Senate Bill 2191

AN ACT TO AMEND SECTION 43-11-13, MISSISSIPPI CODE OF 1972, TO DEFINE THOSE LICENSED HEALTH CARE FACILITIES AND EMPLOYEES SUBJECT TO THE CRIMINAL RECORD BACKGROUND CHECK REQUIREMENTS, TO PROVIDE A TIMETABLE FOR COMPLETING SUCH CRIMINAL RECORD BACKGROUND CHECKS, TO PRESCRIBE THOSE FELONIES WHICH DISQUALIFY INDIVIDUALS FOR EMPLOYMENT AT SUCH LICENSED FACILITIES, TO DELETE THE AUTHORITY FOR CHARGING A FEE FOR CONDUCTING THE CRIMINAL RECORD BACKGROUND CHECK, TO PROVIDE THAT PROVIDER COSTS SHALL BE FULLY REIMBURSABLE UNDER THE MEDICAID PROGRAM AND TO PROVIDE CIVIL IMMUNITY FOR CONDUCTING SUCH BACKGROUND CHECKS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. 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 such institutions in the interest of public health, safety and welfare. Such 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 such rules, regulations and standards, the licensing agency shall mail copies thereof to all such institutions in the state which 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. 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. Provided, however, that 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 patient 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 patient in an account which shall be known as the Resident's Personal Deposit Fund. No more than one (1) month charge for the care, support, maintenance and medical attention of the patient shall be applied from such account at any one (1) 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 which is accrued. In the event 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 such unexpended balance, the director or other proper officer may, after the lapse of one (1) year from the date of such 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 such medicine. The director of the personal care home shall be responsible for explaining the availability of such records to the family of the resident at any time upon reasonable request.

(d) The State Board of Health shall evaluate the effects of this section as it promotes adequate care of individuals in personal care homes in the interest of public health, safety and welfare. It shall report its findings to the Chairmen of the Public Health and Welfare Committees of the House and Senate by January 1, 2003. This subsection (4) shall stand repealed June 30, 2003.

(5) (a) For the purposes of this section, the term "licensed entity" shall include hospitals, nursing homes, personal care homes, home health agencies and hospices. For the purposes of this section, the term "employee" shall mean any person employed by the licensed entity either directly, or if on a contractual basis, those individuals which provide direct patient care to such individuals being served by the licensed entity.

(b) Pursuant to regulations promulgated by the State Department of Health, the licensing agency shall require to be performed a criminal history record check on every * * * employee of a licensed entity * * *. Except as otherwise provided, no such new employee hired after July 1, 2002, shall be permitted to provide direct patient care * * * until the results of the criminal history record check have revealed no disqualifying record. All existing employees of licensed entities shall have a criminal history record check completed on or before December 31, 2002. If such 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 45-31-3(i), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault, or felonious abuse and/or battery of a vulnerable adult which has not been reversed on appeal or for which a pardon has not been granted, the employee shall not be eligible to be employed at such licensed entity.

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(c) All fees incurred in compliance with this section shall be borne by the licensed entity requesting the criminal history record check. * * * Costs incurred by a licensed entity implementing this section shall be fully reimbursed as a pass-through cost under the state Medicaid program for participating providers.

(d) The licensing agency, the licensed 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 paragraphs (a) and (b) of this subsection. The presumption of good faith may be overcome by a preponderance of the evidence in any civil action. No licensing agency, licensed entity, nor their agents, officers, employees, attorneys and representatives shall be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this section.

(e) The licensing agency shall promulgate regulations to implement this subsection (5).

SECTION 2. This act shall take effect and be in force from and after its passage.