MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Public Health and Welfare
By: Senator(s) Burton
AN ACT TO DEFINE THE TERM "ADULT DAY CARE FACILITY" FOR PURPOSES OF LICENSURE BY THE STATE DEPARTMENT OF HEALTH; TO REQUIRE A LICENSE TO ESTABLISH AND OPERATE AN ADULT DAY CARE FACILITY AND TO PROVIDE PROCEDURES FOR APPLICATION AND FEES; TO AUTHORIZE JUDICIAL REVIEW OF LICENSURE DENIAL; TO PRESCRIBE CRIMINAL PENALTIES AND INJUNCTIVE RELIEF FOR UNLICENSED OPERATION OF A FACILITY; 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 CARE FACILITIES; TO AUTHORIZE THE STATE DEPARTMENT OF HEALTH TO IMPLEMENT THE RAP-BACK CRIMINAL HISTORY RECORDS SYSTEM FOR MONITORING EMPLOYEES AT LICENSED ADULT DAY CARE FACILITIES AND TO DELETE CERTAIN REPEALERS RELATING TO FACILITY STANDARDS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Definitions. (1) "Adult day care facility" means a public agency or private organization providing Medicaid home- and community-based services for the purposes of reimbursement under the Elderly and Disabled Waiver as authorized by Section 43-13-117(A)(15), or a subdivision of such an agency or organization that:
(a) Provides the following items and services:
(i) Nursing services;
(ii) Transportation of the individual to and from such adult day care facility in connection with any such item or service;
(iii) Meals;
(iv) 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 greater than eight (8) hours per day;
(v) 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 interaction;
(vi) All other applicable standards as defined in the applicable Medicaid home- and community-based services waiver as approved by the Centers for Medicare and Medicaid Services; and
(b) Meets such standards established by the licensing agency to assure quality of care and such other requirements as the licensing agency finds necessary in the interest of the health and safety of individuals who are furnished services in the facility.
(2) "Person" means any individual, firm, partnership, corporation, company, association or joint-stock association, or any licensee herein or the legal successor thereof.
(3) "Licensing agency" means the State Department of Health.
(4) "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 adult day care facilities that pertain to services rendered to individuals in an adult day care facility.
SECTION 2. Purpose. The purpose of this act is to protect and promote the public welfare by providing for the development, establishment and enforcement of certain standards in the maintenance and operation of adult day care facilities, which will ensure safe, sanitary and reasonably adequate care of individuals in such facilities.
SECTION 3. License. No person, acting severally or jointly with any other person, shall establish, conduct, or maintain an adult day care facility in this state without a license hereunder.
SECTION 4. Application for license; license and renewal fees; issuance and renewal of license; user fee. (1) Any person, as defined in Section 1 of this act, may apply for a license as provided in this section. An application for a license for an adult day care 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 care facility shall be accompanied by a license fee, which shall be set by and paid to the State Department of Health to reasonably offset the costs of the provisions herein. The licensing agency, at its discretion, may waive part or all of the licensure fee for adult day care facilities serving fewer than seven (7) clients.
(2) A license, unless suspended or revoked, shall be renewable every year upon payment by the licensee of an adult day care facility of a renewal fee, which shall be set by and paid to the State Department of Health to reasonably offset the costs of the provisions herein, 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 part or all of the licensure fee for adult day care facilities serving fewer than seven (7) clients.
(3) 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.
(4) A fee known as a "user fee" shall be applicable and shall be paid to the licensing agency as set out in subsection (1) of this section. The user fee shall be assessed for the purpose of the required reviewing and inspections of the proposal of any adult day care facility 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. The State Department of Health shall set and receive a minimum user fee to reasonably offset the costs of the provisions herein.
(5) Any increase in the fees charged by the licensing agency under this section shall be in accordance with the provisions of Section 41-3-65.
(6) No governmental entity or agency shall be required to pay the fee or fees set forth in this section.
SECTION 5. Denial or revocation of license; hearings and review. The licensing agency after notice and opportunity for a hearing to the applicant or licensee is authorized to deny, suspend or revoke a license in any case in which it finds that there has been a substantial failure to comply with the requirements established under this article.
Such notice shall be effected by registered mail, or by personal service setting forth the particular reasons for the proposed action and fixing a date not less than thirty (30) days from the date of such mailing or such service, at which time the applicant or licensee, shall be given an opportunity for a prompt and fair hearing. On the basis of any such hearing, or upon default of the applicant or licensee, the licensing agency shall make a determination specifying its findings of fact and conclusions of law. A copy of such determination shall be sent by registered mail or served personally upon the applicant or licensee. The decision revoking, suspending or denying the license or application shall become final thirty (30) days after it is so mailed or served, unless the applicant or licensee, within such thirty-day period, appeals the decision to the chancery court pursuant to Section 12 of this act.
The procedure governing hearings authorized by this section shall be in accordance with rules promulgated by the licensing agency. A full and complete record shall be kept of all proceedings, and all testimony shall be recorded but need not be transcribed unless the decision is appealed pursuant to Section 12 of this act. Witnesses may be subpoenaed by either party. Compensation shall be allowed to witnesses as in cases in the chancery court. Each party shall pay the expense of his own witnesses. The cost of the record shall be paid by the licensing agency provided any other party desiring a copy of the transcript shall pay therefor the reasonable cost of preparing the same.
SECTION 6. Rules, regulations and standards. To the fullest reasonable extent, adult day care facilities, as defined in this article, shall be subject to the applicable rules, regulations, and standards prescribed in Section 43-11-13. To operate an adult day care facility, as defined in this article, the center must possess a current valid license issued pursuant to this article and must have a current provider agreement with the Division of Medicaid.
SECTION 7. Effective date of regulations. Any adult day care facility which is in operation at the time of promulgation of any applicable rules or regulations or minimum standards under this article shall be given a reasonable time, under the particular circumstances not to exceed one (1) year from the date of such promulgation, within which to comply with such rules and regulations and minimum standards.
SECTION 8. Medical records not public documents but property of adult day care facilities. Medical records are and shall remain the property of the various adult day care facilities, subject, however, to reasonable access to the information contained therein upon written request by the individual, his or her legally appointed representatives, his or her attending medical personnel, or his or her duly authorized representative, and upon payment of any reasonable charges for such service. Nothing in this section shall be construed to deny access to medical records by the Attorney General, the Mississippi Division of Medicaid, the licensing agency, or his or its agents and investigators in the discharge of their official duties. Except as otherwise provided by law, medical records shall not constitute public records and nothing in this section shall be deemed to impair any privilege of confidence conferred by law or the Mississippi Rules of Evidence on individuals, their personal representatives or heirs by Section 13-1-21.
SECTION 9. Inspections. The licensing agency shall make or cause to be made such inspections and investigations as it deems necessary.
SECTION 10. Information confidential. Information received by the licensing agency through filed reports, inspection, or as otherwise authorized under this article, shall not be disclosed publicly in such manner as to identify individuals, except in a proceeding involving the questions of licensure; however, the licensing agency may utilize statistical data concerning types of services and the utilization of those services for adult day care facilities in performing the statutory duties imposed upon it by Section 41-7-171 et seq. and by Section 11 of this act.
SECTION 11. Annual report of licensing agency. The licensing agency shall prepare and publish an annual report of its activities and operations under this article. A reasonable number of copies of such publications shall be available in the office of the licensing agency to be furnished free to persons requesting them. At its discretion, the licensing agency may choose to report this information in the annual report required by Section 43-11-21 in lieu of creating a separate annual report.
SECTION 12. Judicial review. Any applicant or licensee aggrieved by the decision of the licensing agency after a hearing, may within thirty (30) days after the mailing or serving of notice of the decision as provided in Section 5 of this act, file a notice of appeal in the Chancery Court of the First Judicial District of Hinds County, Mississippi or the chancery court of the county in which the adult day care facility is located or to be located, and the chancery clerk thereof shall serve a copy of the notice of appeal upon the licensing agency. Thereupon the licensing agency shall, within sixty (60) days or such additional time as the court may allow from the service of such notice, certify and file with the court a copy of the record and decision, including the transcript of the hearings on which the decision is based. Findings of fact by the licensing agency shall be conclusive unless substantially contrary to the weight of the evidence but upon good cause shown, the court may remand the case to the licensing agency to take further evidence, and the licensing agency may thereupon affirm, reverse or modify its decision. The court may affirm, modify or reverse the decision of the licensing agency and either the applicant or licensee or the licensing agency may appeal from this decision to the Supreme Court as in other cases in the chancery court. Pending final disposition of the matter the status quo of the applicant or licensee shall be preserved, except as the court otherwise orders in the public interest. Rules with respect to court costs as in other cases in chancery court shall apply equally to cases hereunder.
SECTION 13. Penalties. Any person establishing, conducting, managing or operating an adult day care facility without a license under this article shall be guilty of a misdemeanor, and upon conviction shall be fined not more than One Thousand Dollars ($1,000.00) for the first offense and not more than One Thousand Dollars ($1,000.00) for each subsequent offense, and each day of a continuing violation after conviction shall be considered a separate offense.
SECTION 14. Injunction. Notwithstanding the existence or pursuit of any other remedy, the licensing agency may, in the manner provided by law, upon the advice of the Attorney General who, except as otherwise authorized in Section 7-5-39, shall represent the licensing agency in the proceedings, maintain an action in the name of the state for injunction or other process against any person to restrain or prevent the establishment, conduct, management or operation of an adult day care facility without a license under this article.
SECTION 15. It is the intention of the Legislature that Sections 1 through 14 of this act shall be codified as new Article 15 in Chapter 13 of Title 43.
SECTION 16. 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 and adult day care facilities as defined in Section 1 of this act as may be designed to further the accomplishment of the purpose of this chapter and Section 2 of this act in promoting adequate care of individuals in those institutions or facilities in the interest of public health, safety and welfare. Those rules, regulations and standards for institutions for the aged or infirm 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. Those rules, regulations and standards for adult day care facilities 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 Adult Day Care Facilities," and the book shall be open and available to all adult day care facilities 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 and facilities 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 or facilities 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 or being served by those facilities.
(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 * * *, adult foster care facilities,
and adult day care facilities. Residents and other individuals served
in facilities 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 and adult day care facilities to maintain records relating to health condition, medicine dispensed and administered, and any reaction to that medicine. The director of the personal care home or the adult day care facility shall be responsible for explaining the availability of those records to the family of the resident at any time upon reasonable request.
(5) (a) For the purposes of this subsection (5):
(i) "Licensed
entity" means a hospital, nursing home, personal care home, home health
agency, hospice * * *,
adult foster care facility, or adult day 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, individuals, or clients being served by the covered entity direct, hands-on, medical patient care in a patient's, resident's, individual's, or client's room, adult day care facility, 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 (5), 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 (5).
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 * * *; and
(iv) "Rap-Back" means the notifications 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 (5), no such employee hired on or after July 1, 2003, shall be permitted to provide direct patient care or services in an adult day care facility 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 (5).
(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 (5) or any employee applicant aggrieved by an employment decision under this subsection (5) 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 (5) 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 (5).
(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 (5). 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 (5).
(i) The licensing agency shall promulgate regulations to implement this subsection (5).
(j) The provisions of this subsection (5) 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 Criminal 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 care to Mississippi's vulnerable population in "covered" entities (nursing homes, hospitals, hospices, home health agencies, adult day care 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.
(6) The State Board of Health shall promulgate rules, regulations and standards regarding the operation of adult foster care facilities and adult day care facilities.
SECTION 17. This act shall take effect and be in force from and after July 1, 2019.