MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary A
By: Representatives Currie, Cockerham
AN ACT TO BE KNOWN AS THE "NURSE PROTECTION ACT OF 2018"; TO AMEND SECTIONS 73-15-17, 73-15-19, 73-15-29 AND 73-15-31, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE MISSISSIPPI BOARD OF NURSING WILL APPOINT THREE IMPARTIAL HEARING OFFICERS TO CONDUCT DISCIPLINARY HEARINGS IN LIEU OF THE BOARD; TO AUTHORIZE NURSING LICENSEES TO HAVE THEIR DISCIPLINARY MATTERS HEARD BY A HEARING OFFICER RATHER THAN THE BOARD; TO PROVIDE THAT LICENSEES MAY ACCEPT RESPONSIBILITY FOR THE ALLEGATIONS WHILE RETAINING THE RIGHT TO A HEARING AND APPEAL; TO INCREASE THE STANDARD OF PROOF TO CLEAR AND CONVINCING EVIDENCE IN ORDER TO FIND A LICENSEE GUILTY OF AN OFFENSE; TO DELETE THE REQUIREMENT FOR FILING A BOND WHEN APPEALING A DISCIPLINARY ACTION OF THE BOARD; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Nurse Protection Act of 2018."
SECTION 2. Section 73-15-17, Mississippi Code of 1972, is amended as follows:
73-15-17. The Mississippi Board of Nursing is authorized and empowered to:
(a) Adopt and from time to time revise such rules and regulations consistent with the law as shall be necessary to govern its proceedings and carry into effect the provisions of this article; however, the board shall not adopt any rule or regulation or impose any requirement regarding the licensing or certification of advanced practice registered nurses that conflicts with the prohibitions in Section 73-49-3.
(b) Require the secretary to keep records of all meetings of the board and keep a record of all proceedings, and to prepare a register of registered nurses and a register of licensed practical nurses, all nurses appearing thereon to be duly licensed under this article, and which registers shall be open for public inspection at all reasonable times.
(c) Issue subpoenas, require attendance of witnesses, and administer oaths of persons giving testimony.
(d) Cause the prosecution of all persons violating the provisions of this article, and incur such necessary expenses therefor.
(e) Conduct hearings, and appoint hearing officers to conduct hearings, upon charges calling for discipline of a licensee or revocation of a license or of the privilege to practice.
(f) Present a true and full report to the Governor and the Legislature, together with a statement of receipts and disbursements on or before February 1 of each year.
(g) Maintain an office in the greater Jackson area for the administration of this article.
(h) File an annual list of all certificates of registration issued by the board with the Secretary of State's office for both registered nurses and licensed practical nurses.
(i) File an annual list of all certificates of registration issued by the board to registered nurses, including addresses of the persons with the Mississippi Nurses' Association; and file a similar list of all certificates of registration issued to licensed practical nurses, including addresses of the persons, with the Mississippi Federation of Licensed Practical Nurses and the Mississippi Licensed Practical Nurses Association.
(j) Adopt a seal which shall be in the form of a circle with the image of an eagle in the center, and around the margin the words "Mississippi Board of Nursing," and under the image of the eagle the word "Official." The seal shall be affixed to certificates and warrants issued by the board, and to all records sent up on appeal from its decisions.
(k) Schedule dates and locations for state board examinations for examining qualified applicants for licensure.
(l) Examine, license and renew licenses of duly qualified applicants.
(m) Appoint and employ a qualified person who shall not be a member of the board to serve as executive director, define the duties, fix the compensation, and delegate to him or her those activities that will expedite the functions of the board. The executive director shall meet all the qualifications for board members, and shall in addition:
(i) Have had at least a master's degree in nursing, eight (8) years' experience as a registered nurse, five (5) of which shall be in teaching or in administration, or a combination thereof; and
(ii) Have been actively engaged in nursing for at least five (5) years immediately preceding appointment.
(n) Employ, discharge, define duties, and fix compensation of such other persons as may be necessary to carry out the provisions of this article.
(o) Secure the services of research consultants as deemed necessary who shall receive a per diem, travel and other necessary expenses incurred while engaged by the board.
(p) Enter into contracts with any other state or federal agency or with any private person, organization or group capable of contracting, if it finds such action to be in the public interest and in the furtherance of its responsibilities.
(q) Upon reasonable suspicion that a holder of a license issued under this article has violated any statutory ground for denial of licensure as set forth in Section 73-15-29 or is guilty of any offense specified in Section 73-15-33, require the license holder to undergo a fingerprint-based criminal history records check of the Mississippi central criminal database and the Federal Bureau of Investigation criminal history database, in the same manner as required for applicants for licensure under Sections 73-15-19(1) and 73-15-21(1).
(r) Perform the duties prescribed by the Nurse Licensure Compact in Section 73-15-201.
SECTION 3. Section 73-15-19, Mississippi Code of 1972, is amended as follows:
73-15-19. (1) Registered nurse applicant qualifications. Any applicant for a license to practice as a registered nurse shall submit to the board:
(a) An attested written application on a Board of Nursing form;
(b) Written official evidence of completion of a nursing program approved by the Board of Trustees of State Institutions of Higher Learning, or one approved by a legal accrediting agency of another state, territory or possession of the United States, the District of Columbia, or a foreign country which is satisfactory to this board;
(c) Evidence of competence in English related to nursing, provided the first language is not English;
(d) Any other official records required by the board.
In addition to the requirements specified in paragraphs (a) through (d) of this subsection, in order to qualify for a license to practice as a registered nurse, an applicant must have successfully been cleared for licensure through an investigation that shall consist of a determination as to good moral character and verification that the prospective licensee is not guilty of or in violation of any statutory ground for denial of licensure as set forth in Section 73-15-29 or guilty of any offense specified in Section 73-15-33. To assist the board in conducting its licensure investigation, all applicants shall undergo a fingerprint-based criminal history records check of the Mississippi central criminal database and the Federal Bureau of Investigation criminal history database. Each applicant shall submit a full set of his or her fingerprints in a form and manner prescribed by the board, which shall be forwarded to the Mississippi Department of Public Safety (department) and the Federal Bureau of Investigation Identification Division for this purpose.
Any and all state or national criminal history records information obtained by the board that is not already a matter of public record shall be deemed nonpublic and confidential information restricted to the exclusive use of the board, its members, officers, investigators, agents and attorneys in evaluating the applicant's eligibility or disqualification for licensure, and shall be exempt from the Mississippi Public Records Act of 1983. Except when introduced into evidence in a hearing before the board or its hearing officers to determine licensure, no such information or records related thereto shall, except with the written consent of the applicant or by order of a court of competent jurisdiction, be released or otherwise disclosed by the board to any other person or agency.
The board shall provide to the department the fingerprints of the applicant, any additional information that may be required by the department, and a form signed by the applicant consenting to the check of the criminal records and to the use of the fingerprints and other identifying information required by the state or national repositories.
The board shall charge and collect from the applicant, in addition to all other applicable fees and costs, such amount as may be incurred by the board in requesting and obtaining state and national criminal history records information on the applicant.
The board may, in its discretion, refuse to accept the application of any person who has been convicted of a criminal offense under any provision of Title 97 of the Mississippi Code of 1972, as now or hereafter amended, or any provision of this article.
(2) Licensure by examination. (a) Upon the board being satisfied that an applicant for a license as a registered nurse has met the qualifications set forth in subsection (1) of this section, the board shall proceed to examine such applicant in such subjects as the board shall, in its discretion, determine. The subjects in which applicants shall be examined shall be in conformity with curricula in schools of nursing approved by the Board of Trustees of State Institutions of Higher Learning, or one approved by a legal accrediting agency of another state, territory or possession of the United States, the District of Columbia, or a foreign country which is satisfactory to the board.
(b) The applicant shall be required to pass the written examination as selected by the board.
(c) Upon successful completion of such examination, the board shall issue to the applicant a license to practice as a registered nurse.
(d) The board may use any part or all of the state board test pool examination for registered nurse licensure, its successor examination, or any other nationally standardized examination identified by the board in its rules. The passing score shall be established by the board in its rules.
(3) Licensure by endorsement. The board may issue a license to practice nursing as a registered nurse without examination to an applicant who has been duly licensed as a registered nurse under the laws of another state, territory or possession of the United States, the District of Columbia, or a foreign country if, in the opinion of the board, the applicant meets the qualifications required of licensed registered nurses in this state and has previously achieved the passing score or scores on the licensing examination required by this state, at the time of his or her graduation. The issuance of a license by endorsement to a military-trained applicant or military spouse shall be subject to the provisions of Section 73-50-1.
(4) Requirements for rewriting the examination. The board shall establish in its rules the requirements for rewriting the examination for those persons failing the examination on the first writing or subsequent rewriting.
(5) Fee. The applicant applying for a license by examination or by endorsement to practice as a registered nurse shall pay a fee not to exceed One Hundred Dollars ($100.00) to the board.
(6) Temporary permit. (a) The board may issue a temporary permit to practice nursing to a graduate of an approved school of nursing pending the results of the examination in Mississippi, and to a qualified applicant from another state, territory or possession of the United States, or District of Columbia, or pending licensure procedures as provided for elsewhere in this article. The fee shall not exceed Twenty-five Dollars ($25.00).
(b) The board may issue a temporary permit for a period of ninety (90) days to a registered nurse who is currently licensed in another state, territory or possession of the United States or the District of Columbia and who is an applicant for licensure by endorsement. Such permit is not renewable except by board action. The issuance of a temporary permit to a military-trained applicant or military spouse shall be subject to the provisions of Section 73-50-1.
(c) The board may issue a temporary permit to a graduate of an approved school of nursing pending the results of the first licensing examination scheduled after application. Such permit is not renewable except by board action.
(d) The board may issue a temporary permit for a period of thirty (30) days to any registered nurse during the time enrolled in a nursing reorientation program. This time period may be extended by board action. The fee shall not exceed Twenty-five Dollars ($25.00).
(e) The board may adopt such regulations as are necessary to limit the practice of persons to whom temporary permits are issued.
(7) Temporary license. The board may issue a temporary license to practice nursing at a youth camp licensed by the State Board of Health to nonresident registered nurses and retired resident registered nurses under the provisions of Section 75-74-8.
(8) Title and abbreviation. Any person who holds a license or holds the privilege to practice as a registered nurse in this state shall have the right to use the title "registered nurse" and the abbreviation "R.N." No other person shall assume such title or use such abbreviation, or any words, letters, signs or devices to indicate that the person using the same is a registered nurse.
(9) Registered nurses licensed under a previous law. Any person holding a license to practice nursing as a registered nurse issued by this board which is valid on July 1, 1981, shall thereafter be deemed to be licensed as a registered nurse under the provisions of this article upon payment of the fee provided in Section 73-15-27.
(10) Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64.
SECTION 4. Section 73-15-29, Mississippi Code of 1972, is amended as follows:
73-15-29. (1) The board and, subject to the limitations in this chapter, its hearing officers, shall have power to revoke, suspend or refuse to renew any license issued by the board, or to revoke or suspend any privilege to practice, or to deny an application for a license, or to fine, place on probation and/or discipline a licensee, in any manner specified in this article, upon proof that such person:
(a) Has committed fraud or deceit in securing or attempting to secure such license;
(b) Has been convicted of a felony, or a crime involving moral turpitude or has had accepted by a court a plea of nolo contendere to a felony or a crime involving moral turpitude (a certified copy of the judgment of the court of competent jurisdiction of such conviction or pleas shall be prima facie evidence of such conviction);
(c) Has negligently or willfully acted in a manner inconsistent with the health or safety of the persons under the licensee's care;
(d) Has had a license or privilege to practice as a registered nurse or a licensed practical nurse suspended or revoked in any jurisdiction, has voluntarily surrendered such license or privilege to practice in any jurisdiction, has been placed on probation as a registered nurse or licensed practical nurse in any jurisdiction or has been placed under a disciplinary order(s) in any manner as a registered nurse or licensed practical nurse in any jurisdiction, (a certified copy of the order of suspension, revocation, probation or disciplinary action shall be prima facie evidence of such action);
(e) Has negligently or willfully practiced nursing in a manner that fails to meet generally accepted standards of such nursing practice;
(f) Has negligently or willfully violated any order, rule or regulation of the board pertaining to nursing practice or licensure;
(g) Has falsified or in a repeatedly negligent manner made incorrect entries or failed to make essential entries on records;
(h) Is addicted to or dependent on alcohol or other habit-forming drugs or is a habitual user of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs having similar effect, or has misappropriated any medication;
(i) Has a physical, mental or emotional condition that renders the licensee unable to perform nursing services or duties with reasonable skill and safety;
(j) Has engaged in any other conduct, whether of the same or of a different character from that specified in this article, that would constitute a crime as defined in Title 97 of the Mississippi Code of 1972, as now or hereafter amended, and that relates to such person's employment as a registered nurse or licensed practical nurse;
(k) Engages in conduct likely to deceive, defraud or harm the public;
(l) Engages in any unprofessional conduct as identified by the board in its rules;
(m) Has violated any provision of this article; or
(n) Violation(s) of the provisions of Sections 41-121-1 through 41-121-9 relating to deceptive advertisement by health care practitioners. This paragraph shall stand repealed on July 1, 2020.
(2) When the board * * * or its hearing officers find any
person unqualified because of any of the grounds set forth in subsection (1) of
this section, * * *
they may enter an order imposing one or more of the following penalties:
(a) Denying application for a license or other authorization to practice nursing or practical nursing;
(b) Administering a reprimand;
(c) Suspending or restricting the license or other authorization to practice as a registered nurse or licensed practical nurse for up to two (2) years without review;
(d) Revoking the license or other authorization to practice nursing or practical nursing;
(e) Requiring the disciplinee to submit to care, counseling or treatment by persons and/or agencies approved or designated by the board or its hearing officers as a condition for initial, continued or renewed licensure or other authorization to practice nursing or practical nursing;
(f) Requiring the disciplinee to participate in a program of education prescribed by the board or its hearing officers as a condition for initial, continued or renewed licensure or other authorization to practice;
(g) Requiring the disciplinee to practice under the supervision of a registered nurse for a specified period of time; or
(h) Imposing a fine not to exceed Five Hundred Dollars ($500.00).
(3) In addition to the grounds specified in subsection (1) of this section, the board and its hearing officers shall be authorized to suspend the license or privilege to practice of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license or privilege to practice for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license or privilege to practice suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license or privilege to practice suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this article, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
(4) If the public health, safety or welfare imperatively requires emergency action and the board incorporates a finding to that effect in an order, the board may order summary suspension of a license pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined by the board or, if elected by the licensee, one of its hearing officers.
SECTION 5. Section 73-15-31, Mississippi Code of 1972, is amended as follows:
73-15-31. (1) Charges may be brought upon sworn affidavit filed by the Board of Nursing against any licensee who has allegedly committed any act in violation of this article that is grounds for disciplinary action. Upon receiving the sworn affidavit charging a licensee with an act which is a ground for disciplinary action under this article, the executive director or designee of the board shall fix a time and place for a hearing and shall cause a copy of the specific allegations and charges to be sent by certified mail or served by personal service of process together with notice of the time and place fixed for the hearing, to be served upon the accused at least fifteen (15) days prior thereto. The accused may waive notice of the hearing in writing and the board may grant the accused at least one (1) extension of time, upon the request of the accused. When personal service of process or service of process by certified mail cannot be effected, the executive director of the board shall cause to be published once in each of three (3) successive weeks a notice of the hearing in the newspapers published in the county in which the accused last practiced according to the records of the board, or in the county in which the accused last resided. When publication of the notice is necessary, the date of the hearing shall not be less than ten (10) days after the last date of the notice.
(2) The board and its
hearing officers, acting by and through * * * the executive director of the
board, shall have the power to subpoena persons and compel the production
of any records, including, but not limited to, hospital and physician's
records, papers and other documents, which shall be served in accordance with
law for the Board of Nursing and its hearing officers, and on behalf of
the accused. The person providing copies shall prepare them from the original
records and shall delete from the copy provided pursuant to the subpoena the
name of the individual by numbered code, to be retained by the custodian of the
records from which the copies were made. Upon certification of the custodian
that the copies are true and complete except for the individual's name, they
shall be deemed authentic, subject to the right to inspect the originals for
the limited purpose of ascertaining the accuracy of the copies. No privilege
of confidentiality shall exist with respect to such copies, and no liabilities
shall lie against the board, its hearing officers or the custodian for
furnishing or using such copies in accordance with this article.
(3) All records of the investigation and all patient charts, records, emergency room records or any other document that may have been copied shall be kept confidential and shall not be subject to discovery or subpoena. If no disciplinary proceedings are initiated within a period of five (5) years after the determination of insufficient cause, then the board shall destroy all records obtained pursuant to this section.
(4) The board shall
appoint three (3) impartial hearing officers to conduct disciplinary hearings.
At the hearings the board or its hearing officers shall administer oaths
as may be necessary for the proper conduct of the hearings. The accused shall
have the right to appear either personally or by counsel, or both, to produce
witnesses or evidence in his or her behalf, to cross-examine witnesses, and to
have subpoenas issued by the board and its hearing officers. All
disciplinary hearings shall be conducted by either a hearing panel
consisting of three (3) members of the board, designated on a rotating basis by
the board, or if requested by the accused, an impartial hearing officer.
The accused must submit a written request for a hearing officer to conduct the
hearing to the executive director of the board within thirty (30) days of
receiving the notice. The accused shall select one of the officers to conduct
the hearing. The licensee may accept responsibility for the disciplinary
violation(s) alleged while retaining the right to a hearing on the discipline to be imposed for the violation(s) and retaining the right to
appeal any discipline determination to the chancery court. All
disciplinary hearings or appeals before the board, its hearing officers
and the Attorney General, and/or a designee thereof, shall not be bound by
strict rules of procedure or by the laws of evidence in the conduct of its
proceedings, but the determination shall be based upon * * * clear and convincing
evidence to sustain it. A final decision by the hearing panel or hearing
officer and by the board on appeal shall include findings of fact and
conclusions of law, separately stated, of which the accused shall receive a
copy.
(5) If the hearing panel or
hearing officer determines that probable cause and * * * clear and convincing
evidence exist to believe that an applicant does not possess the qualifications
required by this article or that an accused has violated any of the provisions
of this article, the hearing panel or hearing officer may refuse to
issue a license to the applicant, or the hearing panel or hearing officer
may revoke, suspend, refuse to renew a license, or revoke or suspend the
privilege to practice, or otherwise discipline the accused as prescribed in
this article.
(6) No previously issued license to practice nursing as a registered nurse or as a licensed practical nurse shall be revoked or suspended until after a hearing conducted pursuant to this article, except where the board finds there is imminent danger to the public health or safety that warrants injunctive relief provided in this article.
(7) A revoked or suspended license may be reissued after one (1) year, in the discretion of the hearing panel or hearing officer. A revoked or suspended privilege to practice may be reinstated after one (1) year, in the discretion of the hearing panel or hearing officer. The denial of an application to renew an existing license shall be treated in all respects as a revocation. The procedure for the reissuance of a license or reinstatement of the privilege to practice that is suspended for being out of compliance with an order for support, as defined in Section 93-11-153, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.
(8) The hearing panel or hearing officer need not find that the actions that are grounds for discipline were willful, but it may consider the same in determining the nature of the disciplinary actions imposed.
(9) The right to appeal from the action of the hearing panel or hearing officer to the full membership of the board in denying, revoking, suspending or refusing to renew any license issued by the board, or revoking or suspending any privilege to practice, or fining or otherwise disciplining any person practicing as a registered nurse or licensed practical nurse, is granted. The appeal must be taken within thirty (30) days after notice of the action of the hearing panel or hearing officer in denying, revoking, suspending or refusing to renew the license, or revoking or suspending the privilege to practice, or fining or otherwise disciplining the person, and is perfected upon filing notice of appeal and Fifty Dollars ($50.00) with the executive director of the board.
(10) The right to appeal
from the action of the board in affirming the denial, revocation, suspension or
refusal to renew any license issued by the board, or revoking or suspending any
privilege to practice, or fining or otherwise disciplining of any person
practicing as a registered nurse or a licensed practical nurse, is granted.
Such appeal shall be to the chancery court of the county of the residence of
the licensee on the record made, including a verbatim transcript of the
testimony at the hearing. The appeal must be taken within thirty (30) days
after notice of the action of the board in denying, revoking, suspending or
refusing to renew the license, or revoking or suspending the privilege to
practice, or fining or otherwise disciplining the person. The appeal is
perfected upon filing notice of the appeal * * *.
Appeals may be had to the Supreme Court of the State of Mississippi as provided
by law from any final action of the chancery court. No such person shall be
allowed to practice nursing or deliver health care services in violation of any
action of the chancery court denying, revoking, suspending, restricting or
refusing to renew a license or revoking or suspending the privilege to practice
while any such appeal to the Supreme Court is pending. Actions taken by the
board in suspending a license or suspending the privilege to practice when
required by Section 93-11-157 or 93-11-163 are not actions from which an appeal
may be taken under this section. Any appeal of a license suspension or
suspension of the privilege to practice that is required by Section 93-11-157
or 93-11-163 shall be taken in accordance with the appeal procedure specified
in Section 93-11-157 or 93-11-163, as the case may be, rather than the
procedure specified in this section.
(11) Nothing contained in this article shall be construed to bar any criminal prosecutions for violation of this article or any regulations promulgated hereunder.
(12) Any member of the board, its hearing officers and any witness appearing before the board shall be immune from suit in any civil action brought by a licensee who is the subject of a review hearing if such member, hearing officer or witness acts in good faith within the scope of the board and has made a reasonable effort to obtain the facts of the matter as to which the individual acts, and acts in the reasonable belief that the action taken is warranted by the facts.
(13) Proceedings in progress on July 1, 1998, to deny, revoke, suspend or refuse to renew any license, or fine or otherwise discipline a licensee, shall not abate by reason of this article.
SECTION 6. This act shall take effect and be in force from and after July 1, 2018.