MISSISSIPPI LEGISLATURE
2002 Regular Session
To: Judiciary
By: Senator(s) Huggins, Burton
AN ACT TO AMEND SECTIONS 43-11-19 AND 43-63-21, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT NURSING HOME SURVEYS AND REPORTS SHALL BE CONFIDENTIAL EXCEPT IN ADMINISTRATIVE LICENSURE CASES; TO AMEND SECTION 43-11-13, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT NOTHING IN THE NURSING HOME STATUTES OR REGULATIONS SHALL ESTABLISH A MEDICAL STANDARD OF CARE; TO AMEND SECTION 15-1-36, MISSISSIPPI CODE OF 1972, TO ESTABLISH A LONG-TERM CARE STATUTE OF LIMITATIONS; TO AMEND SECTION 43-11-7, MISSISSIPPI CODE OF 1972, TO CLARIFY APPLICANTS FOR A NURSING HOME LICENSE; TO AMEND SECTIONS 43-7-53 AND 43-7-61, MISSISSIPPI CODE OF 1972, TO CLARIFY QUALIFICATIONS FOR LONG-TERM CARE OMBUDSMEN; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-11-19, Mississippi Code of 1972, is amended as follows:
43-11-19. Information received or caused to be maintained or collected by the licensing agency through filed reports, inspection, or as otherwise authorized under this chapter, shall not be disclosed by any person or party 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 institutions for the aged or infirm in performing the statutory duties imposed upon it by Section 41-7-171, et seq. and by Section 43-11-21.
SECTION 2. Section 41-63-21, Mississippi Code of 1972, is amended as follows:
41-63-21. The term "accreditation and quality assurance materials" as used in Sections 41-63-21 through 41-63-29 means and shall include written reports, records, correspondence and materials concerning the accreditation or quality assurance of any hospital, nursing home or other health care facility and any medical care foundation, health maintenance organization, preferred provider organization, individual practice association or similar entity. * * * The confidentiality established by Sections 41-63-21 through 41-63-29 shall apply to accreditation and quality assurance materials prepared by an employee, advisor or consultant of any hospital, nursing home or other health care facility and any medical care foundation, health maintenance organization, preferred provider organization, individual practice association or similar entity and to materials provided by an employee, advisor or consultant of an accreditation, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, nursing home or other health care facility and any medical care foundation, health maintenance organization, preferred provider organization, individual practice association or similar entity or accrediting, quality assurance or similar agency or body. The confidentiality established by Sections 41-63-21 through 41-63-29 shall apply to reports, records, correspondence and material concerning accreditation or quality assurance that are prepared by the State Department of Health except that if the State Department of Health determines that substantial noncompliance with licensure standards exists or that deficiencies that represent a threat to public safety or patient care exist, the department shall prepare a written summary of the substantial noncompliance or deficiencies and the health care provider's response to the department's determination, and the department's written summary and the health care provider's response thereto shall be considered public documents.
SECTION 3. Section 43-11-13, Mississippi Code of 1972, is amended as follows:
43-11-13. (1) The licensing agency shall adopt, amend, promulgate and enforce such rules, regulations and standards, including classifications, with respect to all institutions for the aged or infirm to be licensed under this chapter as may be designed to further the accomplishment of the purpose of this chapter in promoting adequate care of individuals in such institutions in the interest of public health, safety and welfare. Nothing contained in these or any other rules, regulations and standards promulgated or enforced by the State Board of Health should be construed as establishing a medical standard of care. Such rules, regulations and standards shall be adopted and promulgated by the licensing agency and shall be recorded and indexed in a book to be maintained by the licensing agency in its main office in the State of Mississippi, entitled "Rules, Regulations and Minimum Standards for Institutions for the Aged or Infirm" and the book shall be open and available to all institutions for the aged or infirm and the public generally at all reasonable times. Upon the adoption of such rules, regulations and standards, the licensing agency shall mail copies thereof to all such institutions in the state which have filed with the agency their names and addresses for this purpose, but the failure to mail the same or the failure of the institutions to receive the same shall in no way affect the validity thereof. The rules, regulations and standards may be amended by the licensing agency, from time to time, as necessary to promote the health, safety and welfare of persons living in those institutions.
(2) The licensee shall keep posted in a conspicuous place on the licensed premises all current rules, regulations and minimum standards applicable to fire protection measures as adopted by the licensing agency. The licensee shall furnish to the licensing agency at least once each six (6) months a certificate of approval and inspection by state or local fire authorities. Failure to comply with state laws and/or municipal ordinances and current rules, regulations and minimum standards as adopted by the licensing agency, relative to fire prevention measures, shall be prima facie evidence for revocation of license.
(3) The State Board of Health shall promulgate rules and regulations restricting the storage, quantity and classes of drugs allowed in personal care homes. Residents requiring administration of Schedule II Narcotics as defined in the Uniform Controlled Substances Law may be admitted to a personal care home. Schedule drugs may only be allowed in a personal care home if they are administered or stored utilizing proper procedures under the direct supervision of a licensed physician or nurse.
(4) (a) Notwithstanding any determination by the licensing agency that skilled nursing services would be appropriate for a resident of a personal care home, that resident, the resident's guardian or the legally recognized responsible party for the resident may consent in writing for the resident to continue to reside in the personal care home, if approved in writing by a licensed physician. Provided, however, that no personal care home shall allow more than two (2) residents, or ten percent (10%) of the total number of residents in the facility, whichever is greater, to remain in the personal care home under the provisions of this subsection (4). This consent shall be deemed to be appropriately informed consent as described in the regulations promulgated by the licensing agency. After that written consent has been obtained, the resident shall have the right to continue to reside in the personal care home for as long as the resident meets the other conditions for residing in the personal care home. A copy of the written consent and the physician's approval shall be forwarded by the personal care home to the licensing agency.
(b) The State Board of Health shall promulgate rules and regulations restricting the handling of a resident's personal deposits by the director of a personal care home. Any funds given or provided for the purpose of supplying extra comforts, conveniences or services to any patient in any personal care home, and any funds otherwise received and held from, for or on behalf of any such resident, shall be deposited by the director or other proper officer of the personal care home to the credit of that patient in an account which shall be known as the Resident's Personal Deposit Fund. No more than one (1) month charge for the care, support, maintenance and medical attention of the patient shall be applied from such account at any one (1) time. After the death, discharge or transfer of any resident for whose benefit any such fund has been provided, any unexpended balance remaining in his personal deposit fund shall be applied for the payment of care, cost of support, maintenance and medical attention which is accrued. In the event any unexpended balance remains in that resident's personal deposit fund after complete reimbursement has been made for payment of care, support, maintenance and medical attention, and the director or other proper officer of the personal care home has been or shall be unable to locate the person or persons entitled to such unexpended balance, the director or other proper officer may, after the lapse of one (1) year from the date of such death, discharge or transfer, deposit the unexpended balance to the credit of the personal care home's operating fund.
(c) The State Board of Health shall promulgate rules and regulations requiring personal care homes to maintain records relating to health condition, medicine dispensed and administered, and any reaction to such medicine. The director of the personal care home shall be responsible for explaining the availability of such records to the family of the resident at any time upon reasonable request.
(d) The State Board of Health shall evaluate the effects of this section as it promotes adequate care of individuals in personal care homes in the interest of public health, safety and welfare. It shall report its findings to the Chairmen of the Public Health and Welfare Committees of the House and Senate by January 1, 2003. This subsection (4) shall stand repealed June 30, 2003.
(5) (a) Pursuant to regulations promulgated by the State Department of Health, the licensing agency shall require to be performed a criminal history record check on every new employee of a licensed institution for the aged or infirm or care facility who provides direct patient care or services and who is employed after July 1, 2001. Except as otherwise provided, no such new employee shall be permitted to provide direct patient care or services until the results of the criminal history record check have revealed no disqualifying record. Every such new employee shall provide a valid current social security number and/or driver's license number which shall be furnished to the licensing agency or to the private entity designated by the licensing agency to conduct the criminal history record check. The institution for the aged or infirm or care facility applying for the criminal history record check will be promptly notified of any disqualifying record found by the criminal history record check. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the Federal Bureau of Investigation for a national criminal history record check.
(b) A licensed institution for the aged or infirm or care facility may make an offer of temporary employment to a prospective employee pending the results of a criminal history record check on the person. In such instances, the licensed institution for the aged or infirm or care facility shall provide to the licensing agency, or to the designated private entity, the name and relevant information relating to the person within seventy-two (72) hours after the date the person accepts temporary employment.
(c) All fees incurred in compliance with this section shall be borne by the institution or facility requesting the criminal history record check. The licensing agency, or the designated private entity, is authorized to charge the institution for the aged or infirm or care facility a fee which shall include the amount required by the Mississippi Department of Public Safety, the Federal Bureau of Investigation or any other agency designated by the licensing agency for the national criminal history record check in addition to any necessary costs incurred by the licensing agency or the designated private entity for the handling and administration of the criminal history record checks. Costs incurred by a nursing home provider implementing this act shall be reimbursed as an allowable cost under Section 43-13-116.
(d) The licensing agency, care facility, and their agents, officers, employees, attorneys and representatives shall be presumed to be acting in good faith for any employment decision or action taken under paragraphs (a) and (b) of this subsection. The presumption of good faith may be overcome by a preponderance of the evidence in any civil action.
(e) The licensing agency shall promulgate regulations to implement this subsection (5).
SECTION 4. Section 15-1-36, Mississippi Code of 1972, is amended as follows:
15-1-36. (1) For any claim accruing on or before June 30, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital or nursing home or other long-term care facility, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.
(2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital or nursing home or other long-term care hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred:
(a) In the event a foreign object introduced during a surgical or medical procedure has been left in a patient's body, the cause of action shall be deemed to have first accrued at, and not before, the time at which the foreign object is, or with reasonable diligence should have been, first known or discovered to be in the patient's body.
(b) In the event the cause of action shall have been fraudulently concealed from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence should have been, first known or discovered.
(3) Except as otherwise provided in subsection (4) of this section, if at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be six (6) years of age or younger, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his sixth birthday, or shall have died, whichever shall have first occurred.
(4) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be a minor without a parent or legal guardian, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have a parent or legal guardian or shall have died, whichever shall have first occurred; provided, however, that in no event shall the period of limitation begin to run prior to such minor's sixth birthday unless such minor shall have died.
(5) If at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be under the disability of unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period of time hereinbefore limited shall have expired, commence action on such claim at any time within two (2) years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under the disability, or shall have died, whichever shall have first occurred.
(6) When any person who shall be under the disabilities mentioned in subsections (3), (4) and (5) of this section at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person to commence action on the claim of such person beyond the period prescribed under Section 15-1-55, Mississippi Code of 1972.
(7) For the purposes of subsection (3) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday.
(8) For the purposes of subsection (4) of this section, and only for the purposes of such subsection, the disability of infancy or minority shall be removed from and after a person has reached his sixth birthday or from and after such person shall have a parent or legal guardian, whichever occurs later, unless such disability is otherwise removed by law.
(9) The limitation established by this section as to a licensed physician, osteopath, dentist, hospital or nurse shall apply only to actions the cause of which accrued on or after July 1, 1976.
(10) The limitation established by this section as to pharmacists shall apply only to actions the cause of which accrued on or after July 1, 1978.
(11) The limitation established by this section as to podiatrists shall apply only to actions the cause of which accrued on or after July 1, 1979.
(12) The limitation established by this section as to optometrists and chiropractors shall apply only to actions the cause of which accrued on or after July 1, 1983.
(13) The limitation established by this section as to actions commenced on behalf of minors shall apply only to actions the cause of which accrued on or after July 1, 1989.
SECTION 5. Section 43-11-7, Mississippi Code of 1972, is amended as follows:
43-11-7. Any person, as defined in this chapter, may apply for a license as provided herein. An application for a license 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 institution for the aged or infirm, except for personal care homes, shall be accompanied by a license fee of Twenty Dollars ($20.00) for each bed in the institution, with a minimum fee per institution of Two Hundred Dollars ($200.00), which shall be paid to the licensing agency. Each application for a license for a personal care home shall be accompanied by a license fee of Fifteen Dollars ($15.00) for each bed in the institution, with a minimum fee per institution of One Hundred Dollars ($100.00), which shall be paid to the licensing agency.
No governmental entity or agency shall be required to pay the fee or fees set forth in this section.
SECTION 6. Section 43-7-53, Mississippi Code of 1972, is amended as follows:
43-7-53. (1) There is hereby established within the Mississippi Council on Aging, the Office of the State Long-Term Care Facilities Ombudsman as provided by the Older Americans Act of 1965, as amended, 42 USCS 3001.
(2) The council shall establish the qualifications of state and community ombudsmen. Such qualifications shall include training and experience with long-term care facilities.
SECTION 7. Section 43-7-61, Mississippi Code of 1972, is amended as follows:
43-7-61. (1) The Office of the State Long-Term Care Facilities Ombudsman shall establish a training and certification program. The council shall specify by rule the content of the training program. Each long-term care facilities ombudsman program shall bear the cost of training its own employees.
(2) The State Ombudsman shall arrange for the training of all prospective community ombudsmen selected by area agencies on aging. Such training shall include instruction in at least the following subjects as they relate to long-term care:
(a) The responsibilities and duties of community ombudsmen;
(b) The laws and regulations governing the receipt, investigation and resolution of issues of the well-being of a resident;
(c) The role of local, state and federal agencies that regulate long-term care facilities;
(d) The different kinds of long-term care facilities in Mississippi and the services provided in each kind;
(e) The special needs of the elderly and of the physically and mentally handicapped;
(f) The role of the family, the sponsor, the legal representative, the physician, the church, and other public and private agencies, and the community;
(g) How to work with long-term care facility staff;
(h) The aging process and characteristics of the long-term care facility resident or institutionalized elderly;
(i) Familiarity with and access to information concerning the laws and regulations governing Medicare, Medicaid, Social Security, Supplemental Security Income, the Veterans Administration and Workers' Compensation; and
(j) The training program shall include an appropriate internship to be performed in a long-term care facility.
(3) Persons selected by area agencies on aging who have satisfactorily completed the training arranged by the State Ombudsman shall be certified as community ombudsmen by the council.
(4) Each area agency on aging may appoint an advisory committee to advise it in the operation of its community ombudsman program. The number and qualifications of members of the advisory committee shall be determined by the area agency on aging.
(5) Ombudsmen who have successfully completed the training and certification program under this section shall be given identification cards which shall be presented to employees of a long-term care facility upon request.
(6) Ombudsmen shall participate in ongoing training programs related to their duties or responsibilities.
SECTION 8. This act shall take effect and be in force from and after July 1, 2002.