MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Public Health and Welfare

By: Senator(s) Huggins

AN ACT TO CODIFY SECTIONS 43-15-101 THROUGH 43-15-125, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE LICENSURE OF FAMILY FOSTER HOMES, RESIDENTIAL CHILD-CARING AGENCIES AND CHILD-PLACING AGENCIES BY THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES; TO PRESCRIBE LICENSURE REQUIREMENTS; TO PROVIDE FOR EXEMPTIONS FROM LICENSURE REQUIREMENTS; TO PRESCRIBE DISCIPLINARY PROCEEDINGS FOR LICENSEES; TO PRESCRIBE CRIMINAL PENALTIES FOR VIOLATIONS; AND FOR RELATED PURPOSES.

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

SECTION 1. The following provision shall be codified as Section 43-15-101, Mississippi Code of 1972:

43-15-101. The purpose of this chapter is to protect the health, safety and well-being of all children in the state who are cared for by family foster homes, residential child-caring agencies and child-placing agencies by providing for the establishment of licensing requirements for such homes and agencies and providing procedures to determine adherence to these requirements.

SECTION 2. The following provision shall be codified as Section 43-15-103, Mississippi Code of 1972:

43-15-103. As used in this chapter:

(a) "Agency" means a residential child-caring agency or a child-placing agency.

(b) "Child" or "children" mean(s) any unmarried person or persons under the age of eighteen (18) years.

(c) "Child placing" means receiving, accepting or providing custody or care for any child under eighteen (18) years of age, temporarily or permanently, for the purpose of:

(i) Finding a person to adopt the child;

(ii) Placing the child temporarily or permanently in a home for adoption; or

(iii) Placing a child in a foster home or residential child-caring agency.

(d) "Child-placing agency" means any entity or person which places children in foster boarding homes or foster homes for temporary care or for adoption or any other entity or person or group of persons who are engaged in providing adoption studies or foster care studies or placement services as defined by the rules of the department.

(e) "Department" means the Mississippi Department of Human Services.

(f) "Director" means the Director of the Division of Family and Children's Services.

(g) "Division" means the Division of Family and Children's Services within the Mississippi Department of Human Services.

(h) "Family boarding home" or "foster home" means a home (occupied residence) operated by any entity or person which provides residential child care to at least one (1) child but not more than six (6) children who are not related to the primary caregivers.

(i) "Group care home" means any place or facility operated by any entity or person which provides residential child care for at least seven (7) children but not more than twelve (12) children who are not related to the primary caregivers.

(j) "Licensee" means any person, agency or entity licensed under this chapter.

(k) "Maternity home" means any place or facility operated by any entity or person which receives, treats or cares for more than one (1) child or adult who is pregnant out of wedlock, either before, during or within two (2) weeks after childbirth; provided, that the licensed child-placing agencies and licensed maternity homes may use a family boarding home approved and supervised by the agency or home, as a part of their work, for as many as three (3) children or adults who are pregnant out of wedlock, and provided further, that the provisions of this definition shall not include children or women who receive maternity care in the home of a person to whom they are kin within the sixth degree of kindred computed according to civil law, nor does it apply to any maternity care provided by general or special hospitals licensed according to law and in which maternity treatment and care are part of the medical services performed and the care of children is brief and incidental.

(l) "Office" means the Office of Licensing within the Division of Family and Children's Services of the Mississippi Department of Human Services.

(m) "Person associated with a licensee" means an owner, director, member of the governing body, employee, provider of care and volunteer of a human services licensee.

(n) "Related" means children, step-children, grandchildren, step-grandchildren, siblings of the whole or half-blood, step-siblings, nieces or nephews of the primary care provider.

(o) "Residential child care" means the provision of supervision, and/or protection, and meeting the basic needs of a child for twenty-four (24) hours per day, which may include services to children in a residential setting where care, lodging, maintenance and counseling or therapy for alcohol or controlled substance abuse or for any other emotional disorder or mental illness is provided for children, whether for compensation or not.

(p) "Residential child-caring agency" means any place or facility operated by any entity or person, public or private, providing residential child care, regardless of whether operated for profit or whether a fee is charged. Such residential child-caring agencies include, but are not limited to, maternity homes, runaway shelters, group homes that are administered by an agency, and emergency shelters that are not in private residence.

SECTION 3. The following provision shall be codified as Section 43-15-105, Mississippi Code of 1972:

43-15-105. (1) The Division of Family and Children's Services shall be the licensing authority for the department, and is vested with all the powers, duties and responsibilities described in this chapter. The division shall make and establish rules and regulations regarding:

(a) Approving, extending, denying, suspending and revoking licenses for foster homes, residential child-caring agencies and child-placing agencies;

(b) Conditional licenses, variances from department rules and exclusions;

(c) Basic health and safety standards for licensees; and

(d) Minimum administration and financial requirements for licensees.

(2) The division shall:

(a) Define information that shall be submitted to the division with an application for a license;

(b) Establish guidelines for the administration and maintenance of client and service records, including staff qualifications, staff to client ratios;

(c) Issue licenses in accordance with this chapter;

(d) Conduct surveys and inspections of licensees and facilities;

(e) Establish and collect licensure fees;

(f) Investigate complaints regarding any licensee or facility;

(g) Have access to all records, correspondence and financial data required to be maintained by a licensee or facility;

(h) Have authority to interview any client, family member of a client, employee or officer of a licensee or facility; and

(i) Have authority to revoke, suspend or extend any license issued by the division.

SECTION 4. The following provision shall be codified as Section 43-15-107, Mississippi Code of 1972:

43-15-107. (1) Except as provided in Section 43-15-111, no person, agency, firm, corporation, association or other entity, acting individually or jointly with any other person or entity, may establish, conduct or maintain foster homes, residential child-caring agencies and child-placing agencies or facility and/or engage in child placing in this state without a valid and current license issued by and under the authority of the division as provided by this chapter and the rules of the division.

(2) No license issued under this chapter is assignable or transferable.

(3) A current license shall at all times be posted in each licensee's facility, in a place that is visible and readily accessible to the public.

(4) (a) Each license issued under this chapter expires at midnight (Central Standard Time) twelve (12) months from the date of issuance unless it has been:

(i) Previously revoked by the office; or

(ii) Voluntarily returned to the office by the licensee.

(b) A license may be renewed upon application and payment of the applicable fee, provided that the licensee meets the license requirements established by this chapter and the rules and regulations of the division.

(5) Any licensee or facility which is in operation at the time rules are made in accordance with this chapter shall be given a reasonable time for compliance as determined by the rules of the division.

SECTION 5. The following provision shall be codified as Section 43-15-109, Mississippi Code of 1972:

43-15-109. (1) An application for a license under this chapter shall be made to the division and shall contain information that the division determines is necessary in accordance with established rules.

(2) Information received by the office through reports, complaints, investigations and inspections shall be classified as public in accordance with Title 25, Chapter 61, Mississippi Code of 1972, Mississippi Public Records Act.

SECTION 6. The following provision shall be codified as Section 43-15-111, Mississippi Code of 1972:

43-15-111. The provisions of this chapter do not apply to:

(1) A facility or program owned or operated by an agency of the State of Mississippi or United States government;

(2) A facility or program operated by or under an exclusive contract with the Department of Corrections;

(3) Schools and educational programs and facilities the primary purpose of which is to provide a regular course of study necessary for advancement to a higher educational level or completion of a prescribed course of study, and which may, incident to such educational purposes, provide boarding facilities to the students of such programs.

(4) Any residential child-caring agency and/or child-placing agency operated or conducted under the auspices of a religious institution and meeting the requirements or conditions of this section shall be exempt from the licensure requirements of this chapter under the following conditions: (a) such religious institution must have a tax exempt status as a nonprofit religious institution in accordance with Section 501(c) of the Internal Revenue Code of 1954, as amended, or the real property owned and exclusively occupied by the religious institution must be exempt from location taxation, and (b) the agency or institution must be in compliance with the requirements of the Child Residential Home Notification Act, Section 43-16-1 et seq., Mississippi Code of 1972, and must not be in violation of Section 43-16-21(c) regarding the abuse and/or neglect of any child served by such home who has been adjudicated by the youth court as an abused and/or neglected child. Nothing in this subsection shall prohibit a residential child-caring agency or child-placing agency operated by or conducted under the auspices of a religious institution from obtaining a license pursuant to this chapter.

SECTION 7. The following provision shall be codified as Section 43-15-113, Mississippi Code of 1972:

43-15-113. (1) If a license is revoked, the division may grant a new license after:

(a) Satisfactory evidence is submitted to the division, evidencing that the conditions upon which revocation was based have been corrected; and

(b) Inspection and compliance with all provisions of this chapter and applicable rules.

(2) The division may only suspend a license for a period of time which does not exceed the current expiration date of that license.

(3) When a license has been suspended, the division may completely or partially restore the suspended license upon a determination that the:

(a) Conditions upon which the suspension was based have been completely or partially corrected; and

(b) Interests of the public will not be jeopardized by restoration of the license.

SECTION 8. The following provision shall be codified as Section 43-15-115, Mississippi Code of 1972:

43-15-115. (1) The division may, for the purpose of ascertaining compliance with the provisions of this chapter and its rules and regulations, enter and inspect on a routine basis the facility of a licensee.

(2) Before conducting an inspection under subsection (1), the division shall, after identifying the person in charge:

(a) Give proper identification;

(b) Request to see the applicable license;

(c) Describe the nature and purpose of the inspection; and

(d) If necessary, explain the authority of the division to conduct the inspection and the penalty for refusing to permit the inspection.

(3) In conducting an inspection under subsection (1), the division may, after meeting the requirements of subsection (2):

(a) Inspect the physical facilities;

(b) Inspect records and documents;

(c) Interview directors, employees, clients, family members of clients and others; and

(d) Observe the licensee in operation.

(4) An inspection conducted under subsection (1) shall be during regular business hours and may be announced or unannounced.

(5) The licensee shall make copies of inspection reports available to the public upon request.

(6) The provisions of this section apply to on-site inspections and do not restrict the division from contacting family members, neighbors or other individuals, or from seeking information from other sources to determine compliance with the provisions of this chapter.

SECTION 9. The following provision shall be codified as Section 43-15-117, Mississippi Code of 1972:

43-15-117. (1) Except as provided in this chapter, no person, agency, firm, corporation, association or group children's home may engage in child placing, or solicit money or other assistance for child placing, without a valid license issued by the division.

(2) (a) An attorney, physician or other person may assist a parent in identifying or locating a person interested in adopting the parent's child, or in identifying or locating a child to be adopted. However, no payment, charge, fee, reimbursement of expense, or exchange of value of any kind, or promise or agreement to make the same, may be made for that assistance.

(b) An attorney, physician or other person may not:

(i) Issue or cause to be issued to any person a card, sign or device indicating that he or she is available to provide that assistance;

(ii) Cause, permit or allow any sign or marking indicating that he or she is available to provide that assistance, on or in any building or structure;

(iii) Announce or cause, permit or allow an announcement indicating that he or she is available to provide that assistance, to appear in any newspaper, magazine, directory or on radio or television; or

(iv) Advertise by any other means that he or she is available to provide that assistance.

(3) Nothing in this section precludes payment of usual and customary fees for medical, legal or other lawful services rendered in connection with the care of a mother, delivery and care of a child, or counseling for the parents and/or the child, and for the legal proceedings related to lawful adoption proceedings; and no provision of this section abrogates the right of procedures for independent adoption as provided by law.

(4) The division is specifically authorized to promulgate rules pursuant to the Administrative Procedures Act, Title 25, Chapter 43, Mississippi Code of 1972, to regulate fees charged by licensed child-placing agencies, if it determines that the practices of those licensed child-placing agencies demonstrates that the fees charged are excessive or that any of the agency's practices are deceptive or misleading; provided, that such rules regarding fees shall take into account the use of any sliding fee by an agency which uses a sliding fee procedure to permit prospective adoptive parents of varying income levels to utilize the services of such agencies or persons.

(5) The division shall promulgate rules pursuant to the Administrative Procedures Act, Title 25, Chapter 43, Mississippi Code of 1972, to require that all licensed child-placing agencies provide written disclosures to all prospective adoptive parents of any fees or other charges for each service performed by the agency or person, and file an annual report with the division which states the fees and charges for those services, and to require them to inform the division in writing thirty (30) days in advance of any proposed changes to the fees or charges for those services.

(6) The division is specifically authorized to disclose to prospective adoptive parents or other interested persons any fees charged by any licensed child-placing agency, attorney or counseling service or counselor for all legal and counseling services provided by that licensed child-placing agency, attorney or counseling service or counselor.

SECTION 10. The following provision shall be codified as Section 43-15-119, Mississippi Code of 1972:

43-15-119. (1) If the division finds that a violation has occurred under this chapter or the rules and regulations of the division, it may:

(a) Deny, suspend or revoke a license or place the licensee on probation, if the division discovers that a licensee is not in compliance with the laws, standards or regulations governing its operation, and/or it finds evidence of aiding, abetting or permitting the commission of any illegal act; or

(b) Restrict or prohibit new admissions to the licensee's program or facility, if the division discovers that a licensee is not in compliance with the laws, standards or regulations governing its operation, and/or it finds evidence of aiding, abetting or permitting the commission of any illegal act.

(2) If placed on probation, the agency or licensee shall post a copy of the notice in a conspicuous place as directed by the division and with the agency's or individual's license, and the agency shall notify the custodians of each of the children in its care in writing of the agency's status and the basis for the probation.

SECTION 11. The following provision shall be codified as Section 43-15-121, Mississippi Code of 1972:

43-15-121. In addition to, and notwithstanding, any other remedy provided by law the division may, in a manner provided by law and upon the advice of the Attorney General, who shall represent the division in the proceedings, maintain an action in the name of the state for injunction or other process against any person or entity to restrain or prevent the establishment, management or operation of a program or facility or performance of services in violation of this chapter or rules of the division.

SECTION 12. The following provision shall be codified as Section 43-15-123, Mississippi Code of 1972:

43-15-123. Any person, agency, association, corporation, institution, society or other organization violating the provisions of this chapter shall be guilty of illegal placement of children and shall be punished by a fine not to exceed Five Thousand Dollars ($5,000.00) or by imprisonment not more than five (5) years, or both such fine and imprisonment.

SECTION 13. The following provision shall be codified as Section 43-15-125, Mississippi Code of 1972:

43-15-125. The Department of Human Services and/or its officers, employees, attorneys and representatives shall not be held civilly liable for any findings, recommendations or actions taken pursuant to this chapter.

SECTION 14. This act shall take effect and be in force from and after July 1, 2000.