MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Public Health and Human Services; Appropriations
By: Representative Baker
AN ACT TO CREATE NEW SECTIONS 73-73-1 THROUGH 73-73-25, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE LICENSURE BY THE STATE DEPARTMENT OF HEALTH OF PERSONS ENGAGED IN THE PRACTICE OF CLINICAL LABORATORY SCIENCE; TO PROVIDE DEFINITIONS; TO CREATE THE MISSISSIPPI CLINICAL LABORATORY PRACTITIONER LICENSURE ADVISORY BOARD TO ADVISE AND ASSIST THE DEPARTMENT IN ITS DUTIES UNDER THIS ACT; TO PROVIDE FOR THE APPOINTMENT OF THE MEMBERS OF THE BOARD; TO PRESCRIBE THE POWERS AND DUTIES OF THE DEPARTMENT UNDER THIS ACT; TO PRESCRIBE THE QUALIFICATIONS FOR A LICENSE TO PRACTICE CLINICAL LABORATORY SCIENCE AND A TEMPORARY LICENSE TO PRACTICE CLINICAL LABORATORY SCIENCE; TO PROVIDE FOR ANNUAL RENEWAL OF LICENSES; TO PRESCRIBE FEES FOR LICENSURE AND RENEWAL; TO PRESCRIBE THE GROUNDS FOR WHICH THE DEPARTMENT MAY SUSPEND OR REVOKE A LICENSE; TO PROVIDE FOR EXCEPTIONS TO THE LICENSURE REQUIREMENTS; TO PROVIDE FOR PENALTIES FOR VIOLATIONS OF PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 73-73-1, Mississippi Code of 1972:
73-73-1. This chapter shall be known and may be cited as the "Mississippi Clinical Laboratory Science Practice Act."
SECTION 2. The following shall be codified as Section 73-73-3, Mississippi Code of 1972:
73-73-3. The purpose of this chapter is to safeguard the public health, safety and welfare, to insure the highest degree of professional conduct on the part of clinical laboratory practitioners, and to insure the availability of high quality clinical laboratory science services by providing for the regulation of clinical laboratory practitioners to the public.
SECTION 3. The following shall be codified as Section 73-73-5, Mississippi Code of 1972:
73-73-5. The following terms shall have the meaning ascribed in this section unless the context otherwise requires:
(a) "Clinical laboratory science" means the performance of microbiological, virological, serological, chemical, immunohematological, hematological, biophysical, cytogenetical or molecular procedures and examinations, and any other test or procedure conducted by a laboratory, on material derived from the human body that provides information for the diagnosis, prevention or treatment of a disease or assessment of a human medical condition.
(b) "Clinical laboratory practitioner" means a medical laboratory scientist/medical technologist, or medical laboratory technician, as those terms are defined in this paragraph, who works in licensed clinical laboratories and practices clinical laboratory science. For the purposes of this chapter, a licensed clinical laboratory does not include a laboratory operated by any licensed physician, physician assistant, dentist, podiatrist or nurse practitioner who performs laboratory tests or procedures, personally or through his or her employees, solely as an adjunct to the treatment of his or her own patients.
(i) "Medical laboratory scientist/medical technologist" means a clinical laboratory practitioner who, in accordance with established and approved protocols of the department, performs clinical laboratory procedures and examinations and any other tests or procedures conducted by a clinical laboratory, including maintaining equipment and records, and performing quality assurance activities related to examination performance, which require the exercise of independent judgment and responsibility, as determined by the department.
(ii) "Medical laboratory technician" means a clinical laboratory practitioner who performs clinical laboratory procedures and examinations in accordance with established and approved protocols of the department, which require limited exercise of independent judgment and which are performed under the supervision of a medical laboratory scientist/medical technologist, laboratory supervisor, or director of a clinical laboratory.
(iii) "Director of a clinical laboratory" means a laboratory director as that term is defined by the current Clinical Laboratory Improvement Amendments regulations in 42 CFR Part 493, Subpart M, Sections 493.1357, 493.1405 or 493.1443.
(iv) "Laboratory supervisor" means an individual who, under the general direction of the laboratory director, supervises technical personnel and reporting of findings, performs tests requiring special scientific skills, and, in the absence of the director, is responsible for the proper performance of all laboratory procedures.
(c) "Board" means the Mississippi Clinical Laboratory Practitioner Licensure Advisory Board established under Section 73-73-7.
(d) "Department" means the State Department of Health.
(e) "Licensed medical laboratory scientist/medical technologist" and "licensed medical laboratory technician" means a person who holds a license to practice clinical laboratory science issued under this chapter.
(f) "Temporary licensed medical laboratory scientist/medical technologist" and "temporary licensed medical laboratory technician" means a person who holds a temporary license to practice clinical laboratory science issued under this chapter.
(g) "License holder" or "licensee" means a clinical laboratory practitioner licensed under the provisions of this chapter.
(h) "NAACLS" means National Accrediting Agency for Clinical Laboratory Sciences.
SECTION 4. The following shall be codified as Section 73-73-7, Mississippi Code of 1972:
73-73-7. (1) There is created the Mississippi Clinical Laboratory Practitioner Licensure Advisory Board, which shall advise and assist the State Department of Health in its duties under this chapter. The board shall consist of seven (7) members, four (4) who are licensed medical laboratory cientists/technologists licensed under this chapter, one (1) who is a licensed medical laboratory technician licensed under this chapter, one (1) who is a consumer at large who is not associated with or financially interested in the practice or business of clinical laboratory science, and one (1) physician who is board certified as an anatomical and/or clinical pathologist. All members of the board must be residents of Mississippi and citizens of the United States. The clinical laboratory practitioner members of the initial board need not be licensed before their appointment, but must have met all other requirements of licensing except the filing of an application, the passing of a satisfactory exam and paying a fee.
(2) The initial members of the board shall be appointed by the Governor from a list provided by the Board of Directors of the American Society for Clinical Laboratory Science-MS for staggered terms as follows: Two (2) members shall be appointed for a term that ends on June 30, 2013; two (2) members shall be appointed for terms that end on June 30, 2014; one (1) member shall be appointed for a term that ends on June 30, 2015; and two (2) members shall be appointed for terms that end on June 30, 2016. All later appointments to the board shall be for terms of four (4) years from the expiration date of the previous term. No person shall be appointed for more than two (2) consecutive terms. By approval of the majority of the board, the service of a member may be extended at the completion of a four-year term until a new member is appointed or the current member is reappointed. After the appointment of the initial members of the board, all later appointments shall be made by the Governor from a list of candidates provided by the Board of Directors of the American Society for Clinical Laboratory Science-MS. Appointments made to fill a vacancy shall be for the period of the unexpired term.
(3) The board shall annually elect a chairman, secretary and treasurer. The board shall provide for the timely orientation and training of new professional and public appointees to the board regarding licensing and disciplinary procedures, this chapter and department rules, regulations, policies and procedures. A member may be removed by the board only for due cause. Failure to attend at least half of the board meetings in a fiscal year shall constitute cause. The board shall meet at least once each quarter, and those meetings shall be held in compliance with the Open Meetings Law (Section 25-41-1 et seq.). A majority of board members shall constitute a quorum for the transaction of business. The board shall keep an official record of its meetings. Vacancies on the board shall be filled by the Governor from a list of nominees submitted by the Board of Directors of the American Society for Clinical Laboratory Science-MS. Members of the board shall receive the per diem authorized under Section 25-3-69 for each day spent actually discharging their official duties, and shall receive reimbursement for mileage and necessary travel expenses incurred as provided in Section 25-3-41. A board member who acts within the scope of board duties, without malice and in the reasonable belief that the member's action is warranted by law, is immune from civil liability.
SECTION 5. The following shall be codified as Section 73-73-9, Mississippi Code of 1972:
73-73-9. The State Department of Health, with the advice of the board, shall have the following powers and duties under this chapter:
(a) Issue licenses to applicants who meet the requirements of this chapter;
(b) Establish procedures for receiving, investigating and resolving complaints against license holders;
(c) Deny, suspend or revoke a license to practice clinical laboratory science for any of the grounds listed in Section 73-73-17;
(d) Censure, reprimand or place a license holder on probation for a period not to exceed one (1) year;
(e) Maintain a current register of license holders as a matter of public record;
(f) Prescribe and collect fees for the issuance and renewal of licenses and for replacement and duplicate licenses; and
(g) Promulgate rules and regulations necessary to carry out the provisions of this chapter that are consistent with the standards of practice of the American Society for Clinical Laboratory Science or a successor organization, which include guidelines for collaboration with other health care providers.
SECTION 6. The following shall be codified as Section 73-73-11, Mississippi Code of 1972:
73-73-11. (1) The department shall issue a license to practice clinical laboratory science to any person who files a completed application, accompanied by the required fees, and who submits satisfactory evidence that the applicant demonstrates professional competency by completing the requirements for certification as a certified medical laboratory scientist/technologist or medical laboratory technician by passing a written examination provided by a clinical laboratory personnel certification agency accredited by the American National Standards Institute or the National Commission for Certifying Agencies.
(2) Upon filing a completed application and payment of a fee, the department may issue a temporary license to practice clinical laboratory science for a period of six (6) months to an applicant for licensing, pending compliance with the requirements for licensing, providing the applicant shows written evidence, verified by oath, that the applicant is currently practicing, or has within the last twelve (12) months practiced, clinical laboratory science in another state or is a student in a NAACLS accredited clinical laboratory education program accredited by the Commission on Accreditation of Allied Health Education Programs or their successor organizations who expects to graduate within the next thirty (30) calendar days. Upon the expiration of the temporary license and payment of a fee, the department may issue a license to perform clinical laboratory science for an additional period not to exceed twelve (12) months from the date of issuance of the original temporary license, pending reexamination or compliance with this chapter. Reapplication following abandonment of an application shall not entitle the applicant to a license.
(3) The department shall issue a license to practice clinical laboratory science to an applicant, who, before July 1, 2012, has passed a certification examination from an approved clinical laboratory personnel certifying agency, or is a graduate of a clinical laboratory educational program accredited by NAACLS or its successor organization. Applicants who have not passed a certification examination from an approved clinical laboratory personnel certifying agency before July 1, 2012, but who through written evidence, verified by oath, demonstrate that they are presently functioning in the capacity of a clinical laboratory practitioner as defined by this chapter, and have done so for a period of at least twelve (12) months before July 1, 2012, shall be issued a license to practice clinical laboratory science.
SECTION 7. The following shall be codified as Section 73-73-13, Mississippi Code of 1972:
73-73-13. (1) A license shall be renewed annually except as provided in this section or as provided in Section 33-1-39. The department shall mail notices at least thirty (30) calendar days before expiration for renewal of license to every person to whom a license was issued or renewed during the preceding renewal period. The licensee shall complete the notice of renewal and return it to the department with the renewal fee before the date of expiration.
(2) Upon receipt of the notice of renewal and the fee, the department shall verify its contents and shall issue the licensee a license for the current renewal period, which shall be valid for the period stated on the license. The department, with the advice of the board, shall establish continuing education requirements for annual renewal of the license, which shall include proof of completion of at least twelve (12) clock hours approved by the department for continuing education credit.
(3) A licensee who allows his or her license to lapse by failing to renew it may be reinstated by the department upon payment of the renewal fee and reinstatement fee, provided that the request for reinstatement is made within two (2) years of the end of the renewal period.
(4) A clinical laboratory practitioner who does not engage in the practice of clinical laboratory science during the succeeding renewal period is not required to pay the renewal fee as long as the practitioner remains inactive. If the practitioner desires to resume the practice of clinical laboratory science, the department shall be notified of this intent and the practitioner shall satisfy the current requirements of the department in addition to remitting the renewal fee for the current renewal period and the reinstatement fee. Requirements of the department shall include a specific period of time of continuous inactivity after which testing is required.
SECTION 8. The following shall be codified as Section 73-73-15, Mississippi Code of 1972:
73-73-15. All fees established by the department under this chapter shall be set in such an amount as is necessary to reimburse the department and board for the cost of services rendered, not to exceed an annual sum of Two Hundred Fifty Dollars ($250.00) to be paid by any individual. Fees received by the department and all other monies collected under this chapter shall be deposited in a special fund to be known as the Clinical Laboratory Science Fund, which is created in the State Treasury. Any interest earned on the special fund shall be credited to the special fund and shall not be paid into the State General Fund. Any unexpended monies remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund. Monies in the special fund shall be expended, upon appropriation by the Legislature, exclusively for the purposes of implementing the provisions of this chapter. Disbursement of monies in the special fund shall be made only upon warrants issued by the State Fiscal Officer upon requisitions of the department.
SECTION 9. The following shall be codified as Section 73-73-17, Mississippi Code of 1972:
73-73-17. (1) Licensees subject to this chapter shall conduct their activities, services and practice in accordance with this chapter and any rules promulgated under this chapter. Licensees may be subject to the exercise of the disciplinary sanctions enumerated in Section 73-73-21 if the department finds that a licensee is guilty of any of the following:
(a) Negligence in the practice or performance of professional services or activities;
(b) Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public in the course of professional services or activities;
(c) Perpetrating or cooperating in fraud or material deception in obtaining or renewing a license or attempting the same;
(d) Being convicted of any crime that has a substantial relationship to the licensee's activities and services or an essential element of which is misstatement, fraud or dishonesty;
(e) Being convicted of any crime that is a felony under the laws of this state or the United States;
(f) Engaging in or permitting the performance of unacceptable services personally or by others working under the licensee's supervision due to the licensee's deliberate or negligent act or acts or failure to act, regardless of whether actual damage or damages to the public is established;
(g) Continued practice although the licensee has become unfit to practice as a clinical laboratory practitioner due to: (i) Failure to keep abreast of current professional theory or practice;
(ii) Physical or mental disability; the entry of an order or judgment by a court of competent jurisdiction that a licensee is in need of mental treatment or is incompetent shall constitute mental disability; or
(iii) Addiction or severe dependency upon alcohol or other drugs that may endanger the public by impairing the licensee's ability to practice;
(h) Having disciplinary action taken against the licensee's license in another state;
(i) Making differential, detrimental treatment against any person because of race, color, creed, sex, religion or national origin;
(j) Engaging in lewd conduct in connection with professional services or activities;
(k) Engaging in false or misleading advertising;
(1) Contracting, assisting or permitting unlicensed persons to perform services for which a license is required under this chapter;
(m) Violation of any probation requirements placed on a licensee by the department;
(n) Revealing confidential information except as may be required by law;
(o) Violations of the current Code of Ethics for clinical laboratory practitioners adopted by the American Society for Clinical Laboratory Science; or
(p) Violations of any rules or regulations promulgated under this chapter.
(2) The department may order a licensee to submit to a reasonable physical or mental examination if the licensee's physical or mental capacity to practice safely is at issue in a disciplinary proceeding.
(3) Failure to comply with an order of the department to submit to a physical or mental examination shall render a licensee subject to the summary suspension procedures described in Section 73-21-21.
(4) In addition to the reasons specified in subsection (1) of this section, the department shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 10. The following shall be codified as Section 73-73-19, Mississippi Code of 1972:
73-73-19. The following persons shall be permitted to practice clinical laboratory science in this state without obtaining a license under this chapter, upon the terms and conditions specified in this section:
(a) Students enrolled in an accredited clinical laboratory program, while engaged in completing a clinical requirement for graduation, which must be performed under the direct, on-site supervision of a licensed clinical laboratory practitioner;
(b) Clinical laboratory practitioners licensed in other jurisdictions while enrolled in graduate educational programs in this state that include the practice of clinical laboratory science as part of their experience required for credit, so long as the student is not at the same time gainfully employed in this state as a clinical laboratory practitioner;
(c) Clinical laboratory practitioners who are employed with the United States Armed Services, United States Public Health Service, United States Department of Veterans Affairs or other federal agency; however, if the individual engages in the practice of clinical laboratory science outside of the scope of official duty, the individual must be licensed as provided in this chapter;
(d) Clinical laboratory practitioners licensed in other jurisdictions who are teaching or participating in clinical laboratory science education projects, demonstrations or courses in this state, in which their participation in the practice of clinical laboratory science is minimal;
(e) Clinical laboratory practitioners engaged in teaching or research, provided that the results of any examination performed are not used in health maintenance, diagnosis or treatment of disease and are not added to the patient's permanent record;
(f) Persons employed by a clinical laboratory to perform supportive functions not related to the direct performance of laboratory procedures or examinations;
(g) Persons licensed or otherwise authorized under the Mississippi Code of 1972 to practice medicine in the state under Title 73, Chapter 25; persons licensed to perform services as a physician assistant in the state under Title 73, Chapter 26; persons licensed to practice dentistry in the state under Title 73, Chapter 9; persons licensed to practice podiatry in the state under Title 73, Chapter 27; persons licensed as a nurse practitioner in the state under Title 73, Chapter 15; persons licensed to perform services as a respiratory care practitioner in the state under Title 73, Chapter 57; or licensed health care practitioners who perform point of care laboratory testing under the oversight of the clinical laboratory; however, no such person shall use the titles licensed medical laboratory scientist/technologist or medical laboratory technician, unless licensed under this chapter; and
(h) A director of a clinical laboratory.
SECTION 11. The following shall be codified as Section 73-73-21, Mississippi Code of 1972:
73-73-21. (1) The department, with the advice of the board, may impose any of the following sanctions, singly or in combination, when the department finds that a licensee is guilty of any such offense:
(a) Revocation of the license;
(b) Suspension of the license for any period of time;
(c) Censure or reprimand the licensee;
(d) Impose a monetary penalty of not more than Two Hundred Dollars ($200.00) for each violation;
(e) Place a licensee on probationary status for a period not to exceed one (1) year and require the licensee to submit to any of the following:
(i) Report regularly to the department upon matters that are the basis of probation;
(ii) Continue to renew professional education until a satisfactory degree of skill has been attained in those areas that are the basis of probation; or
(iii) Any other reasonable requirements or restrictions as are proper;
(f) Refuse to renew a license; or
(g) Revoke probation that has been granted and impose any other disciplinary action in this subsection when the requirements of probation have not been fulfilled or have been violated.
(2) The department, with the advice of the board, may summarily suspend a license under this chapter without a hearing simultaneously with the filing of a formal complaint and notice for a hearing provided under this section if the department finds that the continued practice in the profession would constitute an immediate danger to the public. If the department summarily suspends a license under the provisions of this subsection, a hearing must begin within twenty (20) days after the suspension begins, unless continued at the request of the licensee.
(3) Disposition of any formal complaint may be made by consent order or stipulation between the department and the licensee.
(4) The department may reinstate any licensee to good standing under this chapter if, after a hearing, the department is satisfied that the applicant's renewed practice is in the public interest. The procedure for the reimbursement of a license that is suspended for being out of compliance with an order for support, as defined in Section 93-11-153, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.
(5) The department shall seek to achieve consistency in the application of the foregoing sanctions, and significant departure from prior decisions involving similar conduct shall be explained by the department.
SECTION 12. The following shall be codified as Section 73-73-23, Mississippi Code of 1972:
73-73-23. (1) Any person whose application for a license is denied shall be entitled to a hearing by submitting a written request to the department. The hearing shall be conducted at the earliest possible date. The department shall set a time and place for the hearing and shall cause a written copy of the reason for denial of the license, together with a notice of the time and place set for the hearing to be served on the applicant requesting the hearing. Service of and notice of the hearing may be given by certified mail to the last known address of the licensee or applicant. For the purposes of the hearing, the department shall have the power to subpoena persons and compel the production of records, papers and other documents.
(2) (a) All complaints concerning a licensee's professional practice shall be received by the department. Each complaint received shall be logged, recording at a minimum the following information:
(i) Licensee's name;
(ii) Name of the complaining party, if known;
(iii) Date of complaint;
(iv) Brief statement of complaint; and
(v) Disposition.
(b) Following the investigative process, the department may file formal charges against the licensee. The formal complaint shall, at a minimum, inform the licensee of the facts that are the basis of the charge and that are specific enough to enable the licensee to defend against the charges.
(c) Each licensee whose conduct is the subject of a formal charge that seeks to impose disciplinary action against the licensee shall be served notice of the formal charge at least thirty (30) days before the date of the hearing, which hearing shall be conducted by a hearing officer of the department. Service shall be considered to have been given if the notice was personally received by the licensee or if the notice was mailed certified, return receipt requested, to the licensee at the licensee's last known address as listed with the department.
(d) The notice of the formal charge shall consist at a minimum of the following information:
(i) The time, place and date of the hearing;
(ii) That the licensee shall appear personally at the hearing and may be represented by counsel;
(iii) That the licensee shall have the right to produce witnesses and evidence on the licensee's behalf and shall have the right to cross-examine adverse witnesses and evidence;
(iv) That the hearing could result in disciplinary action being taken against the licensee's license;
(v) That rules for the conduct of these hearings exist and it may be in the licensee's best interest to obtain a copy;
(vi) That the hearing officer will conduct the hearing and following the conclusion of the hearing will make findings of facts, conclusions of law and recommendations, separately stated, as to what disciplinary action, if any, should be imposed on the licensee by the department;
(vii) That the hearing officer will hear evidence produced in support of the formal charges and contrary evidence produced by the licensee, and at the conclusion of the hearing, the hearing officer will issue an order; and
(viii) That all proceedings under this section are matters of public record and shall be preserved in accordance with state law.
(3) In addition to other remedies provided by law or in equity, any applicant or licensee aggrieved by any action of the department may appeal the action of the department to the chancery court of the county of licensee's residence, if the licensee is a resident of this state, or the Chancery Court of the First Judicial District of Hinds County, Mississippi, if the licensee is a nonresident of this state. The court after a hearing may modify, affirm or reverse the judgment of the department or may remand the case to the department for further proceedings. An appeal must be filed within thirty (30) days immediately following the mailing or delivery to the applicant or licensee of a copy of the order of judgment of the department, unless the court, for good cause shown, extends the time. Appeals may be filed with the Supreme Court of the State of Mississippi as provided by law from any final judgment of the chancery court. If the department appeals from any judgment of the chancery court, no bond shall be required of it to perfect its appeal. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.
SECTION 13. The following shall be codified as Section 73-73-25, Mississippi Code of 1972:
73-73-25. Nothing in this chapter shall be construed to permit the practice of medicine by any license holder.
SECTION 14. This act shall take effect and be in force from and after July 1, 2012.