MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Public Health and Welfare
By: Senator(s) Hill
AN ACT TO AMEND SECTION 43-11-13, MISSISSIPPI CODE OF 1972, RELATIVE TO RIGHTS OF NURSING HOME RESIDENTS; TO AUTHORIZE A NURSING HOME RESIDENT OR A LEGAL REPRESENTATIVE TO HAVE A MONITORING DEVICE INSTALLED IN THE ROOM OF THE RESIDENT; TO ESTABLISH CONDITIONS FOR THE INSTALLATION AND USE OF MONITORING DEVICES IN NURSING HOMES; TO PROVIDE FOR CONSENT RELATIVE TO THE INSTALLATION AND USE OF SUCH DEVICES; TO PROVIDE LIMITATIONS ON THE USE OF SUCH DEVICES; TO REQUIRE NURSING HOMES TO MAKE CERTAIN ACCOMMODATIONS RELATIVE TO SUCH DEVICES; TO LIMIT LIABILITY IN CASES IN WHICH A MONITORING DEVICE IS INSTALLED WITHOUT PROPER AUTHORIZATION OR USED IMPROPERLY; TO PROHIBIT CERTAIN CONDUCT BY NURSING HOMES; TO ESTABLISH ADMINISTRATIVE PENALTIES; TO PROVIDE FOR ADMINISTRATIVE RULEMAKING; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. 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 those institutions 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 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 those rules, regulations and standards, the licensing agency shall mail copies thereof to all those institutions in the state that 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 and adult foster care facilities. 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. However, 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 resident 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 resident in an account that shall be known as the Resident's Personal Deposit Fund. No more than one (1) month's charge for the care, support, maintenance and medical attention of the resident shall be applied from the account at any one 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 that is accrued. If 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 the unexpended balance, the director or other proper officer may, after the lapse of one (1) year from the date of that 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 that medicine. The director of the personal care home shall be responsible for explaining the availability of those records to the family of the resident at any time upon reasonable request.
(5) (a) For the purposes of this subsection (5):
(i) "Licensed entity" means a hospital, nursing home, personal care home, home health agency, hospice or adult foster care facility;
(ii) "Covered entity" means a licensed entity or a health care professional staffing agency;
(iii) "Employee" means any individual employed by a covered entity, and also includes any individual who by contract provides to the patients, residents or clients being served by the covered entity direct, hands-on, medical patient care in a patient's, resident's or client's room or in treatment or recovery rooms. The term "employee" does not include health care professional/vocational technical students performing clinical training in a licensed entity under contracts between their schools and the licensed entity, and does not include students at high schools located in Mississippi who observe the treatment and care of patients in a licensed entity as part of the requirements of an allied-health course taught in the high school, if:
1. The student is under the supervision of a licensed health care provider; and
2. The student has signed an affidavit that is on file at the student's school stating that he or she has not been convicted of or pleaded guilty or nolo contendere to a felony listed in paragraph (d) of this subsection (5), or that any such conviction or plea was reversed on appeal or a pardon was granted for the conviction or plea. Before any student may sign such an affidavit, the student's school shall provide information to the student explaining what a felony is and the nature of the felonies listed in paragraph (d) of this subsection (5).
However, the health care professional/vocational technical academic program in which the student is enrolled may require the student to obtain criminal history record checks. In such incidences, paragraph (a)(iii)1 and 2 of this subsection (5) does not preclude the licensing entity from processing submitted fingerprints of students from healthcare-related professional/vocational technical programs who, as part of their program of study, conduct observations and provide clinical care and services in a covered entity.
(b) Under regulations promulgated by the State Board of Health, the licensing agency shall require to be performed a criminal history record check on (i) every new employee of a covered entity who provides direct patient care or services and who is employed on or after July 1, 2003, and (ii) every employee of a covered entity employed before July 1, 2003, who has a documented disciplinary action by his or her present employer. In addition, the licensing agency shall require the covered entity to perform a disciplinary check with the professional licensing agency of each employee, if any, to determine if any disciplinary action has been taken against the employee by that agency.
Except as otherwise provided in paragraph (c) of this subsection (5), no such employee hired on or after July 1, 2003, shall be permitted to provide direct patient care until the results of the criminal history record check have revealed no disqualifying record or the employee has been granted a waiver. In order to determine the employee applicant's suitability for employment, the applicant shall be fingerprinted. Fingerprints shall be submitted to the licensing agency from scanning, with the results processed through the Department of Public Safety's Criminal Information Center. The fingerprints shall then be forwarded by the Department of Public Safety to the Federal Bureau of Investigation for a national criminal history record check. The licensing agency shall notify the covered entity of the results of an employee applicant's criminal history record check. If the criminal history record check discloses a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sex offense listed in Section 45-33-23(h), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault, or felonious abuse and/or battery of a vulnerable adult that has not been reversed on appeal or for which a pardon has not been granted, the employee applicant shall not be eligible to be employed by the covered entity.
(c) Any such new employee applicant may, however, be employed on a temporary basis pending the results of the criminal history record check, but any employment contract with the new employee shall be voidable if the new employee receives a disqualifying criminal history record check and no waiver is granted as provided in this subsection (5).
(d) Under regulations promulgated by the State Board of Health, the licensing agency shall require every employee of a covered entity employed before July 1, 2003, to sign an affidavit stating that he or she has not been convicted of or pleaded guilty or nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, any sex offense listed in Section 45-33-23(h), child abuse, arson, grand larceny, burglary, gratification of lust, aggravated assault, or felonious abuse and/or battery of a vulnerable adult, or that any such conviction or plea was reversed on appeal or a pardon was granted for the conviction or plea. No such employee of a covered entity hired before July 1, 2003, shall be permitted to provide direct patient care until the employee has signed the affidavit required by this paragraph (d). All such existing employees of covered entities must sign the affidavit required by this paragraph (d) within six (6) months of the final adoption of the regulations promulgated by the State Board of Health. If a person signs the affidavit required by this paragraph (d), and it is later determined that the person actually had been convicted of or pleaded guilty or nolo contendere to any of the offenses listed in this paragraph (d) and the conviction or plea has not been reversed on appeal or a pardon has not been granted for the conviction or plea, the person is guilty of perjury. If the offense that the person was convicted of or pleaded guilty or nolo contendere to was a violent offense, the person, upon a conviction of perjury under this paragraph, shall be punished as provided in Section 97-9-61. If the offense that the person was convicted of or pleaded guilty or nolo contendere to was a nonviolent offense, the person, upon a conviction of perjury under this paragraph, shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.
(e) The covered entity may, in its discretion, allow any employee who is unable to sign the affidavit required by paragraph (d) of this subsection (5) or any employee applicant aggrieved by an employment decision under this subsection (5) to appear before the covered entity's hiring officer, or his or her designee, to show mitigating circumstances that may exist and allow the employee or employee applicant to be employed by the covered entity. The covered entity, upon report and recommendation of the hiring officer, may grant waivers for those mitigating circumstances, which shall include, but not be limited to: (i) age at which the crime was committed; (ii) circumstances surrounding the crime; (iii) length of time since the conviction and criminal history since the conviction; (iv) work history; (v) current employment and character references; and (vi) other evidence demonstrating the ability of the individual to perform the employment responsibilities competently and that the individual does not pose a threat to the health or safety of the patients of the covered entity.
(f) The licensing agency may charge the covered entity submitting the fingerprints a fee not to exceed Fifty Dollars ($50.00), which covered entity may, in its discretion, charge the same fee, or a portion thereof, to the employee applicant. Any increase in the fee charged by the licensing agency under this paragraph shall be in accordance with the provisions of Section 41-3-65. Any costs incurred by a covered entity implementing this subsection (5) shall be reimbursed as an allowable cost under Section 43-13-116.
(g) If the results of an employee applicant's criminal history record check reveals no disqualifying event, then the covered entity shall, within two (2) weeks of the notification of no disqualifying event, provide the employee applicant with a notarized letter signed by the chief executive officer of the covered entity, or his or her authorized designee, confirming the employee applicant's suitability for employment based on his or her criminal history record check. An employee applicant may use that letter for a period of two (2) years from the date of the letter to seek employment with any covered entity without the necessity of an additional criminal history record check. Any covered entity presented with the letter may rely on the letter with respect to an employee applicant's criminal background and is not required for a period of two (2) years from the date of the letter to conduct or have conducted a criminal history record check as required in this subsection (5).
(h) The licensing agency, the covered entity, 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 this subsection (5). The presumption of good faith may be overcome by a preponderance of the evidence in any civil action. No licensing agency, covered entity, nor their agents, officers, employees, attorneys and representatives shall be held liable in any employment decision or action based in whole or in part on compliance with or attempts to comply with the requirements of this subsection (5).
(i) The licensing agency shall promulgate regulations to implement this subsection (5).
(j) The provisions of this subsection (5) shall not apply to:
(i) Applicants and employees of the University of Mississippi Medical Center for whom criminal history record checks and fingerprinting are obtained in accordance with Section 37-115-41; or
(ii) Health care professional/vocational technical students for whom criminal history record checks and fingerprinting are obtained in accordance with Section 37-29-232.
(6) The State Board of Health shall promulgate rules, regulations and standards regarding the operation of adult foster care facilities.
(7) (a) Short title. This subsection shall be known and may be cited as the "Nursing Home Virtual Visitation Act."
(b) Definitions. As used in this subsection, the following terms have the meaning ascribed in this section:
(i) "Licensing agency" means the Mississippi State Department of Health.
(ii) 1. "Monitoring device" means a surveillance instrument that transmits and records activity and is not connected to the facility's computer network.
2. The term "monitoring device" shall not include a camera that records still images exclusively.
(iii) "Nursing home" means an institution for the aged or infirm as defined in Section 43-11-1.
(iv) "Ombudsman" means the Administrator of the Office of the State Long-Term Care Ombudsman established within the Mississippi Department of Human Services pursuant to Section 43-47-1 et seq.
(v) "Resident" means a person who is a resident of a nursing home.
(vi) "Legal representative" means a legal guardian or a legally appointed substitute decision-maker who is authorized to act on behalf of a nursing home resident.
(c) Monitoring device; authorization and use. (i) A
resident who has the capacity to consent as determined by emergency rules promulgated by the licensing agency pursuant to this subsection or his legal representative may authorize the installation and use of a monitoring device in a nursing home if all of the following conditions are met:
1. The resident or his legal representative gives notice of the installation to the nursing home.
2. If the monitoring device records activity visually, the recordings made by the device include a record of the date and time.
3. The resident pays for the monitoring device and all installation, operation, maintenance, and removal costs associated with the device.
4. Each resident occupying the same room who has the capacity to consent as determined by emergency rules promulgated by the licensing agency pursuant to this subsection, or that resident's legal representative, gives written consent for the installation of the monitoring device.
(ii) If the structure of the resident's room must be altered in order to accommodate a monitoring device, then the renovation to the room may be done only by a licensed contractor, subject to approval by the facility.
(iii) Any monitoring device installed in accordance with the provisions of this subsection shall be in compliance with the National Fire Protection Association Life Safety regulations.
(d) Monitoring device option; installation; consent of residents in shared rooms; accommodation by nursing home. (i) 1. At the time of a person's admission to a nursing home, the nursing home shall notify the person of his right to have a monitoring device installed in his room, and shall offer the person the option to have a monitoring device. The resident or his roommate may exercise the right to install or remove a monitoring device at any time during which he resides in the nursing home. The nursing home shall keep a record of the person's authorization or choice not to have a monitoring device.
2. The nursing home shall make the record provided for in subparagraph (i)1 of this paragraph accessible to the ombudsman.
(ii) 1. If a resident who is residing in a shared room wishes to have a monitoring device installed in the room and another resident living in or moving into the same shared room refuses to consent to the use of the monitoring device, then the nursing home shall make a reasonable attempt to accommodate the resident who wishes to have the monitoring device installed. A nursing home shall be deemed to have met this accommodation requirement when, upon notification that a roommate has not consented to the use of an electronic monitoring device in his room, the facility offers to move either resident to another shared room that is available at the time of the request.
2. If a resident chooses to reside in a private room in order to accommodate the use of an electronic monitoring device, the resident shall pay the private room rate. If a nursing home is unable to accommodate a resident due to lack of space, the nursing home shall reevaluate the request at least once every two (2) weeks until the request is fulfilled.
(iii) After authorization, consent, and notice in accordance with this subsection, a resident or his legal representative may install, operate, and maintain, at the expense of the resident, a monitoring device in the room of the resident.
(iv) The nursing home shall cooperate to accommodate the installation of the monitoring device unless doing so would place undue burden on the nursing home.
(v) The monitoring device shall be in a fixed, stationary position and shall monitor only the resident who consents either personally or through his legal representative to be monitored.
(e) Consent; waiver. (i) Consent to the authorization for installation and use of a monitoring device may be given only by the resident or his legal representative.
(ii) Consent to the authorization for installation and use of a monitoring device shall include a release of liability for the nursing home for a violation of the resident's right to privacy insofar as the use of the monitoring device is concerned.
(iii) A resident or his legal representative may reverse a choice to have or not have a monitoring device installed and used at any time after notice of such reversal has been made to the nursing home, and to the ombudsman, upon a form prescribed by the licensing agency.
(f) Authorization form; content. The form for the authorization of installation and use of a monitoring device shall provide for all of the following:
(i) Consent of the resident or his legal representative authorizing the installation and use of the monitoring device.
(ii) Notice to the nursing home of the resident's installation of a monitoring device and specifics as to the type, function, and use of the device.
(iii) Consent of any other resident sharing the same room, or that resident's legal representative, to the installation and use of a monitoring device.
(iv) Notice of release from liability for violation of privacy through the use of the monitoring device.
(v) Waiver of the resident's right to privacy in connection with the use of the monitoring device.
(g) Immunity; unauthorized use. (i) In any civil action against a nursing home, material obtained through the use of a monitoring device shall not be used if the device was installed or used without the knowledge of the nursing home, or installed or used without the prescribed form.
(ii) Compliance with the provisions of this subsection shall be a complete defense to any civil or criminal action brought against the resident, legal representative, or nursing home for the use or presence of a monitoring device.
(h) Prohibited acts; administrative penalties. (i) 1. No nursing home shall deny a person or resident admission to or discharge from a nursing home, or otherwise discriminate or retaliate against a person or resident because the person or resident chooses to authorize installation and use of a monitoring device.
2. Any person who knowingly or willfully violates the provisions of subparagraph (i)1. of this paragraph shall be subject to appropriate action by the licensing agency as set forth in rules promulgated pursuant to this subsection.
(ii) 1. Except as provided in subparagraph (i)2. of this paragraph, no person shall intentionally hamper, obstruct, tamper with, or destroy a monitoring device or a recording made by a monitoring device installed in a nursing home pursuant to this subsection.
2. The prohibition and penalties provided in this subsection shall not apply to the resident who owns the monitoring device or recording, or to his legal representative.
(i) Public notice; signage of electronic monitoring device. (i) If a resident of a nursing facility conducts electronic monitoring, a sign shall be clearly and conspicuously posted at the main entrance of the nursing facility building to alert and inform visitors. The sign shall be in a large, clearly legible type and font and bear the words "electronic monitoring" and shall further state in equally legible type and font "The rooms of some residents may be equipped with electronic monitoring devices installed by or on behalf of the resident."
(ii) A sign shall be clearly and conspicuously posted at the entrance of a resident's room where authorized electronic monitoring is being conducted. The sign shall be in large, clearly legible type and font and bear the words "This room is electronically monitored."
(iii) The nursing facility shall be responsible for reasonable costs of installation and maintenance of the sign required by subparagraph (i) of this paragraph. The resident or his legal representative shall be responsible for installing and maintaining the sign required pursuant to subparagraph (ii) of this paragraph, which shall also be in accordance with the written policy of the nursing facility.
(j) Reporting abuse and neglect. Any person who views an incident which a reasonable man would consider abuse or neglect after viewing a recording made in a nursing facility shall report the incident to the facility as soon as is practicable after the viewing. The facility shall be provided with a copy of the recording in which the suspected incident of abuse or neglect occurred. If the recording must be transferred to a different format to be viewed, the transfer shall be done at the expense of the facility by a qualified professional who can certify that the contents of the recording were not altered.
(k) Administrative rulemaking. The licensing agency shall adopt all rules in accordance with the Administrative Procedure Act as are necessary for implementation of the provisions of this subsection.
SECTION 2. This act shall take effect and be in force from and after July 1, 2019.