                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2018-SA-01410-SCT

CENTRAL MISSISSIPPI MEDICAL CENTER

v.

MISSISSIPPI DIVISION OF MEDICAID AND
DREW L. SNYDER, IN HIS OFFICIAL CAPACITY
AS EXECUTIVE DIRECTOR OF MISSISSIPPI
DIVISION OF MEDICAID


DATE OF JUDGMENT:           09/20/2018
TRIAL JUDGE:                HON. J. DEWAYNE THOMAS
TRIAL COURT ATTORNEYS:      GEORGE H. RITTER
                            REBECCA L. HAWKINS
                            BRIDGET K. HARRIS
                            ABBIE EASON KOONCE
                            PAIGE HENDERSON BIGLANE
                            DION JEFFERY SHANLEY
                            LAURA L. GIBBES
                            JANET McMURTRAY
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:    GEORGE H. RITTER
                            REBECCA L. HAWKINS
ATTORNEYS FOR APPELLEES:    JANET McMURTRAY
                            SAMUEL PHILIP GOFF
                            LAURA L. GIBBES
                            DION JEFFERY SHANLEY
NATURE OF THE CASE:         CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                AFFIRMED - 02/13/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     EN BANC.

     RANDOLPH, CHIEF JUSTICE, FOR THE COURT:
¶1.    Central Mississippi Medical Center (CMMC) appeals the Hinds County Chancery

Court’s decision denying its appeal of a Division of Medicaid (DOM) hearing. The DOM had

determined that CMMC owed it $1.226 million due to overpayment. This Court recently

decided a reimbursement dispute involving the DOM. See Crossgates River Oaks Hosp. v.

Miss. Div. of Medicaid, 240 So. 3d 385 (Miss. 2018). In Crossgates, the hospitals prevailed

because the DOM had failed to adhere to the Medicare State Plan Agreement. Applying the

same legal principles today, the DOM prevails because the DOM adhered to the Plan. The

chancellor found sufficient evidence to support the DOM’s decision, decreed that it was

neither arbitrary nor capricious, and decreed that it did not exceed the DOM’s authority or

violate any of CMMC’s statutory or constitutional rights. We affirm the decision of the

chancery court.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Federal appropriations for Medicaid are available to states that negotiate a plan with

the secretary of the federal Department of Health and Human Services. See 42 U.S.C. § 1396

(2012). After a plan is approved, the state Medicaid entity (in Mississippi, the DOM is the

entity) is bound to follow the plan and cannot deviate from it. See generally Crossgates River

Oaks Hosp., 240 So. 3d 385 (holding that the DOM acted improperly by disregarding the

plain language of the Plan). See also Blanchard v. Forrest, 71 F.3d 1163, 1166 (5th Cir.

1996). The Mississippi State Plan Agreement (Plan) requires the DOM to use the Medicare

Notice of Program Reimbursement (NPR) to establish the final reimbursement. In fiscal year

2000, intermediate reimbursement was premised on projected expenses based on prior cost



                                              2
reports the provider had submitted. Later, once final reports were obtained and the NPR

generated, the DOM would issue notices to the providers, either requesting repayment of

funds the provider had not earned or providing additional funds to address shortfalls.

¶3.    In April of 1999, CMMC purchased the former Methodist Healthcare-Jackson

Hospital which consisted of a North Campus in northeast Jackson and a Main Campus in

south Jackson. Later in 1999, CMMC lost a certification of need for its North Campus

hospital. CMMC closed the North Campus on December 31, 1999. The closing was

problematic for CMMC’s reimbursements for fiscal year 2000 for Medicare and Medicaid.

¶4.    The North Campus was only in operation for eight of the months covered in fiscal

year 2000, and all previous cost reports that the DOM could use to project costs had twelve

months of costs included. Thus, the DOM requested that CMMC file an amended cost report

to estimate costs taking into account the mid-fiscal-year closure. CMMC filed an amended

cost report with the DOM that excluded both costs associated with the North Campus and

the days in operation attributable to the North Campus. Based on this data, the DOM revised

CMMC’s reimbursement.

¶5.    In 2003, Mutual of Omaha, at the time a designated Medicare Intermediary, issued to

CMMC its NPR. The NPR was based on final adjustments to CMMC’s Medicare cost

reports. In the absence of appeal by CMMC, it was the declaration of CMMC’s final

Medicare reimbursement for the period described.1 CMMC acknowledged receipt of the NPR



       1
       CMMC had the right to object within 180 days and to request a hearing if the dispute
concerned between $1000 and $10,000. If it was less than that, the discrepancy could be
remedied through clarification or additional documentation.

                                             3
on September 23, 2003. The 180 days to amend the NPR formally or informally expired on

March 22, 2004. Through no fault of the DOM or CMMC, the DOM did not receive its copy

of the Medicare NPR until about seven years later. The delay was related to issues

experienced by Mutual of Omaha and was compounded by other problems experienced by

the DOM’s claims processor, another third party, Affiliated Computer Services, Inc. The

DOM notified CMMC early in 2004 of the delay in processing its claim.

¶6.   In compliance with the Plan, once the DOM received the Medicare NPR, the DOM

accepted it to establish final reimbursement. After the DOM received the NPR, it adjusted

CMMC’s reimbursement based on data from the NPR and requested repayment of $1.226

million. CMMC did not contest the accuracy of the NPR until October of 2010, more than

seven years after CMMC received the NPR. CMMC claims as its reason not to appeal the

NPR that the allegedly erroneous data in the NPR did not affect its Medicare reimbursement

in a significant way. The DOM counters that if CMMC’s characterization of the NPR data

is correct, then CMMC’s Medicare reimbursement was significantly inflated. The DOM

argues that CMMC did not challenge the NPR before Medicare because correcting the data

would have reduced its reimbursement. Regardless, CMMC knew the same data would be

used by Medicare and the DOM.

¶7.   CMMC filed an administrative appeal before the DOM. A hearing officer was

assigned to hear CMMC’s appeal, found no merit to its appeal, and issued findings and

conclusions. CMMC then appealed the decision of the hearing officer to the Hinds County

Chancery Court. Again, CMMC failed to prevail. The Hinds County Chancery Court held



                                            4
that the DOM’s decision was supported by substantial evidence, was not arbitrary or

capricious, and did not exceed the DOM’s authority or violate CMMC’s statutory or

constitutional rights. CMMC appealed.

                                STANDARD OF REVIEW

¶8.    In all cases in which we review a chancellor’s opinion concerning a DOM hearing

officer’s decision, we must decide “whether the order of the agency 1) was supported by

substantial evidence, 2) was arbitrary or capricious, 3) was beyond the power of the agency

to make, or 4) violated some statutory or constitutional right of the complaining party.”

Adams v. Miss. State Oil & Gas Bd., 139 So. 3d 58, 62 (Miss. 2014) (internal quotation mark

omitted) (quoting Anadarko Petroleum Corp. v. State Oil & Gas Bd. of Miss., 99 So. 3d

109, 111 (Miss. 2012)).

¶9.    This Court has stated that arbitrary means “fixed or done capriciously or at pleasure.

An act is arbitrary when it is done without adequately determining principle; [it is] not done

according to reason or judgment . . . .” Harrison Cty. Bd. of Supervisors v. Carlo Corp., 833

So. 2d 582, 583 (Miss. 2002) (quoting McGowan v. Miss. State Oil & Gas Bd., 604 So. 2d

312, 322 (Miss. 1992)). We have also defined capricious to mean “freakish, fickle, or

arbitrary. An act is capricious when it is done without reason, in a whimsical manner,

implying either a lack of understanding of a disregard for the surrounding facts and settled

controlling principles . . . .” Id. (quoting McGowan, 604 So. 2d at 322).

¶10.   Further, “[a]n agency’s interpretation of a rule governing the agency’s operation is a

matter of law that is reviewed de novo, but with great deference to the agency’s



                                              5
interpretation.” Crossgates River Oaks Hosp., 240 So. 3d at 387 (citing Sierra Club v. Miss.

Envtl. Quality Permit Bd., 943 So. 2d 673, 678 (Miss. 2006)). “Our courts are not permitted

to make administrative decisions and perform the functions of an administrative agency.

Administrative agencies must perform the functions required of them by law.” Miss. State

Tax Comm’n v. Miss.-Ala. State Fair, 222 So. 2d 664, 665 (Miss. 1969). This deference is

not to be confused with the lack of deference accorded to an agency in the interpretation of

a statute, which is properly reserved to the courts of this State. King v. Miss. Military Dep’t,

245 So. 3d 404, 408 (Miss. 2018). The deference to the interpretation of a rule or regulation

is obviated if the interpretation is clearly erroneous such that it is arbitrary, capricious, or an

abuse of discretion. See Crossgates River Oaks Hosp., 240 So. 3d at 387 (citing Div. of

Medicaid v. Miss. Indep. Pharmacies Ass’n, 20 So. 3d 1236, 1238 (Miss. 2009)).

                                    ISSUES ON APPEAL

¶11.   On appeal the parties contest three central issues:

       I.      Whether the DOM acted arbitrarily or capriciously by relying on the
               Medicare NPR to set CMMC’s reimbursement rather than earlier
               submissions to the DOM by CMMC.

       II.     Whether Mississippi Code Sections 43-13-117(J) and 43-13-118 restrict
               the DOM’s authority to adjust CMMC’s reimbursement because the
               adjustment was a “cut” that occurred after the statutory period to make
               it.

       III.    Whether the DOM violated CMMC’s due-process rights by adjusting
               CMMC’s reimbursement.


                                          ANALYSIS




                                                6
       I.     Did the DOM act arbitrarily or capriciously by relying on the
              Medicare NPR to set CMMC’s reimbursement rather than earlier
              submissions to the DOM by CMMC?

¶12.   CMMC first contends that the DOM acted arbitrarily by using the NPR to determine

the final reimbursement rather than accepting submissions that CMMC provided in revised

cost reports. CMMC unconvincingly argues that the Plan does not require the DOM to utilize

the NPR and, without authority, argues that nothing prevents the DOM from amending the

NPR. Both contentions are easily dispelled by the plain language of the Plan then in force.

Attachment 4.19–A of the Plan, effective in fiscal year 2000, reads,

       The Division of Medicaid has entered into agreements with Medicare
       intermediaries for participation in a common audit program of Titles XVIII
       and XIX. Under this agreement, the intermediaries for participation in a
       common audit program shall provide DOM the results of the field audits of
       those hospitals located in Mississippi. DOM will prepare desk reviews based
       on those field audits. DOM will adjust the prospective rate paid to in-state
       hospitals based on these desk reviews and field audits.2

The DOM’s interpretation of the Plan is sound. The clear and unambiguous language of

Attachment 4.19–A of the Plan directs that the DOM shall use the same audits utilized by

Medicare to establish the final reimbursement. See Wicks v. Miss. Valley State Univ., 536

So. 2d 20, 23 (Miss. 1988) (stating that “will” is mandatory language akin to “shall” or

“must”); see also Pickering v. Hood, 95 So. 3d 611, 619–20 (Miss. 2012) (stating that

mandatory language forecloses alternative interpretations). The DOM utilized the NPR

explicitly as directed by the Plan to adjust CMMC’s prospective reimbursement to obtain a



       2
        This was the operative Plan language from October 1, 1998, to October 1, 2005,
which encompasses fiscal year 2000. See Crossgates River Oaks Hosp., 240 So. 3d at 387
(applying then-effective plan document).

                                            7
final reimbursement. CMMC argues that using the NPR when the NPR contained incorrect

information makes the utilization arbitrary or capricious. The facts established do not support

that argument.

¶13.   Agencies act arbitrarily or capriciously when they fail to utilize facts and governing

principles to render decisions. Harrison Cty. Bd. of Supervisors, 833 So. 2d at 583. The

DOM utilized facts and governing principles to render its decision in this case. Here, the

DOM precisely followed the Plan. It conducted a desk review based on the field audit and

adjusted CMMC’s reimbursement as the Plan dictated. There is no evidence that the DOM

acted arbitrarily or capriciously by relying on the NPR which was specified by the Plan.

¶14.   The DOM did not create the NPR; but CMMC participated in its creation by providing

what it now claims to be inaccurate data. Additionally, CMMC had the opportunity to

challenge the NPR as the letter attached to the NPR stated. CMMC acknowledged both

receiving this letter and that it had 180 days to challenge the NPR. When it was in its best

interest to accept the NPR, it chose not to challenge the NPR, despite knowledge the NPR

contained inaccurate information. The Plan does not provide the DOM with the right to

amend or modify the NPR, and federal regulations require Medicare, not the DOM, to

generate   it. See    42    C.F.R. §     405.1803 (2019),       https://www.ecfr.gov/cgi-bin

/text-idx?SID=12caaf3598a36c42d1fbd0276a0d30cc&mc=true&node=se42.2.405_11803

&rgn=div8. It would be beyond the DOM’s authority to unilaterally amend the NPR then.

¶15.   Finally, CMMC concedes that it was aware that the DOM would use the NPR to

process CMMC’s final reimbursement. CMMC failed to timely avail itself of opportunities



                                              8
for relief from Medicare. CMMC cannot now seek relief against the DOM for an alleged

error in using the NPR or the errors of another entity in creating the NPR. CMMC accepted

the benefits of the Medicare NPR reimbursement levels and then failed to exercise its right

to correct the allegedly incorrect data, knowing that the DOM would use the NPR to generate

reimbursement as well. CMMC acquiesced to the use of the NPR and took all the

reimbursement it could garner from Medicare. Equitable principals defeat CMMC’s

complaints that the NPR is incorrect now. E.g., Twin States Realty Co. v. Kilpatrick, 199

Miss. 545, 26 So. 2d 356, 358 (1946). As further discussed later in this opinion, these actions

additionally bar any claim of equitable estoppel by CMMC.

       II.    Do Mississippi Code Sections 43-13-117(J) and 43-13-118 restrict
              the DOM’s power to adjust CMMC’s reimbursement because the
              adjustment was a “cut” that occurred after the statutory period to
              make it?

¶16.   Next, CMMC cites two statutes, Mississippi Code Sections 43-13-117(J) and 43-13-

118,3 and argues that the DOM violated these statutes in revising CMMC’s reimbursement.

At the time of filing and of the reimbursement adjustment, 43-13-117(J) stated, “there shall

be no cuts in inpatient and outpatient hospital payments, or allowable days or volumes, as

long as the hospital assessment provided in Section 43–13–145 is in effect.” Miss. Code Ann.

§ 43–13–117(J) (Supp. 2010).4 Reading this section in a vacuum, CMMC argues that the


       3
       CMMC cites the statutes effective at the time of the filing of the suit, Mississippi
Code Section 43–13–117(J) (Supp. 2010) and Mississippi Code Section 43–13–118 (Rev.
2009).
       4
         The Mississippi Legislature has since amended this provision to add, “[t]his
subsection (J) shall not apply to decreases in payments that are a result of: reduced hospital
admissions, audits or payments under the APR-DRG or APC models, or a managed care

                                              9
DOM is restricted from reducing CMMC’s payments in any manner. But, then-effective

43–13–117(D) overrides acceptance of such an argument. It reads,

       the restriction in this subsection shall not prevent the division from changing
       the payments, payment methodology . . . or rates of reimbursement . . . without
       an amendment to this section whenever those changes are required by federal
       law or regulation, or whenever those changes are necessary to correct
       administrative errors or omissions in calculating those payments or rates of
       reimbursement.

Miss. Code Ann. § 43–13–117(D) (Supp. 2010) (emphasis added).5 This section clearly

empowers the DOM to change payments, payment methodologies, or rates of reimbursement.

That directly contradicts CMMC’s argument that any adjustment is a cut. Additionally,

Section 43–13–121 explicitly empowers the DOM to “recover any and all payments

incorrectly made by the division to a recipient . . . .” Miss. Code Ann. § 43–13–121(1)(j)

(Rev. 2015). Thus, as provided by the Plan and authorized by statute, the DOM was

empowered to and under a duty to change prospective reimbursements into final

reimbursements.

¶17.   While Section 43–13–117(J) is silent on what constitutes a cut, reading the section in

light of the above sections provides context. See 32 Pit Bulldogs v. Cty. of Prentiss, 808 So.

2d 971, 974 (Miss. 2002) (stating that statutes should be read as a whole to provide context

to the meaning of individual sections). If Section 43–13–117(J) was intended as a bar on the



program or similar model described in subsection (H) of this section.” Miss. Code Ann. §
43–13–117(J) (Rev. 2015).
       5
         The Mississippi Legislature has since repealed subsection (D). See Miss. Code Ann.
§ 43–13–117(D) (Supp. 2019). See also Miss. Code Ann. § 43–13–117(K) (Supp. 2019)
(“[t]his section shall be repealed on July 1, 2021.”).

                                             10
recovery of funds after a final reimbursement number is determined, then Section

43–13–117(J) would contradict the plain language of Sections 43–13–117(D),

43–13–121(1)(j), and the Plan, which directs the DOM to make final reimbursement

calculations. Statutes may contradict themselves and each other, but when an interpretation

harmonizes the various statutes, this Court will construe the statutes in that manner. See

Legislature of Miss. v. Shipman, 170 So. 3d 1211, 1217 (Miss. 2015). Here, there is a

readily discernable harmonization of the statutes. As such, this recovery of funds through

adjusting prospective reimbursement into final reimbursement is not a “cut” within the

meaning of Section 43–13–117(J) but an adjustment as directed by the Plan.

¶18.   CMMC’s reliance on Section 43–13–118 is similarly ineffective. CMMC argues that

the statute institutes a bar on recoupment cases more than five years after the initial

disbursement of funds. But, Section 43–13–118 does not set forth a statute of limitations,

rather it sets minimum requirements for document retention. Additionally, as CMMC

conceded at oral argument, statutes of limitation do not run against the State. Jones Cty. Sch.

Dist. v. Miss. Dep’t of Revenue, 111 So. 3d 588, 606 (Miss. 2013) (citing Miss. Const. art.

4, § 104; Miss. Code Ann. § 15–1–51(Rev. 2012)). Section 43–13–118 provides, “[i]t shall

be the duty of each provider . . . to keep and maintain . . . such books, documents, and other

records . . . for a period of five (5) years or for whatever longer period may be required or

prescribed under federal or state statutes and shall be subject to audit by the division.” Miss.

Code Ann. § 43–13–118 (Rev. 2015). The plain language of the statute controls, and there




                                              11
is no mention of a statute of limitations. See Camp v. Stokes, 41 So. 3d 685, 686 (Miss.

2010).

¶19.     CMMC also argues that through a lapse of time it had acquired a protected interest

in funds it knew were subject to adjustment. CMMC was fully aware of the procedures the

DOM followed for auditing and that it was yet to receive a final reimbursement statement

from the DOM. The DOM maintained regular contact with CMMC and explained the

difficulty the third-party processing agent was experiencing in rendering the final reports.

The record indicates that CMMC was aware that the DOM would seek a final reimbursement

and that the DOM would use the NPR, not older cost reports, to determine final

reimbursement.

¶20.     Finally, CMMC’s claim of equitable estoppel is ineffective. Equitable estoppel

requires (1) “proof of a belief” and (2) “reliance on some representation” coupled with (3)

“a change of position as a result of the representation” and (4) “detriment or prejudice caused

by the change of position.” Gulf Ins. Co. v. Neel-Schaffer, Inc., 904 So. 2d 1036, 1048

(Miss. 2004) (citing Mound Bayou Sch. Dist. v. Cleveland Sch. Dist., 817 So. 2d 578, 583

(Miss. 2002)). As discussed above, CMMC admitted that it knew the DOM would calculate

a final reimbursement using the NPR. This admission dispels any belief that CMMC could

meet the first or second elements of estoppel. CMMC cannot claim that the DOM is estopped

from acting under the dictates of the Plan, just as CMMC knew it would.

         III.   Did the DOM violate CMMC’s due-process rights by depriving
                CMMC of its fundamental rights in adjusting CMMC’s
                reimbursement rates?



                                              12
¶21.   Finally, the DOM did not violate CMMC’s due-process rights. CMMC claims that it

was deprived of both procedural and substantive due process. In order to prove a claim for

procedural due process, a party must first demonstrate a property interest. Nelson v. City of

Horn Lake ex rel. Bd. of Aldermen, 968 So. 2d 938, 944 (Miss. 2007) (citing Univ. of Miss.

Med. Ctr. v. Hughes, 765 So. 2d 528, 536 (Miss. 2000)). It is not enough to merely

demonstrate a property interest though; the interest must be one entitled to protection under

the Constitution. Id. (citing Hughes, 765 So. 2d at 536). If such a property interest is

demonstrated, then the party is entitled to notice reasonably calculated to apprise the party

of the action and an opportunity to be heard and to present objections. Miss. Bd. of

Veterinary Med. v. Geotes, 770 So. 2d 940, 943 (Miss. 2000). Federal law determines

whether a property interest is a constitutionally protected interest. Nelson, 968 So. 2d at 944

(citing Hughes, 765 So. 2d at 536). Under this standard, a property interest must be more

than a unilateral expectation; it must be a legitimate claim of entitlement. Bd. of Regents v.

Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 12 L. Ed. 702 (1972).

¶22.   CMMC claims a property interest in the reimbursement money it provisionally

received from the DOM. It has a legitimate claim to entitlement and due process to the extent

that it earned the money. Due process was accorded initially by the DOM’s grant of an

administrative hearing. When CMMC’s claim against the DOM was rejected, it appealed to

the courts. When the chancery court rejected CMMC’s claim, once again it was afforded

another opportunity to appeal and be heard, now in this Court. Before all of these actions,




                                              13
CMMC had an opportunity to appeal the NPR, which ultimately created the claim below. Its

claim that it was denied procedural due process is therefore without merit.

¶23.   The DOM’s claim on the overpaid amount is superior to CMMC’s claim. Just as a

party can have superior claim to property against some while not possessing a superior title

as to all, c.f. Torrence v. Carbry, 27 Miss. 697 (1854), CMMC may have a right to the money

it received against all but the DOM. Mississippi law gave the DOM the right and the duty to

demand return of the overpayment from CMMC.

                                     CONCLUSION

¶24.   The plain language of Attachment 4.19–A of the Plan requires the DOM to revise

reimbursement based on the NPR produced by Medicare. Our laws demand the action the

DOM took. Consequently, the DOM’s actions were neither arbitrary nor capricious, nor did

the DOM exceed its authority or violate CMMC’s constitutional rights. We affirm the

judgment of the chancery court.

¶25.   AFFIRMED.

    MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.
KITCHENS, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE
WRITTEN OPINION JOINED BY KING, P.J. COLEMAN, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, J.; KITCHENS AND
KING, P.JJ., JOIN IN PART. GRIFFIS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY COLEMAN, J.

    KITCHENS, PRESIDING JUSTICE, CONCURRING IN PART AND IN
RESULT:

¶26.   I agree with Chief Justice Randolph’s majority opinion in all respects but one. Like

Justice Coleman, I would end the practice of extending judicial deference to an executive



                                            14
agency’s interpretation of its rules and regulations. Therefore, I concur in part and in result

with the majority opinion, and I join Justice Coleman’s dissenting opinion in part.

       KING, P.J., JOINS THIS OPINION.

       COLEMAN, JUSTICE, DISSENTING:

¶27.   The majority misses the mark on two points—the applicable standard of review for

agency interpretation of regulations and the analysis and application of Mississippi Code

Section 43-13-117. Accordingly, and with respect, I dissent.

I.     The Court should no longer defer to executive agency interpretations of
       regulations.

¶28.   The majority supplies the inherently self-contradicting standard of review for agency

interpretations of agency-promulgated regulations as follows:

       Further, “an agency’s interpretation of a rule governing the agency’s operation
       is a matter of law that is reviewed de novo, but with great deference to the
       agency’s interpretation.” Crossgates River Oaks Hosp., 240 So. 3d at 387
       (citing Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So. 2d 673, 678
       (Miss. 2006)). . . . The deference to the interpretation of a rule or regulation
       is obviated if the interpretation is clearly erroneous such that it is arbitrary,
       capricious, or an abuse of discretion. See Crossgates River Oaks Hosp., 240
       So. 3d at 387 (citing Div. of Medicaid v. Miss. Indep. Pharmacies Ass’n, 20
       So. 3d 1236, 1238 (Miss. 2009)).

Maj. Op. ¶ 10 (emphasis added). In King v. Mississippi Military Department, 245 So. 3d

404, 408 (¶ 12) (Miss. 2018), the unanimous court ended the practice of giving deference to

state executive agencies’ interpretations of statutes. The practice of the courts deferring to

an executive-branch interpretation of agency regulations should likewise end.

¶29.   As is the case with statutes, our de-novo-but-with-deference standard is confusing and

vague. King, 245 So. 3d at 407 (¶ 9). It defies consistency in result and in setting precedent


                                              15
and therefore warrants review. Our description of the level of deference given has also

lacked consistency. In Tower Loan of Mississippi v. Mississippi State Tax Commission, we

adopted the federal standard of review:

       [a]n agency’s interpretation of a regulation it has been authorized to
       promulgate is entitled to great deference and must be upheld unless it is so
       plainly erroneous or so inconsistent with either the underlying regulation . . .
       as to be arbitrary, capricious, an abuse of discretion or otherwise not in
       accordance with law.

Tower Loan of Miss. v Miss. State Tax Comm’n, 662 So. 2d 1077, 1081 (Miss. 1995)

(internal quotation mark omitted) (quoting Bd. of Trs. of State Insts. of Higher Learning

v. Sullivan, 763 F. Supp 178, 184 (S.D. Miss. 1991). The Tower Loan Court applied a far

more deferential standard than the majority does today, showing that the Court has struggled

over the decades with consistency when determining just how much judicial power should

be given.

¶30.   Further highlighting the inherent self-contradiction of our attempts to afford deference

is the standard enunciated in Sierra Club v. Mississippi Environmental Quality Permit

Board, 943 So. 2d 673, 679 (¶ 17) (Miss. 2006), in which the Court wrote that “great

deference” will be afforded—as long as the agency’s interpretation does not contradict “the

best reading” of a statute. Presumably, Mississippi courts always strive to discern the best

reading of a statute, and if the best reading in a given case contradicts the agency

interpretation, then deference disappears into the gloaming. So viewed, in reality, what

sounds like deference becomes de novo review. The above-described Sierra Club iteration

of the deference standard differs in unmistakable fashion from the great deference standard



                                             16
of Tower Loan. In other words, inconsistency and self-contradiction mark the history of

deference by courts to executive-branch agency regulatory interpretation.

¶31.   As is the case with deference to agency interpretation of statutes, the standard for

deference to agency interpretation of regulations cannot be squared with Mississippi’s

Constitution of 1890. Article 1, section 2, of the Mississippi Constitution provides as

follows:

       No person or collection of persons, being one or belonging to one of these
       departments, shall exercise any power properly belonging to either of the
       others. The acceptance of an office in either of said departments shall, of itself,
       and at once, vacate any and all offices held by the person so accepting in either
       of the other departments.

In ceding the rule-interpreting power of the courts to the executive branch by giving

deference to agency interpretation of regulations, the Court in the past has put all or part of

all three functions of government—rule making, rule enforcement, and rule

interpretation—in the hands of one branch. See Ellis-Hall Consultants v. Pub. Serv.

Comm’n, 379 P.3d 1270, 1275 (¶ 32) (Utah 2016).

¶32.   “Nothing is more clear than that it is beyond the scope of legislative authority, to put

a construction upon its laws which can be obligatory upon the courts. The province of the

legislature is to enact laws, that of the court to expound or interpret them.” Planters’ Bank

v. Black, 19 Miss. 43, 50-51 (1848). If interpretation of its own statutes lies outside the

legislative bailiwick, then certainly an executive agency’s interpretation of its own regulation

runs afoul of article 1, section 2. “The ultimate authority and responsibility to interpret the

law, including statutes, rests with this Court.” Queen City Nursing Ctr., Inc. v. Miss. State



                                               17
Dep’t of Health, 80 So. 3d 73, 84 (¶ 28) (Miss. 2011); see also Miss. State and Sch. Emps.’

Life and Health Plan v. KCC, Inc., 108 So. 3d 932, 939 (¶ 20) (Miss. 2013). Courts have

the duty to determine what statutes provide. Lawson v. Honeywell Int’l, Inc., 75 So. 3d

1024, 1027 (¶ 7) (Miss. 2011). To paraphrase the King Court, executive-branch agencies

should follow their regulations and, in the absence of a judicial holding, must decide the

meaning of their regulations. However, when the interpretation of a regulation comes into

a third-branch courtroom, the ceding of judicial authority to the executive branch violates

article 1, section 2. King, 245 So. 3d at 408 (¶ 11).

¶33.   When it comes to pure questions of law, the Courts should not give deference to

agency interpretations of regulations or statutes.

II.    The Department of Medicaid violated Mississippi law by cutting Central
       Mississippi Medical Center’s reimbursement.

¶34.   With respect, the majority undersells the language of Mississippi Code Section 43-13-

117(J) (Rev. 2015). It provides, “there shall be no cuts in inpatient and outpatient hospital

payments, or allowable days or volumes, as long as the hospital assessment provided in

Section 43-13-145 is in effect.” Miss. Code Ann. § 43-13-117(J) (emphasis added). One

need not assume that the quoted language restricts reductions in Central Mississippi’s

payments—the language of the statute makes it crystal clear.

¶35.   The majority points out that the term “cut” is undefined by the statute but that “words

and phrases contained in a statute are to be given their common and ordinary meaning.”

Palermo v. LifeLink Found., Inc., 152 So. 3d 1099, 1105 (¶ 13) (Miss. 2014) (citing

Lawson, 75 So. 3d at 1027 (¶ 7)). The eighth of over eighty definitions of the word in


                                             18
Webster’s Unabridged Dictionary reads, “to lower, reduce, diminish, or curtail.” Cut,

Webster’s Unabridged Dictionary (2d ed. 2001). However, one need not consult a dictionary

to realize that, in demanding the disputed refund years later, the Department cut Central

Mississippi’s Fiscal Year 2001 inpatient payments.

¶36.   The Division of Medicaid and the majority seek to work around the obvious violation

of Section 43-13-117(J) by creating a conflict between it and other statutes, primarily

Mississippi Code Section 43-13-117(D) (Rev. 2015). The supposed conflict, they argue,

results in the conclusion that the word “cut” in Section 43-13-117(J) means something else.

Maj. Op. ¶ 14. However, the grant of authority found in the then-existing subsection D to

changing payments and payment methodologies applied only to the restriction against doing

so found in subsection D itself. Moreover, there is no contradiction between the prohibition

against cuts and the requirement that the Division of Medicaid make final reimbursement

calculations. Certainly the Division may do so, but it must do so without making cuts. The

majority does not harmonize the various statutes; it instead uses Section 43-13-117(D) and

Section 43-13-121(1)(j) to erase subsection J’s prohibition against cuts. What the majority

in reality holds is that the Division’s duty to set final reimbursement calculations trumps the

prohibition—a conclusion that enforces one statutory provision at the cost of erasing another

harmonizes nothing.

¶37.   For its part, the Division of Medicaid also relies on its own interpretation of

subsection J, contending that the prohibition against cuts only restricts changes in

reimbursement methodologies. However, the plain language of the statute, which prohibits



                                              19
cuts to “inpatient and outpatient hospital payments, or allowable days or volumes,” quickly

puts the Division’s narrow interpretation to rest. Miss. Code Ann. § 43-13-117(J).

¶38.   For the foregoing reasons, I would reverse.

     GRIFFIS, J., JOINS THIS OPINION. KITCHENS AND KING, P.JJ., JOIN
THIS OPINION IN PART.

       GRIFFIS, JUSTICE, DISSENTING:

¶39.   This case requires the review of the interpretation of the Mississippi State Plan

Agreement (the Plan) by the Division of Medicaid (DOM). The majority upholds the

decision that the DOM was required to calculate the final Medicaid reimbursement rates of

Central Mississippi Medical Center (CMMC) based solely on the Medicare Notice of

Program Reimbursement (NPR). The majority also upholds the decision that the Plan does

not allow the DOM to adjust or correct incorrect or erroneous data in the Medicare NPR to

determine the appropriate Medicaid reimbursement rates.

¶40.   A simple, plain reading of the governing provisions of the Plan establishes that the

DOM’s and the chancellor’s interpretations are clearly erroneous, arbitrary, capricious, and

an abuse of discretion. I would reverse the chancellor’s ruling and remand this case for a

hearing to consider the proper adjustment and to determine the appropriate reimbursement

rates based on accurate data and information.

       I.     Introduction

¶41.   Although it is of no legal effect, it is interesting that we now consider the Medicaid

reimbursement rates from almost twenty years ago. The majority, begrudgingly, concedes

that this delay was not caused by CMMC. If it were, the statute of limitations would prevent


                                             20
such consideration. Yet, because this unexplained delay was caused by any entity that

performed functions on behalf of the DOM, we must now decide reimbursement rates from

so long ago.

       II.     Standard of Review

¶42.   The majority states part of the applicable standard of review. “This Court has

previously held [that] [m]atters of law will be reviewed de novo, with great deference

afforded an administrative agency’s construction of its own rules and regulations and the

statutes under which it operates.” Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.

2d 673, 678 (Miss. 2006) (quoting McDerment v. Miss. Real Estate Comm’n, 748 So. 2d

114, 118 (Miss. 1999)). This “deference” is based on the “realization that the everyday

experience of the administrative agency gives it familiarity with the particularities and

nuances of the problems committed to its care which no court can hope to replicate.” Gill

v. Miss. Dep’t of Wildlife Conservation, 574 So. 2d 586, 593 (Miss. 1990).

¶43.   But our review must also consider that if the DOM’s interpretation is contrary to the

unambiguous terms or best reading of a statute, no deference is due. Sierra Club, 943 So.

2d at 679. This Court has held that an agency’s interpretation will not be upheld if “it is so

plainly erroneous or so inconsistent with either the underlying regulation or statute as to be

arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”

Buelow v. Glidewell, 757 So. 2d 216, 219 (Miss. 2000) (internal quotation mark omitted)

(quoting Tower Loan of Miss., Inc. v. Miss. State Tax Comm’n, 662 So. 2d 1077, 1081

(Miss. 1995)). Such is the case here.



                                             21
       III.   Whether the DOM was required to calculate CMMC’s final Medicaid
              reimbursement rates based solely on the Medicare NPR.

¶44.   The majority’s decision is based on the erroneous legal conclusion that the DOM was

required to calculate CMMC’s final Medicaid reimbursement rates based solely on the

Medicare NPR. To support this conclusion, the DOM hearing officer, the chancellor and the

majority cite one provision in the Plan—Attachment 4.19-A, Section IV, subsection B. In

the years 2000 through 2001, subsection B stated,

       The Division of Medicaid has entered into agreements with Medicare
       intermediaries for participation in a common audit program of Titles XVIII
       and XIX. Under this agreement, the intermediaries for participation in a
       common audit program shall provide DOM the results of the field audits of
       those hospitals located in Mississippi. DOM will prepare desk reviews based
       on those field audits. DOM will adjust the prospective rate paid to in-state
       hospitals based on these desk reviews and field audits.

(Emphasis added.)

¶45.   This provision clearly contemplates that there will be a review of the Medicare NPR,

which is completely ignored by the majority. The intermediary was to perform an audit; this

certainly indicates that it would undertake a review of the numbers submitted in the report,

test the accuracy of the numbers and calculations, propose changes or adjustments in the

report, and allow CMMC to respond or to offer further information to substantiate any

numbers that were questioned before the final reimbursements were made. CMMC

submitted the Medicare NPR based on Medicare’s statutes, rules, and regulations. And the

purpose of the Medicare NPR was to determine CMMC’s Medicare reimbursement rates.

¶46.   The majority concludes that CMMC had the right to challenge the Medicare NPR but

did not. Thus, the majority concludes that because CMMC was obligated to challenge any

                                            22
error as part of the Medicare review, it may not later challenge the numbers as applied to

Medicaid reimbursement. The majority cites no authority for this conclusion. Further, as

discussed later, the Plan clearly provides for the appeal for the use of incorrect data or an

error in the rate calculation.

¶47.   The majority offers no explanation as to how CMMC’s reports to Medicare govern

Medicaid reimbursements. CMMC certainly had the right to appeal the Medicare

determination of its reimbursement rates. Such appeal would only affect CMMC’s Medicare

reimbursement rates. CMMC explained that the errors in the report were not material to and

did not affect the Medicare reimbursement rates, so there was no reason or basis on which

to appeal to Medicare. The majority cites no provision of federal law or Medicare

regulations that would authorize an appeal of the Medicare NPR for the sole purpose of

adjusting or correcting a later Medicaid review. Instead, the DOM and the majority blindly

accept, and incorrectly rely on, the legal conclusion that CMMC had an obligation to appeal

its Medicare NPR to Medicare in order to correctly determine Medicaid reimbursement rates.

Such is not the case.

¶48.   Subsection B of the Plan clearly indicates that the Medicare intermediary will provide

results of their audits to the DOM. The DOM then reviews the audits and adjusts the

prospective rate. Such language clearly indicates that Medicaid will consider the correction

or adjustment of rates to correct any erroneous data.




                                             23
¶49.   Interestingly, and not discussed by the majority, subsection B was amended before the

reimbursement rates were calculated here. In 2010, when this review occurred, Attachment

4.19-A, Section IV, subsection B, had been changed to read,

       The Division of Medicaid has entered into agreements with Medicare
       intermediaries for participation in a common audit program of Titles XVIII
       and XIX. Under this agreement, the intermediaries for participation in a
       common audit program shall provide DOM the results of the field audits of
       those hospitals located in Mississippi. For years prior to the rate year
       beginning October 1, 2005, DOM will review these field audits and will adjust
       the prospective rate paid to in-state hospitals as appropriate. Only the original
       final settlement will be reviewed and adjustments made therefrom.

(Emphasis added.)

¶50.   Thus, when Medicaid reviewed CMMC’s Medicaid NPR audit from the intermediary

in 2010, the Plan stated that the “DOM will review these field audits and will adjust the

prospective rate paid to in-state hospitals as appropriate.” (Emphasis added.) This provision

contradicts the majority’s conclusion that the “[t]he Plan does not provide the DOM with the

right to amend or modify the NPR, and federal regulations require Medicare, not the DOM,

to generate it.” Maj. Op. ¶15.

¶51.   Subdivision B, as amended at the time of the DOM’s review of CMMC’s

reimbursement rates applicable here, expressly stated that the DOM had the discretion and

authority to accept, reject, or modify adjustments made in common audits “as appropriate.”

The majority’s conclusion is simply not supported by subsection B as it existed at the time

of the review.

       IV.       Whether the Plan allows the DOM to adjust or correct incorrect or
                 erroneous data in the Medicare NPR to determine the appropriate
                 Medicaid reimbursement rates.

                                              24
¶52.   The majority also concludes that the Plan does not allow the DOM to adjust or correct

incorrect or erroneous data in the Medicare NPR to determine the appropriate Medicaid

reimbursement rates. But the majority cites no authority for this proposition and does not

address other relevant provisions in the Plan; yet, somehow, without consideration of the

remaining relevant provisions of the Plan, the majority concludes that “the DOM’s

interpretation of the Plan is sound.” Maj. Op. ¶ 13. I respectfully disagree and am concerned

by the majority’s disregard and omission of any discussion of these other relevant provisions

in the Plan.

               A.    Attachment 4.19-A, Section IV, Subsection G

¶53.   The Plan, in Attachment 4.19-A, Section IV, subsection G, entitled “Request for Rate

Change-For Rate Years Prior to October 1, 2005,” reads,

       A hospital may at times offer to the public new or expanded services, purchase
       equipment, drop such services, or retire equipment which requires Certificate
       of Need (CON) approval. Within thirty (30) days of implementing a CON
       approved change, the hospital must submit to the Division an allocation of the
       approved amount to the Medicaid Program. This amount must be separated
       as applicable between capital costs, educational costs and operating costs. An
       estimate of any increase or decrease in operating costs applicable to the
       Medicaid Program due to the change, as well as the effective date of the
       change will also be submitted. Such amounts will be subject to desk review and
       audit by the Division. Allowance for such changes shall be made to the
       hospital’s Medicaid Prospective rate as provided elsewhere in this plan.
       Failure to submit such required information within thirty (30) days will be a
       basis for disallowance of all expenses associated with the change.
       Overpayments as a result of the difference between estimates and actual costs
       shall be refunded to the Division of Medicaid.

(Emphasis added.)




                                             25
¶54.   At the hearing, CMMC offered evidence that the DOM had expressly agreed that, “in

accordance with” this provision, the DOM required CMMC “to provide DOM with an

Amended [Medicaid] Cost Report.” The DOM further acknowledged that the “DOM

accepted the Amended [Medicaid] Cost Report with this approach [exclusion of North

Campus costs and patient days] for the estimate required by Section G.” Despite this

provision and this admission, the DOM now claims that it is bound by the Medicare NPR,

which was a review of CMMC’s Medicare—not Medicaid—cost report.                This was

contradicted by the DOM’s concession that CMMC’s prospective rate was in fact set based

upon the amended Medicaid cost report as required by Section IV, subsection G, of

Attachment 4.19-A.

¶55.   In addition, subsection G does not require CMMC to appeal the Medicare NPR as a

prerequisite to appeal an erroneous rate calculation by the DOM. Instead, subsection G

establishes that the DOM is responsible for preparing the “estimate of any increase or

decrease in operating costs applicable to the Medicaid Program due to the change,” with

“[s]uch amounts . . . subject to desk review and audit by the Division.” This provision

establishes that the DOM, not Medicare, is responsible for correctly setting CMMC’s

Medicaid reimbursement rate. Subsection G does not transfer this authority to the federal

Medicare agency, CMS, or its intermediary.

             B.      Attachment 4.19-A, Section IV

¶56.   The DOM refers to the administrative hearing officer’s report and recommendation,

which was adopted in toto in the DOM’s Lump Sum Settlement, to argue that subsection E



                                           26
of Section IV “only appl[ies] when DOM discovers errors on the part of DOM or a provider

concerning DOM’s documents.” This conclusion is clearly erroneous.

¶57.   The language relied upon by the hearing officer and the DOM is not in subsection E

of Attachment 4.19-A, Section IV, which provides,

       Overpayments as a result of an error or misrepresentation will be reimbursable
       to Medicaid within sixty days of the date of the notification to the Provider of
       the amount due. Underpayments, likewise determined, will be reimbursable to
       the Provider.

¶58.   In fact, the location of subsection E on page 4 of Attachment 4.19-A-immediately

following subsections B (Common Audit Program), C (Other Hospital Audits) and D

(Retention), clearly indicates that subsection E (Overpayments/Underpayments) applies to

both the common audit program and other hospital audits. As a result, subsection E’s

requirement for the DOM to reimburse providers for underpayments applies to both field

audits under subsection B and other hospital audits under subsection C. Nothing in

subsection E limits the DOM’s ability to correct errors that result in underpayments to

hospitals. Instead, it logically provides that “underpayments, likewise determined, will be

reimbursable to the Provider.”

¶59.   Also, both the DOM and the hearing officer took the position that subsection E “only

appl[ies] when DOM discovers errors on the part of DOM or a provider concerning DOM’s

documents.” Subsection E does not support the conclusion that CMMC may not appeal the

errors in issue here. This is because the DOM’s retro-rate calculation at issue is one of the

“DOM’s documents,” and the errors appealed were errors “on the part of DOM.” The

specific “DOM document” at issue is entitled “Central MS Medical Center Computation of

                                             27
FY 2001 Rate” and was attached to the lump sum settlement. The “DOM error” at issue is

the use of incorrect data in the retro-rate calculation. Thus, the errors appealed by CMMC

were “on the part of DOM . . . concerning DOM’s documents.”

¶60.   Finally, the DOM argues that “nothing in this provision authorizes DOM to audit or

correct the NPR, which is prohibited by Section IV-B.” This is simply wrong; there is no

such prohibition. CMMC did not ask the DOM to change the Medicare NPR. The Medicare

NPR, which is used to set Medicare rates, will remain unchanged. But, the data used in the

Medicaid rate calculation will be corrected. There is no need to amend or change the

Medicare NPR for the DOM to use correct data. The DOM only needs to insert the correct

data into the Medicaid rate calculation. This correct data was provided to the DOM in 2001

in the Amended Medicaid Cost Report and again through undisputed testimony and

documentary evidence at the administrative hearing.

              C.     Attachment 4.19-A, Section VI, Subsection K.1

¶61.   The DOM also relies on Section IV, subsection K.1, which reads,

       The prospectively determined individual hospital’s rate may be adjusted under
       certain circumstances, which are:

       1.     Discovery of administrative errors on the part of [the DOM] or the
              facilities which may result in erroneous payments, as determined by
              [the DOM] . . . .

¶62.   CMMC discovered mistakes made that resulted in erroneous payments. The phrase

“as determined by [the DOM]” authorizes the DOM to correct these mistakes. This provision

makes no sense if the DOM is bound by mistakes in the Medicare NPR.




                                            28
¶63.   Section IV, subsection K, does not extinguish a hospital’s right to appeal errors made

in those adjustments or errors in the calculation of the revised rate. It does not create an

exception to the DOM’s authority to correct mistakes merely because the incorrect data

comes from the Medicare NPR. As discussed below, under Section VI of Attachment

4.19-A, if the hospital disagrees with that adjustment or with the calculation, it may file an

appeal with the DOM. This is exactly what CMMC did and is clearly authorized by the Plan.

              D.     Attachment 4.19-A, Section VI

¶64.   The DOM’s refusal to correct undisputed errors in its rate recalculation must also be

viewed under Section VI of Attachment 4.19-A, which provides,

       Inpatient hospital providers who disagree with an adjustment to their allowable
       cost or a calculation in the rate setting information may file an appeal with [the
       DOM]. The following reasons would be grounds to file an appeal with the [the
       DOM, including]. . . [i]ncorrect data were used or an error made in the rate
       calculation.

(Emphasis added.)

¶65.   Section VI of the Plan expressly authorized CMMC to appeal adjustments in its

allowable costs or the calculation of its inpatient rate when “incorrect data [was] used or an

error made in the rate calculation.” This broad right of appeal contradicts the majority’s

conclusion that the DOM cannot correct errors used in its own rate calculations. If such is

the case, the majority has erased from the Plan a hospital’s right of appeal. Such cannot be

the case.

¶66.   For these reasons, I respectfully dissent. I am of the opinion that the decision of the

DOM and the chancellor was clearly erroneous, arbitrary, and capricious. Further, the



                                              29
decision of the DOM and the chancellor violated the clear language of the Plan. I would

reverse the chancellor’s judgment and remand this case with instructions for the chancellor

to consider how the incorrect data affected CMMC’s Medicaid reimbursement and to

calculate the reimbursement rate using the correct data.

       COLEMAN, J., JOINS THIS OPINION.




                                            30
