MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary B
By: Representatives Rushing, Miles, Reynolds, Hughes, Sykes
AN ACT TO AMEND SECTION 43-47-9, MISSISSIPPI CODE OF 1972, TO CREATE "NANCY'S LAW," WHICH AUTHORIZES THE DEPARTMENT OF HUMAN SERVICES TO RELOCATE OR PROVIDE NEW CARETAKERS FOR VULNERABLE PERSONS DURING ANY EVALUATION OR INVESTIGATION REGARDING ABUSE OF A VULNERABLE PERSON; TO BRING FORWARD SECTIONS 43-47-11, 43-47-13 AND 43-47-15, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE PROTECTIVE SERVICES PLANS OF VULNERABLE ADULTS WHO HAVE BEEN ABUSED OR EXPLOITED; TO AUTHORIZE THE MISSISSIPPI DEPARTMENT OF CHILD PROTECTIVE SERVICES TO REQUEST THAT A CRIMINAL JUSTICE AGENCY PERFORM A FEDERAL NAME-BASED CRIMINAL HISTORY RECORDS CHECK OF EACH ADULT RESIDING IN THE HOME DURING AN EMERGENCY PLACEMENT SITUATION WHEN A CHILD MUST BE PLACED IN HOME CARE DUE TO THE ABSENCE OF PARENTS OR CUSTODIANS; TO PROVIDE THAT NAME-BASED CHECK RESULTS MAY BE PROVIDED TO THE MISSISSIPPI CRIMINAL INFORMATION CENTER (MCIC) OF THE DEPARTMENT OF PUBLIC SAFETY, WHICH SHALL THEN PROVIDE A COMPLETE SET OF EACH ADULT RESIDENT'S FINGERPRINTS TO THE MCIC CENTRAL REPOSITORY FOR THE IMMEDIATE SUBMISSION TO THE FBI WITHIN FOURTEEN CALENDAR DAYS FROM THE DATE THE NAME SEARCH WAS CONDUCTED; TO PROVIDE THAT THE CENTRAL REPOSITORY SHALL EITHER POSITIVELY IDENTIFY THE FINGERPRINT SUBJECT OR FORWARD THE FINGERPRINTS TO THE FBI WITHIN FOURTEEN CALENDAR DAYS FROM THE DATE THE NAME SEARCH WAS CONDUCTED; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-47-9, Mississippi Code of 1972, is amended as follows:
43-47-9. (1) (a)
Upon receipt of a report pursuant to Section 43-47-7 that a vulnerable person
is in need of protective services, the department shall initiate an
investigation and/or evaluation within forty-eight (48) hours if immediate attention
is needed, or within seventy-two (72) hours if the vulnerable person is not in
immediate danger, to determine whether the vulnerable person is in need of
protective services and what services are needed. The evaluation shall include
any necessary visits and interviews with the person, and if appropriate, with
the alleged perpetrator of the vulnerable person abuse and with any person
believed to have knowledge of the circumstances of the case. * * *
(b) When a caretaker of a vulnerable person refuses to allow the department reasonable access to conduct an investigation to determine if the vulnerable person is in need of protective services, the department may petition the court for an emergency order for injunctive relief to (i) relocate the vulnerable person to an appropriate care facility if funding exists and prohibit the alleged perpetrator from having access to the vulnerable person, or (ii) remove the caretaker, replace such with a new caretaker that is recommended by the department, and prohibit the alleged perpetrator from having access to the vulnerable person. This paragraph (b) shall be known and may be cited as "Nancy's Law."
(2) The staff and physicians of local health departments, mental health clinics and other public or private agencies, including law enforcement agencies, shall cooperate fully with the department in the performance of its duties. These duties include immediate, in-residence evaluations and medical examinations and treatment where the department deems it necessary. However, upon receipt of a report of abuse, neglect or exploitation of a vulnerable person confined in a licensed hospital or licensed nursing home facility in the state, the department shall immediately refer this report to the proper authority at the State Department of Health for investigation under Section 43-47-37.
Upon a showing of probable cause that a vulnerable person has been abused, a court may authorize a qualified third party to make an evaluation to enter the residence of, and to examine the vulnerable person. Upon a showing of probable cause that a vulnerable person has been financially exploited, a court may authorize a qualified third party, also authorized by the department, to make an evaluation, and to gain access to the financial records of the vulnerable person.
(3) The department may contract with an agency or private physician for the purpose of providing immediate, accessible evaluations in the location that the department deems most appropriate.
SECTION 2. Section 43-47-11, Mississippi Code of 1972, is brought forward as follows:
43-47-11. (1) If, pursuant to an investigation instituted pursuant to Section 43-47-7, the department determines that a vulnerable person is in need of protective services, it shall prepare a plan of services, reviewing that plan with the vulnerable person and obtaining his consent in writing.
(2) When a caretaker of a vulnerable person who consents to the receipt of protective services refuses to allow the provision of such services to the vulnerable person, the department may petition the court for an order for injunctive relief enjoining the caretaker from interfering with the provision of protective services to the vulnerable person.
(3) If a vulnerable person does not consent to the receipt of protective services, or if he withdraws his consent, the services shall not be provided, except as indicated in Section 43-47-13.
SECTION 3. Section 43-47-13, Mississippi Code of 1972, is brought forward as follows:
43-47-13. (1) Every reasonable effort shall be made to secure the consent and participation of the vulnerable person in an evaluation and resolution of the need for protective services. If those efforts fail and if the department has reasonable cause to believe that a vulnerable person is being abused, neglected or exploited and lacks the capacity to consent to protective services, then the department may petition the court for an order for injunctive relief authorizing the provision of protective services. The petition must allege specific facts sufficient to show that the vulnerable person is in need of protective services and lacks the capacity to consent to them.
(2) The court shall set the case for hearing within fourteen (14) days after the filing of the petition. The vulnerable person must receive at least five (5) days' notice of the hearing. Where good cause is shown, the court may direct that a shorter notice be given. The vulnerable person has the right to be present and represented by counsel at the hearing. If the person, in the determination of the court, lacks the capacity to waive the right to counsel, then the court shall appoint a guardian ad litem. If the person is indigent, the cost of representation shall be borne by the department or by the court.
(3) If, at the hearing, the court finds by clear and convincing evidence that the vulnerable person is in need of protective services and lacks the capacity to consent to those services, the court may issue an order relative thereto. This order may include the designation of an individual, organization or agency to be responsible for the performing or obtaining of essential services on behalf of the vulnerable person or otherwise consenting to protective services in his behalf. The order may provide for protective services for a period not to exceed eighteen (18) months, at which time the vulnerable person's need for protective services may be reviewed by the department filing a petition requesting such review with the court. Should the court determine that the vulnerable person is in further need of protective services, it may order the provision of such protective services as provided herein.
(4) The court may appoint a guardian or conservator for the vulnerable person, but the court shall not appoint the department as a guardian of the vulnerable person. No vulnerable person may be committed to a mental health facility under this chapter. However, nothing contained herein shall prohibit the filing of petitions under other applicable provisions of the laws of this state.
SECTION 4. Section 43-47-15, Mississippi Code of 1972, is brought forward as follows:
43-47-15. (1) The department shall have the authority to provide immediate medical care, food, clothing, heat, shelter, supervision or other essential services in the absence of consent if it is determined that:
(a) The vulnerable person is in imminent danger of death or irreparable harm;
(b) Provision of emergency and/or protective services will alleviate the endangerment; and
(c) No other statutory or otherwise appropriate remedy is immediately available.
(2) Within forty-eight (48) hours, excluding Saturdays, Sundays and legal holidays, the department shall petition the court for an order for injunctive relief authorizing the provision of emergency services.
(3) Upon petition of the Commissioner of Public Welfare, the court may order the provision of emergency services to a vulnerable person after finding that there is reasonable cause to believe that:
(a) The vulnerable person lacks the capacity to consent and that he is in need of protective services;
(b) An emergency exists; and
(c) No other person authorized by law or order to give consent is available and willing to arrange for emergency services.
If there is reasonable cause to believe that the conditions listed above exist and no other custodian is available, then upon a written petition for emergency services filed by the department, the court may issue an order for injunctive relief for the department to provide emergency services to a vulnerable person.
(4) The petition for emergency services shall set forth the name, address and authority of the petitioners; the name, age and residence of the vulnerable person; the nature of the emergency; the proposed emergency services; the petitioner's reasonable belief as to the existence of the conditions set forth in subsection (1) of this section; and facts showing petitioner's attempts to obtain the vulnerable person's consent to the services.
(5) If the provision of emergency and/or protective services alleviates the imminent danger of death or irreparable harm and the department has reasonable cause to believe that the vulnerable person remains in need of protective services, the department shall proceed according to Sections 43-47-11 and 43-47-13.
(6) Where it is necessary to enter a premises without the vulnerable person's consent after obtaining a court order in compliance with subsection (3) of this section, the representative of the petitioner shall do so.
(7) No petitioner shall be held liable in any action brought by the vulnerable person if the petitioner acted in good faith.
SECTION 5. (1) As used in this section, "emergency placement" means those limited instances when the Mississippi Department of Child Protective Services is placing a child in the home of private individuals, including neighbors or friends, as a result of a sudden unavailability of the child's primary caretaker.
(2) During an emergency placement situation when a child must be placed in home care due to the absence of parents or custodians, the Mississippi Department of Child Protective Services (MDCPS) may request that a criminal justice agency perform a federal name-based criminal history records check of each adult residing in the home. Name-based check results may be provided to the Mississippi Criminal Information Center (MCIC) of the Mississippi Department of Public Safety, which shall then provide a complete set of each adult resident's fingerprints to the MCIC central repository for the immediate submission to the Federal Bureau of Investigation (FBI) within fourteen (14) calendar days from the date the name search was conducted. The central repository shall either positively identify the fingerprint subject or forward the fingerprints to the FBI within fourteen (14) calendar days from the date the name search was conducted. The child shall be removed from the home immediately if any adult resident fails to provide their fingerprints and written permission to perform a federal criminal history records check when requested.
(3) When placement of a child in a home is denied as a result of a name-based criminal history records check of a resident, and the resident contests that denial, each such resident shall, within fourteen (14) calendar days, submit to MDCPS a complete set of the resident's fingerprints with written permission allowing MCIC to forward the fingerprints to the MCIC criminal history records repository for submission to the FBI.
SECTION 6. Section 6 and 7 of this act shall be known and cited as "Noah's Law."
SECTION 7. (1) As used in this section, "pure powdered caffeine product" means a product that consists solely of pure caffeine, or is sold or marketed as pure caffeine or pure powdered caffeine, and is manufactured into a crystalline or powdered form. A "pure powdered caffeine product" does not include products that contain caffeine and are formulated, manufactured, and labeled in accordance with the laws and regulations enforced by the United States Food and Drug Administration.
(2) Except as provided in subsection (3) of this section, no person, firm, corporation or other entity shall knowingly sell or offer for sale, barter, or give away a pure powdered caffeine product for human consumption.
(3) Subsection (2) of this section shall not prohibit a person, firm, corporation or other entity from selling or offering for sale, bartering, giving away, distributing, or delivering either of the following:
(a) A pure powdered caffeine product used in any lawful manufacturing process of another lawful product, in any lawful research, or in any lawful prescription drug; or
(b) Any product that receives explicit approval as safe and effective for its intended use under the Federal Food, Drug and Cosmetic Act or is lawfully marketed under an over-the-counter monograph issued by the United States Food and Drug Administration.
(4) Any person, firm, corporation or other entity who violates this section shall be liable as follows: For a first conviction, a fine of not more than One Hundred Fifty Dollars ($150.00); and for all subsequent convictions, a fine of not more than One Thousand Dollars ($1,000.00).
(5) The provisions of this section shall supersede any existing or subsequently enacted law, ordinance, rule or regulation of any local government or political subdivision which relates to the sale, purchase, promotion, possession, manufacture, or distribution of a pure powdered caffeine product, of any lawful product containing caffeine, and of any lawful product included in subsection (2) of this section. No local government or political subdivision shall adopt any law, ordinance, rule or regulation that is more restrictive than the provisions of this section.
SECTION 8. This act shall take effect and be in force from and after July 1, 2017.