HB 626 — CON: provide for direct appeals to Court of Appeals of Department of Health orders pertaining to.

HB 626 (As SentPassed tothe Governor)House) - 2019 Regular Session MISSISSIPPI LEGISLATURE Regular Session To:

RepresentativesRepresentative Gunn,Gunn Boyd House Bill 626 (As SentPassed tothe Governor)House) AN ACT TO AMEND SECTION 41-7-201, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THEAPPEALS MISSISSIPPIOF SUPREMEORDERS COURTOF SHALLTHE CONDUCTSTATE ANDEPARTMENT EXPEDITED JUDICIAL REVIEW OF ANYHEALTH APPEALPERTAINING OFTO ANHEALTH ORDERCARE CERTIFICATES OF THENEED CHANCERYSHALL COURTBE RELATINGMADE DIRECTLY TO THE ISSUANCEMISSISSIPPI OFCOURT A HEALTH CARE CERTIFICATE OF NEED;APPEALS;

TO AMEND SECTIONS 41-7-197 AND 9-4-3, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS;

TO REPEAL SECTION 41-7-202, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR A STAY OF PROCEEDINGS OF ANY WRITTEN DECISION OF THE DEPARTMENT OF HEALTH PERTAINING TO A CERTIFICATE OF NEED FOR CERTAIN HEALTH CARE FACILITIES;

     BEWHEREAS, ITin ENACTEDorder BYto THEsignificantly LEGISLATUREreduce OFthe THEtime STATEfor OFa MISSISSIPPI:final decision in appeals of orders of the State Department of Health pertaining to health care certificates of need, the Legislature in 2011 enacted a law that amended Section 41-7-201 of the Mississippi Code to provide for a direct appeal of those orders to the Mississippi Supreme Court;

and      WHEREAS, in case of Dialysis Solutions, LLC v.

Mississippi State Department of Health, 96 So.3rd 713 (Miss.

2012), the Mississippi Supreme Court decided that the amended Section 41-7-201 was unconstitutional because it violated Section 146 of the Mississippi Constitution of 1890 by impermissibly conferring original jurisdiction upon the Supreme Court;

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

[...]";

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

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

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

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

NOW, THEREFORE,      BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     41-7-201. 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):

          * * *(1)  (a) The Inprovisions additionof tothis othersubsection remedies(1) nowshall availableapply atto law or in equity, any party aggrievedappealing by any such final order of the State Department of Health shallpertaining 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 partyhome orhealth theagency, court may, upon motion, order that any such person, organization or entity be joined as adefined necessaryin party.Section 41‑7‑173(h)(ix):

           (b) (a)  UponIn theaddition filingto ofother suchremedies annow appeal,available theat clerklaw ofor thein chanceryequity, courtany shallparty serveaggrieved noticeby thereofany uponsuch final order of the State Department of Health,Health whereuponshall have the Stateright Departmentof appeal to the Chancery Court of Healththe shall,First Judicial District of Hinds County, Mississippi, which appeal must be filed within thirty (30) days orafter withinthe date of the final order.  Provided, however, that any appeal of an order disapproving an application for such additionala timecertificate asof need may be made to the chancery court mayof bythe ordercounty forwhere causethe allowproposed fromconstruction, expansion or alteration was to be located or the new service or purpose of suchthe notice,capital certifyexpenditure was to be located.  Such appeal must be filed in accordance with the chancerythirty court(30) days for filing as heretofore provided.  Any appeal shall state briefly the recordnature inof the case,proceedings whichbefore recordsthe State Department of Health and shall includespecify athe transcriptorder complained of.  Any appeal shall state briefly the nature of allthe testimony,proceedings togetherbefore withthe allState exhibitsDepartment orof copiesHealth thereof,and allshall pleadings,specify proceedings,the orders,order findingscomplained of.  Any person whose rights may be materially affected by the action of the State Department of Health may appear and opinionsbecome entereda inparty or the case;court may, upon motion, order that any such person, organization or entity be joined as a necessary party.

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

           (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;

                (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 thisthis * * *subsection subsection (2) section shall apply to any party appealing any final order of the State Department of Health pertaining to a certificate of need for any health care facility as defined in Section 41-7-173(h),41-7-173(h) * * *, with the exception of any home health agency as defined in Section 41-7-173(h)(ix):41‑7‑173(h)(ix):

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 forfor * * *such suchthose appeals has expired.  Notwithstanding the foregoing, the filing of an appeal from a final order of the State Department of Health or thea chanceryfinal decision of the * * *chancery court Court of Appeals for the issuance of a certificate of need shall not prevent the purchase of medical equipment or development or offering of institutional health services granted in a certificate of need issued by the State Department of Health.

          (b)  In addition to other remedies now available at law or in equity, any party aggrieved by such final order of the State Department of Health shall have the right of direct appeal to thethe * * *Chancery Chancery Court of the First Judicial District of Hinds County, Mississippi,Mississippi Mississippi Court of Appeals, which appeal must be filed within twenty (20) days after the date of the final order. 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.

          * * *Provided, (c) however, Uponthat theany filingappeal of such an appeal,order thedisapproving clerkan ofapplication thefor chancerysuch courta shallcertificate serveof noticeneed thereofmay uponbe themade Stateto Department of Health, whereupon the Statechancery Departmentcourt of Health shall, within thirty (30) days of the datecounty ofwhere the filingproposed ofconstruction, theexpansion appeal,or certifyalteration was to thebe chancerylocated courtor the recordnew inservice theor case,purpose whichof recordsthe shallcapital includeexpenditure awas transcriptto ofbe alllocated.  testimony,Such togetherappeal withmust allbe exhibitsfiled orin copiesaccordance thereof,with allthe proceedings,twenty orders,(20) findingsdays andfor opinionsfiling enteredas inheretofore theprovided. case;

provided,Any 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 renderstate abriefly final order regarding such appeal no later than one hundred twenty (120) days from the datenature of the finalproceedings orderbefore 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 havespecify 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 withincomplained theof. 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) (c)  AnyUpon appealthe filing of asuch finalan orderappeal, bythe clerk of the * * *chancery court Court of Appeals shall serve notice thereof upon the State Department of HealthHealth, inwhereupon athe certificateState Department of needHealth proceedingshall, shallwithin requirethirty (30) days of the givingdate of athe bondfiling byof the appellant(s)appeal, sufficientcertify to securethe * * *chancery court the appelleerecord againstin the losscase, which records shall include a transcript of costs,all fees,testimony, expensestogether andwith attorney'sall feesexhibits incurredor incopies defensethereof, ofall proceedings, orders, findings and opinions entered in the appeal,case; * * *provided, approvedhowever, * * *that bythe parties and the chanceryState courtDepartment withinof fiveHealth (5)may daysstipulate that a specified portion only of the daterecord ofshall filingbe certified to the court as the record on appeal.

          * * *The (e) chancery Nocourt newshall orgive additionalpreference evidenceto shallany besuch introducedappeal 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 buthas not rendered a final order within this one‑hundred‑twenty‑day period, then the casefinal order of the State Department of Health shall be determineddeemed uponto 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 court.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)  (f) Any Theappeal courtof maya disposefinal oforder by the appealState inDepartment termtimeof orHealth vacationin anda maycertificate sustainof orneed dismissproceeding theshall appeal,require modifythe orgiving vacateof thea orderbond complainedby ofthe inappellant(s) wholesufficient orto insecure partthe andappellee mayagainst makethe anloss award of costs, fees, expenses and attorney's fees,fees asincurred in defense of the caseappeal, mayapproved be;by the chancery court within five (5) days of the date of filing the appeal.

but          in( * * *ed)  caseNo thenew order is wholly or partlyadditional vacated,evidence 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 makebe anintroduced award of costs, fees, reasonable expenses and attorney's fees incurred in favorthe * * *chancery of appellee payable by the appellant(s) should the court affirmCourt theof orderAppeals ofbut the Statecase Department of Health.  The order shall not be vacateddetermined orupon set aside, either in whole or in part, except for errors of law, unless the courtrecord findscertified that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifestcourt. 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) ( * * *fe)  SuchThe * * *court ordermay dispose of the chanceryappeal courtin hastermtime becomeor finalvacation and hasCourt notof beenAppeals appealedmay tosustain or dismiss the Supremeappeal, Court;or modify or vacate the order complained of in whole or in part * * *and may make an award of costs, fees, expenses and attorney's fees, as the case may be;

but in case.  When the order is wholly or              partly (ii) vacated, Thethe Supremecourt Courtmay hasalso, enteredin aits finaldiscretion, orderremand affirmingthe matter to the chanceryState court.Department of Health for * * *such any further proceedings, not inconsistent with the court's * * *order decision, as, in the opinion of the court, justice may require.

          * * *The (g) court, Appealsas inpart accordance with law may be had to the Supreme Court of the Statefinal oforder, Mississippishall frommake anyan finalaward judgment of thecosts, chanceryfees, court. reasonable Theexpenses Supreme Court must give preference and conductattorney's anfees expeditedincurred judicialin reviewfavor of anappellee appealpayable ofby athe finalappellant(s) ordershould of the chancery court relatingaffirm to a certificate of need proceeding and must render a final order regarding the appeal no later than one hundred twenty (120) days from the date the final order byof the chanceryState courtDepartment isof certifiedHealth. to the Supreme Court.  The Supreme Court shall consider such appeals in an expeditious manner without regard to position on the court docket.

          The (h) order Withinshall thirtynot (30)be daysvacated fromor theset dateaside, ofeither ain finalwhole orderor byin thepart, Supremeexcept Courtfor orerrors aof finallaw, orderunless of the chancery court notfinds appealed to the Supreme Court that modifies or wholly or partly vacates the final order of the State Department of Health grantingis anot certificatesupported ofby need,substantial theevidence, Stateis Departmentcontrary ofto Healththe shallmanifest issueweight anotherof orderthe evidence, is in conformityexcess withof the finalstatutory orderauthority or jurisdiction of the SupremeState Court,Department of Health, or theviolates finalany ordervested ofconstitutional therights chanceryof courtany notparty appealedinvolved toin the Supremeappeal. Court.

     * * *Provided, SECTIONHowever, * * *an 2. order Thisa actdecision of the * * *chancery court Court of Appeals reversing the denial of a certificate of need by the State Department of Health shall takenot effectentitle andthe beapplicant into forceeffectuate fromthe andcertificate afterof Julyneed 1,until 2019.either:

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

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

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