MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Public Health and Welfare; Appropriations

By: Representatives Thornton, Dickson, Flaggs, Fleming, Gibbs, Green, Henderson, Huddleston, Middleton, Myers, Robinson (63rd), Scott (80th), Thomas, Wallace, Watson, West

AN ACT TO BE KNOWN AS THE AIDS AND HIV EDUCATION, SERVICES AND NONDISCRIMINATION ACT; TO DESIGNATE THE STATE DEPARTMENT OF HEALTH AS THE PRIMARY SOURCE FOR AIDS AND HIV EDUCATION MATERIALS, POLICIES AND INFORMATION IN THE STATE; TO PROVIDE THAT JACKSON STATE UNIVERSITY SHALL ADVISE THE DEPARTMENT ON CARRYING OUT ITS DUTIES UNDER THIS ACT; TO SPECIFY DUTIES OF THE DEPARTMENT REGARDING AIDS AND HIV EDUCATION; TO DIRECT THE DEPARTMENT TO DEVELOP MODEL EDUCATION PROGRAMS TO EDUCATE THE PUBLIC ABOUT AIDS AND HIV; TO PROVIDE FOR SPECIAL COMPONENTS TO BE INCLUDED IN THE EDUCATION PROGRAMS; TO REQUIRE LICENSED HEALTH CARE FACILITIES TO HAVE THEIR EMPLOYEES COMPLETE AN EDUCATION COURSE ABOUT HIV INFECTION; TO DIRECT THE DEPARTMENT TO DEVELOP MODEL EDUCATION PROGRAMS FOR INSTRUCTION ABOUT THE BASICS OF AIDS AND HIV, TO BE USED IN SCHOOL SYSTEMS; TO DIRECT THE STATE BOARD OF EDUCATION TO REQUIRE ALL PUBLIC SCHOOL DISTRICTS TO INCLUDE INSTRUCTION ABOUT THE BASICS OF AIDS AND HIV AS PART OF THEIR CURRICULUM; TO DIRECT THE DEPARTMENT TO MAINTAIN INFORMATION ON SOURCES OF FUNDING FOR AIDS AND HIV EDUCATION AND SERVICES; TO DIRECT THE DEPARTMENT TO PROVIDE TECHNICAL ASSISTANCE TO NONPROFIT COMMUNITY ORGANIZATIONS; TO DIRECT THE DEPARTMENT TO ESTABLISH AND ADMINISTER A STATE GRANT PROGRAM TO NONPROFIT COMMUNITY ORGANIZATIONS FOR AIDS AND HIV EDUCATION AND SERVICE PROGRAMS; TO REQUIRE STATE AGENCIES TO PROVIDE THEIR EMPLOYEES INFORMATION ABOUT HIV INFECTION; TO REQUIRE CERTAIN STATE AGENCIES TO MAKE AIDS AND HIV EDUCATION AVAILABLE TO THEIR CLIENTS, PATIENTS AND RESIDENTS; TO AUTHORIZE THE DEPARTMENT TO PROVIDE FOR HOME- AND COMMUNITY-BASED SERVICES FOR PERSONS DIAGNOSED WITH AIDS WHO ARE NOT ELIGIBLE FOR MEDICAID; TO DIRECT THE DEPARTMENT TO EXPAND THE COVERAGE OF THE AIDS DRUG ASSISTANCE PROGRAM TO THE EXTENT THAT STATE FUNDS ARE APPROPRIATED FOR THAT PURPOSE; TO PROVIDE THAT STATE FUNDS FOR THE AIDS DRUG ASSISTANCE PROGRAM SHALL BE USED TO SUPPLEMENT THE FUNDS THAT THE STATE RECEIVES FROM THE FEDERAL GOVERNMENT UNDER THE RYAN WHITE COMPREHENSIVE AIDS RESOURCES EMERGENCY ACT; TO DIRECT THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER TO CONDUCT CLINICAL TRIALS FOR THE TREATMENT OF PERSONS WHO HAVE AIDS OR HIV; TO AMEND SECTION 43-13-117, MISSISSIPPI CODE OF 1972, TO PROVIDE MEDICAID COVERAGE FOR DRUGS USED FOR THE TREATMENT OF AIDS; TO PROVIDE MEDICAID COVERAGE FOR HOME- AND COMMUNITY-BASED SERVICES FOR ELIGIBLE RECIPIENTS DIAGNOSED WITH AIDS; TO PROVIDE MEDICAID COVERAGE FOR HOSPICE CARE FOR PATIENTS WHO HAVE AIDS; TO REQUIRE THE STATE DEPARTMENT OF HEALTH TO DEVELOP MODEL WORKPLACE GUIDELINES CONCERNING PERSONS WITH AIDS AND HIV INFECTION; TO REQUIRE STATE AGENCIES TO ADOPT AND IMPLEMENT WORKPLACE GUIDELINES CONCERNING PERSONS WITH AIDS AND HIV INFECTION; TO REQUIRE ENTITIES CONTRACTING WITH OR FUNDED BY CERTAIN STATE AGENCIES TO ADOPT AND IMPLEMENT WORKPLACE GUIDELINES CONCERNING PERSONS WITH AIDS AND HIV INFECTION THAT ARE SUBSTANTIALLY SIMILAR TO THE GUIDELINES ADOPTED BY THE CONTRACTING OR FUNDING AGENCY; TO PROHIBIT DISCRIMINATION AGAINST PERSONS INFECTED WITH HIV IN EMPLOYMENT, EDUCATION, HOUSING, ACCESS TO HEALTH CARE, PUBLIC ACCOMMODATIONS OR GOVERNMENTAL SERVICES; TO CREATE A CAUSE OF ACTION AGAINST PERSONS ENGAGED IN DISCRIMINATION IN VIOLATION OF THIS ACT; AND FOR RELATED PURPOSES.

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

SECTION 1. This act shall be known as the "AIDS and HIV Education, Services and Nondiscrimination Act."

SECTION 2. As used in this act, unless the context requires otherwise:

(a) "AIDS" means acquired immune deficiency syndrome as defined by the Centers for Disease Control of the United States Public Health Service.

(b) "Board" means the State Board of Health.

(c) "Communicable disease" means any disease defined as a communicable disease by the State Board of Health under Section 41-23-1.

(d) "Department" means the State Department of Health.

(e) "HIV" means the human immunodeficiency virus.

(f) "State agency" means:

(i) Any agency, department, institution or instrumentality in the executive branch of state government that was created by the Mississippi Constitution or a state statute, including state institutions of higher learning;

(ii) The Mississippi Legislature or any legislative agency; and

(iii) The Mississippi Supreme Court, any circuit court, or chancery court, the Board of Bar Admissions, the Mississippi Bar or another state judicial agency.

SECTION 3. (1) The Legislature shall appropriate sufficient funds each year for the AIDS and HIV education, prevention, risk reduction, treatment and social support services programs provided for under this act.

(2) All state agencies involved in AIDS and HIV education, prevention, risk reduction, treatment and social support services programs shall aggressively seek to maximize federal funds available for those programs.

SECTION 4. The department is the primary source for AIDS and HIV education, prevention and risk reduction materials, policies and information in this state. Jackson State University shall advise the department on carrying out its duties under this act to help ensure that AIDS and HIV education, prevention, risk reduction, treatment and social support services are appropriately addressed in the state.

SECTION 5. The department shall:

(a) Promote information and education programs for the general public to correct misinformation about AIDS and HIV infection, to identify what programs are available to persons with AIDS or HIV infection, and to identify what communities are being served by the programs. This shall include, at a minimum, periodic press releases to the printed and broadcast media, public service announcements, public seminars and dissemination of information to nonprofit community organizations throughout the state.

(b) Execute contracts to evaluate the effectiveness of AIDS and HIV information and education programs conducted by the department.

(c) Conduct proposal writing workshops at strategic locations throughout the state to help increase AIDS and HIV services provided by nonprofit community organizations and other entities.

(d) Conduct periodic meetings with recipients of federal and state grants for AIDS and HIV education, prevention, risk reduction, treatment and social support services programs in the state to insure that those programs operated by the recipients are efficient, effective, and equitable for all residents of the state.

(e) Conduct, jointly with the state institutions of higher learning and community-based organizations, training sessions that offer AIDS and HIV education to school teachers and administrators.

(f) Monitor state and federal AIDS- and HIV-related budget and policy developments, and coordinate budget items to ensure that funding for matters related to AIDS and HIV is adequate and complete within the department each fiscal year.

(g) Develop and conduct a needs assessment of the availability of supportive services for people with AIDS or AIDS-related conditions. The needs assessment shall be conducted in conjunction with any of the state's AIDS and HIV education contractors and with any public or private agencies providing services to people with AIDS or AIDS-related conditions.

(h) Develop and maintain an information clearinghouse in the department including periodic updates or releases to inform health professionals or community organizations providing services to people with AIDS or AIDS-related conditions of the status of current or new clinical drug trials.

SECTION 6. (1) The department shall develop model education programs to be available to educate the public about AIDS and HIV infection.

(2) As part of the programs, the department shall develop a model educational pamphlet about methods of transmission and prevention of HIV infection, about conduct or behavior that may result in the transmission of HIV, and about state laws relating to the transmission of HIV.

(3) The programs shall be scientifically accurate and factually correct and designed to:

(a) Educate the public about methods of transmission and prevention of HIV infection, and about conduct or behavior that may result in the transmission of HIV;

(b) Educate the public about transmission risks in social, employment and educational situations;

(c) Educate health care workers and health facility employees about methods of transmission and prevention in their particular workplace environments; and

(d) Educate the public about state laws relating to the transmission of HIV.

SECTION 7. (1) The department shall include in the AIDS and HIV education programs special components designed to reach:

(a) Persons with behavior conducive to HIV transmission;

(b) Persons younger than eighteen (18) years of age; and

(c) Racial and ethnic minority groups, particularly African-Americans.

(2) The materials in the education programs intended for persons younger than eighteen (18) years of age shall emphasize sexual abstinence before marriage and fidelity in marriage as the expected standard in terms of public health and the most effective ways to prevent HIV infection, sexually transmitted diseases and unwanted pregnancies.

(3) In designing education programs for racial and ethnic minorities and in assisting local community organizations in developing education programs for racial and ethnic minority groups, the department shall ensure that the programs reflect the nature and spread of HIV infection in racial and ethnic minorities in this state.

(4) The department shall collaborate with the University of Mississippi Medical Center, Jackson State University, Alcorn State University, Mississippi Valley State University, Tougaloo College, Rust College, Mary Holmes Community College, Hinds Community College at Utica and Coahoma Community College to develop education programs specifically designed for the African-American population of this state that address the circumstances causing HIV infection among African-Americans to be increasing at a much higher rate than among other racial and ethnic groups in the state. These education programs for African-Americans shall be both part of the education programs for the public generally and separate programs designed to reach the largest possible number of African-Americans in the state.

SECTION 8. (1) The department shall develop and promote AIDS and HIV education, prevention and risk reduction programs specifically designed to address the concerns of persons with physical or mental disabilities in designing those programs. The department shall consult persons with disabilities or consult experts in the appropriate professional disciplines.

(2) To the maximum extent possible, state-funded AIDS and HIV education, prevention and risk reduction programs shall be accessible to persons with physical disabilities.

SECTION 9. (1) The department shall identify the groups and subgroups of persons in the state who have AIDS or are infected with HIV, and determine the distinctive characteristics of those groups and subgroups. The department shall determine where AIDS and HIV education efforts are needed in the state, with emphasis on reaching those groups and subgroups identified as having or more likely to have AIDS or HIV, and shall initiate programs in those areas by identifying local resources. The education programs specifically designed for the African-American population shall be initiated and promoted in African-American communities throughout the state.

(2) The department shall assist communities, especially those in rural areas, in establishing self-sustaining AIDS and HIV education programs, using public and private resources.

SECTION 10. The department shall make the AIDS and HIV education programs available to local governments and private businesses on request.

SECTION 11. Each health care facility licensed by the department shall require its employees to complete an educational course about HIV infection based on the model education programs developed by the department.

SECTION 12. The department shall develop model education programs for instruction about the basics of AIDS and HIV, to be used in school systems. The education programs shall include methods of transmission and prevention of HIV infection and conduct or behavior that may result in the transmission of HIV. The State Board of Education shall require all public school districts to include, as part of their curriculum, instruction about the basics of AIDS and HIV, using the model education programs developed by the department under this section.

SECTION 13. The department may contract with any person for the design, development and distribution of AIDS and HIV education programs.

SECTION 14. (1) The department shall:

(a) Maintain current information on public and private sources of funding for AIDS and HIV education, prevention, risk reduction, treatment and social support services; and

(b) Maintain information on the type, amount and sources of funding for AIDS and HIV education, prevention, risk reduction, treatment and social support services being provided throughout the state.

(2) To encourage and maximize the use of federal and private funds, the department shall forward the information as soon as possible after receipt to public and nonprofit agencies, including nonprofit community organizations, that may be eligible for funding and shall make the information available to public and private entities on request.

(3) The department may seek, accept and spend funds from state, federal, local and private entities to carry out this section.

SECTION 15. (1) The department shall provide technical assistance to nonprofit community organizations to maximize the use of limited resources and volunteer efforts and to expand the availability of health care, education, prevention, risk reduction and social support services needed to address the AIDS and HIV problem.

(2) The department shall provide technical assistance in:

(a) Recruiting, training and effectively using volunteers in the delivery of AIDS- and HIV-related services;

(b) Identifying funding opportunities and sources, including information on developing sound grant proposals; and

(c) Developing and implementing effective service delivery approaches for community-based health care, education, prevention, risk reduction and social support services pertaining to AIDS and HIV infection.

SECTION 16. Within the limit of funds appropriated by the Legislature for that purpose, the department shall establish and administer a state grant program to nonprofit community organizations for:

(a) AIDS and HIV education, prevention and risk reduction programs; and

(b) Treatment, health care and social support service programs for persons with AIDS or HIV infection.

SECTION 17. (1) The board may adopt rules relating to:

(a) The services that may be furnished under the grant program;

(b) A system of priorities regarding the types of services provided, geographic areas covered or classes of individuals or communities targeted for services under the grant program; and

(c) A process for resolving conflicts between the department and a program receiving money under Sections 16 through 28.

(2) Board or department actions relating to service, geographic and other priorities shall be based on the set of priorities and guidelines established under this section.

(3) In structuring the grant program and adopting rules, the department and the board shall attempt to:

(a) Coordinate the use of federal, local and private funds;

(b) Encourage the provision of community-based services;

(c) Address needs that are not met by other sources of funding;

(d) Provide funding as extensively as possible across the regions of the state in amounts that reflect regional needs; and

(e) Encourage cooperation among local service providers.

SECTION 18. (1) To prevent unnecessary duplication of services, the board and the department shall seek to coordinate the services provided by eligible programs under Sections 16 through 28 with existing federal, state and local programs.

(2) The department shall consult with the Department of Human Services to ensure that programs funded under Sections 16 through 28 complement and do not unnecessarily duplicate services provided through the Department of Human Services.

SECTION 19. (1) The department shall establish application procedures and eligibility guidelines for the state grants under Sections 16 through 28.

(2) Application procedures shall include regional public hearings after reasonable notice in the region in which the community organization is based before awarding an initial grant or grants totaling more than Twenty-five Thousand Dollars ($25,000.00) annually.

SECTION 20. An applicant for a state grant under Sections 16 through 28 shall submit to the department for approval:

(a) A description of the objectives established by the applicant for the conduct of the program;

(b) A description of the methods the applicant will use to evaluate the activities conducted under the program to determine if the objectives are met; and

(c) Any other information requested by the department.

SECTION 21. (1) In awarding grants for education, prevention and risk reduction programs under Sections 16 through 28, the department shall give special consideration to nonprofit community organizations whose primary purpose is serving persons younger than eighteen (18) years of age.

(2) In awarding grants for treatment, health care and social support services, the department shall endeavor to distribute grants in a manner that prevents unnecessary duplication of services within a community.

(3) In awarding grants for education, prevention and risk reduction programs, the department shall endeavor to complement existing education programs in a community, to prevent unnecessary duplication of services within a community, to provide AIDS and HIV education programs for populations engaging in behaviors conducive to HIV transmission, to initiate needed AIDS and HIV education programs where none exist, and to promote early intervention and treatment of persons with HIV infection.

SECTION 22. The department may not use more than five percent (5%) of the funds appropriated for the grant program to employ sufficient staff to review and process grant applications, monitor and evaluate the effectiveness of funded programs and provide technical assistance to grantees.

SECTION 23. (1) A program funded with a grant under Sections 16 through 28 shall provide information and educational materials that are accurate, comprehensive and consistent with current findings of the United States Public Health Service.

(2) Information and educational materials developed with a grant awarded under Sections 16 through 28 must contain materials and be presented in a manner that is specifically directed to the group for which the materials are intended.

SECTION 24. (1) The department shall develop evaluation criteria to document effectiveness, unit-of-service costs and number of volunteers used in programs funded with grants under Sections 16 through 28.

(2) An organization that receives funding under the program shall:

(a) Collect and maintain relevant data as required by the department; and

(b) Submit to the department copies of all material the organization has printed or distributed relating to AIDS and HIV infection.

(3) The department shall provide prompt assistance to grantees in obtaining materials and skills necessary to collect and report the data required under this section.

SECTION 25. (1) The department shall require each program receiving a grant under Sections 16 through 28 to maintain records and information specified by the department.

(2) The board may adopt rules relating to the information a program is required to report to the department and shall adopt procedures and forms for reporting the information to prevent unnecessary and duplicative reporting of data.

(3) The department shall review records, information and reports prepared by programs funded under Sections 16 through 28. Before December 1 of each year, the department shall prepare a report that is available to the public and that summarizes data regarding the type, level, quality and cost-effectiveness of services provided under Sections 16 through 28.

SECTION 26. (1) The department shall biannually review the financial records of a program funded with a grant under Sections 16 through 28.

(2) As a condition of accepting a grant under Sections 16 through 28, a community organization must allow the department to biannually review the financial records of that organization.

SECTION 27. The department may provide a due process hearing procedure for the resolution of conflicts between the department and a program funded with a state grant under Sections 16 through 28.

SECTION 28. The board may appoint an advisory committee to assist in the development of procedures and guidelines required by Sections 16 through 28.

SECTION 29. (1) Each state agency annually shall provide to each of its employees an educational pamphlet about:

(a) Methods of transmission and prevention of HIV infection, and conduct or behavior that may result in the transmission of HIV; and

(b) State laws relating to the transmission of HIV.

(2) The educational pamphlet shall be based on the model developed by the department, and shall be provided to each newly hired state employee on the first day of employment.

(3) The department shall prepare and distribute to each state agency a model informational pamphlet that can be reproduced by each state agency to meet the requirements of this section.

SECTION 30. (1) Each state agency listed in subsection (3) shall routinely make available AIDS and HIV education for clients, inmates, patients and residents of treatment, educational, correctional or residential facilities under the agency's jurisdiction.

(2) Education available under this section shall be based on the model education program developed by the department and tailored to the cultural, educational, language and developmental needs of the clients, inmates, patients or residents, including the use of Braille or telecommunication devices for the deaf.

(3) This section shall apply to the following state agencies:

(a) The Mississippi School for the Blind;

(b) The Mississippi School for the Deaf;

(c) The Department of Corrections;

(d) The State Department of Health;

(e) The Department of Human Services;

(f) The State Department of Mental Health; and

(g) The State Department of Rehabilitation Services.

SECTION 31. State-funded primary health, women's reproductive health and sexually transmitted disease clinics shall make available to patients and clients information and educational materials concerning the prevention of HIV infection. Such information and materials shall be routinely incorporated into patient education and counseling in clinics specializing in sexually transmitted diseases and women's reproductive health.

SECTION 32. The department may pay the costs, including reimbursements to contractors for administrative costs, of providing home- and community-based services to persons with a diagnosis of AIDS who are not eligible for Medicaid, when sufficient state funds are appropriated for that purpose.

SECTION 34. The University of Mississippi Medical Center shall conduct clinical trials for the treatment of persons who have AIDS and persons with HIV infection.

SECTION 35. (1) The department may contract with an entity to provide the services required by this act if the contract would minimize duplication of effort and would deliver services cost-effectively.

(2) The department may audit an entity contracting with the department under subsection (1).

(3) A contract entered into by the department under this section may not be for a term of more than one (1) year.

(4) The department may seek, accept and spend funds from state, federal, local and private entities to carry out this section.

SECTION 36. Section 43-13-117, Mississippi Code of 1972, is amended as follows:

43-13-117. Medical assistance as authorized by this article shall include payment of part or all of the costs, at the discretion of the division or its successor, with approval of the Governor, of the following types of care and services rendered to eligible applicants who shall have been determined to be eligible for such care and services, within the limits of state appropriations and federal matching funds:

(1) Inpatient hospital services.

(a) The division shall allow thirty (30) days of inpatient hospital care annually for all Medicaid recipients; however, before any recipient will be allowed more than fifteen (15) days of inpatient hospital care in any one (1) year, he must obtain prior approval therefor from the division. The division shall be authorized to allow unlimited days in disproportionate hospitals as defined by the division for eligible infants under the age of six (6) years.

(b) From and after July 1, 1994, the Executive Director of the Division of Medicaid shall amend the Mississippi Title XIX Inpatient Hospital Reimbursement Plan to remove the occupancy rate penalty from the calculation of the Medicaid Capital Cost Component utilized to determine total hospital costs allocated to the Medicaid program.

(2) Outpatient hospital services. Provided that where the same services are reimbursed as clinic services, the division may revise the rate or methodology of outpatient reimbursement to maintain consistency, efficiency, economy and quality of care.

(3) Laboratory and x-ray services.

(4) Nursing facility services.

(a) The division shall make full payment to nursing facilities for each day, not exceeding fifty-two (52) days per year, that a patient is absent from the facility on home leave. Payment may be made for the following home leave days in addition to the fifty-two-day limitation: Christmas, the day before Christmas, the day after Christmas, Thanksgiving, the day before Thanksgiving and the day after Thanksgiving. However, before payment may be made for more than eighteen (18) home leave days in a year for a patient, the patient must have written authorization from a physician stating that the patient is physically and mentally able to be away from the facility on home leave. Such authorization must be filed with the division before it will be effective and the authorization shall be effective for three (3) months from the date it is received by the division, unless it is revoked earlier by the physician because of a change in the condition of the patient.

(b) From and after July 1, 1993, the division shall implement the integrated case-mix payment and quality monitoring system developed pursuant to Section 43-13-122, which includes the fair rental system for property costs and in which recapture of depreciation is eliminated. The division may revise the reimbursement methodology for the case-mix payment system by reducing payment for hospital leave and therapeutic home leave days to the lowest case-mix category for nursing facilities, modifying the current method of scoring residents so that only services provided at the nursing facility are considered in calculating a facility's per diem, and the division may limit administrative and operating costs, but in no case shall these costs be less than one hundred nine percent (109%) of the median administrative and operating costs for each class of facility, not to exceed the median used to calculate the nursing facility reimbursement for fiscal year 1996, to be applied uniformly to all long-term care facilities.

(c) From and after July 1, 1997, all state-owned nursing facilities shall be reimbursed on a full reasonable costs basis. From and after July 1, 1997, payments by the division to nursing facilities for return on equity capital shall be made at the rate paid under Medicare (Title XVIII of the Social Security Act), but shall be no less than seven and one-half percent (7.5%) nor greater than ten percent (10%).

(d) A Review Board for nursing facilities is established to conduct reviews of the Division of Medicaid's decision in the areas set forth below:

(i) Review shall be heard in the following areas:

(A) Matters relating to cost reports including, but not limited to, allowable costs and cost adjustments resulting from desk reviews and audits.

(B) Matters relating to the Minimum Data Set Plus (MDS +) or successor assessment formats including but not limited to audits, classifications and submissions.

(ii) The Review Board shall be composed of six (6) members, three (3) having expertise in one (1) of the two (2) areas set forth above and three (3) having expertise in the other area set forth above. Each panel of three (3) shall only review appeals arising in its area of expertise. The members shall be appointed as follows:

(A) In each of the areas of expertise defined under subparagraphs (i) (A) and (i) (B), the Executive Director of the Division of Medicaid shall appoint one (1) person chosen from the private sector nursing home industry in the state, which may include independent accountants and consultants serving the industry;

(B) In each of the areas of expertise defined under subparagraphs (i) (A) and (i) (B), the Executive Director of the Division of Medicaid shall appoint one (1) person who is employed by the state who does not participate directly in desk reviews or audits of nursing facilities in the two (2) areas of review;

(C) The two (2) members appointed by the Executive Director of the Division of Medicaid in each area of expertise shall appoint a third member in the same area of expertise.

In the event of a conflict of interest on the part of any Review Board members, the Executive Director of the Division of Medicaid or the other two (2) panel members, as applicable, shall appoint a substitute member for conducting a specific review.

(iii) The Review Board panels shall have the power to preserve and enforce order during hearings; to issue subpoenas; to administer oaths; to compel attendance and testimony of witnesses; or to compel the production of books, papers, documents and other evidence; or the taking of depositions before any designated individual competent to administer oaths; to examine witnesses; and to do all things conformable to law that may be necessary to enable it effectively to discharge its duties. The Review Board panels may appoint such person or persons as they shall deem proper to execute and return process in connection therewith.

(iv) The Review Board shall promulgate, publish and disseminate to nursing facility providers rules of procedure for the efficient conduct of proceedings, subject to the approval of the Executive Director of the Division of Medicaid and in accordance with federal and state administrative hearing laws and regulations.

(v) Proceedings of the Review Board shall be of record.

(vi) Appeals to the Review Board shall be in writing and shall set out the issues, a statement of alleged facts and reasons supporting the provider's position. Relevant documents may also be attached. The appeal shall be filed within thirty (30) days from the date the provider is notified of the action being appealed or, if informal review procedures are taken, as provided by administrative regulations of the Division of Medicaid, within thirty (30) days after a decision has been rendered through informal hearing procedures.

(vii) The provider shall be notified of the hearing date by certified mail within thirty (30) days from the date the Division of Medicaid receives the request for appeal. Notification of the hearing date shall in no event be less than thirty (30) days before the scheduled hearing date. The appeal may be heard on shorter notice by written agreement between the provider and the Division of Medicaid.

(viii) Within thirty (30) days from the date of the hearing, the Review Board panel shall render a written recommendation to the Executive Director of the Division of Medicaid setting forth the issues, findings of fact and applicable law, regulations or provisions.

(ix) The Executive Director of the Division of Medicaid shall, upon review of the recommendation, the proceedings and the record, prepare a written decision which shall be mailed to the nursing facility provider no later than twenty (20) days after the submission of the recommendation by the panel. The decision of the executive director is final, subject only to judicial review.

(x) Appeals from a final decision shall be made to the Chancery Court of Hinds County. The appeal shall be filed with the court within thirty (30) days from the date the decision of the Executive Director of the Division of Medicaid becomes final.

(xi) The action of the Division of Medicaid under review shall be stayed until all administrative proceedings have been exhausted.

(xii) Appeals by nursing facility providers involving any issues other than those two (2) specified in subparagraphs (i) (A) and (i) (B) shall be taken in accordance with the administrative hearing procedures established by the Division of Medicaid.

(e) When a facility of a category that does not require a certificate of need for construction and that could not be eligible for Medicaid reimbursement is constructed to nursing facility specifications for licensure and certification, and the facility is subsequently converted to a nursing facility pursuant to a certificate of need that authorizes conversion only and the applicant for the certificate of need was assessed an application review fee based on capital expenditures incurred in constructing the facility, the division shall allow reimbursement for capital expenditures necessary for construction of the facility that were incurred within the twenty-four (24) consecutive calendar months immediately preceding the date that the certificate of need authorizing such conversion was issued, to the same extent that reimbursement would be allowed for construction of a new nursing facility pursuant to a certificate of need that authorizes such construction. The reimbursement authorized in this subparagraph (e) may be made only to facilities the construction of which was completed after June 30, 1989. Before the division shall be authorized to make the reimbursement authorized in this subparagraph (e), the division first must have received approval from the Health Care Financing Administration of the United States Department of Health and Human Services of the change in the state Medicaid plan providing for such reimbursement.

(f) The division shall develop and implement a case-mix payment add-on determined by time studies and other valid statistical data which will reimburse a nursing facility for the additional cost of caring for a resident who has a diagnosis of Alzheimer's or other related dementia and exhibits symptoms that require special care. Any such case-mix add-on payment shall be supported by a determination of additional cost. The division shall also develop and implement as part of the fair rental reimbursement system for nursing facility beds, an Alzheimer's resident bed depreciation enhanced reimbursement system which will provide an incentive to encourage nursing facilities to convert or construct beds for residents with Alzheimer's or other related dementia.

(g) The Division of Medicaid shall develop and implement a referral process for long-term care alternatives for Medicaid beneficiaries and applicants. No Medicaid beneficiary shall be admitted to a Medicaid-certified nursing facility unless a licensed physician certifies that nursing facility care is appropriate for that person on a standardized form to be prepared and provided to nursing facilities by the Division of Medicaid. The physician shall forward a copy of that certification to the Division of Medicaid within twenty-four (24) hours after it is signed by the physician. Any physician who fails to forward the certification to the Division of Medicaid within the time period specified in this paragraph shall be ineligible for Medicaid reimbursement for any physician's services performed for the applicant. The Division of Medicaid shall determine, through an assessment of the applicant conducted within two (2) business days after receipt of the physician's certification, whether the applicant also could live appropriately and cost-effectively at home or in some other community-based setting if home- or community-based services were available to the applicant. The time limitation prescribed in this paragraph shall be waived in cases of emergency. If the Division of Medicaid determines that a home- or other community-based setting is appropriate and cost-effective, the division shall:

(i) Advise the applicant or the applicant's legal representative that a home- or other community-based setting is appropriate;

(ii) Provide a proposed care plan and inform the applicant or the applicant's legal representative regarding the degree to which the services in the care plan are available in a home- or in other community-based setting rather than nursing facility care; and

(iii) Explain that such plan and services are available only if the applicant or the applicant's legal representative chooses a home- or community-based alternative to nursing facility care, and that the applicant is free to choose nursing facility care.

The Division of Medicaid may provide the services described in this paragraph (g) directly or through contract with case managers from the local Area Agencies on Aging, and shall coordinate long-term care alternatives to avoid duplication with hospital discharge planning procedures.

Placement in a nursing facility may not be denied by the division if home- or community-based services that would be more appropriate than nursing facility care are not actually available, or if the applicant chooses not to receive the appropriate home- or community-based services.

The division shall provide an opportunity for a fair hearing under federal regulations to any applicant who is not given the choice of home- or community-based services as an alternative to institutional care.

The division shall make full payment for long-term care alternative services.

The division shall apply for necessary federal waivers to assure that additional services providing alternatives to nursing facility care are made available to applicants for nursing facility care.

(5) Periodic screening and diagnostic services for individuals under age twenty-one (21) years as are needed to identify physical and mental defects and to provide health care treatment and other measures designed to correct or ameliorate defects and physical and mental illness and conditions discovered by the screening services regardless of whether these services are included in the state plan. The division may include in its periodic screening and diagnostic program those discretionary services authorized under the federal regulations adopted to implement Title XIX of the federal Social Security Act, as amended. The division, in obtaining physical therapy services, occupational therapy services, and services for individuals with speech, hearing and language disorders, may enter into a cooperative agreement with the State Department of Education for the provision of such services to handicapped students by public school districts using state funds which are provided from the appropriation to the Department of Education to obtain federal matching funds through the division. The division, in obtaining medical and psychological evaluations for children in the custody of the State Department of Human Services may enter into a cooperative agreement with the State Department of Human Services for the provision of such services using state funds which are provided from the appropriation to the Department of Human Services to obtain federal matching funds through the division.

On July 1, 1993, all fees for periodic screening and diagnostic services under this paragraph (5) shall be increased by twenty-five percent (25%) of the reimbursement rate in effect on June 30, 1993.

(6) Physician's services. All fees for physicians' services that are covered only by Medicaid shall be reimbursed at ninety percent (90%) of the rate established on January 1, 1999, and as adjusted each January thereafter, under Medicare (Title XVIII of the Social Security Act), as amended, and which shall in no event be less than seventy percent (70%) of the rate established on January 1, 1994. All fees for physicians' services that are covered by both Medicare and Medicaid shall be reimbursed at ten percent (10%) of the adjusted Medicare payment established on January 1, 1999, and as adjusted each January thereafter, under Medicare (Title XVIII of the Social Security Act), as amended, and which shall in no event be less than seven percent (7%) of the adjusted Medicare payment established on January 1, 1994.

(7) (a) Home health services for eligible persons, not to exceed in cost the prevailing cost of nursing facility services, not to exceed sixty (60) visits per year.

(b) Repealed.

(8) Emergency medical transportation services. On January 1, 1994, emergency medical transportation services shall be reimbursed at seventy percent (70%) of the rate established under Medicare (Title XVIII of the Social Security Act), as amended. "Emergency medical transportation services" shall mean, but shall not be limited to, the following services by a properly permitted ambulance operated by a properly licensed provider in accordance with the Emergency Medical Services Act of 1974 (Section 41-59-1 et seq.): (i) basic life support, (ii) advanced life support, (iii) mileage, (iv) oxygen, (v) intravenous fluids, (vi) disposable supplies, (vii) similar services.

(9) Legend and other drugs as may be determined by the division. The division may implement a program of prior approval for drugs to the extent permitted by law. Payment by the division for covered multiple source drugs shall be limited to the lower of the upper limits established and published by the Health Care Financing Administration (HCFA) plus a dispensing fee of Four Dollars and Ninety-one Cents ($4.91), or the estimated acquisition cost (EAC) as determined by the division plus a dispensing fee of Four Dollars and Ninety-one Cents ($4.91), or the providers' usual and customary charge to the general public. The division shall allow five (5) prescriptions per month for noninstitutionalized Medicaid recipients; however, exceptions for up to ten (10) prescriptions per month shall be allowed, with the approval of the director.

Payment for other covered drugs, other than multiple source drugs with HCFA upper limits, shall not exceed the lower of the estimated acquisition cost as determined by the division plus a dispensing fee of Four Dollars and Ninety-one Cents ($4.91) or the providers' usual and customary charge to the general public.

Payment for nonlegend or over-the-counter drugs covered on the division's formulary shall be reimbursed at the lower of the division's estimated shelf price or the providers' usual and customary charge to the general public. No dispensing fee shall be paid.

The division shall develop and implement a program of payment for additional pharmacist services, with payment to be based on demonstrated savings, but in no case shall the total payment exceed twice the amount of the dispensing fee.

As used in this paragraph (9), "estimated acquisition cost" means the division's best estimate of what price providers generally are paying for a drug in the package size that providers buy most frequently. Product selection shall be made in compliance with existing state law; however, the division may reimburse as if the prescription had been filled under the generic name. The division may provide otherwise in the case of specified drugs when the consensus of competent medical advice is that trademarked drugs are substantially more effective.

(10) Dental care that is an adjunct to treatment of an acute medical or surgical condition; services of oral surgeons and dentists in connection with surgery related to the jaw or any structure contiguous to the jaw or the reduction of any fracture of the jaw or any facial bone; and emergency dental extractions and treatment related thereto. On July 1, 1999, all fees for dental care and surgery under authority of this paragraph (10) shall be increased to one hundred sixty percent (160%) of the amount of the reimbursement rate that was in effect on June 30, 1999. It is the intent of the Legislature to encourage more dentists to participate in the Medicaid program.

(11) Eyeglasses necessitated by reason of eye surgery, and as prescribed by a physician skilled in diseases of the eye or an optometrist, whichever the patient may select.

(12) Intermediate care facility services.

(a) The division shall make full payment to all intermediate care facilities for the mentally retarded for each day, not exceeding eighty-four (84) days per year, that a patient is absent from the facility on home leave. Payment may be made for the following home leave days in addition to the eighty-four-day limitation: Christmas, the day before Christmas, the day after Christmas, Thanksgiving, the day before Thanksgiving and the day after Thanksgiving. However, before payment may be made for more than eighteen (18) home leave days in a year for a patient, the patient must have written authorization from a physician stating that the patient is physically and mentally able to be away from the facility on home leave. Such authorization must be filed with the division before it will be effective, and the authorization shall be effective for three (3) months from the date it is received by the division, unless it is revoked earlier by the physician because of a change in the condition of the patient.

(b) All state-owned intermediate care facilities for the mentally retarded shall be reimbursed on a full reasonable cost basis.

(13) Family planning services, including drugs, supplies and devices, when such services are under the supervision of a physician.

(14) Clinic services. Such diagnostic, preventive, therapeutic, rehabilitative or palliative services furnished to an outpatient by or under the supervision of a physician or dentist in a facility which is not a part of a hospital but which is organized and operated to provide medical care to outpatients. Clinic services shall include any services reimbursed as outpatient hospital services which may be rendered in such a facility, including those that become so after July 1, 1991. On July 1, 1999, all fees for physicians' services reimbursed under authority of this paragraph (14) shall be reimbursed at ninety percent (90%) of the rate established on January 1, 1999, and as adjusted each January thereafter, under Medicare (Title XVIII of the Social Security Act), as amended, and which shall in no event be less than seventy percent (70%) of the rate established on January 1, 1994. All fees for physicians' services that are covered by bot h Medicare and Medicaid shall be reimbursed at ten percent (10%) of the adjusted Medicare payment established on January 1, 1999, and as adjusted each January thereafter, under Medicare (Title XVIII of the Social Security Act), as amended, and which shall in no event be less than seven percent (7%) of the adjusted Medicare payment established on January 1, 1994. On July 1, 1999, all fees for dentists' services reimbursed under authority of this paragraph (14) shall be increased to one hundred sixty percent (160%) of the amount of the reimbursement rate that was in effect on June 30, 1999.

(15) Home- and community-based services, as provided under Title XIX of the federal Social Security Act, as amended, under waivers, subject to the availability of funds specifically appropriated therefor by the Legislature. Payment for such services shall be limited to individuals who would be eligible for and would otherwise require the level of care provided in a nursing facility. The home- and community-based services authorized under this paragraph shall be expanded over a five-year period beginning July 1, 1999. The division shall certify case management agencies to provide case management services and provide for home- and community-based services for eligible individuals under this paragraph. The home- and community-based services under this paragraph and the activities performed by certified case management agencies under this paragraph shall be funded using state funds that are provided from the appropriation to the Division of Medicaid and used to match federal funds.

(16) Mental health services. Approved therapeutic and case management services provided by (a) an approved regional mental health/retardation center established under Sections 41-19-31 through 41-19-39, or by another community mental health service provider meeting the requirements of the Department of Mental Health to be an approved mental health/retardation center if determined necessary by the Department of Mental Health, using state funds which are provided from the appropriation to the State Department of Mental Health and used to match federal funds under a cooperative agreement between the division and the department, or (b) a facility which is certified by the State Department of Mental Health to provide therapeutic and case management services, to be reimbursed on a fee for service basis. Any such services provided by a facility described in paragraph (b) must have the prior approval of the division to be reimbursable under this section. After June 30, 1997, mental health services provided by regional mental health/retardation centers established under Sections 41-19-31 through 41-19-39, or by hospitals as defined in Section 41-9-3(a) and/or their subsidiaries and divisions, or by psychiatric residential treatment facilities as defined in Section 43-11-1, or by another community mental health service provider meeting the requirements of the Department of Mental Health to be an approved mental health/retardation center if determined necessary by the Department of Mental Health, shall not be included in or provided under any capitated managed care pilot program provided for under paragraph (24) of this section.

(17) Durable medical equipment services and medical supplies restricted to patients receiving home health services unless waived on an individual basis by the division. The division shall not expend more than Three Hundred Thousand Dollars ($300,000.00) of state funds annually to pay for medical supplies authorized under this paragraph.

(18) Notwithstanding any other provision of this section to the contrary, the division shall make additional reimbursement to hospitals which serve a disproportionate share of low-income patients and which meet the federal requirements for such payments as provided in Section 1923 of the federal Social Security Act and any applicable regulations.

(19) (a) Perinatal risk management services. The division shall promulgate regulations to be effective from and after October 1, 1988, to establish a comprehensive perinatal system for risk assessment of all pregnant and infant Medicaid recipients and for management, education and follow-up for those who are determined to be at risk. Services to be performed include case management, nutrition assessment/counseling, psychosocial assessment/counseling and health education. The division shall set reimbursement rates for providers in conjunction with the State Department of Health.

(b) Early intervention system services. The division shall cooperate with the State Department of Health, acting as lead agency, in the development and implementation of a statewide system of delivery of early intervention services, pursuant to Part H of the Individuals with Disabilities Education Act (IDEA). The State Department of Health shall certify annually in writing to the director of the division the dollar amount of state early intervention funds available which shall be utilized as a certified match for Medicaid matching funds. Those funds then shall be used to provide expanded targeted case management services for Medicaid eligible children with special needs who are eligible for the state's early intervention system. Qualifications for persons providing service coordination shall be determined by the State Department of Health and the Division of Medicaid.

(20) Home- and community-based services for physically disabled approved services as allowed by a waiver from the United States Department of Health and Human Services for home- and community-based services for physically disabled people using state funds which are provided from the appropriation to the State Department of Rehabilitation Services and used to match federal funds under a cooperative agreement between the division and the department, provided that funds for these services are specifically appropriated to the Department of Rehabilitation Services.

(21) Nurse practitioner services. Services furnished by a registered nurse who is licensed and certified by the Mississippi Board of Nursing as a nurse practitioner including, but not limited to, nurse anesthetists, nurse midwives, family nurse practitioners, family planning nurse practitioners, pediatric nurse practitioners, obstetrics-gynecology nurse practitioners and neonatal nurse practitioners, under regulations adopted by the division. Reimbursement for such services shall not exceed ninety percent (90%) of the reimbursement rate for comparable services rendered by a physician.

(22) Ambulatory services delivered in federally qualified health centers and in clinics of the local health departments of the State Department of Health for individuals eligible for medical assistance under this article based on reasonable costs as determined by the division.

(23) Inpatient psychiatric services. Inpatient psychiatric services to be determined by the division for recipients under age twenty-one (21) which are provided under the direction of a physician in an inpatient program in a licensed acute care psychiatric facility or in a licensed psychiatric residential treatment facility, before the recipient reaches age twenty-one (21) or, if the recipient was receiving the services immediately before he reached age twenty-one (21), before the earlier of the date he no longer requires the services or the date he reaches age twenty-two (22), as provided by federal regulations. Recipients shall be allowed forty-five (45) days per year of psychiatric services provided in acute care psychiatric facilities, and shall be allowed unlimited days of psychiatric services provided in licensed psychiatric residential treatment facilities.

(24) Managed care services in a program to be developed by the division by a public or private provider. Notwithstanding any other provision in this article to the contrary, the division shall establish rates of reimbursement to providers rendering care and services authorized under this section, and may revise such rates of reimbursement without amendment to this section by the Legislature for the purpose of achieving effective and accessible health services, and for responsible containment of costs. This shall include, but not be limited to, one (1) module of capitated managed care in a rural area, and one (1) module of capitated managed care in an urban area.

(25) Birthing center services.

(26) Hospice care, including hospice care for patients who have acquired immune deficiency syndrome (AIDS). As used in this paragraph, the term "hospice care" means a coordinated program of active professional medical attention within the home and outpatient and inpatient care which treats the terminally ill patient and family as a unit, employing a medically directed interdisciplinary team. The program provides relief of severe pain or other physical symptoms and supportive care to meet the special needs arising out of physical, psychological, spiritual, social and economic stresses which are experienced during the final stages of illness and during dying and bereavement and meets the Medicare requirements for participation as a hospice as provided in 42 CFR Part 418.

(27) Group health plan premiums and cost sharing if it is cost effective as defined by the Secretary of Health and Human Services.

(28) Other health insurance premiums which are cost effective as defined by the Secretary of Health and Human Services. Medicare eligible must have Medicare Part B before other insurance premiums can be paid.

(29) The Division of Medicaid may apply for a waiver from the Department of Health and Human Services for home- and community-based services for developmentally disabled people using state funds which are provided from the appropriation to the State Department of Mental Health and used to match federal funds under a cooperative agreement between the division and the department, provided that funds for these services are specifically appropriated to the Department of Mental Health.

(30) Pediatric skilled nursing services for eligible persons under twenty-one (21) years of age.

(31) Targeted case management services for children with special needs, under waivers from the United States Department of Health and Human Services, using state funds that are provided from the appropriation to the Mississippi Department of Human Services and used to match federal funds under a cooperative agreement between the division and the department.

(32) Care and services provided in Christian Science Sanatoria operated by or listed and certified by The First Church of Christ Scientist, Boston, Massachusetts, rendered in connection with treatment by prayer or spiritual means to the extent that such services are subject to reimbursement under Section 1903 of the Social Security Act.

(33) Podiatrist services.

(34) Personal care services provided in a pilot program to not more than forty (40) residents at a location or locations to be determined by the division and delivered by individuals qualified to provide such services, as allowed by waivers under Title XIX of the Social Security Act, as amended. The division shall not expend more than Three Hundred Thousand Dollars ($300,000.00) annually to provide such personal care services. The division shall develop recommendations for the effective regulation of any facilities that would provide personal care services which may become eligible for Medicaid reimbursement under this section, and shall present such recommendations with any proposed legislation to the 1996 Regular Session of the Legislature on or before January 1, 1996.

(35) Services and activities authorized in Sections 43-27-101 and 43-27-103, using state funds that are provided from the appropriation to the State Department of Human Services and used to match federal funds under a cooperative agreement between the division and the department.

(36) Nonemergency transportation services for Medicaid-eligible persons, to be provided by the Department of Human Services. The division may contract with additional entities to administer nonemergency transportation services as it deems necessary. All providers shall have a valid driver's license, vehicle inspection sticker and a standard liability insurance policy covering the vehicle.

(37) Targeted case management services for individuals with chronic diseases, with expanded eligibility to cover services to uninsured recipients, on a pilot program basis. This paragraph (37) shall be contingent upon continued receipt of special funds from the Health Care Financing Authority and private foundations who have granted funds for planning these services. No funding for these services shall be provided from state general funds.

(38) Chiropractic services: a chiropractor's manual manipulation of the spine to correct a subluxation, if x-ray demonstrates that a subluxation exists and if the subluxation has resulted in a neuromusculoskeletal condition for which manipulation is appropriate treatment. Reimbursement for chiropractic services shall not exceed Seven Hundred Dollars ($700.00) per year per recipient.

(39) Subject to the availability of federal financial participation and subject to utilization controls, medically necessary inpatient and outpatient services associated with the administration of any drug that has been classified by the division or the Food and Drug Administration as having treatment Investigational New Drug (IND) status, when the drug is being administered for the treatment of acquired immune deficiency syndrome (AIDS) or the human immunodeficiency virus (HIV), to otherwise eligible persons. This paragraph shall not require the division to pay for the cost of treatment IND drugs provided for research purposes by pharmaceutical companies or any other sponsors at no cost. Payment for care to any Medicaid eligible HIV-infected person in need of treatment shall not be denied solely on the basis of the use of a drug having treatment IND status. When medically feasible, every effort shall be made to administer drugs having treatment IND status on an outpatient basis.

(40) Home- and community-based services approved by the United States Department of Health and Human Services for eligible recipients with a diagnosis of acquired immune deficiency syndrome (AIDS), who require intermediate care or a higher level of care. Services provided under a waiver obtained from the Secretary of the United States Department of Health and Human Services under this paragraph that are not otherwise included in the services provided for in this section shall be available only to the extent that federal financial participation for these services is available in accordance with the waiver, and subject to the terms, conditions and duration of the waiver. These services shall be provided to individual recipients in accordance with the recipient's needs as identified in the plan of care and subject to medical necessity and applicable utilization control. The division may contract with organizations qualified to provide, directly or by subcontract, services provided for in this paragraph to eligible recipients.

Notwithstanding any provision of this article, except as authorized in the following paragraph and in Section 43-13-139, neither (a) the limitations on quantity or frequency of use of or the fees or charges for any of the care or services available to recipients under this section, nor (b) the payments or rates of reimbursement to providers rendering care or services authorized under this section to recipients, may be increased, decreased or otherwise changed from the levels in effect on July 1, 1986, unless such is authorized by an amendment to this section by the Legislature. However, the restriction in this paragraph shall not prevent the division from changing the payments or rates of reimbursement to providers without an amendment to this section whenever such changes are required by federal law or regulation, or whenever such changes are necessary to correct administrative errors or omissions in calculating such payments or rates of reimbursement.

Notwithstanding any provision of this article, no new groups or categories of recipients and new types of care and services may be added without enabling legislation from the Mississippi Legislature, except that the division may authorize such changes without enabling legislation when such addition of recipients or services is ordered by a court of proper authority. The director shall keep the Governor advised on a timely basis of the funds available for expenditure and the projected expenditures. In the event current or projected expenditures can be reasonably anticipated to exceed the amounts appropriated for any fiscal year, the Governor, after consultation with the director, shall discontinue any or all of the payment of the types of care and services as provided herein which are deemed to be optional services under Title XIX of the federal Social Security Act, as amended, for any period necessary to not exceed appropriated funds, and when necessary shall institute any other cost containment measures on any program or programs authorized under the article to the extent allowed under the federal law governing such program or programs, it being the intent of the Legislature that expenditures during any fiscal year shall not exceed the amounts appropriated for such fiscal year.

SECTION 37. (1) To ensure consistent public policy, the department, in consultation with appropriate state and local agencies and private entities, shall develop model workplace guidelines concerning persons with AIDS and HIV infection and related conditions.

(2) The model workplace guidelines shall include provisions stating that:

(a) All employees will receive some education about methods of transmission and prevention of HIV infection and related conditions;

(b) Accommodations will be made to keep persons with HIV infection employed and productive for as long as possible;

(c) The confidentiality of employee medical records will be protected;

(d) AIDS- and HIV-related policies will be consistent with current information from public health authorities, such as the Centers for Disease Control of the United States Public Health Service, and with state and federal law and regulations;

(e) Persons with HIV infection are entitled to the same rights and opportunities as persons with other communicable diseases; and

(f) Employers and employees should not engage in discrimination against persons with HIV infection unless based on accurate scientific information.

(3) The department shall develop more specific model workplace guidelines for employers in businesses with educational, correctional, health or social service responsibilities.

(4) The department shall make the model workplace guidelines available on request.

(5) Employers are encouraged to adopt AIDS- and HIV-related workplace guidelines that incorporate, at a minimum, the guidelines established by the department under this section.

(6) Nothing in Sections 37 through 39 of this act shall be construed to create a new cause of action for a violation of workplace guidelines.

SECTION 38. Each state agency shall adopt and implement workplace guidelines concerning persons with AIDS and HIV infection. The workplace guidelines shall incorporate at a minimum the model workplace guidelines developed by the department.

SECTION 39. An entity that contracts with or is funded by any of the following state agencies to operate a program involving direct client contact shall adopt and implement workplace guidelines concerning persons with AIDS and HIV infection that are substantially similar to the guidelines adopted by the agency that funds or contracts with the entity:

(a) The Mississippi School for the Blind;

(b) The Mississippi School for the Deaf;

(c) The Department of Corrections;

(d) The State Department of Health;

(e) The Department of Human Services;

(f) The State Department of Mental Health;

(g) The State Department of Rehabilitation Services; and

(h) Any state institution of higher learning.

SECTION 40. (1) A person shall not discriminate against an otherwise qualified individual in employment, education, housing, access to health care, public accommodations or governmental services solely by reason of the fact that such an individual is, or is regarded as being, infected with HIV.

(2) A person may not discriminate against an otherwise qualified individual in the provision of benefits under any program or activity that receives or benefits from state financial assistance solely by reason of the fact that such an individual is, or is regarded as being, infected with HIV.

SECTION 41. With respect to an individual who is infected with HIV, the individual may not be considered under Section 40 to be otherwise qualified if, under guidelines issued by the department, a bona fide medical determination is made that the individual, under the specific circumstances involved, will expose other individuals to a material risk of being infected with HIV.

SECTION 42. As used in Sections 40 and 41 of this act, the term "program or activity" shall be applied in the same manner as prescribed by Section 504 of the Rehabilitation Act of 1973, (29 USCS Section 794), as amended, including amendments enacted after July 1, 2000.

SECTION 43. (1) Any aggrieved party may commence a civil action in any court of competent jurisdiction for the purpose of obtaining temporary or permanent injunctive relief with respect to preventing a person from being discriminated against in violation of Section 40 of this act.

(2) Any person who is discriminated against in violation of Section 40 of this act may obtain appropriate relief in a civil action against any person engaging in such discrimination.

(3) In an action under this section, the prevailing party shall be awarded reasonable attorney's fees and costs.

SECTION 44. Section 40 of this act may not be construed to prohibit any business organization providing life insurance or health insurance from using information that the applicant is infected with HIV in determining whether insurance coverage will be granted.

SECTION 45. This act shall take effect and be in force from and after July 1, 2000.