HB 5

MISSISSIPPI LEGISLATURE
2026 Regular Session
To: Public Health and Human Services
By: Representative Clark
House Bill 5
AN ACT TO AMEND SECTION 41-7-173, MISSISSIPPI CODE OF 1972,
TO REMOVE END-STAGE RENAL DISEASE FACILITIES FROM THE APPLICATION OF THE HEALTH
CARE CERTIFICATE OF NEED LAW; AND FOR RELATED PURPOSES.
���� BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF MISSISSIPPI:
���� SECTION 1.� Section
41-7-173, Mississippi Code of 1972, is amended as follows:
���� 41-7-173.� For the purposes
of Section 41-7-171 et seq., the following words shall have the meanings
ascribed herein, unless the context otherwise requires:
��������� (a)� "Affected
person" means (i) the applicant; (ii) a person residing within the
geographic area to be served by the applicant's proposal; (iii) a person who
regularly uses health care facilities or HMOs located in the geographic area of
the proposal which provide similar service to that which is proposed; (iv)
health care facilities and HMOs which have, prior to receipt of the application
under review, formally indicated an intention to provide service similar to
that of the proposal being considered at a future date; (v) third-party payers
who reimburse health care facilities located in the geographical area of the
proposal; or (vi) any agency that establishes rates for health care services or
HMOs located in the geographic area of the proposal.
��������� (b)� "Certificate
of need" means a written order of the State Department of Health setting
forth the affirmative finding that a proposal in prescribed application form,
sufficiently satisfies the plans, standards and criteria prescribed for such
service or other project by Section 41-7-171 et seq., and by rules and
regulations promulgated thereunder by the State Department of Health.
��������� (c)� (i)� "Capital
expenditure," when pertaining to defined major medical equipment, shall
mean an expenditure which, under generally accepted accounting principles
consistently applied, is not properly chargeable as an expense of operation and
maintenance and which exceeds One Million Five Hundred Thousand Dollars
($1,500,000.00).
������������� (ii)� "Capital
expenditure," when pertaining to other than major medical equipment, shall
mean any expenditure which under generally accepted accounting principles
consistently applied is not properly chargeable as an expense of operation and
maintenance and which exceeds, for clinical health services, as defined in
paragraph (k) below, Five Million Dollars ($5,000,000.00), adjusted for
inflation as published by the State Department of Health or which exceeds, for
nonclinical health services, as defined in paragraph (k) below, Ten Million
Dollars ($10,000,000.00), adjusted for inflation as published by the State
Department of Health.
������������� (iii)� A
"capital expenditure" shall include the acquisition, whether by
lease, sufferance, gift, devise, legacy, settlement of a trust or other means,
of any facility or part thereof, or equipment for a facility, the expenditure
for which would have been considered a capital expenditure if acquired by
purchase.� Transactions which are separated in time but are planned to be
undertaken within twelve (12) months of each other and are components of an
overall plan for meeting patient care objectives shall, for purposes of this
definition, be viewed in their entirety without regard to their timing.
������������� (iv)� In those
instances where a health care facility or other provider of health services
proposes to provide a service in which the capital expenditure for major
medical equipment or other than major medical equipment or a combination of the
two (2) may have been split between separate parties, the total capital
expenditure required to provide the proposed service shall be considered in
determining the necessity of certificate of need review and in determining the
appropriate certificate of need review fee to be paid.� The capital expenditure
associated with facilities and equipment to provide services in Mississippi
shall be considered regardless of where the capital expenditure was made, in
state or out of state, and regardless of the domicile of the party making the
capital expenditure, in state or out of state.
��������� (d)� "Change of
ownership" includes, but is not limited to, inter vivos gifts, purchases,
transfers, lease arrangements, cash and/or stock transactions or other
comparable arrangements whenever any person or entity acquires or controls a
majority interest of an existing health care facility, and/or the change of
ownership of major medical equipment, a health service, or an institutional
health service.� Changes of ownership from partnerships, single proprietorships
or corporations to another form of ownership are specifically included.�
However, "change of ownership" shall not include any inherited
interest acquired as a result of a testamentary instrument or under the laws of
descent and distribution of the State of Mississippi.
��������� (e)� "Commencement
of construction" means that all of the following have been completed with
respect to a proposal or project proposing construction, renovating, remodeling
or alteration:
������������� (i)� A legally
binding written contract has been consummated by the proponent and a lawfully
licensed contractor to construct and/or complete the intent of the proposal
within a specified period of time in accordance with final architectural plans
which have been approved by the licensing authority of the State Department of
Health;
������������� (ii)� Any and all
permits and/or approvals deemed lawfully necessary by all authorities with
responsibility for such have been secured; and
������������� (iii)� Actual bona
fide undertaking of the subject proposal has commenced, and a progress payment
of at least one percent (1%) of the total cost price of the contract has been
paid to the contractor by the proponent, and the requirements of this paragraph
(e) have been certified to in writing by the State Department of Health.
���� Force account expenditures,
such as deposits, securities, bonds, et cetera, may, in the discretion of the
State Department of Health, be excluded from any or all of the provisions of
defined commencement of construction.
��������� (f)�
"Consumer" means an individual who is not a provider of health care
as defined in paragraph (q) of this section.
��������� (g)�
"Develop," when used in connection with health services, means to
undertake those activities which, on their completion, will result in the
offering of a new institutional health service or the incurring of a financial
obligation as defined under applicable state law in relation to the offering of
such services.
��������� (h)� "Health care
facility" includes hospitals, psychiatric hospitals, chemical dependency
hospitals, skilled nursing facilities, end-stage renal disease (ESRD)
facilities, including freestanding hemodialysis units, intermediate care
facilities, ambulatory surgical facilities, intermediate care facilities for
individuals with intellectual disabilities, home health agencies, psychiatric
residential treatment facilities, pediatric skilled nursing facilities, long-term
care hospitals, comprehensive medical rehabilitation facilities, including
facilities owned or operated by the state or a political subdivision or
instrumentality of the state, but does not include Christian Science
sanatoriums operated or listed and certified by the First Church of Christ,
Scientist, Boston, Massachusetts.� This definition shall not apply to
facilities for the private practice, either independently or by incorporated
medical groups, of physicians, dentists or health care professionals except
where such facilities are an integral part of an institutional health service.�
The various health care facilities listed in this paragraph shall be defined as
follows:
������������� (i)�
"Hospital" means an institution which is primarily engaged in
providing to inpatients, by or under the supervision of physicians, diagnostic
services and therapeutic services for medical diagnosis, treatment and care of
injured, disabled or sick persons, or rehabilitation services for the
rehabilitation of injured, disabled or sick persons.� Such term does not
include psychiatric hospitals.
������������� (ii)�
"Psychiatric hospital" means an institution which is primarily
engaged in providing to inpatients, by or under the supervision of a physician,
psychiatric services for the diagnosis and treatment of persons with mental illness.
������������� (iii)�
"Chemical dependency hospital" means an institution which is
primarily engaged in providing to inpatients, by or under the supervision of a
physician, medical and related services for the diagnosis and treatment of
chemical dependency such as alcohol and drug abuse.
������������� (iv)� "Skilled
nursing facility" means an institution or a distinct part of an
institution which is primarily engaged in providing to inpatients skilled
nursing care and related services for patients who require medical or nursing
care or rehabilitation services for the rehabilitation of injured, disabled or
sick persons.
������������� (v)�  * * *"End-stage renal disease (ESRD) facilities"
means kidney disease treatment centers, which includes freestanding
hemodialysis units and limited care facilities.� The term "limited care
facility" generally refers to an off-hospital-premises facility,
regardless of whether it is provider or nonprovider operated, which is engaged
primarily in furnishing maintenance hemodialysis services to stabilized
patients.[Deleted]
������������� (vi)�
"Intermediate care facility" means an institution which provides, on
a regular basis, health-related care and services to individuals who do not
require the degree of care and treatment which a hospital or skilled nursing
facility is designed to provide, but who, because of their mental or physical
condition, require health-related care and services (above the level of room
and board).
������������� (vii)�
"Ambulatory surgical facility" means a facility primarily organized
or established for the purpose of performing surgery for outpatients and is a
separate identifiable legal entity from any other health care facility.� Such
term does not include the offices of private physicians or dentists, whether
for individual or group practice, and does not include any abortion facility as
defined in Section 41-75-1(f).
������������� (viii)�
"Intermediate care facility for individuals with intellectual
disabilities" means an intermediate care facility that provides health or
rehabilitative services in a planned program of activities to persons with an intellectual disability, also
including, but not limited to, cerebral palsy and other conditions covered by
the Federal Developmentally Disabled Assistance and Bill of Rights Act, Public
Law 94-103.
������������� (ix)� "Home
health agency" means a public or privately owned agency or organization,
or a subdivision of such an agency or organization, properly authorized to
conduct business in Mississippi, which is primarily engaged in providing to
individuals at the written direction of a licensed physician, in the
individual's place of residence, skilled nursing services provided by or under
the supervision of a registered nurse licensed to practice in Mississippi, and
one or more of the following services or items:
������������������ 1.� Physical,
occupational or speech therapy;
������������������ 2.� Medical
social services;
������������������ 3.� Part-time
or intermittent services of a home health aide;
������������������ 4.� Other
services as approved by the licensing agency for home health agencies;
������������������ 5.� Medical
supplies, other than drugs and biologicals, and the use of medical appliances;
or
������������������ 6.� Medical
services provided by an intern or resident-in-training at a hospital under a
teaching program of such hospital.
���� Further, all skilled nursing
services and those services listed in items 1 through 4 of this subparagraph
(ix) must be provided directly by the licensed home health agency.� For
purposes of this subparagraph, "directly" means either through an agency
employee or by an arrangement with another individual not defined as a health
care facility.
���� This subparagraph (ix) shall
not apply to health care facilities which had contracts for the above services
with a home health agency on January 1, 1990.
������������� (x)�
"Psychiatric residential treatment facility" means any nonhospital
establishment with permanent licensed facilities which provides a twenty-four-hour
program of care by qualified therapists, including, but not limited to, duly
licensed mental health professionals, psychiatrists, psychologists,
psychotherapists and licensed certified social workers, for emotionally
disturbed children and adolescents referred to such facility by a court, local
school district or by the Department of Human Services, who are not in an acute
phase of illness requiring the services of a psychiatric hospital, and are in
need of such restorative treatment services.� For purposes of this
subparagraph, the term "emotionally disturbed" means a condition
exhibiting one or more of the following characteristics over a long period of
time and to a marked degree, which adversely affects educational performance:
������������������ 1.� An
inability to learn which cannot be explained by intellectual, sensory or health
factors;
������������������ 2.� An
inability to build or maintain satisfactory relationships with peers and
teachers;
������������������ 3.�
Inappropriate types of behavior or feelings under normal circumstances;
������������������ 4.� A general
pervasive mood of unhappiness or depression; or
������������������ 5.� A tendency
to develop physical symptoms or fears associated with personal or school
problems.� An establishment furnishing primarily domiciliary care is not within
this definition.
������������� (xi)�
"Pediatric skilled nursing facility" means an institution or a
distinct part of an institution that is primarily engaged in providing to
inpatients skilled nursing care and related services for persons under twenty-one
(21) years of age who require medical or nursing care or rehabilitation
services for the rehabilitation of injured, disabled or sick persons.
������������� (xii)� "Long-term
care hospital" means a freestanding, Medicare-certified hospital that has
an average length of inpatient stay greater than twenty-five (25) days, which
is primarily engaged in providing chronic or long-term medical care to patients
who do not require more than three (3) hours of rehabilitation or comprehensive
rehabilitation per day, and has a transfer agreement with an acute care medical
center and a comprehensive medical rehabilitation facility.� Long-term care
hospitals shall not use rehabilitation, comprehensive medical rehabilitation,
medical rehabilitation, sub-acute rehabilitation, nursing home, skilled nursing
facility or sub-acute care facility in association with its name.
������������� (xiii)�
"Comprehensive medical rehabilitation facility" means a hospital or
hospital unit that is licensed and/or certified as a comprehensive medical
rehabilitation facility which provides specialized programs that are accredited
by the Commission on Accreditation of Rehabilitation Facilities and supervised
by a physician board certified or board eligible in physiatry or other doctor
of medicine or osteopathy with at least two (2) years of training in the
medical direction of a comprehensive rehabilitation program that:
������������������ 1.� Includes
evaluation and treatment of individuals with physical disabilities;
������������������ 2.� Emphasizes
education and training of individuals with disabilities;
������������������ 3.�
Incorporates at least the following core disciplines:
����������������������� a.�
Physical Therapy;
����������������������� b.�
Occupational Therapy;
����������������������� c.�
Speech and Language Therapy;
����������������������� d.�
Rehabilitation Nursing; and
������������������ 4.�
Incorporates at least three (3) of the following disciplines:
����������������������� a.�
Psychology;
����������������������� b.�
Audiology;
����������������������� c.�
Respiratory Therapy;
����������������������� d.�
Therapeutic Recreation;
����������������������� e.�
Orthotics;
����������������������� f.�
Prosthetics;
����������������������� g.�
Special Education;
����������������������� h.�
Vocational Rehabilitation;
����������������������� i.�
Psychotherapy;
����������������������� j.�
Social Work;
����������������������� k.�
Rehabilitation Engineering.
���� These specialized programs
include, but are not limited to:� spinal cord injury programs, head injury
programs and infant and early childhood development programs.
��������� (i)� "Health
maintenance organization" or "HMO" means a public or private
organization organized under the laws of this state or the federal government
which:
������������� (i)� Provides or
otherwise makes available to enrolled participants health care services,
including substantially the following basic health care services:� usual
physician services, hospitalization, laboratory, x-ray, emergency and
preventive services, and out-of-area coverage;
������������� (ii)� Is
compensated (except for copayments) for the provision of the basic health care
services listed in subparagraph (i) of this paragraph to enrolled participants
on a predetermined basis; and
������������� (iii)� Provides
physician services primarily:
������������������ 1.� Directly
through physicians who are either employees or partners of such organization;
or
������������������ 2.� Through
arrangements with individual physicians or one or more groups of physicians
(organized on a group practice or individual practice basis).
��������� (j)� "Health
service area" means a geographic area of the state designated in the State
Health Plan as the area to be used in planning for specified health facilities
and services and to be used when considering certificate of need applications
to provide health facilities and services.
��������� (k)� "Health
services" means clinically related (i.e., diagnostic, treatment or
rehabilitative) services and includes alcohol, drug abuse, mental health and
home health care services.� "Clinical health services" shall only
include those activities which contemplate any change in the existing bed
complement of any health care facility through the addition or conversion of
any beds, under Section 41-7-191(1)(c) or propose to offer any health services
if those services have not been provided on a regular basis by the proposed
provider of such services within the period of twelve (12) months prior to the
time such services would be offered, under Section 41-7-191(1)(d).�
"Nonclinical health services" shall be all other services which do
not involve any change in the existing bed complement or offering health
services as described above.
��������� (l)�
"Institutional health services" shall mean health services provided
in or through health care facilities and shall include the entities in or
through which such services are provided.
��������� (m)� "Major
medical equipment" means medical equipment designed for providing medical
or any health-related service which costs in excess of One Million Five Hundred
Thousand Dollars ($1,500,000.00).� However, this definition shall not be
applicable to clinical laboratories if they are determined by the State
Department of Health to be independent of any physician's office, hospital or
other health care facility or otherwise not so defined by federal or state law,
or rules and regulations promulgated thereunder.
��������� (n)� "State
Department of Health" or "department" shall mean the state
agency created under Section 41-3-15, which shall be considered to be the State
Health Planning and Development Agency, as defined in paragraph (u) of this
section.
��������� (o)� "Offer,"
when used in connection with health services, means that it has been determined
by the State Department of Health that the health care facility is capable of
providing specified health services.
��������� (p)� "Person"
means an individual, a trust or estate, partnership, corporation (including
associations, joint-stock companies and insurance companies), the state or a
political subdivision or instrumentality of the state.
��������� (q)�
"Provider" shall mean any person who is a provider or representative
of a provider of health care services requiring a certificate of need under
Section 41-7-171 et seq., or who has any financial or indirect interest in any
provider of services.
��������� (r)� "Radiation
therapy services" means the treatment of cancer and other diseases using
ionizing radiation of either high energy photons (x-rays or gamma rays) or
charged particles (electrons, protons or heavy nuclei).� However, for purposes
of a certificate of need, radiation therapy services shall not include low
energy, superficial, external beam x-ray treatment of superficial skin lesions.
��������� (s)�
"Secretary" means the Secretary of Health and Human Services, and any
officer or employee of the Department of Health and Human Services to whom the
authority involved has been delegated.
��������� (t)� "State Health
Plan" means the sole and official statewide health plan for Mississippi
which identifies priority state health needs and establishes standards and
criteria for health-related activities which require certificate of need review
in compliance with Section 41-7-191.
��������� (u)� "State Health
Planning and Development Agency" means the agency of state government
designated to perform health planning and resource development programs for the
State of Mississippi.
���� SECTION 2.� This act
shall take effect and be in force from and after July 1, 2026.