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Supreme Court asks for briefs related to new CON law

A month after it took effect, a law designed to streamline the appeals process related to certificates of need is having its constitutionality questioned by the Mississippi Supreme Court.

The court entered an order July 28 asking for briefs from Attorney General Jim Hood, the Mississippi Department of Health and Dialysis Solutions, LLC, that will address the constitutionality of the new law, which passed in the last legislative session.

House Bill 826 allowed healthcare providers wanting to appeal a final ruling from the MSDH over a CON application to do so directly to the state Supreme Court; previously, appeals went first to a chancery court. The bill cleared both chambers overwhelmingly, and became law July 1.

The supreme court’s order is related to Dialysis Solutions’ appeal of the MSDH’s decision not to revoke the CON for one of its competitors that wanted to open a treatment center in Winona. Dialysis Solutions argued earlier this month that the CON for Renal Care Group had expired and had been improperly extended by the MSDH.

Attorneys for Dialysis Solutions,  MSDH officials and Hood’s office did not respond to emails or phone calls seeking comment last week.

Two law professors who spoke to the Mississippi Business Journal both said that the supreme court asking for briefs on the law indicates it has qualms about it.

“I suspect the Court thinks (or at least strongly suspects) the statute is unconstitutional,” Christopher Green, who teaches constitutional law at Ole Miss, wrote in an email.

In an interview with the MBJ, Mississippi College’s Matt Steffey agreed, calling the elimination of the chancery court as the court of original jurisdiction and handing it to a court that normally only has appellate jurisdiction “quite unusual. In the overwhelming majority of instances in both the state and federal systems, appellate jurisdiction means that a lower court first considered the matter.”

When it was first ratified in 1890, section 146 of the Mississippi Constitution said that “the supreme court shall have such jurisdiction as properly belongs to a court of appeals.” In 1984, that language was amended, narrowing the supreme court’s appellate jurisdiction to “those specifically provided by this Constitution or by general law.” The new language included only one exception, allowing the Legislature to provide original and appellate jurisdiction to the supreme court in appeals from administrative agencies that are responsible for approving or disapproving rates public utilities seek to charge their customers.

“The certificate of need is different, it would seem, from rates charged by a public utility,” Steffey said. “In my mind, the interpretation is two-fold: Is this jurisdiction that properly belongs to an appeals court? It eliminates any review by a lower court. When you read that in conjunction with the second sentence (of section 146) that specifically gives the Legislature authority to give original jurisdiction over utility rates, that would strongly suggest that the constitution doesn’t contemplate that direct appeals from administrative agencies are properly within the jurisdiction of an appellate court. I think there is room for argument here, but it seems, just textually speaking, the most natural reading is that utility rate cases are different, and that this isn’t a utility rate case.”

A possible argument for the constitutionality of the new statute, Steffey said, is that 1984’s modification to section 146 was the work of overly cautious drafters, and that the language is meant to be read harmoniously, with each provision having its own meaning. “But that’s not the most natural reading of that language, in my judgment.”

Rep. Steve Holland, D-Plantersville, wrote HB 826 and it was his Public Health and Human Services Committee that sent it on its way through the Capitol, where it cleared the House and Senate unanimously. Holland said in late July that he expected it to be a step toward eliminating altogether the CON process, which the MSDH uses to keep down healthcare costs.

“It’s still a good law,” Holland said last week. “I’m OK with it. This will just keep us in a holding pattern until the Court makes its decision.”

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