacement of a health care facility for a period of thirty (30) days from the date of the order, if an existing provider located in the same service area where the health care facility is or will be located has requested a hearing during the course of review in opposition to the issuance of the certificate of need. The stay of proceedings shall expire at the termination of thirty (30) days; however, no construction, renovation or other capital expenditure that is the subject of the order shall be undertaken, no license to operate any facility that is the subject of the order shall be issued by the licensing agency, and no certification to participate in the Title XVIII or Title XIX programs of the Social Security Act shall be granted, until all statutory appeals have been exhausted or the time for such appeals has expired. Notwithstanding the foregoing, the filing of an appeal from a final order of the State Department of Health or the Court of Appeals for the issuance of a certificate of need shall not prevent the purchase of medical equipment or development or offering of institutional health services granted in a certificate of need issued by the State Department of Health.
(b) In addition to other remedies now available at law or in equity, any party aggrieved by any such final order of the State Department of Health shall have the right of appeal to the Court of Appeals, which appeal must be filed within twenty (20) days after the date of the final order. * * * Such appeal must be filed in accordance with the twenty (20) days for filing as heretofore provided. Any appeal shall state briefly the nature of the proceedings before the State Department of Health and shall specify the order complained of.
(c) Upon the filing of such an appeal, the clerk of the * * * court shall serve notice thereof upon the State Department of Health, whereupon the State Department of Health shall, within thirty (30) days of the date of the filing of the appeal, certify to the Court of Appeals the record in the case, which records shall include a transcript of all testimony, together with all exhibits or copies thereof, all pleadings, proceedings, orders, findings and opinions entered in the case; provided, however, that the parties and the State Department of Health may stipulate that a specified portion only of the record shall be certified to the court as the record on appeal. The * * * court shall give preference to any such appeal from a final order by the State Department of Health in a certificate of need proceeding, and shall render a final order regarding such appeal no later than one hundred twenty (120) days from the date of the final order by the State Department of Health. If the * * * court has not rendered a final order within this 120-day period, then the final order of the State Department of Health shall be deemed to have been affirmed by the Court of Appeals, and any party to the appeal shall have the right to appeal * * * to the Supreme Court on the record certified by the State Department of Health as otherwise provided in paragraph (g) of this subsection. In the event the Court of Appeals has not rendered a final order within the 120-day period and an appeal is made to the Supreme Court as provided herein, the Supreme Court shall remand the case to the Court of Appeals to make an award of costs, fees, reasonable expenses and attorney's fees incurred in favor of appellee payable by the appellant(s) should the Supreme Court affirm the order of the State Department of Health.
(d) Any appeal of a final order by the State Department of Health in a certificate of need proceeding shall require the giving of a bond by the appellant(s) sufficient to secure the appellee against the loss of costs, fees, expenses and attorney's fees incurred in defense of the appeal, approved by the * * * court within five (5) days of the date of filing the appeal.
(e) No new or additional evidence shall be introduced in the * * * court but the case shall be determined upon the record certified to the court.
(f) The court may dispose of the appeal, * * * 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 State Department of Health for such further proceedings, not inconsistent with the court's order, as, in the opinion of the court, justice may require. The court, as part of the final order, shall make an award of costs, fees, reasonable expenses and attorney's fees incurred in favor of appellee payable by the appellant(s) should the court affirm the order of the State Department of Health. The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal. Provided, however, an order of the Court of Appeals reversing the denial of a certificate of need by the State Department of Health shall not entitle the applicant to effectuate the certificate of need until either:
(i) Such order of the Court of Appeals has become final and has not been appealed to the Supreme Court; or
(ii) The Supreme Court has entered a final order affirming the Court of Appeals.
(g) Appeals in accordance with law may be had to the Supreme Court * * *.
(h) Within thirty (30) days from the date of a final order by the Supreme Court or a final order of the Court of Appeals not appealed to the Supreme Court that modifies or wholly or partly vacates the final order of the State Department of Health granting a certificate of need, the State Department of Health shall issue another order in conformity with the final order of the Supreme Court, or the final order of the Court of Appeals not appealed to the Supreme Court.
SECTION 16. Section 41-9-31, Mississippi Code of 1972, is amended as follows:
41-9-31. Any applicant or licensee aggrieved by the decision of the licensing agency after a hearing may, within thirty (30) days after the mailing or serving of notice of the decision as provided in Section 41-9-15, file a notice of appeal in the Court of Appeals, and the * * * clerk thereof shall serve a copy of the notice of appeal upon the licensing agency. Thereupon the licensing agency shall, within sixty (60) days or such additional time as the court may allow from such notice, certify and file with the court a copy of the record and decision, including the transcript of the hearings, on which the decision is based. Findings of fact by the licensing agency shall be conclusive unless substantially contrary to the weight of the evidence. However, upon good cause shown, the court may remand the case to the licensing agency to take further evidence, and the licensing agency may thereupon affirm, reverse or modify its decision. The court may affirm, modify or reverse the decision of the licensing agency, and either the applicant or licensee or the licensing agency may appeal from this decision to the Supreme Court as in other cases * * *. Pending final disposition of the matter of the status quo of the applicant or licensee shall be preserved, except as the court otherwise orders in the public interest. Rules with respect to court costs in other cases * * * shall apply equally to cases hereunder.
SECTION 17. Section 41-26-21, Mississippi Code of 1972, is amended as follows:
41-26-21. Following the hearing, the presiding official shall enter an order which shall become a final order of the director, unless the petitioner or other interested person appearing at the hearing, shall, within ten (10) days after the date of the final order was made, appeal to the Court of Appeals. The petitioner or other interested person shall give a cost bond with sufficient sureties, payable to the state in the sum of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), to be fixed in the order appealed from. The cost bond shall be filed with and approved by the director, who shall certify the bond, together with a certified copy of the record of the hearing in the matter, to the Court of Appeals, which shall be the record of the cause. Except as provided in this section, an appeal to the Court of Appeals as provided in this section shall not stay the execution of a final order of the director.
Any person who is aggrieved by any final order or other decision issued under this section may, within ten (10) days after the date of that order or decision, petition the Court of Appeals, for an appeal with supersedeas. The court shall grant a hearing on that petition. Upon good cause shown, the court may grant the appeal with supersedeas. The appellant shall be required to post a bond with sufficient sureties according to law in an amount to be determined by the Court of Appeals. Appeals shall be considered only upon the record as made at the hearing before the presiding official. The Court of Appeals shall always be deemed open for hearing of appeals * * *. The appeal shall have precedence over all civil cases, except election contests. The Court of Appeals shall review all questions of law and of fact. If no prejudicial error is found, the matter shall be affirmed and remanded to the director for enforcement. If a prejudicial error is found, the matter shall be reversed and the Court of Appeals shall remand the matter to the director for appropriate action as may be indicated or necessary under the circumstances. Appeals may be taken * * * to the Supreme Court in the manner as now required by law, but if a supersedeas is desired by the party appealing * * *, that party may apply for the supersedeas to the Court of Appeals, who shall award a writ of supersedeas, without additional bond, if in the court's judgment material damage is not likely to result. If material damage is likely to result, the court shall require a supersedeas bond as deemed proper, which shall be liable to the state for any damage.
SECTION 18. Section 41-83-23, Mississippi Code of 1972, is amended as follows:
41-83-23. Any person aggrieved by a final decision of the department or a private review agent in a contested case under this chapter shall have the right of judicial appeal to the Court of Appeals.
Notwithstanding any provision of this chapter, the insured shall have the express right to pursue any legal remedies he may have in a court of competent jurisdiction.
SECTION 19. Section 45-23-59, Mississippi Code of 1972, is amended as follows:
45-23-59. Within thirty (30) days after any order or act of the board, any person aggrieved thereby may file a petition in the Court of Appeals for a review thereof. The court shall summarily hear the petition and may make any appropriate order.
SECTION 20. Section 9-4-3, Mississippi Code of 1972, is amended as follows:
9-4-3. (1) The Court of Appeals shall have the power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme Court.
Except as otherwise provided by law, the jurisdiction of the Court of Appeals is limited to those matters which have been assigned to it by the Supreme Court.
The Supreme Court shall prescribe rules for appeals by law to the Court of Appeals and for the assignment of other matters to the Court of Appeals. These rules may provide for the selective assignment of individual cases and may provide for the assignment of cases according to subject matter or other general criteria. However, the Supreme Court shall retain appeals in cases imposing the death penalty, or cases involving utility rates, annexations, bond issues, election contests, or a statute held unconstitutional by the lower court.
(2) Except as otherwise provided by law, decisions of the Court of Appeals are final and are not subject to review by the Supreme Court, except by writ of certiorari. The Supreme Court may grant certiorari review only by the affirmative vote of four (4) of its members. At any time before final decision by the Court of Appeals, the Supreme Court may, by order, transfer to the Supreme Court any case pending before the Court of Appeals.
(3) The Court of Appeals shall have jurisdiction to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition or any other process when this may be necessary in any case assigned to it by the Supreme Court or by law.
(4) The Court of Appeals shall issue a decision in every case heard before the Court of Appeals within two hundred seventy (270) days after the final briefs have been filed with the court.
(5) The Supreme Court shall issue a decision in every case within its original jurisdiction, including all direct and post-conviction collateral relief appeals or applications in cases imposing the death penalty, within two hundred seventy (270) days after the final briefs have been filed with the court. The Supreme Court shall issue a decision in every case received on certiorari from the Court of Appeals within one hundred eighty (180) days after the final briefs have been filed with the court.
SECTION 21. This act shall take effect and be in force from and after July 1, 2002.