Dialysis Solutions, LLC v. Mississippi State Department of Health

96 So. 3d 713, 2012 WL 2345359, 2012 Miss. LEXIS 307
CourtMississippi Supreme Court
DecidedJune 21, 2012
DocketNo. 2011-SA-01041-SCT
StatusPublished
Cited by14 cases

This text of 96 So. 3d 713 (Dialysis Solutions, LLC v. Mississippi State Department of Health) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dialysis Solutions, LLC v. Mississippi State Department of Health, 96 So. 3d 713, 2012 WL 2345359, 2012 Miss. LEXIS 307 (Mich. 2012).

Opinions

RANDOLPH, Justice,

for the Court:

¶ 1. The Mississippi State Department of Health (“MDH”) entered a final order disapproving the certificate of need application of Dialysis Solutions, LLC. Pursuant to Mississippi Code Section 41-7-201, as amended, Dialysis Solutions filed a direct appeal of the MDH’s final order with this Court. See Miss.Code Ann. § 41-7-201 (Supp.2011). Thereafter, this Court entered an order on its own motion, seeking briefing from the parties and the Attorney General regarding whether Section 41-7-201, as amended, “is constitutional under Mississippi Constitution article 6, section 146 and whether this Court has appellate jurisdiction over this direct appeal from a decision of the [MDH].”1 After due consideration, this Court concludes that Section 41-7-201, as amended, is unconstitutional under Article 6, Section 146 of the Mississippi Constitution. See Miss. Const, art. 6, § 146 (1984). This Court will not exercise appellate jurisdiction over Dialysis Solutions’ direct appeal from the final order of the MDH.

FACTS

¶ 2. On October 1, 2007, Dialysis Solutions filed a completed certificate of need application regarding its proposed capital expenditure of $179,000 to establish a six-station, end-stage renal dialysis facility2 in Montgomery County, Mississippi. In November 2007, the MDH staff recommended disapproval of Dialysis Solutions’ application because “[t]his project is not in substantial compliance with criteria and standards for establishment of end stage renal disease facilities, as contained in the FY 2007 State Health Plan; the [MDH’s] Certificate of Need Review Manual ...; and all adopted rules, procedures, and plans of the [MDH].” On December 4, 2007, a “Request for Public Hearing During the Course of Review” was filed by RCG-Montgomery County, LLC (“RCG”), as an “affected person” who opposed the project.3 RCG requested an independent [715]*715hearing officer to conduct the hearing.4 At the October 26, 2010, hearing before Administrative Hearing Officer Cassandra B. Walter, four witnesses were subjected to direct- and cross-examination, and fourteen exhibits were introduced. On June 15, 2011, the hearing officer issued a twenty-four-page “Findings of Fact, Conclusions of Law and Recommendation.” This ruling considered all applicable criteria, then recommended denial of Dialysis Solutions’ application for failure “to substantially comply with the applicable Specific Criteria and General Goals in the State Health Plan, as well as with all applicable General Considerations in the CON Review Manual.” On June 30, 2011, Mississippi State Health Officer Mary Currier filed a “Decision of Intent” regarding Dialysis Solutions’ certificate of need application, which provided that “after considering the [MDH’s] plans, standards and criteria; staffs analysis; hearing officer’s recommendation, if any, and making written findings, that the proposed be Disapproved.An accompanying letter from Currier to Dialysis Solutions provided that “[t]his letter constitutes the Final Order disapproving the application for a CON.”

¶ 3. At the time of the June 30, 2011, final order, Section 41-7-201(2) provided, in pertinent part, that:

(2) ... any party appealing any final order of the [MDH] 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):
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(b) ... 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. [5]
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[716]*716(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.

Miss.Code Ann. § 41-7-201(2) (Rev. 2009) (emphasis added).

¶ 4. Effective July 1, 2011, Section 41-7-201 was amended to provide, in pertinent part, that:

any party appealing any final order of the [MDH] pertaining to a certificate of need for any health care facility as defined in Section 41-7-173(h) ... (b) ... shall have the right of direct appeal to the Mississippi Supreme Court, which appeal must be filed within twenty (20) days after the date of the final order.

Miss.Code Ann. § 41-7-201 (Supp.2011) (emphasis added).

¶ 5. On July 19, 2011, Dialysis Solutions filed notice of appeal and a “Petition to Appeal [MDH] Certificate of Need Decision” in this Court. According to Dialysis Solutions, it “exhausted its administrative remedies before the [MDH] and is entitled to appeal the decision of the [MDH] to this Court pursuant to [Section] 41-7-201.”

¶ 6. On July 25, 2011, Dialysis Solutions filed a “Motion to Approve Bond Amount” in this Court. See Miss.Code Ann. § 41-7-201(d) (Supp.2011) (“Any appeal of a final order by the [MDH] 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 Supreme Court within five (5) days of the date of filing the appeal.”). On July 28, 2011, this Court entered an order on its own motion, seeking briefing from the parties and the Attorney General regarding whether Section 41-7-201, as amended, “is constitutional under Mississippi Constitution article 6, section 146 and whether this Court has appellate jurisdiction over this direct appeal from a decision of the [MDH].”6

ANALYSIS

¶ 7. “When a party invokes our power of judicial review [of the constitutionality of a statute], it behooves us to recall that the challenged act has been passed by legislators and approved by a governor sworn to uphold the self-same constitution as we are.” State v. Roderick, 704 So.2d 49, 52 (Miss.1997) (quoting In Interest of T.L.C., 566 So.2d 691, 696 (Miss.1990)). Accordingly, statutes “come before us clothed with a heavy presumption of constitutional validity.” Id. In determining whether the statute “violates the Constitution, ... courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.” State v. Bd.

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Bluebook (online)
96 So. 3d 713, 2012 WL 2345359, 2012 Miss. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dialysis-solutions-llc-v-mississippi-state-department-of-health-miss-2012.