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Waller questions constitutionality of CON appeal

JACKSON — A lawsuit between two companies competing to operate a kidney dialysis treatment center in Montgomery County has shifted to the Mississippi Supreme Court.

The Supreme Court, however, is questioning whether it should hear the case.

A new state law provides that appeals of certificate of need decisions by the Department of Health go directly to the Supreme Court.

Chief Justice Bill Waller Jr. said in an order yesterday there is a question whether that law is constitutional.

“Without a corresponding amendment to the constitutional provision establishing this court’s jurisdiction, the appeal presents a substantial question” as to whether the law is constitutional, Waller wrote.

Waller directed all parties and the Attorney General’s Office to file briefs on or before Aug. 29 on the constitutionality of the new law, which took effect July 1.

It’s the latest development in a dispute involving the companies Renal Care and Dialysis Solutions.

Rural Care received a certificate of need granting it the authority to run a dialysis center in 2004. State law said such certificates are valid for a year and could be extended for six more months. However, the Health Department extended it four times with construction beginning in 2007.

In February 2010, the Supreme Court ruled that the health department lacked authority for the extra extensions.

Dialysis Solutions, which had sought a certificate of need before Renal Car began construction, is trying to block the Health Department from using legislative authority to extend Renal Care’s certificate retroactively.

Dialysis Solutions initially sought an injunction in Hinds County. After the new law took effect, Dialysis Solutions filed an appeal with the Supreme Court on July 19.

The state of Mississippi requires a certificate of need in a process designed to avoid duplication of health care services and control costs.

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