Supreme Court rules new CON-appeal law unconstitutional

MONTGOMERY COUNTY — A 2011 Mississippi law that required appeals of certificate of need decisions go directly to the state Supreme Court has been declared unconstitutional.

The ruling this past week grew out of a lawsuit between two companies competing to operate a kidney dialysis treatment center in Montgomery County.

The justices earlier had questioned whether the Supreme Court should hear the case. They said the Mississippi Constitution does not give them jurisdiction over certificate-of-need appeals. They said lawmakers should have proposed a companion constitutional amendment to make that change.

Chief Justice Bill Waller Jr., in ordering parties to address the constitutional question last summer, said “without a corresponding amendment to the constitutional provision establishing this court’s jurisdiction, the appeal presents a substantial question.”

In a unanimous ruling last Thursday, the Supreme Court dismissed the appeal.

Justice Michael Randolph, writing for the court, said neither the state health official or the Board of Health is a judicial body. He said appeals from their certificate-of-need decisions must go first to the appropriate lower court. In this case, that would be Chancery Court.

Bryant Clark of Pickens, attorney for Dialysis Solutions, said his client will proceed through Chancery Court once the Supreme Court addresses any motions for rehearing.

Bryant, who also is a state representative, said when the Legislature passed the law the argument was that all certificate-of-need cases ultimately were decided by the Supreme Court and so appeals should be sent directly to the justices.

“There were questions about the constitutionality. I understood the rationale of doing it. But at the same time there was a purpose to a trial court doing some fact-finding as well. I think they got it right,” Clark said.

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

Renal Care received a certificate-of-need in 2004 for a dialysis center. 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.

In February 2010, the Supreme Court ruled the Health Department lacked authority for the extra extensions.

Dialysis Solutions, which had sought a certificate-of-need before Renal Care began construction in 2007, 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. Then in July 2011 — after the new law took effect — the company filed an appeal with the Supreme Court.

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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