MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Public Health and Welfare; Appropriations
By: Senator(s) Bryan
AN ACT TO AMEND SECTION 43-11-13, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A MEDICATION AIDE MAY PARTICIPATE IN MEDICATION ADMINISTRATION WHEN CERTIFIED THROUGH A MEDICATION AIDE CERTIFICATION PROGRAM IN ACCORDANCE WITH THIS ACT AND GENERALLY MANAGED BY A LICENSED HEALTHCARE PROFESSIONAL AT THE PERSONAL CARE HOME ASSISTED LIVING; TO PROVIDE CERTAIN MEDICATION ROUTES THAT A MEDICATION AIDE MAY PROVIDE; TO REQUIRE APPLICABLE FACILITIES TO KEEP AND MAINTAIN ACCURATE MEDICATION ADMINISTRATION RECORDS; TO SET THE MINIMUM COMPETENCIES OF SUCH AIDES; TO PROVIDE THE REQUIREMENTS OF A MEDICATION AIDE CERTIFICATION PROGRAM; TO ESTABLISH THE REQUIREMENTS TO RECEIVE A MEDICATION AIDE CERTIFICATE; TO PROVIDE THAT THE DEPARTMENT OF HEALTH SHALL ADMINISTER THE PROGRAM AND PRESCRIBE RULES AND REGULATIONS RELATED THERETO; TO PROVIDE THAT THE DEPARTMENT MAY COLLECT A FEE FOR SUCH CERTIFICATE; TO REQUIRE THE DEPARTMENT SHALL LIST EACH MEDICATION AIDE REGISTRATION IN THE MEDICATION AIDE REGISTRY; TO ESTABLISH CERTAIN HEARING AND APPEAL RIGHTS FOR CERTIFICATE HOLDERS; 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) The State Board of Health and the Mississippi Department of Corrections shall jointly issue rules and regulations for the operation of the special care facilities for paroled inmates.
(6) (a) For the purposes of this subsection (6):
(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 (6), 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 (6).
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 (6) 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 (6), 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 (6).
(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 (6) or any employee applicant aggrieved by an employment decision under this subsection (6) 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 (6) 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 (6).
(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 (6). 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 (6).
(i) The licensing agency shall promulgate regulations to implement this subsection (6).
(j) The provisions of this subsection (6) 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.
(7) The State Board of Health shall promulgate rules, regulations and standards regarding the operation of adult foster care facilities.
(8) (a) The purpose of this subsection is to ensure the health, safety, and welfare of the public by providing for the accurate, cost-effective, efficient and safe utilization of medication aides to assist in the administration of medications in personal care homes-assisted living in the State of Mississippi.
(b) As used in this subsection, the following words shall have the meanings ascribed herein unless the context clearly requires otherwise:
(i) "Licensed health care professional" means an individual for whom administration of medication is included in the scope of practice.
(ii) "MDOH" means the Mississippi Department of Health.
(iii) "PRN" means an administration scheme in which a medication is not routine, is taken as needed, and requires assessment for need and effectiveness.
(c) A medication aide may participate in medication administration when certified through a Medication Aide Certification program in accordance with this section and generally managed by a licensed health care professional at the personal care homes-assisted living. In each case, the individual responsible for providing such management and monitoring shall be identified in writing in the administration records.
(d) A medication aide may provide routine or PRN medications by the following routes: (i) oral; (ii) inhalation; (iii) topical; (iv) instillation into the eyes, ears and nasal sprays; and (v) injections of insulin and injections of prescribed anaphylactic treatments. Routine medications by allowed routes shall not include other injectable medications, vaginal medications and/or rectal medications.
(e) A facility using a medication aide shall keep and maintain accurate medication administration records. The medication administration records shall be available to MDOH for inspection and copying for a period not to exceed six (6) months. MDOH shall adopt rules and regulations to administer the Medication Aide Certification program. The medication administration records shall include information and data MDOH requires by rules and regulations adopted under this section, such rules and regulations to be adopted within ninety (90) days of the effective date of this act.
(f) (i) The minimum competencies for a medication aide include:
1. Maintaining confidentiality;
2. Complying with a recipient's right to refuse to take medication;
3. Maintaining hygiene and current accepted standards for infection control;
4. Documenting accurately and completely;
5. Providing medications appropriately by prescribed orders;
6. Having the ability to understand and follow instructions;
7. Practicing safety in application of medication procedures; and
8. Complying with limitations and conditions under which a medication aide may provide medications.
(ii) The minimum standards for competencies listed in subparagraph (i) of this paragraph, methods for competency assessment of medication aides and successful completion of medication aid certification training shall be as set forth in this section. This training and competency can be achieved by the successful completion of a Medication Aide Certification program.
(iii) A Medication Aide Certification program shall be a minimum of a fifteen-hour training program on the competencies listed in subparagraph (i) of this paragraph and the standards adopted by the MDOH and may be offered in one (1) of two (2) ways:
1. By technical or community colleges; or
2. By a Licensed Healthcare Professional employed at a personal care home-assisted living or through a contractual arrangement with a Licensed Healthcare Professional to administer the program within the personal care home-assisted living.
(g) Regardless of the forum, all Medication Aide Certification programs shall meet the program standards and curriculum standards enumerated herein. Competency assessment shall include passing an examination. Such examination shall be administered after completion of the program by the college or by the Licensed Healthcare Professional as set forth above. Upon obtaining a passing grade, the attending approved instructor shall certify the passing grade and completion of the program and submit the necessary information to MDOH. Upon confirmation of the completion of the program and receipt of the application as required in paragraph (o) below, MDOH shall award a certificate within thirty (30) days of such submittal date.
(h) The length of the Medication Aide Certification program, including practicum experience and supervised medication passes, shall not be less than fifteen (15) hours. Approved instructors for Medication Aide Certification programs may include:
(i) Registered Nurses (RNs);
(ii) Licensed Practical Nurses (LPNs) who have at least two (2) years of nursing experience;
(iii) Licensed Pharmacists; or
(iv) Licensed Physicians.
(i) To maintain certification, each Certified Medication Aide shall be required to complete a biannual continuing education program on the provision of medication. The continuing education program shall be no less than two (2) hours in duration. The program may be administered by: (i) an approved instructor as defined herein; or (ii) online continuing education used by RNs, physical therapists and similar healthcare professionals. Such online continuing education shall have the ability to file completion certificates with the MDOH.
(j) Each facility operator utilizing Certified Medication Aides shall have a written policy governing the provision of medications by Certified Medication Aides. The policy shall specify activities that will be performed by Certified Medication Aides; the process to review, monitor and oversee the work of the Certified Medication Aides; the frequency of the activities to be performed; and by whom. Assisted living facilities shall disclose to its residents and their families that the facility employs and uses medication aides and maintain the following records:
(i) A roster of all Certified Medication Aides employed; and
(ii) Copies of Certified Medication Aide certificates with date of award, including evidence of renewals and continuing education attendance.
(k) Curriculum standards for the medication aid certification program shall integrate instruction that establishes a knowledge base with practicum experience that the student receives at a simulated (or real) treatment setting, along with the supervised medication passes that occur.
(l) The program instruction shall include general information relevant to the provision of medication. Topics will include relevant state and federal laws and regulations, terminology, forms of medication, routes of administration, abbreviations/symbols, documentation guidelines and medication references. The program instruction shall focus on the role and scope of practice of the medication aide, as well as what is not within their scope of practice.
(m) Practicum experience. This portion of the curriculum will utilize physical facilities that reasonably simulate a health care setting (or utilize an actual health care setting) and the types of medication dispensing systems used by the personal care homes-assisted living facilities in which the applicant(s) will be employed. The approved instructor will design exercises for skill demonstration that simulate the various aspects of safe and effective medication provision and documentation thereof.
(n) Supervised medication passes. When instruction and practicum experiences have been successfully completed, each student will be required to demonstrate their competency by successfully completing three (3) medication passes supervised by an approved instructor, including medication setup, delivery and documentation. The student must complete the medication passes independently without verbal and nonverbal prompts or manual assistance. An approved instructor may authorize an LPN who may not satisfy the requirements of an approved instructor to oversee 1:1 supervised medication passes. The approval must be in writing and verify that the LPN is capable of supervising the medication pass.
(o) (a) To register as a medication aide, an individual shall:
(i) Have successfully completed the certification requirements in this section;
(ii) Be at least eighteen (18) years of age;
(iii) File an application with MDOH; and
(iv) Pay the applicable fee, not to exceed Twenty Five Dollars ($25.00).
(p) Registration as a medication aide shall be renewed every two (2) years based upon competency. The MDOH may prescribe by rule and regulation how a medication aide can show competency for purposes of renewal, including, but not limited to, showing evidence of completion of continuing educational requirements as set forth in this section. Payment of the applicable renewal fee shall be a condition of renewal, such fee not to exceed Ten Dollars ($10.00).
(q) A registered nurse or licensed practical nurse whose license has been revoked, suspended or voluntarily surrendered in lieu of discipline may not register as a medication aide.
(r) An applicant or medication aide shall report to MDOH, in writing, any conviction for a felony. A conviction is not a disqualification for registration or renewal unless it relates to the competencies identified in this section or it reflects on the moral character of the applicant or medication aide.
(s) An applicant or medication aide may report any pardon or setting aside of a conviction to the department. If a pardon or setting aside has been obtained, the conviction for which it was obtained shall not be maintained on the Medication Aide Registry.
(t) If a person registered as a medication aide on the Medication Aide Registry becomes licensed as a registered nurse or licensed practical nurse, his or her registration as a medication aide becomes null and void as of the date of licensure.
(u) The department shall list each medication aide registration in the Medication Aide Registry. A listing in the registry shall be valid for the term of the registration and upon renewal unless such aide is refused renewal or is removed as provided in this section.
(v) The registry shall contain the following information on each registrant: (i) the individual's full name; (ii) information necessary to identify individuals qualified to provide medications in personal care homes-assisted living; (iii) any conviction of a felony reported to the department; (iv) listing of evidence of continuing education received from a personal care home-assisted living; and (v) other information as the department may require by rule and regulation.
(w) The department may deny registration or refuse renewal of or remove a registration from the Medication Aide Registry for failure to meet the standards and competencies or for violation of this section.
(x) If the department proposes to deny, refuse renewal of or remove a registration, it shall send the applicant or registrant a notice setting forth the action to be taken and the reasons for the determination. The denial, refusal to renew or removal shall become final thirty (30) days after mailing the notice unless the applicant or registrant gives written notice to the department of his or her desire for an informal conference or for a formal hearing.
(y) Notice may be served by any method specified in law.
(z) If an informal conference is requested, the MDOH shall assign a representative of the department to hold an informal conference with the applicant or registrant within fifteen (15) working days after receipt of a request. Within seven (7) working days after the conclusion of such conference, the representative shall affirm, modify or dismiss the action. The representative shall state in writing the specific reasons for affirming, modifying, or dismissing the action and shall immediately transmit copies of the statement to the department and to the applicant or the registrant. If the representative affirms or modifies the action, it shall become final unless the applicant or registrant, within ten (10) working days after receipt of the written notice, requests in writing a formal hearing to contest the action.
(aa) Except as provided by this subsection, an applicant or registrant who desires to contest an action or to further contest an affirmed or modified action may do so by filing a notice of appeal to the department. The Executive Director of the Mississippi Department of Health shall be the decision-maker in a contested case under this subsection. The hearings on a petition for judicial review of any final decision regarding an action for an alleged violation shall be set for hearing at the earliest possible date. The times for pleadings and hearings in such action shall be set by the judge of the court with the object of securing a decision at the earliest possible time.
(bb) A person whose registration has been denied, refused renewal or removed from the Medication Aide Registry may reapply for registration or for lifting of the disciplinary sanction at any time after one (1) year has elapsed since the date such registration was denied, refused renewal, or removed from the registry, in accordance with the rules and regulations
SECTION 2. This act shall take effect and be in force from and after July 1, 2023.