MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Public Health and Welfare
By: Senator(s) Harkins
AN ACT TO AMEND SECTION 41-7-173, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF "CAPITAL EXPENDITURE" AND "CHANGE OF OWNERSHIP" AND "CLINICAL HEALTH SERVICES" FOR THE PURPOSE OF HEALTH CARE CERTIFICATE OF NEED REVIEW; TO AMEND SECTION 41-7-193, MISSISSIPPI CODE OF 1972, TO CLARIFY PROCEDURES FOR APPLYING FOR A HEALTH CARE CERTIFICATE OF NEED; TO AMEND SECTION 41-7-197, MISSISSIPPI CODE OF 1972, TO CLARIFY PROCEDURES FOR HEALTH CARE CERTIFICATE OF NEED HEARINGS; TO AMEND SECTION 41-7-201, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCEDURES FOR JUDICIAL APPEALS OF ANY FINAL ORDER OF THE STATE DEPARTMENT OF HEALTH PERTAINING TO A CERTIFICATE OF NEED FOR A HOME HEALTH AGENCY OR OTHER HEALTH CARE FACILITY; TO AMEND SECTION 41-7-205, MISSISSIPPI CODE OF 1972, TO PRESCRIBE A PROCEDURE FOR AN APPLICATION FOR A DETERMINATION OF REVIEWABILITY BY THE STATE DEPARTMENT OF HEALTH FOR CERTAIN DEFINED CAPITAL EXPENDITURES AND TO PRESCRIBE FEES THEREFOR; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. 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 HMOs located in the geographic area of the proposal which provide similar service to that which is proposed; (iv) health care facilities and HMOs which have, prior to 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 HMOs located in the geographic area of the proposal.
(b) "Certificate of need" means a written order of the State Department of Health setting forth the affirmative finding that a proposal in prescribed application form, sufficiently satisfies the plans, standards and criteria prescribed for such service or other project by Section 41-7-171 et seq., and by rules and regulations promulgated thereunder by the State Department of Health.
(c) (i) "Capital expenditure," when pertaining to defined major medical equipment, shall mean an expenditure which, under generally accepted accounting principles consistently applied, is not properly chargeable as an expense of operation and maintenance and which exceeds One Million Five Hundred Thousand Dollars ($1,500,000.00).
(ii) "Capital
expenditure," when pertaining to other than major medical equipment, shall
mean any expenditure which under generally accepted accounting principles
consistently applied is not properly chargeable as an expense of operation and
maintenance and which exceeds * * *, for clinical health
services, as defined in subsection (k) below, Five Million Dollars
($5,000,000.00), adjusted for inflation as published by the State
Department of Health or which exceeds * * *, for nonclinical health services, as defined in
subsection (k) below, Ten Million Dollars ($10,000,000.00), adjusted
for inflation as published by the State Department of Health.
(iii) A "capital expenditure" shall include 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 which 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 * * * an existing health care facility, and/or the change of
ownership of major medical equipment, a health service, or an
institutional health 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 which 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 State Department of Health.
Force account expenditures, such as deposits, securities, bonds, et cetera, may, in the discretion of the State Department of Health, 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 which, 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 such 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 such 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 which 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. Such term does not include psychiatric hospitals.
(ii) "Psychiatric hospital" means an institution which is primarily engaged in providing to inpatients, by or under the supervision of a physician, psychiatric services for the diagnosis and treatment of persons with mental illness.
(iii) "Chemical dependency hospital" means an institution which 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 which 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, which is engaged primarily in furnishing maintenance hemodialysis services to stabilized patients.
(vi) "Intermediate care facility" means an institution which provides, on a regular basis, health-related care and services to individuals who do not require the degree of care and treatment which 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. Such 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(f).
(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 persons with an intellectual disability, 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, which 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 such 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 which 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 which 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 such 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 such restorative treatment services. For purposes of this subparagraph, 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 which 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, which 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 which 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 which:
(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 such 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. "Clinical health services" shall only include those activities which contemplate any change in the existing bed complement of any health care facility through the addition or conversion of any beds, under Section 41-7-191(1)(c) or propose to offer any health services if those services have not been provided on a regular basis by the proposed provider of such services within the period of twelve (12) months prior to the time such services would be offered, under Section 41-7-191(1)(d). "Nonclinical health services" shall be all other services which do not involve any change in the existing bed complement or offering health services as described above.
(l) "Institutional health services" shall mean health services provided in or through health care facilities and shall include the entities in or through which such services are provided.
(m) "Major medical equipment" means medical equipment designed for providing medical or any health-related service which 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 State Department of Health 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 thereunder.
(n) "State Department of Health" or "department" shall mean the state agency created under Section 41-3-15, which shall be considered to be the State Health Planning and Development Agency, as defined in paragraph (u) of this section.
(o) "Offer," when used in connection with health services, means that it has been determined by the State Department of Health 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" shall mean 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) "Radiation therapy services" means the treatment of cancer and other diseases using ionizing radiation of either high energy photons (x-rays or gamma rays) or charged particles (electrons, protons or heavy nuclei). However, for purposes of a certificate of need, radiation therapy services shall not include low energy, superficial, external beam x-ray treatment of superficial skin lesions.
(s) "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.
(t) "State Health Plan" means the sole and official statewide health plan for Mississippi which identifies priority state health needs and establishes standards and criteria for health-related activities which require certificate of need review in compliance with Section 41-7-191.
(u) "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 2. 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 such certificate has been granted for such 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 State Department of Health 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, such shall 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 State Department of Health shall periodically review the progress and time schedule of any person issued or granted a certificate of need for any purpose.
(3) An application for a certificate of need may be filed at any time with the department after the applicant has given the department fifteen (15) days' written notice of its intent to apply for a certificate of need. The department shall not delay review of an application. The department shall make its recommendation approving or disapproving a complete application within forty-five (45) days of the date the application was filed or within fifteen (15) days of receipt of any requested information, whichever is later, said request to be made by the department within fifteen (15) days of the filing of the application.
SECTION 3. Section 41-7-197, Mississippi Code of 1972, is amended as follows:
41-7-197. (1) The State Department of Health shall adopt and utilize procedures for conducting certificate of need reviews. Such procedures shall include, inter alia, the following: (a) written notification to the applicant; (b) written notification to health care facilities in the same health service area as the proposed service; (c) written notification to other persons who prior to the receipt of the application have filed a formal notice of intent to provide the proposed services in the same service area; and (d) notification to members of the public who reside in the service area where the service is proposed, which may be provided through newspapers or public information channels.
(2) All notices provided
shall include, inter alia, the following: (a) the proposed schedule for the
review; (b) written notification of the period within which a public hearing
during the course of the review may be requested in writing by one or more
affected persons, such request to be made within * * * ten (10) days of * * * the department's staff
recommendation for approval or disapproval of an application; and (c) the
manner in which notification will be provided of the time and place of any
hearing so requested. Any such hearing shall be * * * commenced by * * * an independent hearing officer
designated by the State Department of Health within sixty (60) days of the
filing of the hearing request unless all parties to the hearing agree to extend
the time for the commencement of the hearing. At such hearing, the hearing
officer and any person affected by the proposal being reviewed may conduct
reasonable questioning of persons who make relevant factual allegations
concerning the proposal. The hearing officer shall require that all persons be
sworn before they may offer any testimony at the hearing, and the hearing
officer is authorized to administer oaths. Any person so choosing may be
represented by counsel at the hearing. A record of the hearing shall be made,
which shall consist of a transcript of all testimony received, all documents
and other material introduced by any interested person, the staff report and
recommendation and such other material as the hearing officer considers
relevant, including his own recommendation, which he shall make, after
reviewing, studying and analyzing the evidence presented during the hearing,
within a reasonable period of time after the hearing is closed * * *, which in no
event shall exceed forty-five (45) days. The completed record shall be
certified to the State Health Officer, who shall consider only the record in
making his decision, and shall not consider any evidence or material which is
not included therein. All final decisions regarding the issuance of a
certificate of need shall be made by the State Health Officer. The State
Health Officer shall make his or her written findings and issue his or
her order after reviewing said record. The findings and decision of the
State Health Officer shall not be deferred to any later date * * *.
(3) Unless a hearing is
held, if review by the State Department of Health concerning the issuance
of a certificate of need is not complete with a final decision issued by the
State Health Officer within the time specified by rule or regulation, which
shall not * * * exceed ninety (90) days * * *
from the filing of the application for a certificate of need, the proponent of the proposal
may, within thirty (30) days * * * after the expiration of the specified time
for review, commence such legal action as is necessary, in the Chancery Court
of the First Judicial District of Hinds County or in the chancery court of the
county in which the * * * service or facility is proposed to
be provided, to compel the State Health Officer to issue written findings and
written order approving or disapproving the proposal in question.
SECTION 4. 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 * * * any a home health * * * agency, as defined in
Section 41-7-173(h)(ix):
* * *
( * * *a) In addition to other remedies now
available at law or in equity, any party aggrieved by any such final order of
the State Department of Health shall have the right of * * * appeal to the * * * Chancery Court of
the First Judicial District of Hinds County, Mississippi, which appeal must
be filed within * * * thirty (30) days after the date of the final
order. Provided, however, that any appeal of an order disapproving an
application for such a certificate of need may be made to the chancery court of
the county where the proposed construction, expansion or alteration was to be
located or the new service or purpose of the capital expenditure was to be
located. Such appeal must be filed in accordance with the thirty (30) days for
filing as heretofore provided. Any appeal shall state briefly the nature
of the proceedings before the State Department of Health and shall specify the
order complained of. Any appeal shall state briefly the nature of the
proceedings before the State Department of Health and shall specify the order
complained of. Any person whose rights may be materially affected by the
action of the State Department of Health may appear and become a party or the
court may, upon motion, order that any such person, organization or entity be
joined as a necessary party.
( * * *b) Upon the filing of such an appeal,
the clerk of the * * * chancery court shall serve notice thereof upon the
State Department of Health, whereupon the State Department of Health shall,
within thirty (30) days * * * of the date of the filing of the appeal or within such
additional time as the court may by order for cause allow from the service of
such notice, certify to the chancery court the record in the case,
which records shall include a transcript of all testimony, together with all
exhibits or copies thereof, all pleadings, proceedings, orders, findings and
opinions entered in the case; provided, however, that the parties
and the State Department of Health may stipulate that a specified portion only
of the record shall be certified to the court as the record on appeal.
* * *
( * * *c) The * * * court may dispose of the appeal in
termtime or vacation and may sustain or dismiss the appeal, modify or
vacate the order complained of, in whole or in part, * * * as the case may be; but in case the order is wholly
or partly vacated, the court may also, in its discretion, remand the matter to
the State Department of Health for * * * such further proceedings, not
inconsistent with the court's order, as, in the opinion of the court, justice
may require. * * * The order shall not be vacated or set aside, either in
whole or in part, except for errors of law, unless the court finds that the
order of the State Department of Health is not supported by substantial
evidence, is contrary to the manifest weight of the evidence, is in excess of
the statutory authority or jurisdiction of the State Department of Health, or
violates any vested constitutional rights of any party involved in the appeal.
Provided, however, an order of the chancery court reversing the denial of a
certificate of need by the State Department of Health shall not entitle the
applicant to effectuate the certificate of need until either:
(i) Such order of the chancery court has become final and has not been appealed to the Supreme Court; or
(ii) The Supreme Court has entered a final order affirming the chancery court.
(d) Appeals in accordance with law may be had to the Supreme Court of the State of Mississippi from any final judgment of the chancery court.
(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 XVII or Title XIX programs of the Social Security Act shall be granted, until all statutory appeals have been exhausted or the time for such appeals has expired. Notwithstanding the foregoing, the filing of an appeal from a final order of the State Department of Health 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 State Department of Health.
(b) In addition to other remedies now available at law or in equity, any party aggrieved by such final order of the State Department of Health shall have the right of 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. Provided, however, that any appeal of an order disapproving an application for such a certificate of need may be made to the chancery court of the county where the proposed construction, expansion or alteration was to be located or the new service or purpose of the capital expenditure was to be located. Such appeal must be filed in accordance with the twenty (20) days for filing as heretofore provided. Any appeal shall state briefly the nature of the proceedings before the State Department of Health and shall specify the order complained of.
(c) Upon the filing of such an appeal, the clerk of the chancery court shall serve notice thereof upon the State Department of Health, whereupon the State Department of Health shall, within thirty (30) days of the date of the filing of the appeal, certify to the chancery court the record in the case, which records shall include a transcript of all testimony, together with all exhibits or copies thereof, all proceedings, orders, findings and opinions entered in the case; provided, however, that the parties and the State Department of Health may stipulate that a specified portion only of the record shall be certified to the court as the record on appeal. The chancery court shall give preference to any such appeal from a final order by the State Department of Health in a certificate of need proceeding, and shall render a final order regarding such appeal no later than one hundred twenty (120) days from the date of the final order by the State Department of Health. If the chancery court has not rendered a final order within this one-hundred-twenty-day period, then the final order of the State Department of Health shall be deemed to have been affirmed by the chancery court, and any party to the appeal shall have the right to appeal from the chancery court to the Supreme Court on the record certified by the State Department of Health as otherwise provided in paragraph (g) of this subsection. In the event the chancery court has not rendered a final order within the one-hundred-twenty-day period and an appeal is made to the Supreme Court as provided herein, the Supreme Court shall remand the case to the chancery court to make an award of costs, fees, reasonable expenses and attorney's fees incurred in favor of appellee payable by the appellant(s) should the Supreme Court affirm the order of the State Department of Health.
(d) Any appeal of a final order by the State Department of Health in a certificate of need proceeding shall require the giving of a bond by the appellant(s) sufficient to secure the appellee against the loss of costs, fees, expenses and attorney's fees incurred in defense of the appeal, approved by the chancery court within five (5) days of the date of filing the appeal.
(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 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 chancery court reversing the denial of a certificate of need by the State Department of Health shall not entitle the applicant to effectuate the certificate of need until either:
(i) Such order of the chancery court has become final and has not been appealed to the Supreme Court; or
(ii) The Supreme Court has entered a final order affirming the chancery court.
(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 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 chancery court not appealed to the Supreme Court.
SECTION 5. Section 41-7-205, Mississippi Code of 1972, is amended as follows:
41-7-205. * * *
An
applicant proposing a project which may be governed by the provisions of
Section 41-7-171 et seq. may submit a determination of reviewability request to
obtain a written declaratory opinion regarding the reviewability of the
proposed project. If such opinion is sought, the requestor and department
shall abide by the provisions of Section 25-43-2.103 as they are effective on
July 1, 2016, except that the department's response shall be provided within
forty-five (45) days of the request.
SECTION 6. This act shall take effect and be in force from and after July 1, 2016.