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F.E. Thompson, Jr. M.D., M.P.H.

Office of the Attorney GeneralNovember 8, 1994

1994 WL 683397 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 94-0755
*1 November 8, 1994
 
*1 F.E. Thompson, Jr. M.D., M.P.H.
*1 State Health Officer
*1 Mississippi State Department of Health
*1 Post Office Box 1700
*1 Jackson, Mississippi 39215–1700
Dear Dr. Thompson:
*1 Your recent request for an opinion of the Office of the Attorney General has been forwarded to me for reply. In your request you stated in pertinent part as follows:
*1 In 1979, the Mississippi Legislature enacted the first Certificate of Need legislation, codified at Miss.Code Ann. § 41–7–171, et. seq. Regulation of both the certificate of need law and health facilities licensure was initially vested in the Mississippi Health Care Commission. Subsequently during the 1981 Regular Session, the Legislature adopted Chapter 484 of the General Laws of Mississippi, later codified at Miss.Code Ann. § 41–71–1, et. seq., which established the licensure category for a “home health agency,” and required licensure pursuant to that chapter. Contemporaneous with that act, the Legislature added “home health agency” to the list of defined health care facilities listed in Miss.Code Ann. § 41–7–173(h), and (h)(ix), thus requiring a certificate of need for the establishment of a home health agency; for the relocation of the same; and for a change of ownership.
*1 In 1983, to Miss.Code Ann. § 41–7–191 was added subparagraph (8), which does not allow the Department of Health to:
*1 ... grant approval for or issue a certificate of need to any person proposing the establishment of, or the expansion of the currently approved territory of, or the contracting to establish a home office, subunit, or branch office within the space operated as a health care facility as defined in Section 41–7–173(h)(i) through (viii) by a health care facility as defined in subparagraph (ix) of Section 41–7–173(h).
*1 In other words, in 1983, a legislative moratorium on the expansion of the home health industry was enacted, prohibiting the approval of new agencies, or the expansion of the territories of existing agencies. Miss.Code Ann. § 41–7–191 prohibits one from engaging “... in any of the following activities without obtaining the required certificate of need: ...”
*1 (d) Offering of the following 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:
*1 (ix) Home health services;
*1 These statutes have been consistently construed by the courts and, through opinions, your office, to mean that a particular service cannot be offered at a particular location without a certificate of need peculiar to that offering since, by statute, “A certificate of need shall be valid only for the defined scope, physical location and person named in the application ...” (Miss.Code Ann. § 41–7–195.)
*1 In July of 1986, the Mississippi Health Care Commission was abolished by the Mississippi Legislature. The Mississippi State Department of Health was legislatively declared as the successor agency to the Health Care Commission. Recently, a home health licensee who is licensed in several Mississippi counties has complained that it sought in June of 1981 to have its territory expanded to include other counties which, at the time of the request, it may have been licensed for. The agency claims that its request to expand its licensed territory to other counties within a fifty (50) mile radius of its two “home offices” has been pending, with no action by any regulatory body of state government, since 1981.
*2 A search of such records as were transferred from the Health Care Commission to the Department reveals no such request. However, a copy of the request has been furnished by the home health agency, the authenticity of which we have no reason to doubt. Additionally, minutes of the Commission, dated June 19, 1980, indicate that as of that date the Commission decided that the home health agency in question was entitled to some expansion of service area.
*2 In light of the legal and factual situation outlined above, my questions are these:
*2 1. Assume a request to expand the “service area” of a home health agency has been made. Assume that there has been a lengthy delay in acting on the request, and there has been a change of law or regulation in the meantime. Which law or regulation controls? The law in effect at the time of the request, which did allow the expansion, or the current law, which would not permit the expansion?
*2 2. Given the factual situation described above, may the Department of Health now lawfully grant the request of the home health agency in question to expand its territory to encompass counties within a fifty mile radius of its two home offices?
*2 3. If a license may be now be amended to reflect the requested service area expansion, may the license be changed to add the additional counties without the licensee obtaining a certificate of need, since the current law prohibits issuance of certificates of need for that purpose?
*2 Title 41, Chapter 7, Section 191(8) of the Mississippi Code of 1972 provides:
*2 The Department of Health shall not grant approval for or issue a certificate of need to any person proposing the establishment of, or expansion of the currently approved territory of, or the contracting to establish a home office, subunit, or branch office within the space operated as a health care facility as defined in Section 411–7–173(h)(i) through (viii) by a health care facility as defined in subparagraph (ix) of Section 41–7–173(h).
*2 This moratorium on the establishment of new home health agencies or the expansion of service areas for existing home health agencies was enacted by the Legislature that became effective April 9, 1983. In addition to the legislative moratorium, it appears that the Health Care Commission put an administrative moratorium in effect on July 1, 1981.
*2 Requests properly submitted to the Health Care Commission prior to the enactment of the moratorium should have been acted upon. In the event the Commission failed to act upon a request, and the subsequent change of law rendered the request non-approvable, the question arises as to controlling law.
*2 As a general rule, a new statute should apply to “cases pending on the date of its enactment ... unless manifest injustice would result, or there is a statutory directive or legislative history to the contrary.” Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (5th Cir.1982) citing Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied 445 U.S. 919 (1980). A finding of manifest injustice depends on three factors: the nature and identity of the parties, the nature of the parties' rights, and the impact of the change in law on those rights. Central Freight Lines, Inc. v. United States, 669 F.2d at 1069 citing Bradley v. Richmond School Board, 416 U.S. 696 (1974). See Am Jur.2d § 46, p. 52 (“A change in the law pending an application for a permit or license is operative as to the application so that the law, as changed, rather than as it existed at the time the application was filed, determines whether the permit or license should be granted. If however, action on the application is unreasonably delayed until after the change has become effective or if the appropriate officer arbitrarily fails to act promptly on an application that conforms to the law at the time of filing, the law at the time of filing of the application ordinarily controls”). See also City of Margate v. Amoco Oil Company, 546 So.2d 1091 (Fla.App.1989); Sgromolo v. City Of Asbury Park, 46 A.2d 661 (N.J.1946).
*3 In your opinion request, you stated that a home health agency submitted a request for expansion of its operating area prior to the enactment of the legislative moratorium. After the moratorium, however, the Commission was barred from considering such request. If manifest injustice would occur, the agency can consider the request under the law existing at the time the request was made. Such determination is a question of fact that must be made by the agency, consistent with fact and subject to review by a court of competent jurisdiction.
*3 It is the opinion of this office that a request for expansion by an existing home health agency, properly submitted to the Health Care Commission prior to the implementation of the moratorium, but never acted upon by the Commission, should be evaluated by the Department of Health pursuant to the law as it existed at the time the request was filed.
*3 With regard to your first question, the law in effect at the time of the request should control.
*3 With regard to your second question, the Department of Health may grant the request, provided the law and regulations in effect at the time of the request would have allowed so.
*3 With regard to your third question, as in response number one above, the law in effect at the time of the request should control. The expansion request should be evaluated under all regulatory and legislative mandates in effect at the time of the request.
*3 If our office can be of additional service to you, please advise.
Sincerely,
*3 Mike Moore
*3 Attorney General
*3 By: Ricky Lee Boggan
*3 Special Assistant Attorney General
1994 WL 683397 (Miss.A.G.)
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