MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Public Health and Welfare; Appropriations
By: Senator(s) Burton
AN ACT TO AMEND SECTIONS 43-11-1 AND 43-13-117.1, MISSISSIPPI CODE OF 1972, TO DEFINE THE TERM "ADULT DAY SERVICES FACILITY" FOR PURPOSES OF INSTITUTIONAL LICENSURE BY THE STATE DEPARTMENT OF HEALTH; TO AMEND SECTION 43-11-13, MISSISSIPPI CODE OF 1972, TO DIRECT THE STATE BOARD OF HEALTH TO PROMULGATE RULES, REGULATIONS AND STANDARDS REGARDING THE OPERATION OF ADULT DAY SERVICES FACILITIES; TO AUTHORIZE THE STATE DEPARTMENT OF HEALTH TO IMPLEMENT THE RAP-BACK CRIMINAL HISTORY RECORDS SYSTEM FOR MONITORING EMPLOYEES AT LICENSED ADULT DAY SERVICES FACILITIES; TO CODIFY SECTION 43-11-9, MISSISSIPPI CODE OF 1972, TO PRESCRIBE FEES FOR ADULT DAY SERVICES FACILITY LICENSURE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-11-1, Mississippi Code of 1972, is amended as follows:
43-11-1. When used in this chapter, the following words shall have the following meaning:
(a) "Institutions
for the aged or infirm" means a place either governmental or private that
provides group living arrangements for four (4) or more persons who are
unrelated to the operator and who are being provided food, shelter and personal
care, whether any such place is organized or operated for profit or not. The
term "institution for the aged or infirm" includes nursing homes,
pediatric skilled nursing facilities, psychiatric residential treatment
facilities, convalescent homes, homes for the aged * * *, adult foster care and adult day
services facilities, provided that these institutions fall within the scope
of the definitions set forth above. The term "institution for the aged or
infirm" does not include hospitals, clinics or mental institutions devoted
primarily to providing medical service, and does not include any private
residence in which the owner of the residence is providing personal care
services to disabled or homeless veterans under an agreement with, and in
compliance with the standards prescribed by, the United States Department of
Veterans Affairs, if the owner of the residence also provided personal care
services to disabled or homeless veterans at any time during calendar year
2008.
(b) "Person" means any individual, firm, partnership, corporation, company, association or joint-stock association, or any licensee herein or the legal successor thereof.
(c) "Personal care" means assistance rendered by personnel of the home to aged or infirm residents in performing one or more of the activities of daily living, which includes, but is not limited to, the bathing, walking, excretory functions, feeding, personal grooming and dressing of such residents.
(d) "Psychiatric residential treatment facility" means any nonhospital establishment with permanent 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 paragraph, 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:
* * *(i) An inability to learn which
cannot be explained by intellectual, sensory or health factors;
* * *(ii) An inability to build or
maintain satisfactory relationships with peers and teachers;
* * *(iii) Inappropriate types of behavior
or feelings under normal circumstances;
* * *(iv) A general pervasive mood of
unhappiness or depression; or
* * *(v) 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.
(e) "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.
(f) "Licensing agency" means the State Department of Health.
(g) "Medical records" mean, without restriction, those medical histories, records, reports, summaries, diagnoses and prognoses, records of treatment and medication ordered and given, notes, entries, x-rays and other written or graphic data prepared, kept, made or maintained in institutions for the aged or infirm that pertain to residency in, or services rendered to residents of, an institution for the aged or infirm.
(h) "Adult foster care facility" means a home setting for vulnerable adults in the community who are unable to live independently due to physical, emotional, developmental or mental impairments, or in need of emergency and continuing protective social services for purposes of preventing further abuse or neglect and for safeguarding and enhancing the welfare of the abused or neglected vulnerable adult. Adult foster care programs shall be designed to meet the needs of vulnerable adults with impairments through individual plans of care, which provide a variety of health, social and related support services in a protective setting, enabling participants to live in the community. Adult foster care programs may be (i) traditional, where the foster care provider lives in the residence and is the primary caregiver to clients in the home; (ii) corporate, where the foster care home is operated by a corporation with shift staff delivering services to clients; or (iii) shelter, where the foster care home accepts clients on an emergency short-term basis for up to thirty (30) days.
(i) "Adult day services facility" means a public agency or private organization, or a subdivision of such an agency or organization, that:
(i) Provides the following items and services:
1. Nursing services;
2. Transportation of the individual to and from such adult day services facility in connection with any such item or service;
3. Meals;
4. A program of supervised activities (that meets such criteria as the licensing agency determines appropriate) designed to promote physical and mental health that are furnished to the individual by such a facility in a group setting for a period of not fewer than four (4) and not greater than twelve (12) hours per day;
5. The administration of medication by a registered nurse, and a medication management program to minimize unnecessary or inappropriate use of prescription drugs and adverse events due to unintended prescription drug-to-drug interactions; and
(ii) Meets such standards established by the licensing agency to assure quality of care and such other requirement as the licensing agency finds necessary in the interest of the health and safety of individuals who are furnished services in the facility.
SECTION 2. Section 43-13-117.1, Mississippi Code of 1972, is amended as follows:
43-13-117.1. (1) It
is the intent of the Legislature to expand access to Medicaid-funded home- and
community-based services for eligible nursing facility residents who choose
those services. The Executive Director of the Division of Medicaid is
authorized to transfer funds allocated for nursing facility services for
eligible residents to cover the cost of services available through the
Independent Living Waiver, the Traumatic Brain Injury/Spinal Cord Injury
Waiver, the Elderly and Disabled Waiver, and the Assisted Living Waiver
programs when eligible residents choose those community services. The amount
of funding transferred by the division shall be sufficient to cover the cost of
home- and community-based waiver services for each eligible nursing facility * * * resident who chooses
those services. The number of nursing facility residents who return to the
community and home- and community-based waiver services shall not count against
the total number of waiver slots for which the Legislature appropriates funding
each year. Any funds remaining in the program when a former nursing facility
resident ceases to participate in a home- and community-based waiver program
under this provision shall be returned to nursing facility funding.
(2) To operate an adult day services facility in Mississippi, the center provider must possess a current valid license issued pursuant to Section 43-4-13. Mississippi Medicaid waiver providers are required to have the applicable state licenses and must have a Medicaid contract with the Division of Medicaid.
SECTION 3. Section 43-11-13, Mississippi Code of 1972, is amended as follows:
43-11-13. (1) The licensing agency shall adopt, amend, promulgate and enforce such rules, regulations and standards, including classifications, with respect to all institutions for the aged or infirm to be licensed under this chapter as may be designed to further the accomplishment of the purpose of this chapter in promoting adequate care of individuals in those institutions in the interest of public health, safety and welfare. Those rules, regulations and standards shall be adopted and promulgated by the licensing agency and shall be recorded and indexed in a book to be maintained by the licensing agency in its main office in the State of Mississippi, entitled "Rules, Regulations and Minimum Standards for Institutions for the Aged or Infirm" and the book shall be open and available to all institutions for the aged or infirm and the public generally at all reasonable times. Upon the adoption of those rules, regulations and standards, the licensing agency shall mail copies thereof to all those institutions in the state that have filed with the agency their names and addresses for this purpose, but the failure to mail the same or the failure of the institutions to receive the same shall in no way affect the validity thereof. The rules, regulations and standards may be amended by the licensing agency, from time to time, as necessary to promote the health, safety and welfare of persons living in those institutions.
(2) The licensee shall keep posted in a conspicuous place on the licensed premises all current rules, regulations and minimum standards applicable to fire protection measures as adopted by the licensing agency. The licensee shall furnish to the licensing agency at least once each six (6) months a certificate of approval and inspection by state or local fire authorities. Failure to comply with state laws and/or municipal ordinances and current rules, regulations and minimum standards as adopted by the licensing agency, relative to fire prevention measures, shall be prima facie evidence for revocation of license.
(3) The State Board of Health shall promulgate rules and regulations restricting the storage, quantity and classes of drugs allowed in personal care homes and adult foster care facilities. Residents requiring administration of Schedule II Narcotics as defined in the Uniform Controlled Substances Law may be admitted to a personal care home. Schedule drugs may only be allowed in a personal care home if they are administered or stored utilizing proper procedures under the direct supervision of a licensed physician or nurse.
(4) (a) Notwithstanding any determination by the licensing agency that skilled nursing services would be appropriate for a resident of a personal care home, that resident, the resident's guardian or the legally recognized responsible party for the resident may consent in writing for the resident to continue to reside in the personal care home, if approved in writing by a licensed physician. However, no personal care home shall allow more than two (2) residents, or ten percent (10%) of the total number of residents in the facility, whichever is greater, to remain in the personal care home under the provisions of this subsection (4). This consent shall be deemed to be appropriately informed consent as described in the regulations promulgated by the licensing agency. After that written consent has been obtained, the resident shall have the right to continue to reside in the personal care home for as long as the resident meets the other conditions for residing in the personal care home. A copy of the written consent and the physician's approval shall be forwarded by the personal care home to the licensing agency.
(b) The State Board of Health shall promulgate rules and regulations restricting the handling of a resident's personal deposits by the director of a personal care home. Any funds given or provided for the purpose of supplying extra comforts, conveniences or services to any resident in any personal care home, and any funds otherwise received and held from, for or on behalf of any such resident, shall be deposited by the director or other proper officer of the personal care home to the credit of that resident in an account that shall be known as the Resident's Personal Deposit Fund. No more than one (1) month's charge for the care, support, maintenance and medical attention of the resident shall be applied from the account at any one time. After the death, discharge or transfer of any resident for whose benefit any such fund has been provided, any unexpended balance remaining in his personal deposit fund shall be applied for the payment of care, cost of support, maintenance and medical attention that is accrued. If any unexpended balance remains in that resident's personal deposit fund after complete reimbursement has been made for payment of care, support, maintenance and medical attention, and the director or other proper officer of the personal care home has been or shall be unable to locate the person or persons entitled to the unexpended balance, the director or other proper officer may, after the lapse of one (1) year from the date of that death, discharge or transfer, deposit the unexpended balance to the credit of the personal care home's operating fund.
(c) The State Board of Health shall promulgate rules and regulations requiring personal care homes to maintain records relating to health condition, medicine dispensed and administered, and any reaction to that medicine. The director of the personal care home shall be responsible for explaining the availability of those records to the family of the resident at any time upon reasonable request.
(d) This subsection (4) shall stand repealed on July 1, 2017.
(5) To operate an adult day services facility in Mississippi, the facility provider must be registered with the licensing division of the State Department of Health or possess a current valid license issued pursuant to this chapter. Adult day services facilities must provide the services as described in Section 43-11-1. Standards governing the quality of care and services rendered shall be developed with input from all stakeholders and shall be consistent with National Standards. Mississippi Medicaid waiver providers are required to have a state license and must have a contract with the Mississippi Division of Medicaid.
( * * *6) (a) For the purposes of this
subsection ( * * *6):
(i) "Licensed entity" means a hospital, nursing home, personal care home, home health agency, hospice, adult day services facility or adult foster care facility;
(ii) "Covered entity" means a licensed entity or a health care professional staffing agency;
(iii) "Employee" means any individual employed by a covered entity, and also includes any individual who by contract provides to the patients, residents or clients being served by the covered entity direct, hands-on, medical patient care in a patient's, resident's or client's room or in treatment or recovery rooms. The term "employee" does not include health care professional/vocational technical students performing clinical training in a licensed entity under contracts between their schools and the licensed entity, and does not include students at high schools located in Mississippi who observe the treatment and care of patients in a licensed entity as part of the requirements of an allied-health course taught in the high school, if:
1. The student is under the supervision of a licensed health care provider; and
2. The
student has signed an affidavit that is on file at the student's school stating
that he or she has not been convicted of or pleaded guilty or nolo contendere
to a felony listed in paragraph (d) of this subsection ( * * *6), or that any such conviction or plea
was reversed on appeal or a pardon was granted for the conviction or plea.
Before any student may sign such an affidavit, the student's school shall
provide information to the student explaining what a felony is and the nature
of the felonies listed in paragraph (d) of this subsection ( * * *6).
However, the health care
professional/vocational technical academic program in which the student is
enrolled may require the student to obtain criminal history record checks * * * under
the provisions of Section 37-20-232;
(iv) "Rap-Back" means the notification to the department when an individual who has undergone a fingerprint-based, state or federal criminal history information check has a subsequent state or federal criminal history event.
(b) Under regulations promulgated by the State Board of Health, the licensing agency shall require to be performed a criminal history record check on (i) every new employee of a covered entity who provides direct patient care or services and who is employed on or after July 1, 2003, and (ii) every employee of a covered entity employed before July 1, 2003, who has a documented disciplinary action by his or her present employer. The department is authorized to put into place methods that reduce duplicate fingerprinting, including the development of Rap-Back capabilities, as required by the Centers for Medicare and Medicaid Services. In addition, the licensing agency shall require the covered entity to perform a disciplinary check with the professional licensing agency of each employee, if any, to determine if any disciplinary action has been taken against the employee by that agency.
Except as otherwise provided
in paragraph (c) of this subsection ( * * *6), no such employee hired on or after
July 1, 2003, shall be permitted to provide direct patient care until the
results of the criminal history record check have revealed no disqualifying
record or the employee has been granted a waiver. In order to determine the
employee applicant's suitability for employment, the applicant shall be
fingerprinted. Fingerprints shall be submitted to the licensing agency from
scanning, with the results processed through the Department of Public Safety's
Criminal Information Center. The fingerprints shall then be forwarded by the
Department of Public Safety to the Federal Bureau of Investigation for a
national criminal history record check. The licensing agency shall notify the
covered entity of the results of an employee applicant's criminal history
record check. If the criminal history record check discloses a felony
conviction, guilty plea or plea of nolo contendere to a felony of possession or
sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sex
offense listed in Section 45-33-23(h), child abuse, arson, grand larceny,
burglary, gratification of lust or aggravated assault, or felonious abuse
and/or battery of a vulnerable adult that has not been reversed on appeal or
for which a pardon has not been granted, the employee applicant shall not be
eligible to be employed by the covered entity.
(c) Any such new
employee applicant may, however, be employed on a temporary basis pending the
results of the criminal history record check, but any employment contract with
the new employee shall be voidable if the new employee receives a disqualifying
criminal history record check and no waiver is granted as provided in this
subsection ( * * *6).
(d) Under regulations promulgated by the State Board of Health, the licensing agency shall require every employee of a covered entity employed before July 1, 2003, to sign an affidavit stating that he or she has not been convicted of or pleaded guilty or nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, any sex offense listed in Section 45-33-23(h), child abuse, arson, grand larceny, burglary, gratification of lust, aggravated assault, or felonious abuse and/or battery of a vulnerable adult, or that any such conviction or plea was reversed on appeal or a pardon was granted for the conviction or plea. No such employee of a covered entity hired before July 1, 2003, shall be permitted to provide direct patient care until the employee has signed the affidavit required by this paragraph (d). All such existing employees of covered entities must sign the affidavit required by this paragraph (d) within six (6) months of the final adoption of the regulations promulgated by the State Board of Health. If a person signs the affidavit required by this paragraph (d), and it is later determined that the person actually had been convicted of or pleaded guilty or nolo contendere to any of the offenses listed in this paragraph (d) and the conviction or plea has not been reversed on appeal or a pardon has not been granted for the conviction or plea, the person is guilty of perjury. If the offense that the person was convicted of or pleaded guilty or nolo contendere to was a violent offense, the person, upon a conviction of perjury under this paragraph, shall be punished as provided in Section 97-9-61. If the offense that the person was convicted of or pleaded guilty or nolo contendere to was a nonviolent offense, the person, upon a conviction of perjury under this paragraph, shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.
(e) The covered entity
may, in its discretion, allow any employee who is unable to sign the affidavit
required by paragraph (d) of this subsection ( * * *6) or any employee applicant aggrieved
by an employment decision under this subsection ( * * *6) to appear before the covered
entity's hiring officer, or his or her designee, to show mitigating
circumstances that may exist and allow the employee or employee applicant to be
employed by the covered entity. The covered entity, upon report and
recommendation of the hiring officer, may grant waivers for those mitigating
circumstances, which shall include, but not be limited to: (i) age at which
the crime was committed; (ii) circumstances surrounding the crime; (iii) length
of time since the conviction and criminal history since the conviction; (iv)
work history; (v) current employment and character references; and (vi) other
evidence demonstrating the ability of the individual to perform the employment
responsibilities competently and that the individual does not pose a threat to
the health or safety of the patients of the covered entity.
(f) The licensing
agency may charge the covered entity submitting the fingerprints a fee * * * as
established by the State Board of Health, which covered entity may, in its
discretion, charge the same fee, or a portion thereof, to the employee
applicant. Any increase in the fee charged by the licensing agency under this
paragraph shall be in accordance with the provisions of Section 41-3-65. Any
costs incurred by a covered entity implementing this subsection ( * * *6) shall be reimbursed as an allowable
cost under Section 43-13-116.
(g) If the results of
an employee applicant's criminal history record check reveals no disqualifying
event, then the covered entity shall, within two (2) weeks of the notification
of no disqualifying event, provide the employee applicant with a notarized
letter signed by the chief executive officer of the covered entity, or his or
her authorized designee, confirming the employee applicant's suitability for
employment based on his or her criminal history record check. An employee
applicant may use that letter for a period of two (2) years from the date of
the letter to seek employment with any covered entity without the necessity of
an additional criminal history record check. Any covered entity presented with
the letter may rely on the letter with respect to an employee applicant's
criminal background and is not required for a period of two (2) years from the
date of the letter to conduct or have conducted a criminal history record check
as required in this subsection ( * * *6).
(h) The licensing
agency, the covered entity, and their agents, officers, employees, attorneys
and representatives, shall be presumed to be acting in good faith for any
employment decision or action taken under this subsection ( * * *6). The presumption of good faith may
be overcome by a preponderance of the evidence in any civil action. No
licensing agency, covered entity, nor their agents, officers, employees,
attorneys and representatives shall be held liable in any employment decision
or action based in whole or in part on compliance with or attempts to comply
with the requirements of this subsection ( * * *6).
(i) The licensing
agency shall promulgate regulations to implement this subsection ( * * *6).
(j) The provisions of
this subsection ( * * *6)
shall not apply to:
(i) Applicants and employees of the University of Mississippi Medical Center for whom criminal history record checks and fingerprinting are obtained in accordance with Section 37-115-41; or
(ii) Health care professional/vocational technical students for whom criminal history record checks and fingerprinting are obtained in accordance with Section 37-29-232.
(k) The Mississippi Justice Information Center is authorized to implement the Rap-Back criminal history records system and the State Department of Health is authorized to implement and to utilize the state/federal Rap-Back criminal history system as a method of ongoing monitoring of individuals providing such are to Mississippi's vulnerable population in "covered" entities (nursing homes, hospitals, hospices, home health agencies, adult day services facilities, and personal care homes), and to apply for and provide matching funds in order for Mississippi to receive federal grants to make necessary upgrades to the department's data system to accommodate Rap-Back capabilities.
( * * *7) The State Board of Health shall
promulgate rules, regulations and standards regarding the operation of adult
foster care facilities and adult day services facilities.
SECTION 4. The following provision shall be codified as Section 43-11-9, Mississippi Code of 1972:
43-11-9. (1) An application for a license for an adult day services facility shall be made to the licensing agency upon forms provided by it and shall contain such information as the licensing agency reasonably requires, which may include affirmative evidence of ability to comply with such reasonable standards, rules and regulations as are lawfully prescribed hereunder. Each application for a license for an adult day services facility shall be accompanied by a license fee of Four Hundred Dollars ($400.00) plus Twenty Dollars ($20.00) for each person of licensed capacity, with a maximum fee per institution of Five Hundred Dollars ($500.00), which shall be paid to the licensing agency. The licensing agency, at its discretion, may waive the licensure fee for adult day services facilities serving fewer than seven (7) clients.
(2) A license, unless suspended or revoked, shall be renewable annually upon payment by the licensee of an adult day services facility, except for personal care homes, of a renewal fee of Four Hundred Dollars ($400.00) plus Twenty Dollars ($20.00) for each person of licensed capacity, with a maximum fee per institution of Five Hundred Dollars ($500.00), which shall be paid to the licensing agency, and upon filing by the licensee and approval by the licensing agency of an annual report upon such uniform dates and containing such information in such form as the licensing agency prescribes by regulation. The licensing agency, at its discretion, may waive the renewal fee for adult day services facilities serving fewer than seven (7) clients. Each license shall be issued only for the premises and person or persons or other legal entity or entities named in the application and shall not be transferable or assignable except with the written approval of the licensing agency. Licenses shall be posted in a conspicuous place on the licensed premises.
(3) A fee known as a "user fee" shall be applicable and shall be paid to the licensing agency as set out in subsection (1) hereof. This user fee shall be assessed for the purpose of the required reviewing and inspections of the proposal of any institution in which there are additions, renovations, modernizations, expansion, alterations, conversions, modifications or replacement of the entire facility involved in such proposal. This fee includes the reviewing of architectural plans in all steps required. There shall be a minimum user fee of Two Hundred Dollars ($200.00). The licensing agency, at its discretion, may waive the user fee for adult day services facilities serving fewer than seven (7) clients.
SECTION 5. This act shall take effect and be in force from and after July 1, 2017.