MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Judiciary A
By: Representatives Cockerham, Gunn
AN ACT TO REQUIRE ANY MEDICAL FACILITY OR ANY OTHER FACILITY THAT CONDUCTS A MEDICAL FORENSIC EXAMINATION ON AN ALLEGED RAPE OR SEXUAL ASSAULT VICTIM AND PREPARES A SEXUAL ASSAULT EVIDENCE COLLECTION KIT TO IMMEDIATELY CONTACT THE APPROPRIATE LAW ENFORCEMENT AGENCY TO COLLECT THE KIT; TO REQUIRE THE LAW ENFORCEMENT AGENCY TO IMMEDIATELY COLLECT AND STORE THE KIT IN COMPLIANCE WITH CERTAIN STANDARDS; TO REQUIRE THE LAW ENFORCEMENT AGENCY TO SEND THE KIT TO THE MISSISSIPPI FORENSICS LABORATORY WITHIN A CERTAIN NUMBER OF DAYS; TO REQUIRE THE FORENSICS LABORATORY TO PROCESS THE KIT AND ENTER DNA INFORMATION INTO THE APPROPRIATE FEDERAL, STATE AND LOCAL DATABASES; TO CREATE THE SEXUAL ASSAULT EVIDENCE KIT ACCOUNTABILITY TASK FORCE; TO PROVIDE THE PURPOSE OF THE TASK FORCE; TO AMEND SECTION 99-37-25, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE VICTIMS COMPENSATION FUND SHALL PAY ALL MEDICAL COSTS ASSOCIATED WITH FORENSIC MEDICAL EXAMINATION AND PREPARATION OF SEXUAL ASSAULT EVIDENCE KITS; TO AMEND SECTION 99-49-1, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCEDURES FOR PRESERVATION OF BIOLOGICAL EVIDENCE; TO AMEND SECTION 45-47-1, MISSISSIPPI CODE OF 1972, TO REQUIRE DNA SAMPLES OF THOSE ARRESTED FOR THE COMMISSION OR ATTEMPTED COMMISSION OF RAPE OR SEXUAL ASSAULT TO BE ENTERED INTO FEDERAL, STATE AND LOCAL DATABASES FOR COMPARISON TO OTHER SAMPLES; TO AMEND SECTION 73-15-20, MISSISSIPPI CODE OF 1972, TO PROVIDE A LIMITED EXEMPTION FOR NURSE PRACTITIONERS WITH A MASTERS DEGREE OR HIGHER IN ADVANCED FORENSIC NURSING; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) The following words shall have the meanings described in this act:
(a) "Medical facility" means any doctor's office, hospital, medical clinic or nonprofit facility equipped to perform forensic medical examinations and prepare sexual assault evidence kits.
(b) "Sexual assault" means rape, sexual assault, sexual battery or any other nonconsensual forcible sexual intercourse.
(c) "Sexual assault evidence collection kit" means a sexual assault or rape kit approved by the Mississippi Association of Forensic Nurses.
(2) (a) Any medical facility that conducts a medical forensic examination and/or prepares a sexual assault evidence collection kit shall immediately contact the appropriate law enforcement agency to collect the kit. The medical facility shall store the kit in a refrigerated manner in conformity with guidelines established by the Sexual Assault Evidence Kit Accountability Task Force until the kit is picked up by appropriate law enforcement. When a law enforcement agency is contacted to collect a sexual assault evidence kit, the agency shall immediately take possession of the kit from the medical facility. For purposes of this paragraph (a), the term "immediately" means no less than twenty-four (24) hours from the time of contact.
(b) Upon taking physical possession of the sexual assault evidence collection kit, the law enforcement agency shall transport the kit in a manner that preserves the evidence in the kit, and conforms to the guidelines for transportation of sexual assault evidence kits established by the Sexual Assault Evidence Kit Accountability Task Force. The agency shall: (i) store the kit in a secure, refrigerated location in the agency no more than two (2) hours after taking physical possession of the kit; or (ii) transport the kit directly to the Mississippi Forensics Laboratory in conformity with guidelines established by the Sexual Assault Evidence Kit Accountability Task Force if the agency is unable to store the kit in a secure, refrigerated location in the agency. All kits must be delivered to the Mississippi Forensics Laboratory no later than seven (7) days from the date the law enforcement agency took physical possession of the kit.
(3) (a) The Mississippi Forensics Laboratory should test sexual assault evidence collection kits within forty-five (45) days of receipt from a law enforcement agency. Forensic DNA testing shall be performed according to laboratory methods that determine the presence of DNA suitable for autosomal STR analysis. Any autosomal, CODIS eligible DNA profile shall be entered into the Combined DNA Index System (CODIS) or equivalency thereof and state or local DNA database. If the Mississippi Forensics Laboratory is unable to determine DNA present in the sexual assault evidence collection kit, the laboratory should evaluate the case to determine if any other DNA results could be used for investigative purposes.
(b) When testing does result in a DNA profile, the Mississippi Forensics Laboratory should enter the full DNA profile into the Combined DNA Index System (CODIS) or equivalency thereof and any other required state or local DNA databases. The average completion rate for this analysis and classification should not exceed sixty (60) days.
(c) The Mississippi Forensics Laboratory is authorized to contract with other laboratories to ensure that each kit is tested and the information from such kit is entered into CODIS within the time frames required by this subsection.
(4) (a) There is hereby created a Sexual Assault Evidence Kit Accountability Task Force which shall consist of seven (7) members. The Commissioner of the Department of Public Safety, or his or her designee shall be the Chairperson of the task force. The Executive Director of the Mississippi Association of Forensic Nurses, or his or her designee shall be the vice chairperson of the task force. Five members of the task force shall be members of, and appointed by the: Mississippi Prosecutors Association, Mississippi Forensics Laboratory, Mississippi Bureau of Investigation, Mississippi Association of Chiefs of Police and the Mississippi Sheriffs Association. The Mississippi Chapter of the International Association of Forensic Nurses shall make two (2) appointments to the task force, which shall be one (1) pediatric sexual assault nurse examiner and one (1) adult sexual assault nurse examiner. The purpose of the task force is to create standards and policies for the maintenance, preservation, transportation and evidentiary chain of custody for sexual assault evidence kits no later than January 1, 2023.
(b) The Commissioner of the Department of Public Safety shall convene the members of the task force for its first meeting within thirty (30) days after the effective date of this act. A majority of the members of the task force shall constitute a quorum. An affirmative vote of a majority of the task force shall be required to be recorded in the official minutes of the meeting in which the vote occurred. Meetings of the task force shall be held at the Department of Public Safety or a location designated by a majority of the committee. The task force may convene utilizing an online meeting platform that is accessible for viewing by the public.
(c) The Department of Public Safety shall use existing resources, administrative and clerical assistance to support the task force.
(d) Members of the task force who are not state employees may be compensated at the per diem rate authorized by Section 25-3-69 and reimbursed in accordance with Section 25-3-41 for mileage and actual expenses incurred in the performance of their duties. However, task force members may not incur per diem, travel or other expenses unless previously authorized by vote, at a meeting of the task force, which action must be recorded in the official minutes of the meeting. Per diem and expense payments made pursuant to this subsection may be paid from any funds made available to the task force for that purpose.
(e) The task force shall publish all polices, standards and/or regulations it adopts on the website of the Department of Public Safety for use by any state or local law enforcement agency or medical facility that handles sexual assault evidence kits.
SECTION 2. Section 99-37-25, Mississippi Code of 1972, is amended as follows:
99-37-25.
(1) (a) When a * * * medical forensic examination is performed and/or a
sexual assault evidence collection kit is prepared by a doctor's office, * * *hospital or * * * medical clinic * * * as
a result of an alleged rape or sexual assault having occurred in this
state, * * * the bill for the medical forensic
examination and the preparation of the sexual assault evidence collection kit * * * shall be sent to and shall be paid
by the Division of Victim Compensation, Office of the Attorney General.
The Division of Victim Compensation shall pay for the medical examination conducted
for the procurement of evidence to aid in the investigation and prosecution of
the alleged offense. Such payment shall be limited to the customary and usual
hospital and physician charges for such services in the area. Such payment
shall be made by the Division of Victim Compensation directly to the health care
provider. No bill for the examination will be submitted to the victim, nor
shall the medical facility hold the victim responsible for payment. The victim
may be billed for any further medical services not required for the investigation
and prosecution of the alleged offense. In cases where the damage caused by
the alleged sexual assault requires medical treatment or diagnosis in addition
to the examination, the patient will be given information about the
availability of victim compensation and the procedure for applying for such
compensation.
(b) Upon application submitted by the district attorney, provided the proper warrant or court order has been issued, the county in which an offense of sexual assault or of felonious abuse or battery of a child as described in Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23, exploitation of children as described in Section 97-5-33 or sexual battery as described in Section 97-3-95, or statutory rape as defined in Section 97-3-65, or an attempt to commit such offense has occurred shall pay for a medical forensic examination of the person arrested, charged or convicted of such offense to determine if the person so arrested, charged or convicted has any sexually transmitted disease and for the collection of evidence. Such payment shall be made by the county directly to the health care provider or other service performing the collection of evidence and tests. At the victim's request, a test for human immunodeficiency virus (HIV) shall be administered to the defendant/accused not later than forty-eight (48) hours after the date on which the information or indictment is presented, and the defendant/accused shall be subjected to follow-up testing for HIV upon a determination that such follow-up testing is medically necessary and reasonable. The results of any such test shall be confidential but shall be made available to the victim or, if the victim is a child, to the guardian of the victim. After an indictment, if the case is dismissed, the defendant is found not guilty or the case is not prosecuted within three (3) years of the indictment, all records of tests shall be returned to the accused or destroyed as provided in Section 99-49-1. Upon a showing of good cause, the court may retain such records and allow a case to remain open after the expiration of the three-year limitation provided herein.
(2)
Any defendant who is convicted of, or pleads guilty or nolo contendere to, any
offense or an attempt to commit any such offense specified in subsection (1)(b)
shall be ordered by the court to make restitution to the Division of Victim
Compensation in an amount equal to the compensation paid by the Division of
Victim Compensation to the victim or medical provider for the medical forensic
examination and to the county for tests for sexually transmitted diseases.
Such restitution shall be in addition to any restitution which the court orders
the defendant to pay the victim under the provisions of Chapter 37 * * *, Title 99, (Sections 99-37-1 through
99-37-21), Mississippi Code of 1972.
(3) The Division of Victim Compensation is hereby authorized, in its discretion, to make application for and comply with such requirements as may be necessary to qualify for any federal funds as may be available as a result of services rendered to crime victims under the provisions of this section.
SECTION 3. Section 99-49-1, Mississippi Code of 1972, is amended as follows:
99-49-1. (1) Legislative intent. The Legislature finds that:
(a) The value of properly preserved biological evidence has been enhanced by the discovery of modern DNA testing methods, which, coupled with a comprehensive system of DNA databases that store crime scene and offender profiles, allow law enforcement to improve its crime-solving potential;
(b) Tapping the potential of preserved biological evidence requires the proper identification, collection, preservation, storage, cataloguing and organization of such evidence;
(c) Law enforcement agencies indicate that "cold" case investigations are hindered by an inability to access biological evidence that was collected in connection with criminal investigations;
(d) Innocent people mistakenly convicted of the serious crimes for which biological evidence is probative cannot prove their innocence if such evidence is not accessible for testing in appropriate circumstances;
(e) It is well established that the failure to update policies regarding the preservation of evidence squanders valuable law enforcement resources, manpower hours and storage space; and
(f) Simple but crucial enhancements to protocols for properly preserving biological evidence can solve old crimes, enhance public safety and settle claims of innocence.
(2) Definitions. For the purposes of this section:
(a) "Biological evidence" means the contents of a sexual assault examination kit or any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids or other identifiable biological material that was collected as part of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense. This definition applies whether that material is catalogued separately, such as on a slide, swab or in a test tube, or is present on other evidence, including, but not limited to, clothing, ligatures, bedding or other household material, drinking cups, cigarettes or other items.
(b) "DNA" means deoxyribonucleic acid.
(c) "Custody" means persons currently incarcerated; civilly committed; on parole or probation; or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period.
(d) "Profile" means a unique identifier of an individual, derived from DNA.
(e) "State" refers to any governmental or public entity within Mississippi, including all private entities that perform such functions, and its officials or employees, including, but not limited to, law enforcement agencies, prosecutors' offices, courts, public hospitals, forensics laboratories, and any other entity or individual charged with the collection, storage or retrieval of biological evidence.
(3) Preservation of evidence procedures. (a) The state shall preserve all biological evidence:
(i)
That is secured in relation to an investigation or prosecution of a crime for * * * a period of * * * no less
than fifty (50) years; or
(ii)
That is secured in relation to an investigation or prosecution of a crime for * * * a period of * * * no less than fifty (50) years.
(b) This section applies to evidence that:
(i) Was in the possession of the state during the investigation and prosecution of the case; and
(ii) At the time of conviction was likely to contain biological material.
(c)
The state shall not destroy biological evidence should one or more additional
co-defendants, convicted of the same crime, remain in custody, and shall preserve
the evidence for the period of time * * *
described in this act.
(d) The state shall retain evidence in the amount and manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence.
(e)
* * * The state shall prepare an inventory of biological
evidence that has been preserved in connection with the defendant's criminal
case.
(f) The state may destroy evidence that includes biological material before the expiration of the time period specified in paragraph (a) of this subsection if all of the following apply:
(i) No other provision of federal or state law requires the state to preserve the evidence.
(ii) The state sends certified delivery of notice of intent to destroy the evidence to:
1. All persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to evidence in question;
2. The attorney of record for each person in custody;
3. The Mississippi Office of Indigent Appeals;
4. The district attorney in the county of conviction; and
5. The Mississippi Attorney General.
(iii) No person who is notified under subparagraph (ii) of this paragraph (f) does either of the following within sixty (60) days after the date on which the person received the notice:
1.
Files a motion for testing of evidence under * * * Chapter 39, Title 99,
Mississippi Code of 1972; or
2. Submits a written request for retention of evidence to the state entity which provided notice of its intent to destroy evidence under subparagraph (ii) of this paragraph (f).
(g) If, after providing notice under paragraph (f)(ii) of this subsection of its intent to destroy evidence, the state receives a written request for retention of the evidence, the state shall retain the evidence while the person remains in custody.
(h)
* * * When such retention
is impracticable, the state shall remove and preserve portions of the material
evidence likely to contain biological evidence related to the offense, in a quantity
sufficient to permit future DNA testing, before returning or disposing of the
physical evidence.
(i) Should the state be called upon to produce biological evidence that could not be located and whose preservation was required under the provisions of this statute, the chief evidence custodian assigned to the entity charged with the preservation of the evidence shall provide an affidavit in which the custodian stipulates, under penalty of perjury, an accurate description of the efforts taken to locate that evidence and that the evidence could not be located.
(4) This section does not require or otherwise authorize the state to preserve the biological evidence that is obtained in performing the test required by Section 99-3-41 and is required to be destroyed under that section.
(5) Any evidence in a murder, manslaughter or felony sexual assault case in the possession of the state on July 1, 2009, whether biological or not, shall be preserved by the state consistent with the legislative intent expressed in subsection (1) and subject to compliance with subsection (3)(f).
(6) The preservation of evidence procedures and requirements are subject to appropriate funding for Mississippi Forensics Laboratory personnel dedicated exclusively for these described tasks.
( * * *7) Remedies for noncompliance.
If the court finds that biological evidence was destroyed in violation of the
provisions of this section, it may impose appropriate sanctions and order
appropriate remedies.
SECTION 4. Section 45-47-1, Mississippi Code of 1972, is amended as follows:
45-47-1.
(1) Every person who is arrested for the commission or attempted commission of
a crime of violence as defined in Section 97-3-2 shall provide a biological
sample for DNA testing to jail or detention center personnel upon booking. The
analysis shall be performed by the Mississippi Forensics * * * Laboratory or other entity
designated by the Department of Public Safety, and the results shall be
maintained by the Forensics * * * Laboratory according to standard
protocols adopted for maintenance of DNA records in conformity to federal guidelines
for the maintenance of such records. If the person is arrested for the commission
or attempted commission of rape or sexual assault, the results shall be entered
into federal, state or local databases for the purpose of comparing the DNA
sample to other samples in the database.
(2) (a) A DNA sample shall be collected by an individual who is trained in the collection procedures that the Forensics Laboratory uses.
(b)
Upon motion of one (1) of the parties, or sua sponte by the court, the court
may direct the Forensics * * *Lab Laboratory to destroy the sample and delete from
the database all records thereof if there is no other pending qualifying
warrant or capias for an arrest or felony conviction that would require that
the sample remain in the DNA data bank if:
(i) The charge for which the sample was taken is dismissed;
(ii) The defendant is acquitted at trial or convicted of a lesser included misdemeanor offense that is not an offense listed in this section;
(iii) No charge was filed within the statute of limitations, if any; or
(iv) No conviction has occurred, at least three (3) years have passed since the date of arrest, and there is no active prosecution.
(3) (a) Any person who, without authority, disseminates information contained in the DNA data bank shall be guilty of a misdemeanor.
(b)
Any person who disseminates, receives, or otherwise uses or attempts to use
information in the DNA data bank, knowing that the dissemination, receipt or
use is for a purpose other than as authorized by law, shall be guilty of a * * * felony.
(c) Except as authorized by law, any person who obtains or attempts to obtain any sample for purposes of having DNA analysis performed shall be guilty of a felony.
(4)
(a) Any person convicted under subsection (3)(a) shall be * * * subject to a fine not to
exceed Five Hundred Dollars ($500.00) or confinement in the county jail not to
exceed thirty (30) days, or both.
(b)
Any person convicted under subsection (3)(b) shall be * * * subject to a fine not * * * less than One Thousand Dollars
($1,000.00) or confinement in the * * * custody of the Mississippi
Department of Corrections not to exceed * * * five (5) years, or both.
(c) Any person convicted under subsection (3)(c) shall be sentenced to a fine not to exceed One Thousand Dollars ($1,000.00) or commitment to the custody of the Department of Corrections not to exceed two (2) years, or both.
SECTION 5. Section 73-15-20, Mississippi Code of 1972, is amended as follows:
73-15-20. (1) Advanced practice registered nurses. Any nurse desiring to be certified as an advanced practice registered nurse shall apply to the board and submit proof that he or she holds a current license to practice professional nursing and that he or she meets one or more of the following requirements:
(a) Satisfactory completion of a formal post-basic educational program of at least one (1) academic year, the primary purpose of which is to prepare nurses for advanced or specialized practice.
(b) Certification by a board-approved certifying body. Such certification shall be required for initial state certification and any recertification as a registered nurse anesthetist, nurse practitioner or nurse midwife. The board may by rule provide for provisional or temporary state certification of graduate nurse practitioners for a period of time determined to be appropriate for preparing and passing the National Certification Examination. Those with provisional or temporary certifications must practice under the direct supervision of a licensed physician or a certified nurse practitioner or certified nurse midwife with at least five (5) years of experience.
(c) Graduation from a program leading to a master's or post-master's degree in a nursing clinical specialty area with preparation in specialized practitioner skills.
(2) Rulemaking. The board shall provide by rule the appropriate requirements for advanced practice registered nurses in the categories of certified registered nurse anesthetist, certified nurse midwife and advanced practice registered nurse.
(3) Collaboration. An advanced practice registered nurse shall perform those functions authorized in this section within a collaborative/consultative relationship with a dentist or physician with an unrestricted license to practice dentistry or medicine in this state and within an established protocol or practice guidelines, as appropriate, that is filed with the board upon license application, license renewal, after entering into a new collaborative/consultative relationship or making changes to the protocol or practice guidelines or practice site. The board shall review and approve the protocol to ensure compliance with applicable regulatory standards. The advanced practice registered nurse may not practice as an APRN if there is no collaborative/consultative relationship with a physician or dentist and a board-approved protocol or practice guidelines.
(4) Renewal. The board shall renew a license for an advanced practice registered nurse upon receipt of the renewal application, fees and protocol or practice guidelines. The board shall adopt rules establishing procedures for license renewals. The board shall by rule prescribe continuing education requirements for advanced practice nurses not to exceed forty (40) hours biennially as a condition for renewal of a license or certificate.
(5) Reinstatement. Advanced practice registered nurses may reinstate a lapsed privilege to practice upon submitting documentation of a current active license to practice professional nursing, a reinstatement application and fee, a protocol or practice guidelines, documentation of current certification as an advanced practice nurse in a designated area of practice by a national certification organization recognized by the board and documentation of at least forty (40) hours of continuing education related to the advanced clinical practice of the nurse practitioner within the previous two-year period. The board shall adopt rules establishing the procedure for reinstatement.
(6) Changes in status. The advanced practice registered nurse shall notify the board immediately regarding changes in the collaborative/consultative relationship with a licensed physician or dentist. If changes leave the advanced practice registered nurse without a board-approved collaborative/consultative relationship with a physician or dentist, the advanced practice nurse may not practice as an advanced practice registered nurse.
(7) Practice requirements. The advanced practice registered nurse shall practice:
(a) According to standards and guidelines of the National Certification Organization.
(b) In a collaborative/consultative relationship with a licensed physician whose practice is compatible with that of the nurse practitioner. Certified registered nurse anesthetists may collaborate/consult with licensed dentists. The advanced practice nurse must be able to communicate reliably with a collaborating/consulting physician or dentist while practicing.
(c) According to a board-approved protocol or practice guidelines.
(d) Advanced practice registered nurses practicing as nurse anesthetists must practice according to board-approved practice guidelines that address pre-anesthesia preparation and evaluation; anesthesia induction, maintenance, and emergence; post-anesthesia care; peri-anesthetic and clinical support functions.
(e) Advanced practice registered nurses practicing in other specialty areas must practice according to a board-approved protocol that has been mutually agreed upon by the nurse practitioner and a Mississippi licensed physician or dentist whose practice or prescriptive authority is not limited as a result of voluntary surrender or legal/regulatory order.
(f) Each collaborative/consultative relationship shall include and implement a formal quality assurance/quality improvement program which shall be maintained on site and shall be available for inspection by representatives of the board. This quality assurance/quality improvement program must be sufficient to provide a valid evaluation of the practice and be a valid basis for change, if any.
(g) Nurse practitioners may not write prescriptions for, dispense or order the use of or administration of any schedule of controlled substances except as contained in this chapter.
(8) Prescribing controlled substances and medications. Certified nurse midwives and certified nurse practitioners may apply for controlled substance prescriptive authority after completing a board-approved educational program. Certified nurse midwives and certified nurse practitioners who have completed the program and received prescription authority from the board may prescribe Schedules II-V. The words "administer," "controlled substances" and "ultimate user," shall have the same meaning as set forth in Section 41-29-105, unless the context otherwise requires. The board shall promulgate rules governing prescribing of controlled substances, including distribution, record keeping, drug maintenance, labeling and distribution requirements and prescription guidelines for controlled substances and all medications. Prescribing any controlled substance in violation of the rules promulgated by the board shall constitute a violation of Section 73-15-29(1)(f), (k) and (l) and shall be grounds for disciplinary action. The prescribing, administering or distributing of any legend drug or other medication in violation of the rules promulgated by the board shall constitute a violation of Section 73-15-29(1)(f), (k) and (l) and shall be grounds for disciplinary action.
(9) Any nurse practitioner who holds a Masters degree or higher in Advanced Forensic Nursing and whose practice is limited to medical forensic examinations and the treatment of health matters related to such examinations shall be exempt from the requirement in this section to have a collaborative/consultative relationship. The exemption provided in this subsection (9) shall be limited to the performance of examinations and health related matters described in this subsection.
SECTION 6. This act shall take effect and be in force from and after July 1, 2022.