MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Public Health and Welfare; Judiciary, Division A
By: Senator(s) Nunnelee
AN ACT TO CODIFY SECTIONS 43-12-1 THROUGH 43-12-27, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE LICENSURE AND REGULATION OF CONTINUING CARE RETIREMENT COMMUNITIES BY THE STATE DEPARTMENT OF HEALTH; TO PROVIDE DEFINITIONS; TO PROVIDE FOR THE ISSUANCE OF LICENSES; TO PROVIDE A DISCIPLINARY PROCESS FOR LICENSEES AND JUDICIAL REVIEW; TO PROVIDE FOR THE RETENTION OF MEDICAL RECORDS; TO PROVIDE FOR INSPECTIONS; TO PROVIDE FOR CONFIDENTIALITY; TO PROVIDE CRIMINAL AND CIVIL PENALTIES FOR VIOLATIONS OF THIS ACT; 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 43-12-1, Mississippi Code of 1972:
43-12-1. Definitions.
When used in this chapter, the following words shall have the following meanings:
(a) "Continuing Care Retirement Community" means, as described in the latest edition of the Mississippi State Health Plan, a comprehensive, cohesive living arrangement for the elderly which is offered under a contract that lasts for more than one (1) year or for the life of the resident and describes the service obligation of the Continuing Care Retirement Community and the financial obligations of the resident. A Continuing Care Retirement Community must include: (i) independent living accommodations, (ii) personal care beds, and (iii) intermediate or skilled nursing care beds, or both. The three (3) components must be located on a single site and be operated as one (1) inseparable facility. The nursing facility component must contain a minimum of thirty (30) beds. Any nursing facility beds authorized by this section will not be counted against the bed need set forth in the State Health Plan, as identified in Section 41-7-171 et seq.
(b) "Person" means any individual, firm, partnership, corporation, company, association or joint stock association, or any licensee herein or the legal successor thereof.
(c) "Personal care" means assistance rendered by personnel of a Continuing Care Retirement Community to its residents in performing one or more of the activities of daily living, which includes, but is not limited to, the bathing, walking, excretory functions, feeding, personal grooming and dressing of such residents.
(d) "Licensing agency" means the State Department of Health.
(e) "Medical records" mean, without restriction, those medical histories, records, reports, summaries, diagnoses and prognoses, records of treatment and medication ordered and given, notes, entries, x-rays and other written or graphic data prepared, kept, made or maintained in the Continuing Care Retirement Community that pertain to residency in or services rendered to residents of such Continuing Care Retirement Community.
SECTION 2. The following provision shall be codified as Section 43-12-3, Mississippi Code of 1972:
43-12-3. Statement of purpose.
The purpose of this chapter is to protect and promote the public welfare by providing for the development, establishment and enforcement of certain standards in the maintenance and operation of Continuing Care Retirement Communities which will insure safe, sanitary and reasonably adequate care of individuals in such facilities.
SECTION 3. The following provision shall be codified as Section 43-12-5, Mississippi Code of 1972:
43-12-5. Continuing Care Retirement Community requires license.
No person, acting severally or jointly with any other person, shall establish, conduct or maintain a Continuing Care Retirement Community in this state without a license under this chapter.
SECTION 4. The following provision shall be codified as Section 43-12-7, Mississippi Code of 1972:
43-12-7. Application, form and fee.
Any person, as defined in Section 43-12-1, may apply for a license as provided in this section. 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 under this chapter. Each application for a license for a Continuing Care Retirement Community shall be accompanied by a license fee of Twenty Dollars ($20.00) for each resident of the facility, excluding residents of the independent living section of the facility, with a minimum fee per facility of Two Hundred Dollars ($200.00), 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 5. The following provision shall be codified as Section 43-12-9, Mississippi Code of 1972:
43-12-9. License issuance, renewal, terms, display.
(1) Upon receipt of an application for license and the license fee, the licensing agency shall issue a license if the applicant and its facilities meet the requirements established under this chapter and the requirements of Section 41-7-173 et seq., where determined by the licensing agency to be applicable. A license, unless suspended or revoked, shall be renewable annually upon payment by the licensee of a Continuing Care Retirement Community of a renewal fee of Twenty Dollars ($20.00) for each resident of the facility, excluding residents of the independent living section of the facility, which shall be paid to the licensing agency, and upon filing by the licensee and approval by the licensing agency of an annual report upon such uniform dates and containing such information in such form as the licensing agency prescribes by regulation. Each license shall be issued only for the premises and person or persons or other legal entity or entities named in the application and shall not be transferable or assignable except with the written approval of the licensing agency. Licenses shall be posted in a conspicuous place on the licensed premises.
(2) A fee known as a "User Fee" shall be applicable and shall be paid to the licensing agency as set out in subsection (1) hereof. This user fee shall be assessed for the purpose of the required reviewing and inspections of the proposal of any facility in which there are additions, renovations, modernizations, expansion, alterations, conversions, modifications or replacement of the entire facility involved in such proposal. This fee includes the reviewing of architectural plans in all steps required. There shall be a minimum user fee of Fifty Dollars ($50.00) and a maximum user fee of Five Thousand Dollars ($5,000.00).
(3) No governmental entity or agency shall be required to pay the fee or fees set forth in this section.
SECTION 6. The following provision shall be codified as Section 43-12-11, Mississippi Code of 1972:
43-12-11. Denial, suspension or revocation process.
The licensing agency, after notice and opportunity for a hearing to the applicant or licensee, is authorized to deny, suspend, or revoke a license in any case in which it finds that there has been a substantial failure to comply with the requirements established under this chapter.
Such notice shall be effected by registered mail or by personal service setting forth the particular reasons for the proposed action and fixing a date not less than thirty (30) days from the date of such mailing or such service, at which time the applicant or licensee shall be given an opportunity for a prompt and fair hearing. On the basis of any such hearing, or upon default of the applicant or licensee, the licensing agency shall make a determination specifying its findings of fact and conclusions of law. A copy of such determination shall be sent by registered mail or served personally upon the applicant or licensee. The decision revoking, suspending or denying the license or application shall become final thirty (30) days after it is so mailed or served, unless the applicant or licensee, within such thirty-day period, appeals to the decision to the chancery court pursuant to Section 43-12-23.
The procedure governing hearings authorized by this section shall be in accordance with rules promulgated by the licensing agency. A full and complete record shall be kept of all proceedings, and all testimony shall be recorded but need not be transcribed unless the decision is appealed pursuant to Section 43-12-23. Witnesses may be subpoenaed by either party. Compensation shall be allowed to witnesses as in cases in the chancery court. Each party shall pay the expense of his own witnesses. The cost of the record shall be paid by the licensing agency provided any other party desiring a copy of the transcript shall pay therefor the reasonable cost of preparing the same.
SECTION 7. The following provision shall be codified as Section 43-12-13, Mississippi Code of 1972:
43-12-13. Rules, regulations and standards; affidavits as to criminal convictions.
(1) The licensing agency shall adopt, amend, promulgate and enforce such rules, regulations and standards, including classifications, with respect to all Continuing Care Retirement Communities 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 those facilities in the interest of public health, safety and welfare. Those 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 Continuing Care Retirement Communities" and the book shall be open and available to all Continuing Care Retirement Communities and the public generally at all reasonable times. Upon the adoption of those rules, regulations and standards, the licensing agency shall mail copies thereof to all persons in the state who have filed with the agency their names and addresses for this purpose, but the failure to mail the same or the failure of the persons 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 licensing agency shall have the authority to adopt similar rules, regulations and standards for Continuing Care Retirement Communities as the licensing agency has for institutions for the aged or infirm set forth in Section 43-11-13. Further, Continuing Care Retirement Communities shall also be governed by all requirements established in Section 43-11-13 relating to institutions for the aged or infirm.
SECTION 8. The following provision shall be codified as Section 43-12-15, Mississippi Code of 1972:
43-12-15. Existing facilities, time to comply.
Any Continuing Care Retirement Community which is in operation at the time of promulgation of any applicable rules or regulations or minimum standards under this chapter shall be given a reasonable time, under the particular circumstances not to exceed one (1) year from the date of such promulgation, within which to comply with such rules and regulations and minimum standards.
SECTION 9. The following provision shall be codified as Section 43-12-16, Mississippi Code of 1972:
43-12-16. Medical records; possession; access.
Medical records are and shall remain the property of the various Continuing Care Retirement Communities, subject, however, to reasonable access to the information contained therein upon written request by the resident, his legally appointed representatives, his attending medical personnel and his duly authorized nominees, and upon payment of any reasonable charges for such service. Nothing in this section shall be construed to deny access to medical records by the Attorney General, the licensing agency, or his or its agents and investigators in the discharge of their official duties under this chapter. Except as otherwise provided by law, medical records shall not constitute public records and nothing in this section shall be deemed to impair any privilege of confidence conferred by law or the Mississippi Rules of Evidence on residents, their personal representatives, or heirs by Section 13-1-21.
SECTION 10. The following provision shall be codified as Section 43-12-17, Mississippi Code of 1972:
43-12-17. Inspections and investigations.
The licensing agency shall make or cause to be made such inspections and investigations as it deems necessary.
SECTION 11. The following provision shall be codified as Section 43-12-19, Mississippi Code of 1972:
43-12-19. Confidentiality.
Information received by the licensing agency through filed reports, inspection, or as otherwise authorized under this chapter, shall not be disclosed publicly in such manner as to identify individuals, except in a proceeding involving the questions of licensure; however, the licensing agency may utilize statistical data concerning types of services and the utilization of those services for Continuing Care Retirement Communities in performing the statutory duties imposed upon it by Section 41-7-171 et seq. and by Section 43-12-21.
SECTION 12. The following provision shall be codified as Section 43-12-21, Mississippi Code of 1972:
43-12-21. Annual reports.
The licensing agency shall prepare and publish an annual report of its activities and operations under this chapter. A reasonable number of copies of such publications shall be available in the office of the licensing agency to be furnished free to persons requesting them.
SECTION 13. The following provision shall be codified as Section 43-12-23, Mississippi Code of 1972:
43-12-23. Appeal and review.
Any applicant or licensee aggrieved by the decision of the licensing agency after a hearing may, within thirty (30) days after the mailing or serving of notice of the decision as provided in Section 43-12-11, file a notice of appeal in the Chancery Court of the First Judicial District of Hinds County or the chancery court of the county in which the Continuing Care Retirement Community is located or to be located, and the chancery clerk thereof shall serve a copy of the notice of appeal upon the licensing agency. Thereupon the licensing agency shall, within sixty (60) days or such additional time as the court may allow from the service of such notice, certify and file with the court a copy of the record and decision, including the transcript of the hearings on which the decision is based. Findings of fact by the licensing agency shall be conclusive unless substantially contrary to the weight of the evidence but upon good cause shown, the court may remand the case to the licensing agency to take further evidence, and the licensing agency may thereupon affirm, reverse or modify its decision. The court may affirm, modify or reverse the decision of the licensing agency and either the applicant or licensee or the licensing agency may appeal from this decision to the Supreme Court as in other cases in the chancery court. Pending final disposition of the matter the status quo of the applicant or licensee shall be preserved, except as the court otherwise orders in the public interest. Rules with respect to court costs as in other cases in chancery shall apply equally to cases hereunder.
SECTION 14. The following provision shall be codified as Section 43-12-25, Mississippi Code of 1972:
43-12-25. Sanctions.
Any person establishing, conducting, managing or operating a Continuing Care Retirement Community without a license under this chapter shall be guilty of a misdemeanor, and upon conviction shall be fined not more than One Thousand Dollars ($1,000.00) for the first offense and not more than One Thousand Dollars ($1,000.00) for each subsequent offense, and each day of a continuing violation after conviction shall be considered a separate offense.
SECTION 15. The following provision shall be codified as Section 43-12-27, Mississippi Code of 1972:
43-12-27. Equitable relief.
Notwithstanding the existence or pursuit of any other remedy, the licensing agency may, in the manner provided by law, upon the advice of the Attorney General who shall represent the licensing agency in the proceedings, maintain an action in the name of the state for injunction or other process against any person to restrain or prevent the establishment, conduct, management or operation of a Continuing Care Retirement Community without a license under this chapter.
SECTION 16. This act shall take effect and be in force from and after July 1, 2004.