Bill Text: MS SB2825 | 2017 | Regular Session | Introduced
Bill Title: Mississippi Department of Human Services; change appropriate references to Mississippi Department of Child Protection Services.
Sponsorship: Partisan Bill (Republican 1)
Status: (Failed) 2017-01-31 - Died In Committee [SB2825 Detail]
Download: Mississippi-2017-SB2825-Introduced.html
MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Public Health and Welfare
By: Senator(s) Parker
Senate Bill 2825
AN ACT TO AMEND SECTIONS 11-46-1, 11-46-8, 37-23-69, 37-23-77, 37-115-43, 37-106-69, 41-3-18, 41-7-173, 41-67-12, 43-13-116, 43-13-117, 43-15-5, 43-15-105, 43-15-107, 43-15-109, 43-15-113, 43-15-117, 43-15-119, 43-15-121, 43-15-125, 43-16-3, 43-16-21, 43-20-8, 43-21-105, 43-27-101, 43-27-103, 93-5-23, 93-17-3, 93-17-5, 93-17-8, 93-17-11, 93-17-12, 93-17-53, 93-17-57, 93-17-59, 93-17-61, 93-17-63, 93-17-65, 93-17-67, 93-17-69, 93-17-101, 93-17-103, 93-17-107, 93-17-109, 93-17-203, 93-21-307, 93-31-3, 97-5-24, 97-29-49, 25-65-5, 25-65-7, 43-18-5, 7-9-41, 7-9-43, 25-9-127, 97-5-51, 97-3-54.1, 43-13-115, 43-21-257, 43-21-261, 43-21-301, 43-21-303, 43-21-351, 43-21-353, 43-21-354, 43-21-357, 43-21-603, 43-21-609 AND 43-21-613, MISSISSIPPI CODE OF 1972, AND TO CODIFY SECTIONS 43-26-3 AND 43-26-5, MISSISSIPPI CODE OF 1972, TO REVISE STATUTORY REFERENCES FROM THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES TO THE MISSISSIPPI DEPARTMENT OF CHILD PROTECTION SERVICES IN THE MISSISSIPPI CODE OF 1972; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-46-1, Mississippi Code of 1972, is amended as follows:
11-46-1. As used in this chapter, the following terms shall have the meanings ascribed unless the context otherwise requires:
(a) "Claim" means any demand to recover damages from a governmental entity as compensation for injuries.
(b) "Claimant" means any person seeking compensation under the provisions of this chapter, whether by administrative remedy or through the courts.
(c) "Board" means the Mississippi Tort Claims Board.
(d) "Department" means the Department of Finance and Administration.
(e) "Director" means the executive director of the department who is also the executive director of the board.
(f) "Employee" means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation, including firefighters who are members of a volunteer fire department that is a political subdivision. The term "employee" shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the state or a political subdivision; and
(i) For purposes of the limits of liability provided for in Section 11-46-15, the term "employee" shall include:
1. Physicians under contract to provide health services with the State Board of Health, the State Board of Mental Health or any county or municipal jail facility while rendering services under the contract;
2. Any physician, dentist or other health care practitioner employed by the University of Mississippi Medical Center (UMMC) and its departmental practice plans who is a faculty member and provides health care services only for patients at UMMC or its affiliated practice sites;
3. Any physician, dentist or other health care practitioner employed by any university under the control of the Board of Trustees of State Institutions of Higher Learning who practices only on the campus of any university under the control of the Board of Trustees of State Institutions of Higher Learning;
4. Any physician, dentist or other health care practitioner employed by the State Veterans Affairs Board and who provides health care services for patients for the State Veterans Affairs Board;
(ii) The term
"employee" shall also include Mississippi Department of * * * Child Protection Services licensed
foster parents for the limited purposes of coverage under the Tort Claims Act
as provided in Section 11-46-8; and
(iii) The term "employee" also shall include any employee or member of the governing board of a charter school but shall not include any person or entity acting in the capacity of an independent contractor to provide goods or services under a contract with a charter school.
(g) "Governmental entity" means the state and political subdivisions.
(h) "Injury" means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that is actionable at law or in equity.
(i) "Political subdivision" means any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any county, municipality, school district, charter school, volunteer fire department that is a chartered nonprofit corporation providing emergency services under contract with a county or municipality, community hospital as defined in Section 41-13-10, airport authority, or other instrumentality of the state, whether or not the body or instrumentality has the authority to levy taxes or to sue or be sued in its own name.
(j) "State" means the State of Mississippi and any office, department, agency, division, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality thereof, whether or not the body or instrumentality has the authority to levy taxes or to sue or be sued in its own name.
(k) "Law" means all species of law, including, but not limited to, any and all constitutions, statutes, case law, common law, customary law, court order, court rule, court decision, court opinion, court judgment or mandate, administrative rule or regulation, executive order, or principle or rule of equity.
SECTION 2. Section 11-46-8, Mississippi Code of 1972, is amended as follows:
11-46-8. Mississippi
Department of * * *
Child Protection Services licensed foster parents shall be covered under
this chapter for claims made by parties other than the foster child which are
based on inadequate supervision or inadequate care of the foster child on the
part of the foster parent.
SECTION 3. Section 37-23-69, Mississippi Code of 1972, is amended as follows:
37-23-69. The State Department of Education may determine and pay the amount of the financial assistance to be made available to each applicant, and see that all applicants and the programs for them meet the requirements of the program for exceptional children. No financial assistance shall exceed the obligation actually incurred by the applicant for educational costs, which shall include special education and related services as defined by the Mississippi Department of Education Policies and Procedures Regarding Children with Disabilities under the federal Individuals with Disabilities Education Act (IDEA). Within the amount of available state funds appropriated for that purpose, each such applicant may receive assistance according to the following allowances:
(a) If the applicant chooses to attend a private school, a parochial school or a speech, hearing and/or language clinic having an appropriate program for the applicant, and if the school or clinic meets federal and state regulations, then the educational costs reimbursement will be one hundred percent (100%) of the first Six Hundred Dollars ($600.00) in educational costs charged by the school or clinic; or, if the applicant is under six (6) years of age, and no program appropriate for the child exists in the public schools of his domicile, then the reimbursement shall be one hundred percent (100%) of the first Six Hundred Dollars ($600.00) in educational costs charged by the school or clinic, and fifty percent (50%) of the next Eight Hundred Dollars ($800.00) in educational costs charged by the school or clinic;
(b) A public school district shall be reimbursed for the educational costs of an applicant up to an annual maximum based on a multiple of the base student cost as determined under the Mississippi Adequate Education Program (MAEP) or other cost factor as determined by the State Board of Education if the following conditions are met: (i) an applicant in the age range six (6) through twenty (20) requests the public school district where he resides to provide an education for him and the nature of the applicant's educational problem is such that, according to best educational practices, it cannot be met in the public school district where the child resides; (ii) the public school district decides to provide the applicant a free appropriate education by placing him in a private school, a parochial school or a speech, hearing and/or language clinic having an appropriate program for the applicant; (iii) the program meets federal and state regulations; and (iv) the applicant is approved for financial assistance by a State Level Review Board established by the State Board of Education. The Review Board will act on financial assistance requests within five (5) working days of receipt. Nothing in this paragraph shall prevent two (2) or more public school districts from forming a cooperative to meet the needs of low incidence exceptional children, nor shall the public school be relieved of its responsibility to provide an education for all children. If state monies are not sufficient to fund all applicants, there will be a ratable reduction for all recipients receiving state funds under this section. School districts may pay additional educational costs from available federal, state and local funds.
If an exceptional child, as defined in Section 37-23-3, is placed in a therapeutic or other group home licensed or approved by the state that has no educational program associated with it, the local school district in which the home is located shall offer an appropriate educational program to that child.
At any time that the
Individualized Education Program (IEP) Committee in the district where the home
is located determines that an exceptional child, as defined in Section 37-23-3,
residing in that home can no longer be provided a free appropriate public
education in that school district, and the State Department of Education agrees
with that decision, then the State Department of Education shall recommend to
the Department of * * * Child Protection Services placement of the
child by the Department of * * * Child Protection Services,
which shall take appropriate action. The placement of the exceptional child in
the facility shall be at no cost to the local school district. Funds available
under Sections 37-23-61 through 37-23-77, as well as any available federal
funds, may be used to provide the educational costs of the placement. If the
exceptional child is under the guardianship of the Department of * * * Child Protection Services
or another state agency, the State Department of Education shall pay only for
the educational costs of that placement, and the other agency shall be
responsible for the room, board and any other costs. The special education and
related services provided to the child shall be in compliance with State
Department of Education and any related federal regulations. The State Board
of Education may promulgate regulations that are necessary to implement this
section; and
(c) If an appropriate
local or regional system of care, including a free appropriate public
education, is available for exceptional children who are currently being served
in out-of-district or Department of * * * Child Protection Services
placements under Section 37-23-69(b) or 37-23-77, then the state funds from the
State Department of Education that would have been used for those placements
may be paid into a pool of funds with funds from other state agencies to be
used for the implementation of the individualized plans of care for those
children. If there are sufficient funds to serve additional exceptional
children because of cost savings as a result of serving these students at home
and/or matching the pooled funds with federal dollars, the funds may be used to
implement individualized plans of care for those additional exceptional
children. Each local or regional provider of services included in the
individualized plans of care shall comply with all appropriate state and
federal regulations. The State Board of Education may promulgate regulations
that are necessary to implement this section.
The State Department of Education may also provide for the payment of that financial assistance in installments and for proration of that financial assistance in the case of children attending a school or clinic for less than a full school session and, if available funds are insufficient, may allocate the available funds among the qualified applicants and local school districts by reducing the maximum assistance provided for in this section.
Any monies provided an applicant under Sections 37-23-61 through 37-23-75 shall be applied by the receiving educational institution as a reduction in the amount of the educational costs paid by the applicant, and the total educational costs paid by the applicant shall not exceed the total educational costs paid by any other child in similar circumstances enrolled in the same program in that institution. However, this limitation shall not prohibit the waiving of all or part of the educational costs for a limited number of children based upon demonstrated financial need, and the State Department of Education may adopt and enforce reasonable rules and regulations to carry out the intent of these provisions.
SECTION 4. Section 37-23-77, Mississippi Code of 1972, is amended as follows:
37-23-77. If a child, as
defined in Sections 37-23-61 and 37-23-63, is under the legal guardianship of
the * * * Department
of * * * Child
Protection Services, or any other state agency, and for whom no foster
parents are available and no state-funded institution placement is available,
funds available under Section 37-23-1 et seq. may be used to provide for
the education of the child in an institution approved by the Department of * * * Child Protection Services and the
State Department of Education. However, if the educational services needed by
the child are available in a state funded institution, these funds shall not be
used to pay for educational services at that institution. At any such time a
child is taken out of a school setting and placed under the custody of the
Department of * * * Child
Protection Services, the department shall immediately notify the State
Department of Education and apply for funds for the child's educational
services under Section 37-23-1 et seq. and the State Department of Education
shall respond to the application within ten (10) working days. The special
education and related services provided for this child shall be provided in
compliance with State Department of Education regulations. The State
Department of Education shall promulgate such regulations as are necessary to
implement this section.
The State Department of Education shall require that the special education and related services provided for the children under this section be designed to provide individualized appropriate special education and related services that enable a child to reach his or her appropriate and uniquely designed goals for success.
SECTION 5. Section 37-115-43, Mississippi Code of 1972, is amended as follows:
37-115-43. (1) The
University of Mississippi Medical Center, in collaboration with the Mississippi
Department of * * *
Child Protection Services and the Office of the Attorney General, is
authorized and empowered to establish a Center of Excellence (Center) * * * to provide care for abused and neglected
children at the Blair E. Batson Hospital for Children located in Jackson,
Mississippi, where suspected victims of child maltreatment referred by the
Department of * * *
Child Protection Services or law enforcement will receive comprehensive
physical examinations conducted by medical professionals who specialize in
child maltreatment. The University of Mississippi Medical Center shall
promulgate such policies as may be necessary and desirable to carry out the
programs of the Center. The Center shall serve as a resource for the
assessment, investigation and prosecution of child maltreatment. The Center
shall work in collaboration with the Office of the Attorney General, the
Mississippi Department of * * *Human Child Protection Services, and other such
state agencies and entities that provide services to children * * * to ensure that CARE Clinic services are
provided in a uniform fashion throughout the state.
(2) The Department of Pediatrics may use the Center for educational and outreach programs, telemedicine consultations, to develop satellite clinics in other locations in the state in cooperation with the local community or private hospital when applicable, and to conduct major research initiatives in child maltreatment.
(3) The Center of
Excellence shall provide services to maltreated children and comply with
national certification standards as necessary to provide services to the
Department of * * *
Child Protection Services, the youth courts, state child advocacy
centers, district attorney's offices and law enforcement agencies.
(4) There is created in the State Treasury a special fund to be known as the Children's Safe Center Fund. The University of Mississippi Medical Center shall expend funds pursuant to appropriation therefor by the Legislature for the support and maintenance of the Children's Safe Center. The University of Mississippi Medical Center is authorized to accept any and all grants, donations or matching funds from private, public or federal sources in order to add to, improve and enlarge the physical facilities of the Center and to expend any such funds for the support and maintenance of the Center. Assessments from Section 99-19-73 designated for the Children's Safe Center Fund shall be deposited into the fund. Monies remaining in the fund at the end of a fiscal year shall not lapse into the State General Fund, and any interest earned from the investment of monies in the fund shall be deposited to the credit of the fund.
SECTION 6. Section 37-106-69, Mississippi Code of 1972, is amended as follows:
37-106-69. (1) There is
established a forgivable loan program to encourage family protection workers
employed by the Department of * * * Child Protection Services to
obtain the college education necessary to become licensed as a social worker,
master social worker or certified social worker and become a family protection
specialist for the department.
(2) Any person who is
employed as a family protection worker for the Department of * * * Child Protection Services shall be
eligible for a forgivable loan from the board which shall be used to pay the
costs of the person's education at a state institution of higher learning in
Mississippi to obtain a college degree that is necessary to become licensed as
a social worker, master social worker or certified social worker and become a
family protection specialist for the department. The annual amount of a
forgivable loan award under the program shall be equal to the total cost of
tuition and fees at the college or university in which the student is enrolled,
not to exceed an amount equal to the highest total cost of tuition and fees
assessed by a state institution of higher learning during that school year.
(3) Forgivable loans made under the program shall be available to both full-time and part-time students. Students enrolling on a full-time basis may receive a maximum of two (2) annual awards. The maximum number of forgivable loans that may be made to students attending school on a part-time basis, and the maximum time period for part-time students to complete the number of academic hours necessary to obtain the necessary degree, shall be established by rules and regulations of the board. Forgivable loans made under the program shall not be based upon an applicant's financial need. A student must maintain a "C" average or higher in his or her college coursework in order to continue receiving the forgivable loan.
(4) Repayment and conversion terms shall be the same as those outlined in Section 37-106-53, except for the following:
(a) After a person who received a forgivable loan under the program has obtained a college degree that is necessary to become licensed as a social worker, master social worker or certified social worker and has received such a license from the Board of Examiners for Social Workers and Marriage and Family Therapists, the person shall render service as a family protection specialist for the Department of Human Services for a period of not less than three (3) years from the date that the person became a family protection specialist;
(b) Any person who
fails to complete his or her service obligation as a family protection
specialist for the Department of * * * Child Protection Services for not
less than three (3) years, as required under subsection (4)(a) of this section,
shall become liable immediately to the board for the sum of all forgivable loan
awards made to that person, plus interest accruing at the current Stafford Loan
rate at the time the person discontinues his or her service.
(5) It is the intent of the
Legislature that the pursuit of necessary college education by family
protection workers through the forgivable loan program shall not interfere with
the duties of the family protection workers with the Department of * * * Child Protection Services. The
department shall promulgate regulations regarding family protection workers who
participate in the forgivable loan program to ensure that such participation does
not interfere with their duties with the department.
(6) The board shall promulgate rules and regulations necessary for the proper administration of the forgivable loan program established under this section. The board shall be the administering agency of the program.
(7) The total amount of state funds that may be expended for this program shall not exceed Three Hundred Twenty Thousand Dollars ($320,000.00) in any fiscal year.
SECTION 7. Section 41-3-18, Mississippi Code of 1972, is amended as follows:
41-3-18. (1) The board shall assess fees in the following amounts and for the following purposes:
(a) Food establishment annual permit fee, based on the assessment factors of the establishment as follows:
Assessment Category 1................................... $ 30.00
Assessment Category 2................................... 100.00
Assessment Category 3................................... 150.00
Assessment Category 4................................... 200.00
(b) Private water supply approval fee........ $ 10.00
The board may develop such reasonable standards, rules and regulations to clearly define each assessment category. Assessment categories shall be based upon the factors to the public health implications of the category and type of food preparation being utilized by the food establishment, utilizing the model Food Code of 1995, or as may be amended by the federal Food and Drug Administration.
Any increase in the fees charged by the board under this subsection shall be in accordance with the provisions of Section 41-3-65.
(2) The fee authorized under subsection (1)(a) of this section shall not be assessed for:
(a) Food establishments operated by public schools, public junior and community colleges, or state agencies or institutions, including, without limitation, the state institutions of higher learning and the State Penitentiary; and
(b) Persons who make infrequent casual sales of honey and who pack or sell less than five hundred (500) gallons of honey per year, and those persons shall not be inspected by the State Department of Health unless requested by the producer.
(3) The fee authorized
under subsection (1)(b) of this section shall not be assessed for private water
supplies used by foster homes licensed by the Department of * * * Child Protection Services.
SECTION 8. Section 41-7-173, Mississippi Code of 1972, is amended as follows:
41-7-173. For the purposes of Section 41-7-171 et seq., the following words shall have the meanings ascribed herein, unless the context otherwise requires:
(a) "Affected person" means (i) the applicant; (ii) a person residing within the geographic area to be served by the applicant's proposal; (iii) a person who regularly uses health care facilities or HMOs located in the geographic area of the proposal which provide similar service to that which is proposed; (iv) health care facilities and HMOs which have, prior to receipt of the application under review, formally indicated an intention to provide service similar to that of the proposal being considered at a future date; (v) third-party payers who reimburse health care facilities located in the geographical area of the proposal; or (vi) any agency that establishes rates for health care services or HMOs located in the geographic area of the proposal.
(b) "Certificate of need" means a written order of the State Department of Health setting forth the affirmative finding that a proposal in prescribed application form, sufficiently satisfies the plans, standards and criteria prescribed for such service or other project by Section 41-7-171 et seq., and by rules and regulations promulgated thereunder by the State Department of Health.
(c) (i) "Capital expenditure," when pertaining to defined major medical equipment, shall mean an expenditure which, under generally accepted accounting principles consistently applied, is not properly chargeable as an expense of operation and maintenance and which exceeds One Million Five Hundred Thousand Dollars ($1,500,000.00).
(ii) "Capital
expenditure," when pertaining to other than major medical equipment, shall
mean any expenditure which under generally accepted accounting principles consistently
applied is not properly chargeable as an expense of operation and maintenance
and which exceeds, for clinical health services, as defined in * * * paragraph (k) below, Five
Million Dollars ($5,000,000.00), adjusted for inflation as published by the
State Department of Health or which exceeds, for nonclinical health services,
as defined in * * * paragraph (k) below, Ten Million Dollars
($10,000,000.00), adjusted for inflation as published by the State Department
of Health.
(iii) A "capital expenditure" shall include the acquisition, whether by lease, sufferance, gift, devise, legacy, settlement of a trust or other means, of any facility or part thereof, or equipment for a facility, the expenditure for which would have been considered a capital expenditure if acquired by purchase. Transactions which are separated in time but are planned to be undertaken within twelve (12) months of each other and are components of an overall plan for meeting patient care objectives shall, for purposes of this definition, be viewed in their entirety without regard to their timing.
(iv) In those instances where a health care facility or other provider of health services proposes to provide a service in which the capital expenditure for major medical equipment or other than major medical equipment or a combination of the two (2) may have been split between separate parties, the total capital expenditure required to provide the proposed service shall be considered in determining the necessity of certificate of need review and in determining the appropriate certificate of need review fee to be paid. The capital expenditure associated with facilities and equipment to provide services in Mississippi shall be considered regardless of where the capital expenditure was made, in state or out of state, and regardless of the domicile of the party making the capital expenditure, in state or out of state.
(d) "Change of ownership" includes, but is not limited to, inter vivos gifts, purchases, transfers, lease arrangements, cash and/or stock transactions or other comparable arrangements whenever any person or entity acquires or controls a majority interest of an existing health care facility, and/or the change of ownership of major medical equipment, a health service, or an institutional health service. Changes of ownership from partnerships, single proprietorships or corporations to another form of ownership are specifically included. However, "change of ownership" shall not include any inherited interest acquired as a result of a testamentary instrument or under the laws of descent and distribution of the State of Mississippi.
(e) "Commencement of construction" means that all of the following have been completed with respect to a proposal or project proposing construction, renovating, remodeling or alteration:
(i) A legally binding written contract has been consummated by the proponent and a lawfully licensed contractor to construct and/or complete the intent of the proposal within a specified period of time in accordance with final architectural plans which have been approved by the licensing authority of the State Department of Health;
(ii) Any and all permits and/or approvals deemed lawfully necessary by all authorities with responsibility for such have been secured; and
(iii) Actual bona fide undertaking of the subject proposal has commenced, and a progress payment of at least one percent (1%) of the total cost price of the contract has been paid to the contractor by the proponent, and the requirements of this paragraph (e) have been certified to in writing by the State Department of Health.
Force account expenditures, such as deposits, securities, bonds, et cetera, may, in the discretion of the State Department of Health, be excluded from any or all of the provisions of defined commencement of construction.
(f) "Consumer" means an individual who is not a provider of health care as defined in paragraph (q) of this section.
(g) "Develop," when used in connection with health services, means to undertake those activities which, on their completion, will result in the offering of a new institutional health service or the incurring of a financial obligation as defined under applicable state law in relation to the offering of such services.
(h) "Health care facility" includes hospitals, psychiatric hospitals, chemical dependency hospitals, skilled nursing facilities, end-stage renal disease (ESRD) facilities, including freestanding hemodialysis units, intermediate care facilities, ambulatory surgical facilities, intermediate care facilities for the mentally retarded, home health agencies, psychiatric residential treatment facilities, pediatric skilled nursing facilities, long-term care hospitals, comprehensive medical rehabilitation facilities, including facilities owned or operated by the state or a political subdivision or instrumentality of the state, but does not include Christian Science sanatoriums operated or listed and certified by the First Church of Christ, Scientist, Boston, Massachusetts. This definition shall not apply to facilities for the private practice, either independently or by incorporated medical groups, of physicians, dentists or health care professionals except where such facilities are an integral part of an institutional health service. The various health care facilities listed in this paragraph shall be defined as follows:
(i) "Hospital" means an institution which is primarily engaged in providing to inpatients, by or under the supervision of physicians, diagnostic services and therapeutic services for medical diagnosis, treatment and care of injured, disabled or sick persons, or rehabilitation services for the rehabilitation of injured, disabled or sick persons. Such term does not include psychiatric hospitals.
(ii) "Psychiatric hospital" means an institution which is primarily engaged in providing to inpatients, by or under the supervision of a physician, psychiatric services for the diagnosis and treatment of persons with mental illness.
(iii) "Chemical dependency hospital" means an institution which is primarily engaged in providing to inpatients, by or under the supervision of a physician, medical and related services for the diagnosis and treatment of chemical dependency such as alcohol and drug abuse.
(iv) "Skilled nursing facility" means an institution or a distinct part of an institution which is primarily engaged in providing to inpatients skilled nursing care and related services for patients who require medical or nursing care or rehabilitation services for the rehabilitation of injured, disabled or sick persons.
(v) "End-stage renal disease (ESRD) facilities" means kidney disease treatment centers, which includes freestanding hemodialysis units and limited care facilities. The term "limited care facility" generally refers to an off-hospital-premises facility, regardless of whether it is provider or nonprovider operated, which is engaged primarily in furnishing maintenance hemodialysis services to stabilized patients.
(vi) "Intermediate care facility" means an institution which provides, on a regular basis, health-related care and services to individuals who do not require the degree of care and treatment which a hospital or skilled nursing facility is designed to provide, but who, because of their mental or physical condition, require health-related care and services (above the level of room and board).
(vii) "Ambulatory surgical facility" means a facility primarily organized or established for the purpose of performing surgery for outpatients and is a separate identifiable legal entity from any other health care facility. Such term does not include the offices of private physicians or dentists, whether for individual or group practice, and does not include any abortion facility as defined in Section 41-75-1(f).
(viii) "Intermediate care facility for the mentally retarded" means an intermediate care facility that provides health or rehabilitative services in a planned program of activities to persons with an intellectual disability, also including, but not limited to, cerebral palsy and other conditions covered by the Federal Developmentally Disabled Assistance and Bill of Rights Act, Public Law 94-103.
(ix) "Home health agency" means a public or privately owned agency or organization, or a subdivision of such an agency or organization, properly authorized to conduct business in Mississippi, which is primarily engaged in providing to individuals at the written direction of a licensed physician, in the individual's place of residence, skilled nursing services provided by or under the supervision of a registered nurse licensed to practice in Mississippi, and one or more of the following services or items:
1. Physical, occupational or speech therapy;
2. Medical social services;
3. Part-time or intermittent services of a home health aide;
4. Other services as approved by the licensing agency for home health agencies;
5. Medical supplies, other than drugs and biologicals, and the use of medical appliances; or
6. Medical services provided by an intern or resident-in-training at a hospital under a teaching program of such hospital.
Further, all skilled nursing services and those services listed in items 1 through 4 of this subparagraph (ix) must be provided directly by the licensed home health agency. For purposes of this subparagraph, "directly" means either through an agency employee or by an arrangement with another individual not defined as a health care facility.
This subparagraph (ix) shall not apply to health care facilities which had contracts for the above services with a home health agency on January 1, 1990.
(x)
"Psychiatric residential treatment facility" means any nonhospital
establishment with permanent licensed facilities which provides a twenty-four-hour
program of care by qualified therapists, including, but not limited to, duly
licensed mental health professionals, psychiatrists, psychologists,
psychotherapists and licensed certified social workers, for emotionally
disturbed children and adolescents referred to such facility by a court, local
school district or by the Department of * * * Child Protection Services, who are
not in an acute phase of illness requiring the services of a psychiatric
hospital, and are in need of such restorative treatment services. For purposes
of this subparagraph, the term "emotionally disturbed" means a
condition exhibiting one or more of the following characteristics over a long
period of time and to a marked degree, which adversely affects educational
performance:
1. An inability to learn which cannot be explained by intellectual, sensory or health factors;
2. An inability to build or maintain satisfactory relationships with peers and teachers;
3. Inappropriate types of behavior or feelings under normal circumstances;
4. A general pervasive mood of unhappiness or depression; or
5. A tendency to develop physical symptoms or fears associated with personal or school problems. An establishment furnishing primarily domiciliary care is not within this definition.
(xi) "Pediatric skilled nursing facility" means an institution or a distinct part of an institution that is primarily engaged in providing to inpatients skilled nursing care and related services for persons under twenty-one (21) years of age who require medical or nursing care or rehabilitation services for the rehabilitation of injured, disabled or sick persons.
(xii) "Long-term care hospital" means a freestanding, Medicare-certified hospital that has an average length of inpatient stay greater than twenty-five (25) days, which is primarily engaged in providing chronic or long-term medical care to patients who do not require more than three (3) hours of rehabilitation or comprehensive rehabilitation per day, and has a transfer agreement with an acute care medical center and a comprehensive medical rehabilitation facility. Long-term care hospitals shall not use rehabilitation, comprehensive medical rehabilitation, medical rehabilitation, sub-acute rehabilitation, nursing home, skilled nursing facility or sub-acute care facility in association with its name.
(xiii) "Comprehensive medical rehabilitation facility" means a hospital or hospital unit that is licensed and/or certified as a comprehensive medical rehabilitation facility which provides specialized programs that are accredited by the Commission on Accreditation of Rehabilitation Facilities and supervised by a physician board certified or board eligible in physiatry or other doctor of medicine or osteopathy with at least two (2) years of training in the medical direction of a comprehensive rehabilitation program that:
1. Includes evaluation and treatment of individuals with physical disabilities;
2. Emphasizes education and training of individuals with disabilities;
3. Incorporates at least the following core disciplines:
* * *a. Physical Therapy;
* * *b. Occupational Therapy;
* * *c. Speech and Language Therapy;
* * *d. Rehabilitation Nursing; and
4. Incorporates at least three (3) of the following disciplines:
* * *a. Psychology;
* * *b. Audiology;
* * *c. Respiratory Therapy;
* * *d. Therapeutic Recreation;
* * *e. Orthotics;
* * *f. Prosthetics;
* * *g. Special Education;
* * *h. Vocational Rehabilitation;
* * *i. Psychotherapy;
* * *j. Social Work;
* * *k. Rehabilitation Engineering.
These specialized programs include, but are not limited to: spinal cord injury programs, head injury programs and infant and early childhood development programs.
(i) "Health maintenance organization" or "HMO" means a public or private organization organized under the laws of this state or the federal government which:
(i) Provides or otherwise makes available to enrolled participants health care services, including substantially the following basic health care services: usual physician services, hospitalization, laboratory, x-ray, emergency and preventive services, and out-of-area coverage;
(ii) Is compensated (except for copayments) for the provision of the basic health care services listed in subparagraph (i) of this paragraph to enrolled participants on a predetermined basis; and
(iii) Provides physician services primarily:
1. Directly through physicians who are either employees or partners of such organization; or
2. Through arrangements with individual physicians or one or more groups of physicians (organized on a group practice or individual practice basis).
(j) "Health service area" means a geographic area of the state designated in the State Health Plan as the area to be used in planning for specified health facilities and services and to be used when considering certificate of need applications to provide health facilities and services.
(k) "Health services" means clinically related (i.e., diagnostic, treatment or rehabilitative) services and includes alcohol, drug abuse, mental health and home health care services. "Clinical health services" shall only include those activities which contemplate any change in the existing bed complement of any health care facility through the addition or conversion of any beds, under Section 41-7-191(1)(c) or propose to offer any health services if those services have not been provided on a regular basis by the proposed provider of such services within the period of twelve (12) months prior to the time such services would be offered, under Section 41-7-191(1)(d). "Nonclinical health services" shall be all other services which do not involve any change in the existing bed complement or offering health services as described above.
(l) "Institutional health services" shall mean health services provided in or through health care facilities and shall include the entities in or through which such services are provided.
(m) "Major medical equipment" means medical equipment designed for providing medical or any health-related service which costs in excess of One Million Five Hundred Thousand Dollars ($1,500,000.00). However, this definition shall not be applicable to clinical laboratories if they are determined by the State Department of Health to be independent of any physician's office, hospital or other health care facility or otherwise not so defined by federal or state law, or rules and regulations promulgated thereunder.
(n) "State Department of Health" or "department" shall mean the state agency created under Section 41-3-15, which shall be considered to be the State Health Planning and Development Agency, as defined in paragraph (u) of this section.
(o) "Offer," when used in connection with health services, means that it has been determined by the State Department of Health that the health care facility is capable of providing specified health services.
(p) "Person" means an individual, a trust or estate, partnership, corporation (including associations, joint-stock companies and insurance companies), the state or a political subdivision or instrumentality of the state.
(q) "Provider" shall mean any person who is a provider or representative of a provider of health care services requiring a certificate of need under Section 41-7-171 et seq., or who has any financial or indirect interest in any provider of services.
(r) "Radiation therapy services" means the treatment of cancer and other diseases using ionizing radiation of either high energy photons (x-rays or gamma rays) or charged particles (electrons, protons or heavy nuclei). However, for purposes of a certificate of need, radiation therapy services shall not include low energy, superficial, external beam x-ray treatment of superficial skin lesions.
(s) "Secretary" means the Secretary of Health and Human Services, and any officer or employee of the Department of Health and Human Services to whom the authority involved has been delegated.
(t) "State Health Plan" means the sole and official statewide health plan for Mississippi which identifies priority state health needs and establishes standards and criteria for health-related activities which require certificate of need review in compliance with Section 41-7-191.
(u) "State Health Planning and Development Agency" means the agency of state government designated to perform health planning and resource development programs for the State of Mississippi.
SECTION 9. Section 41-67-12, Mississippi Code of 1972, is amended as follows:
41-67-12. (1) The department shall assess fees in the following amounts for the following purposes:
(a) A fee of One Hundred Dollars ($100.00) shall be levied for soil and site evaluation and recommendation of individual on-site wastewater disposal systems. The department may increase the amount of the fee authorized in this paragraph (a) not more than two (2) times during the period from July 1, 2016, through June 30, 2020, with the percentage of each increase being not more than five percent (5%) of the amount of the fee in effect at the time of the increase.
(b) A fee of Fifty Dollars ($50.00) shall be levied annually for the certification of installers and pumpers.
(c) A fee of One Hundred Dollars ($100.00) shall be levied annually for the registration of manufacturers.
Any increase in the fee charged by the department under paragraph (b) or (c) of this subsection shall be in accordance with the provisions of Section 41-3-65.
(2) In the discretion of the board, a person shall be liable for a penalty equal to one and one-half (1-1/2) times the amount of the fee due and payable for failure to pay the fee on or before the date due, plus any amount necessary to reimburse the cost of collection.
(3) No fee
authorized under this section shall be assessed by the department for state
agencies or institutions, including, without limitation, foster homes licensed
by the Mississippi Department of * * * Child Protection Services.
SECTION 10. Section 43-13-116, Mississippi Code of 1972, is amended as follows:
43-13-116. (1) It shall be the duty of the Division of Medicaid to fully implement and carry out the administrative functions of determining the eligibility of those persons who qualify for medical assistance under Section 43-13-115.
(2) In determining Medicaid
eligibility, the Division of Medicaid is authorized to enter into an agreement
with the Secretary of the Department of Health and Human Services for the
purpose of securing the transfer of eligibility information from the Social
Security Administration on those individuals receiving supplemental security
income benefits under the federal Social Security Act and any other information
necessary in determining Medicaid eligibility. The Division of Medicaid is
further empowered to enter into contractual arrangements with its fiscal agent
or with the State Department of * * * Child Protection Services in
securing electronic data processing support as may be necessary.
(3) Administrative hearings shall be available to any applicant who requests it because his or her claim of eligibility for services is denied or is not acted upon with reasonable promptness or by any recipient who requests it because he or she believes the agency has erroneously taken action to deny, reduce, or terminate benefits. The agency need not grant a hearing if the sole issue is a federal or state law requiring an automatic change adversely affecting some or all recipients. Eligibility determinations that are made by other agencies and certified to the Division of Medicaid pursuant to Section 43-13-115 are not subject to the administrative hearing procedures of the Division of Medicaid but are subject to the administrative hearing procedures of the agency that determined eligibility.
(a) A request may be made either for a local regional office hearing or a state office hearing when the local regional office has made the initial decision that the claimant seeks to appeal or when the regional office has not acted with reasonable promptness in making a decision on a claim for eligibility or services. The only exception to requesting a local hearing is when the issue under appeal involves either (i) a disability or blindness denial, or termination, or (ii) a level of care denial or termination for a disabled child living at home. An appeal involving disability, blindness or level of care must be handled as a state level hearing. The decision from the local hearing may be appealed to the state office for a state hearing. A decision to deny, reduce or terminate benefits that is initially made at the state office may be appealed by requesting a state hearing.
(b) A request for a hearing, either state or local, must be made in writing by the claimant or claimant's legal representative. "Legal representative" includes the claimant's authorized representative, an attorney retained by the claimant or claimant's family to represent the claimant, a paralegal representative with a legal aid services, a parent of a minor child if the claimant is a child, a legal guardian or conservator or an individual with power of attorney for the claimant. The claimant may also be represented by anyone that he or she so designates but must give the designation to the Medicaid regional office or state office in writing, if the person is not the legal representative, legal guardian, or authorized representative.
(c) The claimant may make a request for a hearing in person at the regional office but an oral request must be put into written form. Regional office staff will determine from the claimant if a local or state hearing is requested and assist the claimant in completing and signing the appropriate form. Regional office staff may forward a state hearing request to the appropriate division in the state office or the claimant may mail the form to the address listed on the form. The claimant may make a written request for a hearing by letter. A simple statement requesting a hearing that is signed by the claimant or legal representative is sufficient; however, if possible, the claimant should state the reason for the request. The letter may be mailed to the regional office or it may be mailed to the state office. If the letter does not specify the type of hearing desired, local or state, Medicaid staff will attempt to contact the claimant to determine the level of hearing desired. If contact cannot be made within three (3) days of receipt of the request, the request will be assumed to be for a local hearing and scheduled accordingly. A hearing will not be scheduled until either a letter or the appropriate form is received by the regional or state office.
(d) When both members of a couple wish to appeal an action or inaction by the agency that affects both applications or cases similarly and arose from the same issue, one or both may file the request for hearing, both may present evidence at the hearing, and the agency's decision will be applicable to both. If both file a request for hearing, two (2) hearings will be registered but they will be conducted on the same day and in the same place, either consecutively or jointly, as the couple wishes. If they so desire, only one of the couple need attend the hearing.
(e) The procedure for administrative hearings shall be as follows:
(i) The claimant has thirty (30) days from the date the agency mails the appropriate notice to the claimant of its decision regarding eligibility, services, or benefits to request either a state or local hearing. This time period may be extended if the claimant can show good cause for not filing within thirty (30) days. Good cause includes, but may not be limited to, illness, failure to receive the notice, being out of state, or some other reasonable explanation. If good cause can be shown, a late request may be accepted provided the facts in the case remain the same. If a claimant's circumstances have changed or if good cause for filing a request beyond thirty (30) days is not shown, a hearing request will not be accepted. If the claimant wishes to have eligibility reconsidered, he or she may reapply.
(ii) If a claimant or representative requests a hearing in writing during the advance notice period before benefits are reduced or terminated, benefits must be continued or reinstated to the benefit level in effect before the effective date of the adverse action. Benefits will continue at the original level until the final hearing decision is rendered. Any hearing requested after the advance notice period will not be accepted as a timely request in order for continuation of benefits to apply.
(iii) Upon receipt of a written request for a hearing, the request will be acknowledged in writing within twenty (20) days and a hearing scheduled. The claimant or representative will be given at least five (5) days' advance notice of the hearing date. The local and/or state level hearings will be held by telephone unless, at the hearing officer's discretion, it is determined that an in-person hearing is necessary. If a local hearing is requested, the regional office will notify the claimant or representative in writing of the time of the local hearing. If a state hearing is requested, the state office will notify the claimant or representative in writing of the time of the state hearing. If an in-person hearing is necessary, local hearings will be held at the regional office and state hearings will be held at the state office unless other arrangements are necessitated by the claimant's inability to travel.
(iv) All persons attending a hearing will attend for the purpose of giving information on behalf of the claimant or rendering the claimant assistance in some other way, or for the purpose of representing the Division of Medicaid.
(v) A state or local hearing request may be withdrawn at any time before the scheduled hearing, or after the hearing is held but before a decision is rendered. The withdrawal must be in writing and signed by the claimant or representative. A hearing request will be considered abandoned if the claimant or representative fails to appear at a scheduled hearing without good cause. If no one appears for a hearing, the appropriate office will notify the claimant in writing that the hearing is dismissed unless good cause is shown for not attending. The proposed agency action will be taken on the case following failure to appear for a hearing if the action has not already been effected.
(vi) The claimant or his representative has the following rights in connection with a local or state hearing:
(A) The right to examine at a reasonable time before the date of the hearing and during the hearing the content of the claimant's case record;
(B) The right to have legal representation at the hearing and to bring witnesses;
(C) The right to produce documentary evidence and establish all facts and circumstances concerning eligibility, services, or benefits;
(D) The right to present an argument without undue interference;
(E) The right to question or refute any testimony or evidence including an opportunity to confront and cross-examine adverse witnesses.
(vii) When a request for a local hearing is received by the regional office or if the regional office is notified by the state office that a local hearing has been requested, the Medicaid specialist supervisor in the regional office will review the case record, reexamine the action taken on the case, and determine if policy and procedures have been followed. If any adjustments or corrections should be made, the Medicaid specialist supervisor will ensure that corrective action is taken. If the request for hearing was timely made such that continuation of benefits applies, the Medicaid specialist supervisor will ensure that benefits continue at the level before the proposed adverse action that is the subject of the appeal. The Medicaid specialist supervisor will also ensure that all needed information, verification, and evidence is in the case record for the hearing.
(viii) When a state hearing is requested that appeals the action or inaction of a regional office, the regional office will prepare copies of the case record and forward it to the appropriate division in the state office no later than five (5) days after receipt of the request for a state hearing. The original case record will remain in the regional office. Either the original case record in the regional office or the copy forwarded to the state office will be available for inspection by the claimant or claimant's representative a reasonable time before the date of the hearing.
(ix) The Medicaid specialist supervisor will serve as the hearing officer for a local hearing unless the Medicaid specialist supervisor actually participated in the eligibility, benefits, or services decision under appeal, in which case the Medicaid specialist supervisor must appoint a Medicaid specialist in the regional office who did not actually participate in the decision under appeal to serve as hearing officer. The local hearing will be an informal proceeding in which the claimant or representative may present new or additional information, may question the action taken on the client's case, and will hear an explanation from agency staff as to the regulations and requirements that were applied to claimant's case in making the decision.
(x) After the hearing, the hearing officer will prepare a written summary of the hearing procedure and file it with the case record. The hearing officer will consider the facts presented at the local hearing in reaching a decision. The claimant will be notified of the local hearing decision on the appropriate form that will state clearly the reason for the decision, the policy that governs the decision, the claimant's right to appeal the decision to the state office, and, if the original adverse action is upheld, the new effective date of the reduction or termination of benefits or services if continuation of benefits applied during the hearing process. The new effective date of the reduction or termination of benefits or services must be at the end of the fifteen-day advance notice period from the mailing date of the notice of hearing decision. The notice to claimant will be made part of the case record.
(xi) The claimant has the right to appeal a local hearing decision by requesting a state hearing in writing within fifteen (15) days of the mailing date of the notice of local hearing decision. The state hearing request should be made to the regional office. If benefits have been continued pending the local hearing process, then benefits will continue throughout the fifteen-day advance notice period for an adverse local hearing decision. If a state hearing is timely requested within the fifteen-day period, then benefits will continue pending the state hearing process. State hearings requested after the fifteen-day local hearing advance notice period will not be accepted unless the initial thirty-day period for filing a hearing request has not expired because the local hearing was held early, in which case a state hearing request will be accepted as timely within the number of days remaining of the unexpired initial thirty-day period in addition to the fifteen-day time period. Continuation of benefits during the state hearing process, however, will only apply if the state hearing request is received within the fifteen-day advance notice period.
(xii) When a request for a state hearing is received in the regional office, the request will be made part of the case record and the regional office will prepare the case record and forward it to the appropriate division in the state office within five (5) days of receipt of the state hearing request. A request for a state hearing received in the state office will be forwarded to the regional office for inclusion in the case record and the regional office will prepare the case record and forward it to the appropriate division in the state office within five (5) days of receipt of the state hearing request.
(xiii) Upon receipt of the hearing record, an impartial hearing officer will be assigned to hear the case either by the Executive Director of the Division of Medicaid or his or her designee. Hearing officers will be individuals with appropriate expertise employed by the division and who have not been involved in any way with the action or decision on appeal in the case. The hearing officer will review the case record and if the review shows that an error was made in the action of the agency or in the interpretation of policy, or that a change of policy has been made, the hearing officer will discuss these matters with the appropriate agency personnel and request that an appropriate adjustment be made. Appropriate agency personnel will discuss the matter with the claimant and if the claimant is agreeable to the adjustment of the claim, then agency personnel will request in writing dismissal of the hearing and the reason therefor, to be placed in the case record. If the hearing is to go forward, it shall be scheduled by the hearing officer in the manner set forth in subparagraph (iii) of this paragraph (e).
(xiv) In conducting the hearing, the state hearing officer will inform those present of the following:
(A) That the hearing will be recorded on tape and that a transcript of the proceedings will be typed for the record;
(B) The action taken by the agency which prompted the appeal;
(C) An explanation of the claimant's rights during the hearing as outlined in subparagraph (vi) of this paragraph (e);
(D) That the purpose of the hearing is for the claimant to express dissatisfaction and present additional information or evidence;
(E) That the case record is available for review by the claimant or representative during the hearing;
(F) That the final hearing decision will be rendered by the Executive Director of the Division of Medicaid on the basis of facts presented at the hearing and the case record and that the claimant will be notified by letter of the final decision.
(xv) During the hearing, the claimant and/or representative will be allowed an opportunity to make a full statement concerning the appeal and will be assisted, if necessary, in disclosing all information on which the claim is based. All persons representing the claimant and those representing the Division of Medicaid will have the opportunity to state all facts pertinent to the appeal. The hearing officer may recess or continue the hearing for a reasonable time should additional information or facts be required or if some change in the claimant's circumstances occurs during the hearing process which impacts the appeal. When all information has been presented, the hearing officer will close the hearing and stop the recorder.
(xvi) Immediately following the hearing the hearing tape will be transcribed and a copy of the transcription forwarded to the regional office for filing in the case record. As soon as possible, the hearing officer shall review the evidence and record of the proceedings, testimony, exhibits, and other supporting documents, prepare a written summary of the facts as the hearing officer finds them, and prepare a written recommendation of action to be taken by the agency, citing appropriate policy and regulations that govern the recommendation. The decision cannot be based on any material, oral or written, not available to the claimant before or during the hearing. The hearing officer's recommendation will become part of the case record which will be submitted to the Executive Director of the Division of Medicaid for further review and decision.
(xvii) The Executive Director of the Division of Medicaid, upon review of the recommendation, proceedings and the record, may sustain the recommendation of the hearing officer, reject the same, or remand the matter to the hearing officer to take additional testimony and evidence, in which case, the hearing officer thereafter shall submit to the executive director a new recommendation. The executive director shall prepare a written decision summarizing the facts and identifying policies and regulations that support the decision, which shall be mailed to the claimant and the representative, with a copy to the regional office if appropriate, as soon as possible after submission of a recommendation by the hearing officer. The decision notice will specify any action to be taken by the agency, specify any revised eligibility dates or, if continuation of benefits applies, will notify the claimant of the new effective date of reduction or termination of benefits or services, which will be fifteen (15) days from the mailing date of the notice of decision. The decision rendered by the Executive Director of the Division of Medicaid is final and binding. The claimant is entitled to seek judicial review in a court of proper jurisdiction.
(xviii) The Division of Medicaid must take final administrative action on a hearing, whether state or local, within ninety (90) days from the date of the initial request for a hearing.
(xix) A group hearing may be held for a number of claimants under the following circumstances:
(A) The Division of Medicaid may consolidate the cases and conduct a single group hearing when the only issue involved is one (1) of a single law or agency policy;
(B) The claimants may request a group hearing when there is one (1) issue of agency policy common to all of them.
In all group hearings, whether initiated by the Division of Medicaid or by the claimants, the policies governing fair hearings must be followed. Each claimant in a group hearing must be permitted to present his or her own case and be represented by his or her own representative, or to withdraw from the group hearing and have his or her appeal heard individually. As in individual hearings, the hearing will be conducted only on the issue being appealed, and each claimant will be expected to keep individual testimony within a reasonable time frame as a matter of consideration to the other claimants involved.
(xx) Any specific matter necessitating an administrative hearing not otherwise provided under this article or agency policy shall be afforded under the hearing procedures as outlined above. If the specific time frames of such a unique matter relating to requesting, granting, and concluding of the hearing is contrary to the time frames as set out in the hearing procedures above, the specific time frames will govern over the time frames as set out within these procedures.
(4) The Executive Director of the Division of Medicaid, with the approval of the Governor, shall be authorized to employ eligibility, technical, clerical and supportive staff as may be required in carrying out and fully implementing the determination of Medicaid eligibility, including conducting quality control reviews and the investigation of the improper receipt of medical assistance. Staffing needs will be set forth in the annual appropriation act for the division. Additional office space as needed in performing eligibility, quality control and investigative functions shall be obtained by the division.
SECTION 11. Section 43-13-117, Mississippi Code of 1972, is amended as follows:
43-13-117. (A) Medicaid as authorized by this article shall include payment of part or all of the costs, at the discretion of the division, with approval of the Governor, of the following types of care and services rendered to eligible applicants who have been determined to be eligible for that care and services, within the limits of state appropriations and federal matching funds:
(1) Inpatient hospital services.
(a) The division shall allow thirty (30) days of inpatient hospital care annually for all Medicaid recipients. Medicaid recipients requiring transplants shall not have those days included in the transplant hospital stay count against the thirty-day limit for inpatient hospital care. Precertification of inpatient days must be obtained as required by the division.
(b) From and after July 1, 1994, the Executive Director of the Division of Medicaid shall amend the Mississippi Title XIX Inpatient Hospital Reimbursement Plan to remove the occupancy rate penalty from the calculation of the Medicaid Capital Cost Component utilized to determine total hospital costs allocated to the Medicaid program.
(c) Hospitals will receive an additional payment for the implantable programmable baclofen drug pump used to treat spasticity that is implanted on an inpatient basis. The payment pursuant to written invoice will be in addition to the facility's per diem reimbursement and will represent a reduction of costs on the facility's annual cost report, and shall not exceed Ten Thousand Dollars ($10,000.00) per year per recipient.
(d) The division is authorized to implement an All-Patient Refined-Diagnosis Related Groups (APR-DRG) reimbursement methodology for inpatient hospital services.
(e) No service benefits or reimbursement limitations in this section shall apply to payments under an APR-DRG or Ambulatory Payment Classification (APC) model or a managed care program or similar model described in subsection (H) of this section.
(2) Outpatient hospital services.
(a) Emergency services.
(b) Other outpatient hospital services. The division shall allow benefits for other medically necessary outpatient hospital services (such as chemotherapy, radiation, surgery and therapy), including outpatient services in a clinic or other facility that is not located inside the hospital, but that has been designated as an outpatient facility by the hospital, and that was in operation or under construction on July 1, 2009, provided that the costs and charges associated with the operation of the hospital clinic are included in the hospital's cost report. In addition, the Medicare thirty-five-mile rule will apply to those hospital clinics not located inside the hospital that are constructed after July 1, 2009. Where the same services are reimbursed as clinic services, the division may revise the rate or methodology of outpatient reimbursement to maintain consistency, efficiency, economy and quality of care.
(c) The division is authorized to implement an Ambulatory Payment Classification (APC) methodology for outpatient hospital services.
(d) No service benefits or reimbursement limitations in this section shall apply to payments under an APR-DRG or APC model or a managed care program or similar model described in subsection (H) of this section.
(3) Laboratory and x-ray services.
(4) Nursing facility services.
(a) The division shall make full payment to nursing facilities for each day, not exceeding fifty-two (52) days per year, that a patient is absent from the facility on home leave. Payment may be made for the following home leave days in addition to the fifty-two-day limitation: Christmas, the day before Christmas, the day after Christmas, Thanksgiving, the day before Thanksgiving and the day after Thanksgiving.
(b) From and after July 1, 1997, the division shall implement the integrated case-mix payment and quality monitoring system, which includes the fair rental system for property costs and in which recapture of depreciation is eliminated. The division may reduce the payment for hospital leave and therapeutic home leave days to the lower of the case-mix category as computed for the resident on leave using the assessment being utilized for payment at that point in time, or a case-mix score of 1.000 for nursing facilities, and shall compute case-mix scores of residents so that only services provided at the nursing facility are considered in calculating a facility's per diem.
(c) From and after July 1, 1997, all state-owned nursing facilities shall be reimbursed on a full reasonable cost basis.
(d) On or after January 1, 2015, the division shall update the case-mix payment system resource utilization grouper and classifications and fair rental reimbursement system. The division shall develop and implement a payment add-on to reimburse nursing facilities for ventilator dependent resident services.
(e) The division shall develop and implement, not later than January 1, 2001, a case-mix payment add-on determined by time studies and other valid statistical data that will reimburse a nursing facility for the additional cost of caring for a resident who has a diagnosis of Alzheimer's or other related dementia and exhibits symptoms that require special care. Any such case-mix add-on payment shall be supported by a determination of additional cost. The division shall also develop and implement as part of the fair rental reimbursement system for nursing facility beds, an Alzheimer's resident bed depreciation enhanced reimbursement system that will provide an incentive to encourage nursing facilities to convert or construct beds for residents with Alzheimer's or other related dementia.
(f) The division shall develop and implement an assessment process for long-term care services. The division may provide the assessment and related functions directly or through contract with the area agencies on aging.
The division shall apply for necessary federal waivers to assure that additional services providing alternatives to nursing facility care are made available to applicants for nursing facility care.
(5) Periodic screening
and diagnostic services for individuals under age twenty-one (21) years as are
needed to identify physical and mental defects and to provide health care
treatment and other measures designed to correct or ameliorate defects and
physical and mental illness and conditions discovered by the screening
services, regardless of whether these services are included in the state plan.
The division may include in its periodic screening and diagnostic program those
discretionary services authorized under the federal regulations adopted to
implement Title XIX of the federal Social Security Act, as amended. The
division, in obtaining physical therapy services, occupational therapy
services, and services for individuals with speech, hearing and language
disorders, may enter into a cooperative agreement with the State Department of
Education for the provision of those services to handicapped students by public
school districts using state funds that are provided from the appropriation to
the Department of Education to obtain federal matching funds through the
division. The division, in obtaining medical and mental health assessments,
treatment, care and services for children who are in, or at risk of being put
in, the custody of the Mississippi Department of * * * Child Protection Services may
enter into a cooperative agreement with the Mississippi Department of * * * Child Protection Services for the
provision of those services using state funds that are provided from the
appropriation to the Department of * * * Child Protection Services to
obtain federal matching funds through the division.
(6) Physician's services. The division shall allow twelve (12) physician visits annually. The division may develop and implement a different reimbursement model or schedule for physician's services provided by physicians based at an academic health care center and by physicians at rural health centers that are associated with an academic health care center. From and after January 1, 2010, all fees for physician's services that are covered only by Medicaid shall be increased to ninety percent (90%) of the rate established on January 1, 2010, and as may be adjusted each July thereafter, under Medicare. The division may provide for a reimbursement rate for physician's services of up to one hundred percent (100%) of the rate established under Medicare for physician's services that are provided after the normal working hours of the physician, as determined in accordance with regulations of the division. The division may reimburse eligible providers as determined by the Patient Protection and Affordable Care Act for certain primary care services as defined by the act at one hundred percent (100%) of the rate established under Medicare.
(7) (a) Home health services for eligible persons, not to exceed in cost the prevailing cost of nursing facility services, not to exceed twenty-five (25) visits per year. All home health visits must be precertified as required by the division.
(b) [Repealed]
(8) Emergency medical transportation services. On January 1, 1994, emergency medical transportation services shall be reimbursed at seventy percent (70%) of the rate established under Medicare (Title XVIII of the federal Social Security Act, as amended). "Emergency medical transportation services" shall mean, but shall not be limited to, the following services by a properly permitted ambulance operated by a properly licensed provider in accordance with the Emergency Medical Services Act of 1974 (Section 41-59-1 et seq.): (i) basic life support, (ii) advanced life support, (iii) mileage, (iv) oxygen, (v) intravenous fluids, (vi) disposable supplies, (vii) similar services.
(9) (a) Legend and other drugs as may be determined by the division.
The division shall establish a mandatory preferred drug list. Drugs not on the mandatory preferred drug list shall be made available by utilizing prior authorization procedures established by the division.
The division may seek to establish relationships with other states in order to lower acquisition costs of prescription drugs to include single source and innovator multiple source drugs or generic drugs. In addition, if allowed by federal law or regulation, the division may seek to establish relationships with and negotiate with other countries to facilitate the acquisition of prescription drugs to include single source and innovator multiple source drugs or generic drugs, if that will lower the acquisition costs of those prescription drugs.
The division shall allow for a combination of prescriptions for single source and innovator multiple source drugs and generic drugs to meet the needs of the beneficiaries, not to exceed five (5) prescriptions per month for each noninstitutionalized Medicaid beneficiary, with not more than two (2) of those prescriptions being for single source or innovator multiple source drugs unless the single source or innovator multiple source drug is less expensive than the generic equivalent.
The executive director may approve specific maintenance drugs for beneficiaries with certain medical conditions, which may be prescribed and dispensed in three-month supply increments.
Drugs prescribed for a resident of a psychiatric residential treatment facility must be provided in true unit doses when available. The division may require that drugs not covered by Medicare Part D for a resident of a long-term care facility be provided in true unit doses when available. Those drugs that were originally billed to the division but are not used by a resident in any of those facilities shall be returned to the billing pharmacy for credit to the division, in accordance with the guidelines of the State Board of Pharmacy and any requirements of federal law and regulation. Drugs shall be dispensed to a recipient and only one (1) dispensing fee per month may be charged. The division shall develop a methodology for reimbursing for restocked drugs, which shall include a restock fee as determined by the division not exceeding Seven Dollars and Eighty-two Cents ($7.82).
The voluntary preferred drug list shall be expanded to function in the interim in order to have a manageable prior authorization system, thereby minimizing disruption of service to beneficiaries.
Except for those specific maintenance drugs approved by the executive director, the division shall not reimburse for any portion of a prescription that exceeds a thirty-one-day supply of the drug based on the daily dosage.
The division shall develop and implement a program of payment for additional pharmacist services, with payment to be based on demonstrated savings, but in no case shall the total payment exceed twice the amount of the dispensing fee.
All claims for drugs for dually eligible Medicare/Medicaid beneficiaries that are paid for by Medicare must be submitted to Medicare for payment before they may be processed by the division's online payment system.
The division shall develop a pharmacy policy in which drugs in tamper-resistant packaging that are prescribed for a resident of a nursing facility but are not dispensed to the resident shall be returned to the pharmacy and not billed to Medicaid, in accordance with guidelines of the State Board of Pharmacy.
The division shall develop and implement a method or methods by which the division will provide on a regular basis to Medicaid providers who are authorized to prescribe drugs, information about the costs to the Medicaid program of single source drugs and innovator multiple source drugs, and information about other drugs that may be prescribed as alternatives to those single source drugs and innovator multiple source drugs and the costs to the Medicaid program of those alternative drugs.
Notwithstanding any law or regulation, information obtained or maintained by the division regarding the prescription drug program, including trade secrets and manufacturer or labeler pricing, is confidential and not subject to disclosure except to other state agencies.
(b) Payment by the division for covered multisource drugs shall be limited to the lower of the upper limits established and published by the Centers for Medicare and Medicaid Services (CMS) plus a dispensing fee, or the estimated acquisition cost (EAC) as determined by the division, plus a dispensing fee, or the providers' usual and customary charge to the general public.
Payment for other covered drugs, other than multisource drugs with CMS upper limits, shall not exceed the lower of the estimated acquisition cost as determined by the division, plus a dispensing fee or the providers' usual and customary charge to the general public.
Payment for nonlegend or over-the-counter drugs covered by the division shall be reimbursed at the lower of the division's estimated shelf price or the providers' usual and customary charge to the general public.
The dispensing fee for each new or refill prescription, including nonlegend or over-the-counter drugs covered by the division, shall be not less than Three Dollars and Ninety-one Cents ($3.91), as determined by the division.
The division shall not reimburse for single source or innovator multiple source drugs if there are equally effective generic equivalents available and if the generic equivalents are the least expensive.
It is the intent of the Legislature that the pharmacists providers be reimbursed for the reasonable costs of filling and dispensing prescriptions for Medicaid beneficiaries.
(10) (a) Dental care that is an adjunct to treatment of an acute medical or surgical condition; services of oral surgeons and dentists in connection with surgery related to the jaw or any structure contiguous to the jaw or the reduction of any fracture of the jaw or any facial bone; and emergency dental extractions and treatment related thereto. On July 1, 2007, fees for dental care and surgery under authority of this paragraph (10) shall be reimbursed as provided in subparagraph (b). It is the intent of the Legislature that this rate revision for dental services will be an incentive designed to increase the number of dentists who actively provide Medicaid services. This dental services rate revision shall be known as the "James Russell Dumas Medicaid Dental Incentive Program."
The division shall annually determine the effect of this incentive by evaluating the number of dentists who are Medicaid providers, the number who and the degree to which they are actively billing Medicaid, the geographic trends of where dentists are offering what types of Medicaid services and other statistics pertinent to the goals of this legislative intent. This data shall be presented to the Chair of the Senate Public Health and Welfare Committee and the Chair of the House Medicaid Committee.
(b) The Division of Medicaid shall establish a fee schedule, to be effective from and after July 1, 2007, for dental services. The schedule shall provide for a fee for each dental service that is equal to a percentile of normal and customary private provider fees, as defined by the Ingenix Customized Fee Analyzer Report, which percentile shall be determined by the division. The schedule shall be reviewed annually by the division and dental fees shall be adjusted to reflect the percentile determined by the division.
(c) For fiscal year 2008, the amount of state funds appropriated for reimbursement for dental care and surgery shall be increased by ten percent (10%) of the amount of state fund expenditures for that purpose for fiscal year 2007. For each of fiscal years 2009 and 2010, the amount of state funds appropriated for reimbursement for dental care and surgery shall be increased by ten percent (10%) of the amount of state fund expenditures for that purpose for the preceding fiscal year.
(d) The division shall establish an annual benefit limit of Two Thousand Five Hundred Dollars ($2,500.00) in dental expenditures per Medicaid-eligible recipient; however, a recipient may exceed the annual limit on dental expenditures provided in this paragraph with prior approval of the division.
(e) The division shall include dental services as a necessary component of overall health services provided to children who are eligible for services.
(f) This paragraph (10) shall stand repealed on July 1, 2016.
(11) Eyeglasses for all Medicaid beneficiaries who have (a) had surgery on the eyeball or ocular muscle that results in a vision change for which eyeglasses or a change in eyeglasses is medically indicated within six (6) months of the surgery and is in accordance with policies established by the division, or (b) one (1) pair every five (5) years and in accordance with policies established by the division. In either instance, the eyeglasses must be prescribed by a physician skilled in diseases of the eye or an optometrist, whichever the beneficiary may select.
(12) Intermediate care facility services.
(a) The division shall make full payment to all intermediate care facilities for individuals with intellectual disabilities for each day, not exceeding eighty-four (84) days per year, that a patient is absent from the facility on home leave. Payment may be made for the following home leave days in addition to the eighty-four-day limitation: Christmas, the day before Christmas, the day after Christmas, Thanksgiving, the day before Thanksgiving and the day after Thanksgiving.
(b) All state-owned intermediate care facilities for individuals with intellectual disabilities shall be reimbursed on a full reasonable cost basis.
(c) Effective January 1, 2015, the division shall update the fair rental reimbursement system for intermediate care facilities for individuals with intellectual disabilities.
(13) Family planning services, including drugs, supplies and devices, when those services are under the supervision of a physician or nurse practitioner.
(14) Clinic services. Such diagnostic, preventive, therapeutic, rehabilitative or palliative services furnished to an outpatient by or under the supervision of a physician or dentist in a facility that is not a part of a hospital but that is organized and operated to provide medical care to outpatients. Clinic services shall include any services reimbursed as outpatient hospital services that may be rendered in such a facility, including those that become so after July 1, 1991. On July 1, 1999, all fees for physicians' services reimbursed under authority of this paragraph (14) shall be reimbursed at ninety percent (90%) of the rate established on January 1, 1999, and as may be adjusted each July thereafter, under Medicare (Title XVIII of the federal Social Security Act, as amended). The division may develop and implement a different reimbursement model or schedule for physician's services provided by physicians based at an academic health care center and by physicians at rural health centers that are associated with an academic health care center. The division may provide for a reimbursement rate for physician's clinic services of up to one hundred percent (100%) of the rate established under Medicare for physician's services that are provided after the normal working hours of the physician, as determined in accordance with regulations of the division.
(15) Home- and community-based services for the elderly and disabled, as provided under Title XIX of the federal Social Security Act, as amended, under waivers, subject to the availability of funds specifically appropriated for that purpose by the Legislature.
The Division of Medicaid is directed to apply for a waiver amendment to increase payments for all adult day care facilities based on acuity of individual patients, with a maximum of Seventy-five Dollars ($75.00) per day for the most acute patients.
(16) Mental health
services. Approved therapeutic and case management services (a) provided by an
approved regional mental health/intellectual disability center established
under Sections 41-19-31 through 41-19-39, or by another community mental health
service provider meeting the requirements of the Department of Mental Health to
be an approved mental health/intellectual disability center if determined
necessary by the Department of Mental Health, using state funds that are
provided in the appropriation to the division to match federal funds, or (b)
provided by a facility that is certified by the State Department of Mental
Health to provide therapeutic and case management services, to be reimbursed on
a fee for service basis, or (c) provided in the community by a facility or
program operated by the Department of Mental Health. Any such services
provided by a facility described in subparagraph (b) must have the prior
approval of the division to be reimbursable under this section. * * *
(17) Durable medical equipment services and medical supplies. Precertification of durable medical equipment and medical supplies must be obtained as required by the division. The Division of Medicaid may require durable medical equipment providers to obtain a surety bond in the amount and to the specifications as established by the Balanced Budget Act of 1997.
(18) (a) Notwithstanding any other provision of this section to the contrary, as provided in the Medicaid state plan amendment or amendments as defined in Section 43-13-145(10), the division shall make additional reimbursement to hospitals that serve a disproportionate share of low-income patients and that meet the federal requirements for those payments as provided in Section 1923 of the federal Social Security Act and any applicable regulations. It is the intent of the Legislature that the division shall draw down all available federal funds allotted to the state for disproportionate share hospitals. However, from and after January 1, 1999, public hospitals participating in the Medicaid disproportionate share program may be required to participate in an intergovernmental transfer program as provided in Section 1903 of the federal Social Security Act and any applicable regulations.
(b) The division shall establish a Medicare Upper Payment Limits Program, as defined in Section 1902(a)(30) of the federal Social Security Act and any applicable federal regulations, for hospitals, and may establish a Medicare Upper Payment Limits Program for nursing facilities, and may establish a Medicare Upper Payment Limits Program for physicians employed or contracted by public hospitals. Upon successful implementation of a Medicare Upper Payment Limits Program for physicians employed by public hospitals, the division may develop a plan for implementing an Upper Payment Limits Program for physicians employed by other classes of hospitals. The division shall assess each hospital and, if the program is established for nursing facilities, shall assess each nursing facility, for the sole purpose of financing the state portion of the Medicare Upper Payment Limits Program. The hospital assessment shall be as provided in Section 43-13-145(4)(a) and the nursing facility assessment, if established, shall be based on Medicaid utilization or other appropriate method consistent with federal regulations. The assessment will remain in effect as long as the state participates in the Medicare Upper Payment Limits Program. Public hospitals with physicians participating in the Medicare Upper Payment Limits Program shall be required to participate in an intergovernmental transfer program. As provided in the Medicaid state plan amendment or amendments as defined in Section 43-13-145(10), the division shall make additional reimbursement to hospitals and, if the program is established for nursing facilities, shall make additional reimbursement to nursing facilities, for the Medicare Upper Payment Limits, and, if the program is established for physicians, shall make additional reimbursement for physicians, as defined in Section 1902(a)(30) of the federal Social Security Act and any applicable federal regulations. Effective upon implementation of the Mississippi Hospital Access Program (MHAP) provided in subparagraph (c)(i) below, the hospital portion of the inpatient Upper Payment Limits Program shall transition into and be replaced by the MHAP program.
(c) (i) Not later than December l, 2015, the division shall, subject to approval by the Centers for Medicare and Medicaid Services (CMS), establish, implement and operate a Mississippi Hospital Access Program (MHAP) for the purpose of protecting patient access to hospital care through hospital inpatient reimbursement programs provided in this section designed to maintain total hospital reimbursement for inpatient services rendered by in-state hospitals and the out-of-state hospital that is authorized by federal law to submit intergovernmental transfers (IGTs) to the State of Mississippi and is classified as Level I trauma center located in a county contiguous to the state line at the maximum levels permissible under applicable federal statutes and regulations, at which time the current inpatient Medicare Upper Payment Limits (UPL) Program for hospital inpatient services shall transition to the MHAP.
(ii) Subject only to approval by the Centers for Medicare and Medicaid Services (CMS) where required, the MHAP shall provide increased inpatient capitation (PMPM) payments to managed care entities contracting with the division pursuant to subsection (H) of this section to support availability of hospital services or such other payments permissible under federal law necessary to accomplish the intent of this subsection. For inpatient services rendered after July 1, 2015, but prior to the effective date of CMS approval and full implementation of this program, the division may pay lump-sum enhanced, transition payments, prorated inpatient UPL payments based upon fiscal year 2015 June distribution levels, enhanced hospital access (PMPM) payments or such other methodologies as are approved by CMS such that the level of additional reimbursement required by this section is paid for all Medicaid hospital inpatient services delivered in fiscal year 2016.
(iii) The intent of this subparagraph (c) is that effective for all inpatient hospital Medicaid services during state fiscal year 2016, and so long as this provision shall remain in effect hereafter, the division shall to the fullest extent feasible replace the additional reimbursement for hospital inpatient services under the inpatient Medicare Upper Payment Limits (UPL) Program with additional reimbursement under the MHAP.
(iv) The division shall assess each hospital as provided in Section 43-13-145(4)(a) for the purpose of financing the state portion of the MHAP and such other purposes as specified in Section 43-13-145. The assessment will remain in effect as long as the MHAP is in effect.
(v) In the event that the MHAP program under this subparagraph (c) is not approved by CMS, the inpatient UPL program under subparagraph (b) shall immediately become restored in the manner required to provide the maximum permissible level of UPL payments to hospital providers for all inpatient services rendered from and after July 1, 2015.
(19) (a) Perinatal risk management services. The division shall promulgate regulations to be effective from and after October 1, 1988, to establish a comprehensive perinatal system for risk assessment of all pregnant and infant Medicaid recipients and for management, education and follow-up for those who are determined to be at risk. Services to be performed include case management, nutrition assessment/counseling, psychosocial assessment/counseling and health education. The division shall contract with the State Department of Health to provide the services within this paragraph (Perinatal High Risk Management/Infant Services System (PHRM/ISS)). The State Department of Health as the agency for PHRM/ISS for the Division of Medicaid shall be reimbursed on a full reasonable cost basis.
(b) Early intervention system services. The division shall cooperate with the State Department of Health, acting as lead agency, in the development and implementation of a statewide system of delivery of early intervention services, under Part C of the Individuals with Disabilities Education Act (IDEA). The State Department of Health shall certify annually in writing to the executive director of the division the dollar amount of state early intervention funds available that will be utilized as a certified match for Medicaid matching funds. Those funds then shall be used to provide expanded targeted case management services for Medicaid eligible children with special needs who are eligible for the state's early intervention system. Qualifications for persons providing service coordination shall be determined by the State Department of Health and the Division of Medicaid.
(20) Home- and community-based services for physically disabled approved services as allowed by a waiver from the United States Department of Health and Human Services for home- and community-based services for physically disabled people using state funds that are provided from the appropriation to the State Department of Rehabilitation Services and used to match federal funds under a cooperative agreement between the division and the department, provided that funds for these services are specifically appropriated to the Department of Rehabilitation Services.
(21) Nurse practitioner services. Services furnished by a registered nurse who is licensed and certified by the Mississippi Board of Nursing as a nurse practitioner, including, but not limited to, nurse anesthetists, nurse midwives, family nurse practitioners, family planning nurse practitioners, pediatric nurse practitioners, obstetrics-gynecology nurse practitioners and neonatal nurse practitioners, under regulations adopted by the division. Reimbursement for those services shall not exceed ninety percent (90%) of the reimbursement rate for comparable services rendered by a physician. The division may provide for a reimbursement rate for nurse practitioner services of up to one hundred percent (100%) of the reimbursement rate for comparable services rendered by a physician for nurse practitioner services that are provided after the normal working hours of the nurse practitioner, as determined in accordance with regulations of the division.
(22) Ambulatory services delivered in federally qualified health centers, rural health centers and clinics of the local health departments of the State Department of Health for individuals eligible for Medicaid under this article based on reasonable costs as determined by the division.
(23) Inpatient psychiatric services. Inpatient psychiatric services to be determined by the division for recipients under age twenty-one (21) that are provided under the direction of a physician in an inpatient program in a licensed acute care psychiatric facility or in a licensed psychiatric residential treatment facility, before the recipient reaches age twenty-one (21) or, if the recipient was receiving the services immediately before he or she reached age twenty-one (21), before the earlier of the date he or she no longer requires the services or the date he or she reaches age twenty-two (22), as provided by federal regulations. From and after January 1, 2015, the division shall update the fair rental reimbursement system for psychiatric residential treatment facilities. Precertification of inpatient days and residential treatment days must be obtained as required by the division. From and after July 1, 2009, all state-owned and state-operated facilities that provide inpatient psychiatric services to persons under age twenty-one (21) who are eligible for Medicaid reimbursement shall be reimbursed for those services on a full reasonable cost basis.
(24) [Deleted]
(25) [Deleted]
(26) Hospice care. As used in this paragraph, the term "hospice care" means a coordinated program of active professional medical attention within the home and outpatient and inpatient care that treats the terminally ill patient and family as a unit, employing a medically directed interdisciplinary team. The program provides relief of severe pain or other physical symptoms and supportive care to meet the special needs arising out of physical, psychological, spiritual, social and economic stresses that are experienced during the final stages of illness and during dying and bereavement and meets the Medicare requirements for participation as a hospice as provided in federal regulations.
(27) Group health plan premiums and cost-sharing if it is cost-effective as defined by the United States Secretary of Health and Human Services.
(28) Other health insurance premiums that are cost-effective as defined by the United States Secretary of Health and Human Services. Medicare eligible must have Medicare Part B before other insurance premiums can be paid.
(29) The Division of Medicaid may apply for a waiver from the United States Department of Health and Human Services for home- and community-based services for developmentally disabled people using state funds that are provided from the appropriation to the State Department of Mental Health and/or funds transferred to the department by a political subdivision or instrumentality of the state and used to match federal funds under a cooperative agreement between the division and the department, provided that funds for these services are specifically appropriated to the Department of Mental Health and/or transferred to the department by a political subdivision or instrumentality of the state.
(30) Pediatric skilled nursing services for eligible persons under twenty-one (21) years of age.
(31) Targeted case
management services for children with special needs, under waivers from the
United States Department of Health and Human Services, using state funds that
are provided from the appropriation to the Mississippi Department of * * * Child Protection Services and used
to match federal funds under a cooperative agreement between the division and
the department.
(32) Care and services provided in Christian Science Sanatoria listed and certified by the Commission for Accreditation of Christian Science Nursing Organizations/Facilities, Inc., rendered in connection with treatment by prayer or spiritual means to the extent that those services are subject to reimbursement under Section 1903 of the federal Social Security Act.
(33) Podiatrist services.
(34) Assisted living services as provided through home- and community-based services under Title XIX of the federal Social Security Act, as amended, subject to the availability of funds specifically appropriated for that purpose by the Legislature.
(35) Services and
activities authorized in Sections 43-27-101 and 43-27-103, using state funds
that are provided from the appropriation to the Mississippi Department of * * * Child Protection Services and used
to match federal funds under a cooperative agreement between the division and
the department.
(36) Nonemergency transportation services for Medicaid-eligible persons, to be provided by the Division of Medicaid. The division may contract with additional entities to administer nonemergency transportation services as it deems necessary. All providers shall have a valid driver's license, vehicle inspection sticker, valid vehicle license tags and a standard liability insurance policy covering the vehicle. The division may pay providers a flat fee based on mileage tiers, or in the alternative, may reimburse on actual miles traveled. The division may apply to the Center for Medicare and Medicaid Services (CMS) for a waiver to draw federal matching funds for nonemergency transportation services as a covered service instead of an administrative cost. The PEER Committee shall conduct a performance evaluation of the nonemergency transportation program to evaluate the administration of the program and the providers of transportation services to determine the most cost-effective ways of providing nonemergency transportation services to the patients served under the program. The performance evaluation shall be completed and provided to the members of the Senate Public Health and Welfare Committee and the House Medicaid Committee not later than January 15, 2008.
(37) [Deleted]
(38) Chiropractic services. A chiropractor's manual manipulation of the spine to correct a subluxation, if x-ray demonstrates that a subluxation exists and if the subluxation has resulted in a neuromusculoskeletal condition for which manipulation is appropriate treatment, and related spinal x-rays performed to document these conditions. Reimbursement for chiropractic services shall not exceed Seven Hundred Dollars ($700.00) per year per beneficiary.
(39) Dually eligible Medicare/Medicaid beneficiaries. The division shall pay the Medicare deductible and coinsurance amounts for services available under Medicare, as determined by the division. From and after July 1, 2009, the division shall reimburse crossover claims for inpatient hospital services and crossover claims covered under Medicare Part B in the same manner that was in effect on January 1, 2008, unless specifically authorized by the Legislature to change this method.
(40) [Deleted]
(41) Services provided by the State Department of Rehabilitation Services for the care and rehabilitation of persons with spinal cord injuries or traumatic brain injuries, as allowed under waivers from the United States Department of Health and Human Services, using up to seventy-five percent (75%) of the funds that are appropriated to the Department of Rehabilitation Services from the Spinal Cord and Head Injury Trust Fund established under Section 37-33-261 and used to match federal funds under a cooperative agreement between the division and the department.
(42) Notwithstanding any other provision in this article to the contrary, the division may develop a population health management program for women and children health services through the age of one (1) year. This program is primarily for obstetrical care associated with low birth weight and preterm babies. The division may apply to the federal Centers for Medicare and Medicaid Services (CMS) for a Section 1115 waiver or any other waivers that may enhance the program. In order to effect cost savings, the division may develop a revised payment methodology that may include at-risk capitated payments, and may require member participation in accordance with the terms and conditions of an approved federal waiver.
(43) The division shall provide reimbursement, according to a payment schedule developed by the division, for smoking cessation medications for pregnant women during their pregnancy and other Medicaid-eligible women who are of child-bearing age.
(44) Nursing facility services for the severely disabled.
(a) Severe disabilities include, but are not limited to, spinal cord injuries, closed-head injuries and ventilator dependent patients.
(b) Those services must be provided in a long-term care nursing facility dedicated to the care and treatment of persons with severe disabilities.
(45) Physician assistant services. Services furnished by a physician assistant who is licensed by the State Board of Medical Licensure and is practicing with physician supervision under regulations adopted by the board, under regulations adopted by the division. Reimbursement for those services shall not exceed ninety percent (90%) of the reimbursement rate for comparable services rendered by a physician. The division may provide for a reimbursement rate for physician assistant services of up to one hundred percent (100%) or the reimbursement rate for comparable services rendered by a physician for physician assistant services that are provided after the normal working hours of the physician assistant, as determined in accordance with regulations of the division.
(46) The division shall make application to the federal Centers for Medicare and Medicaid Services (CMS) for a waiver to develop and provide services for children with serious emotional disturbances as defined in Section 43-14-1(1), which may include home- and community-based services, case management services or managed care services through mental health providers certified by the Department of Mental Health. The division may implement and provide services under this waivered program only if funds for these services are specifically appropriated for this purpose by the Legislature, or if funds are voluntarily provided by affected agencies.
(47) (a) Notwithstanding any other provision in this article to the contrary, the division may develop and implement disease management programs for individuals with high-cost chronic diseases and conditions, including the use of grants, waivers, demonstrations or other projects as necessary.
(b) Participation in any disease management program implemented under this paragraph (47) is optional with the individual. An individual must affirmatively elect to participate in the disease management program in order to participate, and may elect to discontinue participation in the program at any time.
(48) Pediatric long-term acute care hospital services.
(a) Pediatric long-term acute care hospital services means services provided to eligible persons under twenty-one (21) years of age by a freestanding Medicare-certified hospital that has an average length of inpatient stay greater than twenty-five (25) days and that is primarily engaged in providing chronic or long-term medical care to persons under twenty-one (21) years of age.
(b) The services under this paragraph (48) shall be reimbursed as a separate category of hospital services.
(49) The division shall establish copayments and/or coinsurance for all Medicaid services for which copayments and/or coinsurance are allowable under federal law or regulation, and shall set the amount of the copayment and/or coinsurance for each of those services at the maximum amount allowable under federal law or regulation.
(50) Services provided by the State Department of Rehabilitation Services for the care and rehabilitation of persons who are deaf and blind, as allowed under waivers from the United States Department of Health and Human Services to provide home- and community-based services using state funds that are provided from the appropriation to the State Department of Rehabilitation Services or if funds are voluntarily provided by another agency.
(51) Upon determination of Medicaid eligibility and in association with annual redetermination of Medicaid eligibility, beneficiaries shall be encouraged to undertake a physical examination that will establish a base-line level of health and identification of a usual and customary source of care (a medical home) to aid utilization of disease management tools. This physical examination and utilization of these disease management tools shall be consistent with current United States Preventive Services Task Force or other recognized authority recommendations.
For persons who are determined ineligible for Medicaid, the division will provide information and direction for accessing medical care and services in the area of their residence.
(52) Notwithstanding any provisions of this article, the division may pay enhanced reimbursement fees related to trauma care, as determined by the division in conjunction with the State Department of Health, using funds appropriated to the State Department of Health for trauma care and services and used to match federal funds under a cooperative agreement between the division and the State Department of Health. The division, in conjunction with the State Department of Health, may use grants, waivers, demonstrations, or other projects as necessary in the development and implementation of this reimbursement program.
(53) Targeted case management services for high-cost beneficiaries shall be developed by the division for all services under this section.
(54) Adult foster care services pilot program. Social and protective services on a pilot program basis in an approved foster care facility for vulnerable adults who would otherwise need care in a long-term care facility, to be implemented in an area of the state with the greatest need for such program, under the Medicaid Waivers for the Elderly and Disabled program or an assisted living waiver. The division may use grants, waivers, demonstrations or other projects as necessary in the development and implementation of this adult foster care services pilot program.
(55) Therapy services. The plan of care for therapy services may be developed to cover a period of treatment for up to six (6) months, but in no event shall the plan of care exceed a six-month period of treatment. The projected period of treatment must be indicated on the initial plan of care and must be updated with each subsequent revised plan of care. Based on medical necessity, the division shall approve certification periods for less than or up to six (6) months, but in no event shall the certification period exceed the period of treatment indicated on the plan of care. The appeal process for any reduction in therapy services shall be consistent with the appeal process in federal regulations.
(56) Prescribed pediatric extended care centers services for medically dependent or technologically dependent children with complex medical conditions that require continual care as prescribed by the child's attending physician, as determined by the division.
(57) No Medicaid benefit shall restrict coverage for medically appropriate treatment prescribed by a physician and agreed to by a fully informed individual, or if the individual lacks legal capacity to consent by a person who has legal authority to consent on his or her behalf, based on an individual's diagnosis with a terminal condition. As used in this paragraph (57), "terminal condition" means any aggressive malignancy, chronic end-stage cardiovascular or cerebral vascular disease, or any other disease, illness or condition which a physician diagnoses as terminal.
(B) Notwithstanding any other provision of this article to the contrary, the division shall reduce the rate of reimbursement to providers for any service provided under this section by five percent (5%) of the allowed amount for that service. However, the reduction in the reimbursement rates required by this subsection (B) shall not apply to inpatient hospital services, nursing facility services, intermediate care facility services, psychiatric residential treatment facility services, pharmacy services provided under subsection (A)(9) of this section, or any service provided by the University of Mississippi Medical Center or a state agency, a state facility or a public agency that either provides its own state match through intergovernmental transfer or certification of funds to the division, or a service for which the federal government sets the reimbursement methodology and rate. From and after January 1, 2010, the reduction in the reimbursement rates required by this subsection (B) shall not apply to physicians' services. In addition, the reduction in the reimbursement rates required by this subsection (B) shall not apply to case management services and home-delivered meals provided under the home- and community-based services program for the elderly and disabled by a planning and development district (PDD). Planning and development districts participating in the home- and community-based services program for the elderly and disabled as case management providers shall be reimbursed for case management services at the maximum rate approved by the Centers for Medicare and Medicaid Services (CMS).
(C) The division may pay to those providers who participate in and accept patient referrals from the division's emergency room redirection program a percentage, as determined by the division, of savings achieved according to the performance measures and reduction of costs required of that program. Federally qualified health centers may participate in the emergency room redirection program, and the division may pay those centers a percentage of any savings to the Medicaid program achieved by the centers' accepting patient referrals through the program, as provided in this subsection (C).
(D) Notwithstanding any
provision of this article, except as authorized in the following subsection and
in Section 43-13-139, neither * * * (1) the limitations on quantity or
frequency of use of or the fees or charges for any of the care or services
available to recipients under this section, nor * * * (2) the payments, payment
methodology as provided below in this subsection (D), or rates of reimbursement
to providers rendering care or services authorized under this section to
recipients, may be increased, decreased or otherwise changed from the levels in
effect on July 1, 1999, unless they are authorized by an amendment to this
section by the Legislature. However, the restriction in this subsection shall
not prevent the division from changing the payments, payment methodology as
provided below in this subsection (D), or rates of reimbursement to providers
without an amendment to this section whenever those changes are required by
federal law or regulation, or whenever those changes are necessary to correct
administrative errors or omissions in calculating those payments or rates of
reimbursement. The prohibition on any changes in payment methodology provided
in this subsection (D) shall apply only to payment methodologies used for
determining the rates of reimbursement for inpatient hospital services,
outpatient hospital services, nursing facility services, and/or pharmacy
services, except as required by federal law, and the federally mandated
rebasing of rates as required by the Centers for Medicare and Medicaid Services
(CMS) shall not be considered payment methodology for purposes of this
subsection (D). No service benefits or reimbursement limitations in this
section shall apply to payments under an APR-DRG or APC model or a managed care
program or similar model described in subsection (H) of this section.
(E) Notwithstanding any provision of this article, no new groups or categories of recipients and new types of care and services may be added without enabling legislation from the Mississippi Legislature, except that the division may authorize those changes without enabling legislation when the addition of recipients or services is ordered by a court of proper authority.
(F) The executive director shall keep the Governor advised on a timely basis of the funds available for expenditure and the projected expenditures. If current or projected expenditures of the division are reasonably anticipated to exceed the amount of funds appropriated to the division for any fiscal year, the Governor, after consultation with the executive director, shall discontinue any or all of the payment of the types of care and services as provided in this section that are deemed to be optional services under Title XIX of the federal Social Security Act, as amended, and when necessary, shall institute any other cost containment measures on any program or programs authorized under the article to the extent allowed under the federal law governing that program or programs. However, the Governor shall not be authorized to discontinue or eliminate any service under this section that is mandatory under federal law, or to discontinue or eliminate, or adjust income limits or resource limits for, any eligibility category or group under Section 43-13-115. Beginning in fiscal year 2010 and in fiscal years thereafter, when Medicaid expenditures are projected to exceed funds available for any quarter in the fiscal year, the division shall submit the expected shortfall information to the PEER Committee, which shall review the computations of the division and report its findings to the Legislative Budget Office within thirty (30) days of such notification by the division, and not later than January 7 in any year. If expenditure reductions or cost containments are implemented, the Governor may implement a maximum amount of state share expenditure reductions to providers, of which hospitals will be responsible for twenty-five percent (25%) of provider reductions as follows: in fiscal year 2010, the maximum amount shall be Twenty-four Million Dollars ($24,000,000.00); in fiscal year 2011, the maximum amount shall be Thirty-two Million Dollars ($32,000,000.00); and in fiscal year 2012 and thereafter, the maximum amount shall be Forty Million Dollars ($40,000,000.00). However, instead of implementing cuts, the hospital share shall be in the form of an additional assessment not to exceed Ten Million Dollars ($10,000,000.00) as provided in Section 43-13-145(4)(a)(ii). If Medicaid expenditures are projected to exceed the amount of funds appropriated to the division in any fiscal year in excess of the expenditure reductions to providers, then funds shall be transferred by the State Fiscal Officer from the Health Care Trust Fund into the Health Care Expendable Fund and to the Governor's Office, Division of Medicaid, from the Health Care Expendable Fund, in the amount and at such time as requested by the Governor to reconcile the deficit. If the cost containment measures described above have been implemented and there are insufficient funds in the Health Care Trust Fund to reconcile any remaining deficit in any fiscal year, the Governor shall institute any other additional cost containment measures on any program or programs authorized under this article to the extent allowed under federal law. Hospitals shall be responsible for twenty-five percent (25%) of any additional imposed provider cuts. However, instead of implementing hospital expenditure reductions, the hospital reductions shall be in the form of an additional assessment not to exceed twenty-five percent (25%) of provider expenditure reductions as provided in Section 43-13-145(4)(a)(ii). It is the intent of the Legislature that the expenditures of the division during any fiscal year shall not exceed the amounts appropriated to the division for that fiscal year.
(G) Notwithstanding any other provision of this article, it shall be the duty of each nursing facility, intermediate care facility for individuals with intellectual disabilities, psychiatric residential treatment facility, and nursing facility for the severely disabled that is participating in the Medicaid program to keep and maintain books, documents and other records as prescribed by the Division of Medicaid in substantiation of its cost reports for a period of three (3) years after the date of submission to the Division of Medicaid of an original cost report, or three (3) years after the date of submission to the Division of Medicaid of an amended cost report.
(H) (1) Notwithstanding any other provision of this article, the division is authorized to implement (a) a managed care program, (b) a coordinated care program, (c) a coordinated care organization program, (d) a health maintenance organization program, (e) a patient-centered medical home program, (f) an accountable care organization program, (g) provider-sponsored health plan, or (h) any combination of the above programs. Managed care programs, coordinated care programs, coordinated care organization programs, health maintenance organization programs, patient-centered medical home programs, accountable care organization programs, provider-sponsored health plans, or any combination of the above programs or other similar programs implemented by the division under this section shall be limited to the greater of (i) forty-five percent (45%) of the total enrollment of Medicaid beneficiaries, or (ii) the categories of beneficiaries participating in the program as of January 1, 2014, plus the categories of beneficiaries composed primarily of persons younger than nineteen (19) years of age, and the division is authorized to enroll categories of beneficiaries in such program(s) as long as the appropriate limitations are not exceeded in the aggregate. As a condition for the approval of any program under this subsection (H)(1), the division shall require that no program may:
(a) Pay providers at a rate that is less than the Medicaid All-Patient Refined-Diagnosis Related Groups (APR-DRG) reimbursement rate;
(b) Override the medical decisions of hospital physicians or staff regarding patients admitted to a hospital for an emergency medical condition as defined by 42 US Code Section 1395dd. This restriction (b) does not prohibit the retrospective review of the appropriateness of the determination that an emergency medical condition exists by chart review or coding algorithm, nor does it prohibit prior authorization for nonemergency hospital admissions;
(c) Pay providers at a rate that is less than the normal Medicaid reimbursement rate; however, the division may approve use of innovative payment models that recognize alternative payment models, including quality and value-based payments, provided both parties mutually agree and the Division of Medicaid approves of said models. Participation in the provider network of any managed care, coordinated care, provider-sponsored health plan, or similar contractor shall not be conditioned on the provider's agreement to accept such alternative payment models;
(d) Implement a prior authorization program for prescription drugs that is more stringent than the prior authorization processes used by the division in its administration of the Medicaid program;
(e) Implement a policy that does not comply with the prescription drugs payment requirements established in subsection (A)(9) of this section;
(f) Implement a preferred drug list that is more stringent than the mandatory preferred drug list established by the division under subsection (A)(9) of this section;
(g) Implement a policy which denies beneficiaries with hemophilia access to the federally funded hemophilia treatment centers as part of the Medicaid Managed Care network of providers. All Medicaid beneficiaries with hemophilia shall receive unrestricted access to anti-hemophilia factor products through noncapitated reimbursement programs.
(2) Any contractors providing direct patient care under a managed care program established in this section shall provide to the Legislature and the division statistical data to be shared with provider groups in order to improve patient access, appropriate utilization, cost savings and health outcomes.
(3) All health maintenance organizations, coordinated care organizations, provider-sponsored health plans, or other organizations paid for services on a capitated basis by the division under any managed care program or coordinated care program implemented by the division under this section shall reimburse all providers in those organizations at rates no lower than those provided under this section for beneficiaries who are not participating in those programs.
(4) No health maintenance organization, coordinated care organization, provider-sponsored health plan, or other organization paid for services on a capitated basis by the division under any managed care program or coordinated care program implemented by the division under this section shall require its providers or beneficiaries to use any pharmacy that ships, mails or delivers prescription drugs or legend drugs or devices.
(I) [Deleted]
(J) There shall be no cuts in inpatient and outpatient hospital payments, or allowable days or volumes, as long as the hospital assessment provided in Section 43-13-145 is in effect. This subsection (J) shall not apply to decreases in payments that are a result of: reduced hospital admissions, audits or payments under the APR-DRG or APC models, or a managed care program or similar model described in subsection (H) of this section.
(K) This section shall stand repealed on June 30, 2018.
SECTION 12. Section 43-15-5, Mississippi Code of 1972, is amended as follows:
43-15-5. (1) The
Department of * * *
Child Protection Services shall have authority and it shall be its duty
to administer or supervise all public child welfare services, including those
services, responsibilities, duties and powers with which the county departments
of * * * child
protection services are charged and empowered in this article; administer
and supervise the licensing and inspection of all private child placing
agencies; provide for the care of dependent and neglected children in foster
family homes or in institutions, supervise the care of such children and those
of illegitimate birth; supervise the importation of children; and supervise the
operation of all state institutions for children. The Department of * * * Child Protection Services shall be
authorized to purchase hospital and medical insurance coverage for those
children placed in foster care by the state or county departments of * * * child protection services who are
not otherwise eligible for medical assistance under the Mississippi Medicaid
Law. The Department of * * * Human Child Protection Services shall be further
authorized to purchase burial or life insurance not exceeding One Thousand Five
Hundred Dollars ($1,500.00) for those children placed in foster care by the
state or county departments of human services. All insurance coverage
authorized herein may be purchased with any funds other than state funds
available to the Department of * * * Child Protection Services,
including those funds available to the child which are administered by the
department.
(2) Any person, partnership,
group, corporation, organization or association desiring to operate a child
residential home, as defined in Section 43-16-3, may make application for a
license for such a facility to the Department of * * * Child Protection Services on the
application forms furnished for this purpose by the department. If an
applicant meets the published rules and regulations of the department regarding
minimum standards for a child residential home, then the applicant shall be
granted a license by the department.
SECTION 13. Section 43-15-105, Mississippi Code of 1972, is amended as follows:
43-15-105. (1) The * * * Mississippi
Department of Child Protection Services shall be the licensing authority
for the department, and is vested with all the powers, duties and
responsibilities described in this article. The * * * department shall make and
establish rules and regulations regarding:
(a) Approving, extending, denying, suspending and revoking licenses for foster homes, residential child-caring agencies and child-placing agencies;
(b) Conditional licenses, variances from department rules and exclusions;
(c) Basic health and safety standards for licensees; and
(d) Minimum administration and financial requirements for licensees.
(2) The * * * department shall:
(a) Define information
that shall be submitted to the * * * department with an application
for a license;
(b) Establish guidelines for the administration and maintenance of client and service records, including staff qualifications, staff to client ratios;
(c) Issue licenses in accordance with this article;
(d) Conduct surveys and inspections of licensees and facilities;
(e) Establish and collect licensure fees;
(f) Investigate complaints regarding any licensee or facility;
(g) Have access to all records, correspondence and financial data required to be maintained by a licensee or facility;
(h) Have authority to interview any client, family member of a client, employee or officer of a licensee or facility; and
(i) Have authority to
revoke, suspend or extend any license issued by the * * * department.
SECTION 14. Section 43-15-107, Mississippi Code of 1972, is amended as follows:
43-15-107. (1) Except as
provided in Section 43-15-111, no person, agency, firm, corporation,
association or other entity, acting individually or jointly with any other
person or entity, may establish, conduct or maintain foster homes, residential
child-caring agencies and child-placing agencies or facility and/or engage in
child placing in this state without a valid and current license issued by and
under the authority of the * * * department as provided by this
article and the rules of the * * * department. Any out-of-state
child-placing agency that provides a full range of services, including, but not
limited to, adoptions, foster family homes, adoption counseling services or
financial aid, in this state must be licensed by the * * * department under this article.
(2) No license issued under this article is assignable or transferable.
(3) A current license shall at all times be posted in each licensee's facility, in a place that is visible and readily accessible to the public.
(4) (a) Except as otherwise provided in paragraph (b) of this subsection, each license issued under this article expires at midnight (Central Standard Time) twelve (12) months from the date of issuance unless it has been:
(i) Previously revoked by the office; or
(ii) Voluntarily returned to the office by the licensee.
(b) (i) For any child-placing agency located in Mississippi that remains in good standing, the license issued under this article expires at midnight (Central Standard Time) twenty-four (24) months from the date of issuance unless it has been:
1. Previously revoked by the office; or
2. Voluntarily returned to the office by the licensee.
(ii) Any child-placing agency whose license is governed by this paragraph (b) shall submit the following information to the office annually:
1. A copy of an audit report and IRS Form 990 for the agency;
2. The agency's fee schedule; and
3. The agency's client list.
(c) A license may be renewed upon application and payment of the applicable fee, provided that the licensee meets the license requirements established by this article and the rules and regulations of the division.
(5) Any licensee or
facility which is in operation at the time rules are made in accordance with
this article shall be given a reasonable time for compliance as determined by
the rules of the * * *
department.
SECTION 15. Section 43-15-109, Mississippi Code of 1972, is amended as follows:
43-15-109. (1) An
application for a license under this article shall be made to the * * * department and shall contain
information that the * * *
department determines is necessary in accordance with established rules.
(2) Information received by the office through reports, complaints, investigations and inspections shall be classified as public in accordance with Title 25, Chapter 61, Mississippi Code of 1972, Mississippi Public Records Act.
SECTION 16. Section 43-15-113, Mississippi Code of 1972, is amended as follows:
43-15-113. (1) If a license
is revoked, the * * *
department may grant a new license after:
(a) Satisfactory
evidence is submitted to the * * * department, evidencing that the
conditions upon which revocation was based have been corrected; and
(b) Inspection and compliance with all provisions of this article and applicable rules.
(2) The * * * department may only suspend a
license for a period of time which does not exceed the current expiration date
of that license.
(3) When a license has been
suspended, the * * *
department may completely or partially restore the suspended license
upon a determination that the:
(a) Conditions upon which the suspension was based have been completely or partially corrected; and
(b) Interests of the public will not be jeopardized by restoration of the license.
SECTION 17. Section 43-15-117, Mississippi Code of 1972, is amended as follows:
43-15-117. (1) Except as
provided in this article, no person, agency, firm, corporation, association or
group children's home may engage in child placing, or solicit money or other
assistance for child placing, without a valid license issued by the division.
No out-of-state child-placing agency that provides a full range of services,
including, but not limited to, adoptions, foster family homes, adoption
counseling services or financial aid, may operate in this state without a valid
license issued by the * * *
department. No child-placing agency shall advertise in the media
markets in Mississippi seeking birth mothers or their children for adoption
purposes unless the agency holds a valid and current license issued either by
the * * *
department or the authorized governmental licensing agency of another
state that regulates child-placing agencies. Any child-placing agency,
physician or attorney who advertises for child placing or adoption services in
Mississippi shall be required by the * * * department to show their
principal office location on all media advertising for adoption services.
(2) An attorney who provides legal services to a client in connection with proceedings for the adoption of a child by the client, who does not receive, accept or provide custody or care for the child for the purposes specified in Section 43-15-103(c), shall not be required to have a license under this article to provide those legal services.
(3) An attorney, physician or other person may assist a parent in identifying or locating a person interested in adopting the parent's child, or in identifying or locating a child to be adopted. However, no payment, charge, fee, reimbursement of expense, or exchange of value of any kind, or promise or agreement to make the same, may be made for that assistance.
(4) Nothing in this section precludes payment of reasonable fees for medical, legal or other lawful services rendered in connection with the care of a mother, delivery and care of a child including, but not limited to, the mother's living expenses, or counseling for the parents and/or the child, and for the legal proceedings related to lawful adoption proceedings; and no provision of this section abrogates the right of procedures for independent adoption as provided by law.
(5) The * * * department is specifically
authorized to promulgate rules under the Administrative Procedures Law, Title
25, Chapter 43, Mississippi Code of 1972, to regulate fees charged by licensed
child-placing agencies, if it determines that the practices of those licensed
child-placing agencies demonstrates that the fees charged are excessive or that
any of the agency's practices are deceptive or misleading; however, those rules
regarding fees shall take into account the use of any sliding fee by an agency
that uses a sliding fee procedure to permit prospective adoptive parents of
varying income levels to utilize the services of those agencies or persons.
(6) The * * * department shall promulgate
rules under the Administrative Procedures Law, Title 25, Chapter 43,
Mississippi Code of 1972, to require that all licensed child-placing agencies
provide written disclosures to all prospective adoptive parents of any fees or
other charges for each service performed by the agency or person, and file an
annual report with the * * *
department that states the fees and charges for those services, and to
require them to inform the * * * department in writing thirty
(30) days in advance of any proposed changes to the fees or charges for those
services.
(7) The * * * department is specifically
authorized to disclose to prospective adoptive parents or other interested
persons any fees charged by any licensed child-placing agency, attorney or
counseling service or counselor for all legal and counseling services provided
by that licensed child-placing agency, attorney or counseling service or
counselor.
SECTION 18. Section 43-15-119, Mississippi Code of 1972, is amended as follows:
43-15-119. (1) If the * * * department finds that a
violation has occurred under this article or the rules and regulations of the
division, it may:
(a) Deny, suspend or
revoke a license or place the licensee on probation, if the * * * department discovers that a
licensee is not in compliance with the laws, standards or regulations governing
its operation, and/or it finds evidence of aiding, abetting or permitting the
commission of any illegal act; or
(b) Restrict or
prohibit new admissions to the licensee's program or facility, if the * * * department discovers that a
licensee is not in compliance with the laws, standards or regulations governing
its operation, and/or it finds evidence of aiding, abetting or permitting the
commission of any illegal act.
(2) If placed on probation,
the agency or licensee shall post a copy of the notice in a conspicuous place
as directed by the * * *
department and with the agency's or individual's license, and the agency
shall notify the custodians of each of the children in its care in writing of
the agency's status and the basis for the probation.
SECTION 19. Section 43-15-121, Mississippi Code of 1972, is amended as follows:
43-15-121. In addition to,
and notwithstanding, any other remedy provided by law, the * * * department may, in a manner
provided by law and upon the advice of the Attorney General who, except as
otherwise authorized in Section 7-5-39, shall represent the * * * department in the proceedings,
maintain an action in the name of the state for injunction or other process
against any person or entity to restrain or prevent the establishment,
management or operation of a program or facility or performance of services in
violation of this article or rules of the * * * department.
SECTION 20. Section 43-15-125, Mississippi Code of 1972, is amended as follows:
43-15-125. The Department
of * * * Child
Protection Services and/or its officers, employees, attorneys and
representatives shall not be held civilly liable for any findings,
recommendations or actions taken pursuant to this article.
SECTION 21. Section 43-16-3, Mississippi Code of 1972, is amended as follows:
43-16-3. As used in this chapter, the following definitions shall apply unless the context clearly provides otherwise:
(a) "Child" means a person who has not reached the age of eighteen (18) years or who has not otherwise been legally emancipated.
(b) "Child residential home" means any place, facility or home operated by any person which receives children who are not related to the operators and whose parents or guardians are not residents of the same facility for supervision, care, lodging and maintenance for twenty-four (24) hours a day, with or without transfer of custody. This term does not include:
(i) Residential
homes licensed by the Department of * * * Child Protection Services under
Section 43-15-5;
(ii) Any public school;
(iii) Any home operated by a state agency;
(iv) Child care facilities as defined in Section 43-20-5;
(v) Youth camps as defined in Section 75-74-3;
(vi) Health care facilities licensed by the State Department of Health; or
(vii) The home of an attorney-in-fact operating under a power of attorney executed under Section 93-31-1 et seq.
(c) "Department" shall mean the State Department of Health.
(d) "Person" shall include an individual, partnership, organization, association or corporation.
SECTION 22. Section 43-16-21, Mississippi Code of 1972, is amended as follows:
43-16-21. Notwithstanding
the existence of any other remedy, the department may, in the manner provided
by law, in termtime or in vacation, upon the advice of the Attorney General
who, except as otherwise authorized in Section 7-5-39, shall represent the
department in the proceedings, maintain an action in the name of the state for
an injunction or restraining order to cease the operation of the home, and to
provide for the appropriate removal of the children from the home and placement
in the custody of the parents or legal guardians, the Department of * * * Child Protection Services, or any
other appropriate entity in the discretion of the court. Such action shall be
brought in the chancery court or the youth court, as appropriate, of the county
in which such child residential home is located, and shall only be initiated
for the following violations:
(a) Providing supervision, care, lodging or maintenance for any children in such home without filing notification in accordance with this chapter.
(b) Failure to satisfactorily comply with local health department or State Fire Marshal inspections made pursuant to Section 43-16-15, regarding the health, nutrition, cleanliness, safety, sanitation, written records and discipline policy of such home.
(c) Suspected abuse and/or neglect of the children served by such home, as defined in Section 43-21-105.
SECTION 23. Section 43-20-8, Mississippi Code of 1972, is amended as follows:
43-20-8. (1) The licensing agency shall have powers and duties as set forth below, in addition to other duties prescribed under this chapter:
(a) Promulgate rules and regulations concerning the licensing and regulation of child care facilities as defined in Section 43-20-5;
(b) Have the authority to issue, deny, suspend, revoke, restrict or otherwise take disciplinary action against licensees as provided for in this chapter;
(c) Set and collect fees and penalties as provided for in this chapter; any increase in the fees charged by the licensing agency under this paragraph shall be in accordance with the provisions of Section 41-3-65; and
(d) Have such other powers as may be required to carry out the provisions of this chapter.
(2) Child care facilities shall assure that parents have welcome access to the child care facility at all times and shall comply with the provisions of Chapter 520, Laws of 2006.
(3) Each child care facility shall develop and maintain a current list of contact persons for each child provided care by that facility. An agreement may be made between the child care facility and the child's parent, guardian or contact person at the time of registration to inform the parent, guardian or contact person if the child does not arrive at the facility within a reasonable time.
(4) Child care facilities shall require that, for any current or prospective caregiver, all criminal records, background and sex offender registry checks and current child abuse registry checks are obtained. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check.
(5) The licensing agency
shall require to be performed a criminal records background check and a child
abuse registry check for all operators of a child care facility and any person
living in a residence used for child care. The Department of * * * Child Protection Services shall
have the authority to disclose to the State Department of Health any potential
applicant whose name is listed on the Child Abuse Central Registry or has a
pending administrative review. That information shall remain confidential by
all parties. In order to determine the applicant's suitability for employment,
the applicant shall be fingerprinted. If no disqualifying record is identified
at the state level, the fingerprints shall be forwarded by the Department of
Public Safety to the FBI for a national criminal history record check.
(6) The licensing agency shall have the authority to exclude a particular crime or crimes or a substantiated finding of child abuse and/or neglect as disqualifying individuals or entities for prospective or current employment or licensure.
(7) The licensing agency and its agents, officers, employees, attorneys and representatives shall not be held civilly liable for any findings, recommendations or actions taken under this section.
(8) All fees incurred in compliance with this section shall be borne by the child care facility. The licensing agency is authorized to charge a fee that includes the amount required by the Federal Bureau of Investigation for the national criminal history record check in compliance with the Child Protection Act of 1993, as amended, and any necessary costs incurred by the licensing agency for the handling and administration of the criminal history background checks.
(9) From and after January 1, 2008, the State Board of Health shall develop regulations to ensure that all children enrolled or enrolling in a state licensed child care center receive age-appropriate immunization against invasive pneumococcal disease as recommended by the Advisory Committee on immunization practices of the Centers for Disease Control and Prevention. The State Board of Health shall include, within its regulations, protocols for children under the age of twenty-four (24) months to catch up on missed doses. If the State Board of Health has adopted regulations before January 1, 2008, that would otherwise meet the requirements of this subsection, then this subsection shall stand repealed on January 1, 2008.
SECTION 24. Section 43-21-105, Mississippi Code of 1972, is amended as follows:
43-21-105. The following words and phrases, for purposes of this chapter, shall have the meanings ascribed herein unless the context clearly otherwise requires:
(a) "Youth court" means the Youth Court Division.
(b) "Judge" means the judge of the Youth Court Division.
(c)
"Designee" means any person that the judge appoints to perform a duty
which this chapter requires to be done by the judge or his designee. The judge
may not appoint a person who is involved in law enforcement or who is an employee of the Mississippi Department
of * * * Child
Protection Services to be his designee.
(d) "Child" and "youth" are synonymous, and each means a person who has not reached his eighteenth birthday. A child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services or is married is not considered a "child" or "youth" for the purposes of this chapter.
(e) "Parent" means the father or mother to whom the child has been born, or the father or mother by whom the child has been legally adopted.
(f) "Guardian" means a court-appointed guardian of the person of a child.
(g) "Custodian" means any person having the present care or custody of a child whether such person be a parent or otherwise.
(h) "Legal custodian" means a court-appointed custodian of the child.
(i) "Delinquent child" means a child who has reached his tenth birthday and who has committed a delinquent act.
(j) "Delinquent act" is any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death. A delinquent act includes escape from lawful detention and violations of the Uniform Controlled Substances Law and violent behavior.
(k) "Child in need of supervision" means a child who has reached his seventh birthday and is in need of treatment or rehabilitation because the child:
(i) Is habitually disobedient of reasonable and lawful commands of his parent, guardian or custodian and is ungovernable; or
(ii) While being required to attend school, willfully and habitually violates the rules thereof or willfully and habitually absents himself therefrom; or
(iii) Runs away from home without good cause; or
(iv) Has committed a delinquent act or acts.
(l) "Neglected child" means a child:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.
(m) "Abused child" means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused, upon the child, sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment. However, physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section. "Abused child" also means a child who is or has been trafficked within the meaning of the Mississippi Human Trafficking Act by any person, without regard to the relationship of the person to the child.
(n) "Sexual abuse" means obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened.
(o) "A child in need of special care" means a child with any mental or physical illness that cannot be treated with the dispositional alternatives ordinarily available to the youth court.
(p) A "dependent
child" means any child who is not a child in need of supervision, a
delinquent child, an abused child or a neglected child, and which child has
been voluntarily placed in the custody of the Department of * * * Child Protection Services by his
parent, guardian or custodian.
(q) "Custody" means the physical possession of the child by any person.
(r) "Legal custody" means the legal status created by a court order which gives the legal custodian the responsibilities of physical possession of the child and the duty to provide him with food, shelter, education and reasonable medical care, all subject to residual rights and responsibilities of the parent or guardian of the person.
(s) "Detention" means the care of children in physically restrictive facilities.
(t) "Shelter" means care of children in physically nonrestrictive facilities.
(u) "Records involving children" means any of the following from which the child can be identified:
(i) All youth court records as defined in Section 43-21-251;
(ii) All social records as defined in Section 43-21-253;
(iii) All law enforcement records as defined in Section 43-21-255;
(iv) All agency records as defined in Section 43-21-257; and
(v) All other documents maintained by any representative of the state, county, municipality or other public agency insofar as they relate to the apprehension, custody, adjudication or disposition of a child who is the subject of a youth court cause.
(v) "Any person
responsible for care or support" means the person who is providing for the
child at a given time. This term shall include, but is not limited to,
stepparents, foster parents, relatives, nonlicensed babysitters or other
similar persons responsible for a child and staff of residential care
facilities and group homes that are licensed by the Department of * * * Child Protection Services.
(w) The singular includes the plural, the plural the singular and the masculine the feminine when consistent with the intent of this chapter.
(x) "Out-of-home" setting means the temporary supervision or care of children by the staff of licensed day care centers, the staff of public, private and state schools, the staff of juvenile detention facilities, the staff of unlicensed residential care facilities and group homes and the staff of, or individuals representing, churches, civic or social organizations.
(y) "Durable legal custody" means the legal status created by a court order which gives the durable legal custodian the responsibilities of physical possession of the child and the duty to provide him with care, nurture, welfare, food, shelter, education and reasonable medical care. All these duties as enumerated are subject to the residual rights and responsibilities of the natural parent(s) or guardian(s) of the child or children.
(z) "Status offense" means conduct subject to adjudication by the youth court that would not be a crime if committed by an adult.
(aa) "Financially able" means a parent or child who is ineligible for a court-appointed attorney.
(bb) "Assessment" means an individualized examination of a child to determine the child's psychosocial needs and problems, including the type and extent of any mental health, substance abuse or co-occurring mental health and substance abuse disorders and recommendations for treatment. The term includes, but is not limited to, a drug and alcohol, psychological or psychiatric evaluation, records review, clinical interview or the administration of a formal test and instrument.
(cc) "Screening" means a process, with or without the administration of a formal instrument, that is designed to identify a child who is at increased risk of having mental health, substance abuse or co-occurring mental health and substance abuse disorders that warrant immediate attention, intervention or more comprehensive assessment.
SECTION 25. Section 43-27-101, Mississippi Code of 1972, is amended as follows:
43-27-101. For purposes of Sections 43-27-101 and 43-27-103, the following words shall have the meanings ascribed in this section, unless the context requires otherwise:
(a) "Child or
youth in the custody of the Department of * * * Child Protection Services"
means an individual:
(i) Who has not yet reached his eighteenth birthday;
(ii) Who has been
legally placed in the custody of the Department of * * * Child Protection Services by the
youth court and for whom custody with the Department of * * * Child Protection Services was not
sought by the parents or legal custodians or guardians for the parents' or
legal custodians' or guardians' legal responsibilities to relieve themselves of
the responsibility for paying for treatment for a child or youth; and
(iii) Who is unable to be maintained with the family or legal guardians or custodians due to his or her need for specialized care.
(b) "Child or
youth under the supervision of the Department of * * * Child Protection Services"
means an individual:
(i) Who has not yet reached his eighteenth birthday; and
(ii) Who has been
referred for abuse or neglect and for whom a case has been opened and is active
in the * * * Department of Child
Protection Services.
(c) "Plan of care" means a written plan of services needed to be provided for a child or youth and his or her family in order to provide the special care or services required.
(d) "Special needs crisis" means:
(i) Conduct or behavioral problems of such a severe nature and level that family or parental violence, abuse, and/or neglect pose an imminent threat or are present; or
(ii) Conduct or behavioral problems of such a severe nature and level that family or parental violence, abuse, and/or neglect pose an imminent threat or are present.
(e) "Specialized care" means:
(i) "Self care," which means the ability to provide, sustain and protect himself or herself at a level appropriate to his or her age;
(ii) "Interpersonal relationships," which means the ability to build and maintain satisfactory relationships with peers and adults;
(iii) "Family life," which means the capacity to live in a family or family-type environment;
(iv) "Self direction," which means the child's ability to control his or her behavior and to make decisions in a manner appropriate to his or her age;
(v) "Education," which means the ability to learn social and intellectual skill from teachers in an available educational setting.
(f) "Special needs child" means a child with a variety of handicapping conditions or disabilities, including emotional or severely emotional disorders. These conditions or disabilities present the need for special medical attention, supervision and therapy on a very regimented basis.
SECTION 26. Section 43-27-103, Mississippi Code of 1972, is amended as follows:
43-27-103. (1) Sections 43-27-101
and 43-27-103 shall enable the development by the Department of * * * Child Protection Services of a
system of services for children or youth in the custody of or under the
supervision of the Department of * * * Child Protection Services, if
funds are appropriated to the department for that purpose. The system of
services may consist of emergency response services, an early intervention and
treatment unit, respite care, crisis nurseries, specialized outpatient or
inpatient treatment services, special needs foster care, therapeutic foster
care, emergency foster homes, and Medicaid targeted case management for abused
and neglected children and youth as well as children adjudicated delinquent or
in need of supervision. Any of these services that are provided shall be
arranged by and coordinated through the Department of * * * Child Protection Services, and
the department may contract with public or private agencies or entities to
provide any of the services or may provide any of the services itself. All of
the services shall be provided in facilities that meet the standards set by the
Department of * * *
Child Protection Services for the particular type of facility involved.
None of the services provided shall duplicate existing services except where
there is a documented need for expansion of the services.
(2) A description of the services that may be provided under Sections 43-27-101 and 43-27-103 are as follows:
(a) "Emergency response services" means services to respond to children or youth in severe crisis and include:
(i) Emergency single point phone lines;
(ii) Crisis care coordinators staffing shifts that enable twenty-four-hour per day response as "front line" professionals when crisis calls are received, assist with decision-making, family support, initiate plan of action and remain "on call" for the first seventy-two (72) hours for other service professionals to get in place and insure development of a plan of care;
(iii) Acute care/emergency medical response through contracted services with up to five (5) regional hospitals providing emergency room services and hospitalization for up to seventy-two (72) hours with a maximum of One Hundred Dollars ($100.00) per day;
(iv) Case managers;
(v) Respite services; and
(vi) Assessment services contracted with social workers, psychologists, psychiatrists and other health professionals.
(b) "Early intervention and treatment unit" means a unique, nonhospital crisis service in a residential context that is able to provide the level of support and intervention needed to resolve the crisis and as an alternative to hospitalization. This unit shall provide specialized assessment, including a variety of treatment options and services to best intervene in a child or youth's crisis, and provide an appropriate plan for further services upon returning to the home and community. Staff-to-child or youth ratio shall be high, with multidisciplinary, specialized services for up to six (6) children or youths at one (1) time, and with the maximum assessment and treatment planning and services being ninety (90) days for most children or youths.
(c) "Respite care" means planned temporary care for a period of time ranging from a few hours within a twenty-four-hour period to an overnight or weekend stay to a maximum of ten (10) days. Care may be provided in-home or out-of-home with trained respite parents or counselors and is designed to provide a planned break for the parents from the caretaking role with the child.
(d) "Crisis nurseries" means a program providing therapeutic nursery treatment services to preschool aged children who as preschoolers demonstrate significant behavioral or emotional disorders. These services shall be to therapeutically address developmental and emotional behavioral difficulties through direct intervention with the child in a nursery school environment and to intervene with parents to provide education, support and therapeutic services.
(e) "Specialized outpatient or inpatient treatment services," such as sex offender treatment, means specialized treatment for perpetrators of sexual offenses with children.
(f) "Special needs foster care" means foster care for those children with a variety of handicapping conditions or disabilities, including serious emotional disturbance.
(g) "Therapeutic foster care" means residential mental health services provided to children and adolescents in a family setting, utilizing specially trained foster parents. Therapeutic foster care essentially involves the following features:
(i) Placement with foster parents who have been carefully selected by knowledgeable, well-trained mental health and social service professionals to work with children with an emotional disturbance;
(ii) Provision of special training to the foster parents to assist them in working with children with an emotional disturbance;
(iii) Low staff-to-child ratio, allowing the therapeutic staff to work very closely with each child, the foster parents and the biological parents, if available;
(iv) Creation of a support system among these specially trained foster parents; and
(v) Payment of a special foster care payment to the foster parents.
(h) "Emergency foster homes" means those homes used on a short-term basis for (i) children who are temporarily removed from the home in response to a crisis situation, or (ii) youth who exhibit special behavioral or emotional problems for whom removal from the existing home situation is necessary. In some cases they may provide an emergency placement for infants and toddlers for whom no regular foster home is available, rather than placement into an emergency shelter where older and larger groups of children are placed. Foster parents are trained to deal with the special needs of children placed in these emergency homes.
(i) "Medicaid targeted case management" means activities that are related to assuring the completion of proper client evaluations; arranging and supporting treatment plans, monitoring services, coordinating service delivery and other related actions.
SECTION 27. Section 93-5-23, Mississippi Code of 1972, is amended as follows:
93-5-23. When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed. Orders touching on the custody of the children of the marriage shall be made in accordance with the provisions of Section 93-5-24. For the purposes of orders touching the maintenance and alimony of the wife or husband, "property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under a third-party will, nor shall any such interest be considered as an economic circumstance or other factor. The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require. However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. In the event a legally responsible parent has health insurance available to him or her through an employer or organization that may extend benefits to the dependents of such parent, any order of support issued against such parent may require him or her to exercise the option of additional coverage in favor of such children as he or she is legally responsible to support.
Whenever the court has ordered a party to make periodic payments for the maintenance or support of a child, but no bond, sureties or other guarantee has been required to secure such payments, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, the court may, upon petition of the person to whom such payments are owing, or such person's legal representative, enter an order requiring that bond, sureties or other security be given by the person obligated to make such payments, the amount and sufficiency of which shall be approved by the court. The obligor shall, as in other civil actions, be served with process and shall be entitled to a hearing in such case.
At the discretion of the court, any person found in contempt for failure to pay child support and imprisoned therefor may be referred for placement in a state, county or municipal restitution, house arrest or restorative justice center or program, provided such person meets the qualifications prescribed in Section 99-37-19.
Whenever in any proceeding
in the chancery court concerning the custody of a child a party alleges that
the child whose custody is at issue has been the victim of sexual or physical
abuse by the other party, the court may, on its own motion, grant a continuance
in the custody proceeding only until such allegation has been investigated by
the Department of * * * Child Protection Services. At the time of ordering
such continuance, the court may direct the party and his attorney making such
allegation of child abuse to report in writing and provide all evidence
touching on the allegation of abuse to the Department of * * * Child Protection Services. The
Department of * * *
Child Protection Services shall investigate such allegation and take
such action as it deems appropriate and as provided in such cases under the
Youth Court Law (being Chapter 21 of Title 43, Mississippi Code of 1972) or
under the laws establishing family courts (being Chapter 23 of Title 43,
Mississippi Code of 1972).
If after investigation by
the Department of * * * Child Protection Services or final disposition by the
youth court or family court allegations of child abuse are found to be without
foundation, the chancery court shall order the alleging party to pay all court
costs and reasonable attorney's fees incurred by the defending party in
responding to such allegation.
The court may investigate,
hear and make a determination in a custody action when a charge of abuse and/or
neglect arises in the course of a custody action as provided in Section 43-21-151,
and in such cases the court shall appoint a guardian ad litem for the child as
provided under Section 43-21-121, who shall be an attorney. Unless the
chancery court's jurisdiction has been terminated, all disposition orders in
such cases for placement with the Department of * * * Child Protection Services shall
be reviewed by the court or designated authority at least annually to determine
if continued placement with the department is in the best interest of the child
or public.
The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred pursuant to Section 93-11-65.
Custody and visitation upon military temporary duty, deployment or mobilization shall be governed by Section 93-5-34.
SECTION 28. Section 93-17-3, Mississippi Code of 1972, is amended as follows:
93-17-3. (1) Except as otherwise provided in this section, a court of this state has jurisdiction over a proceeding for the adoption or readoption of a minor commenced under this chapter if:
(a) Immediately before commencement of the proceeding, the minor lived in this state with a parent, a guardian, a prospective adoptive parent or another person acting as parent, for at least six (6) consecutive months, excluding periods of temporary absence, or, in the case of a minor under six (6) months of age, lived in this state from soon after birth with any of those individuals and there is available in this state substantial evidence concerning the minor's present or future care;
(b) Immediately before commencement of the proceeding, the prospective adoptive parent lived in this state for at least six (6) consecutive months, excluding periods of temporary absence, and there is available in this state substantial evidence concerning the minor's present or future care;
(c) The agency that placed the minor for adoption is licensed in this state and it is in the best interest of the minor that a court of this state assume jurisdiction because:
(i) The minor and the minor's parents, or the minor and the prospective adoptive parent, have a significant connection with this state; and
(ii) There is available in this state substantial evidence concerning the minor's present or future care;
(d) The minor and the prospective adoptive parent are physically present in this state and the minor has been abandoned or it is necessary in an emergency to protect the minor because the minor has been subjected to or threatened with mistreatment or abuse or is otherwise neglected;
(e) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a) through (d), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to hear a petition for adoption of the minor, and it is in the best interest of the minor that a court of this state assume jurisdiction; or
(f) The child has been adopted in a foreign country, the agency that placed the minor for adoption is licensed in this state, and it is in the best interest of the child to be readopted in a court of this state having jurisdiction.
(2) A court of this state may not exercise jurisdiction over a proceeding for adoption of a minor if, at the time the petition for adoption is filed, a proceeding concerning the custody or adoption of the minor is pending in a court of another state exercising jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction Act or this section unless the proceeding is stayed by the court of the other state.
(3) If a court of another state has issued a decree or order concerning the custody of a minor who may be the subject of a proceeding for adoption in this state, a court of this state may not exercise jurisdiction over a proceeding for adoption of the minor unless:
(a) The court of this state finds that the court of the state which issued the decree or order:
(i) Does not have continuing jurisdiction to modify the decree or order under jurisdictional prerequisites substantially in accordance with the Uniform Child Custody Jurisdiction Act or has declined to assume jurisdiction to modify the decree or order; or
(ii) Does not have jurisdiction over a proceeding for adoption substantially in conformity with subsection (1)(a) through (d) or has declined to assume jurisdiction over a proceeding for adoption; and
(b) The court of this state has jurisdiction over the proceeding.
(4) Any person may be adopted in accordance with the provisions of this chapter in termtime or in vacation by an unmarried adult or by a married person whose spouse joins in the petition. The adoption shall be by sworn petition filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when it was abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do. The petition shall be accompanied by a doctor's or nurse practitioner's certificate showing the physical and mental condition of the child to be adopted and a sworn statement of all property, if any, owned by the child. In addition, the petition shall be accompanied by affidavits of the petitioner or petitioners stating the amount of the service fees charged by any adoption agencies or adoption facilitators used by the petitioner or petitioners and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition. If the doctor's or nurse practitioner's certificate indicates any abnormal mental or physical condition or defect, the condition or defect shall not, in the discretion of the chancellor, bar the adoption of the child if the adopting parent or parents file an affidavit stating full and complete knowledge of the condition or defect and stating a desire to adopt the child, notwithstanding the condition or defect. The court shall have the power to change the name of the child as a part of the adoption proceedings. The word "child" in this section shall be construed to refer to the person to be adopted, though an adult.
(5) Adoption by couples of the same gender is prohibited.
(6) No person may be placed
in the home of or adopted by the prospective adopting parties before a court-ordered
or voluntary home study is satisfactorily completed by a licensed adoption
agency, a licensed, experienced social worker approved by the chancery court or
by the Department of * * * Child Protection Services on the prospective adoptive
parties if required by Section 93-17-11.
(7) No person may be
adopted by a person or persons who reside outside the State of Mississippi
unless the provisions of the Interstate Compact for Placement of Children
(Section 43-18-1 et seq.) have been complied with. In such cases Forms 100A,
100B (if applicable) and evidence of Interstate Compact for Placement of
Children approval shall be added to the permanent adoption record file within
one (1) month of the placement, and a minimum of two (2) post-placement reports
conducted by a licensed child-placing agency shall be provided to the
Mississippi Department of * * *Human Child Protection Services Interstate Compact for
Placement of Children office.
(8) No person may be adopted unless the provisions of the Indian Child Welfare Act (ICWA) have been complied with, if applicable. When applicable, proof of compliance shall be included in the court adoption file prior to finalization of the adoption. If not applicable, a written statement or paragraph in the petition for adoption shall be included in the adoption petition stating that the provisions of ICWA do not apply before finalization.
(9) The readoption of a child who has automatically acquired United States citizenship following an adoption in a foreign country and who possesses a Certificate of Citizenship in accordance with the Child Citizenship Act, CAA, Public Law 106-395, may be given full force and effect in a readoption proceeding conducted by a court of competent jurisdiction in this state by compliance with the Mississippi Registration of Foreign Adoptions Act, Article 9 of this chapter.
SECTION 29. Section 93-17-5, Mississippi Code of 1972, is amended as follows:
93-17-5. (1) There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before seventy-two (72) hours after the birth of the child:
(a) The parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years;
(b) If both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law; if one of such kin is in possession of the child, he or she shall join in the petition or be made a party to the suit; or
(c) The guardian ad litem of an abandoned child, upon petition showing that the names of the parents of the child are unknown after diligent search and inquiry by the petitioners. In addition to the above, there shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:
(i) Those persons
having physical custody of the child, except persons who are acting as foster
parents as a result of placement with them by the Department of * * * Child Protection Services of the
State of Mississippi.
(ii) Any person to whom custody of the child may have been awarded by a court of competent jurisdiction of the State of Mississippi.
(iii) The agent of the county Department of Human Services of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.
(2) The consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by the child's next friend.
(3) If consent is not filed, process shall be had upon the parties as provided by law for process in person or by publication, if they are nonresidents of the state or are not found therein after diligent search and inquiry, the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if the child were an adult.
SECTION 30. Section 93-17-8, Mississippi Code of 1972, is amended as follows:
93-17-8. (1) Whenever an adoption becomes a contested matter, whether after a hearing on a petition for determination of rights under Section 93-17-6 or otherwise, the court:
(a) Shall, on motion of any party or on its own motion, issue an order for immediate blood or tissue sampling in accordance with the provisions of Section 93-9-21 et seq., if paternity is at issue. The court shall order an expedited report of such testing and shall hold the hearing resolving this matter at the earliest time possible.
(b) Shall appoint a guardian ad litem to represent the child. Such guardian ad litem shall be an attorney, however his duties are as guardian ad litem and not as attorney for the child. The reasonable costs of the guardian ad litem shall be taxed as costs of court. Neither the child nor anyone purporting to act on his behalf may waive the appointment of a guardian ad litem.
(c) Shall determine first whether or not the objecting parent is entitled to so object under the criteria of Section 93-17-7 and then shall determine the custody of the child in accord with the best interests of the child and the rights of the parties as established by the hearings and judgments.
(d) Shall schedule all hearings concerning the contested adoption as expeditiously as possible for prompt conclusion of the matter.
(2) In determining the custody of the child after a finding that the adoption will not be granted, the fact of the surrender of the child for adoption by a parent shall not be taken as any evidence of that parent's abandonment or desertion of the child or of that parent's unfitness as a parent.
(3) In contested adoptions arising through petitions for determination of rights where the prospective adopting parents were not parties to that proceeding, they need not be made parties to the contested adoption until there has been a ruling that the objecting parent is not entitled to enter a valid objection to the adoption. At that point the prospective adopting parents shall be made parties by joinder which shall show their suitability to be adopting parents as would a petition for adoption. The identity and suitability of the prospective adopting parents shall be made known to the court and the guardian ad litem, but shall not be made known to other parties to the proceeding unless the court determines that the interests of justice or the best interests of the child require it.
(4) No birth parent or alleged parent shall be permitted to contradict statements given in a proceeding for the adoption of their child in any other proceeding concerning that child or his ancestry.
(5) Appointment of a guardian ad litem is not required in any proceeding under this chapter except as provided in subsection (1)(b) above and except for the guardian ad litem needed for an abandoned child. It shall not be necessary for a guardian ad litem to be appointed where the chancery judge presiding in the adoption proceeding deems it unnecessary and no adoption agency is involved in the proceeding. No final decree of adoption heretofore granted shall be set aside or modified because a guardian ad litem was not appointed unless as the result of a direct appeal not now barred.
(6) The provisions of Chapter 15 of this Title 93, Mississippi Code of 1972, are not applicable to proceedings under this chapter except as specifically provided by reference herein.
(7) The court may order a
child's birth father, identified as such in the proceedings, to reimburse the
Department of * * *
Child Protection Services, the foster parents, the adopting parents, the
home, any other agency or person who has assumed liability for such child, all
or part of the costs of the medical expenses incurred for the mother and the
child in connection with the birth of the child, as well as reasonable support
for the child after his birth.
SECTION 31. Section 93-17-11, Mississippi Code of 1972, is amended as follows:
93-17-11. At any time after
the filing of the petition for adoption and completion of process thereon, and
before the entering of a final decree, the court may, in its discretion, of its
own motion or on motion of any party to the proceeding, require an
investigation and report to the court to be made by any person, officer or home
as the court may designate and direct concerning the child, and shall require
in adoptions, other than those in which the petitioner or petitioners are a
relative or stepparent of the child, that a home study be performed of the
petitioner or petitioners by a licensed adoption agency or by the Department of * * * Child Protection Services, at the
petitioner's or petitioners' sole expense and at no cost to the state or county.
The investigation and report shall give the material facts upon which the court
may determine whether the child is a proper subject for adoption, whether the
petitioner or petitioners are suitable parents for the child, whether the
adoption is to its best interest, and any other facts or circumstances that may
be material to the proposed adoption. The home study shall be considered by
the court in determining whether the petitioner or petitioners are suitable
parents for the child. The court, when an investigation and report are
required by the court or by this section, shall stay the proceedings in the
cause for such reasonable time as may be necessary or required in the opinion
of the court for the completion of the investigation and report by the person,
officer or home designated and authorized to make the same.
Upon the filing of that consent or the completion of the process and the filing of the investigation and report, if required by the court or by this section, and the presentation of such other evidence as may be desired by the court, if the court determines that it is to the best interests of the child that an interlocutory decree of adoption be entered, the court may thereupon enter an interlocutory decree upon such terms and conditions as may be determined by the court, in its discretion, but including therein that the complete care, custody and control of the child shall be vested in the petitioner or petitioners until further orders of the court and that during such time the child shall be and remain a ward of the court. If the court determines by decree at any time during the pendency of the proceeding that it is not to the best interests of the child that the adoption proceed, the petitioners shall be entitled to at least five (5) days' notice upon their attorneys of record and a hearing with the right of appeal as provided by law from a dismissal of the petition; however, the bond perfecting the appeal shall be filed within ten (10) days from the entry of the decree of dismissal and the bond shall be in such amount as the chancellor may determine and supersedeas may be granted by the chancellor or as otherwise provided by law for appeal from final decrees.
After the entry of the interlocutory decree and before entry of the final decree, the court may require such further and additional investigation and reports as it may deem proper. The rights of the parties filing the consent or served with process shall be subject to the decree but shall not be divested until entry of the final decree.
SECTION 32. Section 93-17-12, Mississippi Code of 1972, is amended as follows:
93-17-12. In any child
custody matter hereafter filed in any chancery or county court in which
temporary or permanent custody has already been placed with a parent or
guardian and in all adoptions, the court shall impose a fee for any court-ordered
home study performed by the Department of * * * Child Protection Services or any
other entity. The fee shall be assessed upon either party or upon both parties
in the court's discretion. The minimum fee imposed shall be not less than
Three Hundred Fifty Dollars ($350.00) for each household on which a home study
is performed. The fee shall be paid directly to the Mississippi Department of * * * Child Protection Services prior to
the home study being conducted by the department or to the entity if the study
is performed by another entity. The judge may order the fee be paid by one or
both of the parents or guardian. If the court determines that both parents or
the guardian are unable to pay the fee, the judge shall waive the fee and the
cost of the home study shall be defrayed by the Department of * * * Child Protection Services.
SECTION 33. Section 93-17-53, Mississippi Code of 1972, is amended as follows:
93-17-53. The purpose of
Sections 93-17-51 through 93-17-67 is to supplement the Mississippi adoption
law by making possible through public supplemental benefits the most
appropriate adoption of each child certified by the * * * Department
of Child Protection Services as requiring a supplemental benefit to assure
adoption.
SECTION 34. Section 93-17-57, Mississippi Code of 1972, is amended as follows:
93-17-57. The * * * Department
of Child Protection Services shall establish and administer an on-going
program of supplemental benefits for adoption. Supplemental benefits and
services for children under this program shall be provided out of such funds as
may be appropriated to the Mississippi Medicaid Commission for the medical
services for children in foster care, or made available to the department from
other sources.
SECTION 35. Section 93-17-59, Mississippi Code of 1972, is amended as follows:
93-17-59. Any child meeting
criteria specified in Section 93-17-55 for whom the * * * Department
of Child Protection Services feels supplemental benefits are necessary to
improve opportunities for adoption will be eligible for the program. The
adoption agency shall document that reasonable efforts have been made to place
the child in adoption without supplemental benefits through the use of adoption
resource exchanges, recruitment and referral to appropriate specialized
adoption agencies.
SECTION 36. Section 93-17-61, Mississippi Code of 1972, is amended as follows:
93-17-61. (1) When parents
are found and approved for adoption of a child certified as eligible for
supplemental benefits, and before the final decree of adoption is issued, there
shall be executed a written agreement between the family entering into the
adoption and the Department of * * * Child Protection Services. In
individual cases, supplemental benefits may commence with the adoptive
placement or at the appropriate time after the adoption decree and will vary
with the needs of the child as well as the availability of other resources to
meet the child's needs. The supplemental benefits may be for special services
only or for money payments as allowed under Section 43-13-115, Mississippi Code
of 1972, and either for a limited period, for a long-term not exceeding the
child's eighteenth birthday, or for any combination of the foregoing. The
amount of the time-limited, long-term supplemental benefits may in no case
exceed that which would be currently allowable for such child under the
Mississippi Medicaid Law.
(2) When supplemental benefits last for more than one (1) year, the adoptive parents shall present an annual written certification that the child remains under the parents' care and that the child's need for supplemental benefits continues. Based on investigation by the agency and available funds, the agency may approve continued supplemental benefits. These benefits shall be extended so long as the parents remain legally responsible for and are providing support for the child. The agency shall continue paying benefits until a child reaches twenty-one (21) years of age if the child meets the criteria stated in Section 93-17-67(1) for continuation of Medicaid coverage.
(3) A child who is a resident of Mississippi when eligibility for supplemental benefits is certified shall remain eligible and receive supplemental benefits, if necessary for adoption, regardless of the domicile or residence of the adopting parents at the time of application for adoption, placement, legal decree of adoption or thereafter.
SECTION 37. Section 93-17-63, Mississippi Code of 1972, is amended as follows:
93-17-63. All records
regarding such adoption shall be confidential. Anyone violating or releasing
information of a confidential nature, as contemplated by Sections 93-17-51
through 93-17-67 without the approval of the court with jurisdiction or the * * * Department
of Child Protection Services unless such release is made pursuant to
Sections 93-17-201 through 93-17-223 shall be guilty of a misdemeanor and
subject to a fine not exceeding One Thousand Dollars ($1,000.00) or
imprisonment of six (6) months, or both.
SECTION 38. Section 93-17-65, Mississippi Code of 1972, is amended as follows:
93-17-65. The * * * Department
of Child Services shall promulgate rules and regulations necessary to
implement the provisions of Sections 93-17-51 through 93-17-67.
SECTION 39. Section 93-17-67, Mississippi Code of 1972, is amended as follows:
93-17-67. (1) If the
adoptive parents of a child eligible for adoption supplemental benefits sign an
adoption assistance agreement with the Department of * * * Child Protection Services, then,
whether or not they accept such benefits, Medicaid coverage shall be provided
for the child under the agency's medical payment program from and after the
commencement date established pursuant to Section 93-17-61 until the child's
eighteenth birthday, provided that federal matching funds are available for
such payment.
(2) Any child who is
adopted in this state through a state-supported adoption agency and who
immediately prior to such adoption was receiving Medicaid benefits because of a
severe physical or mental handicap shall continue to receive such coverage
benefits after adoption age eighteen (18), and such benefits shall be payable
as provided under the agency's medical payment program for so long as the * * * Mississippi Department of * * * Child Protection Services
determines that the treatment or rehabilitation for which payment is being made
is in the best interest of the child concerned, but not past the age of twenty-one
(21) years, provided that federal matching funds are available for such payment
and that any state funds used for such payment shall have been appropriated
specifically for such purpose.
(3) If permitted by federal law without any loss to the state of federal matching funds, the financial resources of the adopting parents shall not be a factor in such determination except that payments on behalf of a child of any age may be adjusted when insurance benefits available to the adopting parents would pay all or part of such payments being made by the state, or if medical or rehabilitation services are otherwise available without cost to the adopting parents. The amount of financial assistance given shall not exceed the amount that the Medicaid Commission would be required to pay for the same medical treatment or rehabilitation.
(4) The receipt of Medicaid benefits by an adopted child under Sections 93-17-51 through 93-17-67 shall not qualify the adopting parents for Medicaid eligibility, unless either parent is otherwise eligible under Section 43-13-115, Mississippi Code of 1972.
SECTION 40. Section 93-17-69, Mississippi Code of 1972, is amended as follows:
93-17-69. Any person
proposing to adopt a child who is a dependent of a state child-placing agency
and who is in special circumstances as defined in paragraph (c) of Section 93-17-55
shall be represented by the * * * Mississippi Department of * * * Child Protection Services when
requested by the adopting parent in all phases of the adoption proceeding.
State child-placing agencies shall advise prospective adopting parents of their
right under this section to be represented in adoption proceedings. The fees
for filing the petition for adoption and preparing a revised birth certificate,
any court costs taxed against the petitioner and any other actual payments made
by the Department of * * * Child Protection Services to third parties as
required to complete the adoption proceeding, shall be paid by the adopting
parent.
SECTION 41. Section 93-17-101, Mississippi Code of 1972, is amended as follows:
93-17-101. (1) The Legislature finds that:
(a) Locating adoptive families for children for whom state assistance is desirable, pursuant to the Mississippi adoption assistance law, and assuring the protection of the interests of the children affected during the entire assistance period, require special measures when the adoptive parents move to other states or are residents of another state; and
(b) Providing medical and other necessary services for children, with state assistance, encounters special difficulties when the providing of services takes place in other states.
(2) The purposes of Sections 93-17-101 through 93-17-109 are to:
(a) Authorize the
Mississippi Department of * * * Public Welfare Child Protection Services to enter into
interstate agreements with agencies of other states for the protection of
children on behalf of whom adoption assistance is being provided by the
Mississippi Department of * * * Public Welfare Child Protection Services; and
(b) Provide procedures for interstate children's adoption assistance payments, including medical payments.
SECTION 42. Section 93-17-103, Mississippi Code of 1972, is amended as follows:
93-17-103. (1) The
Mississippi Department of * * * Public Welfare Child Protection Services is authorized
to develop, participate in the development of, negotiate and enter into one or
more interstate compacts on behalf of this state with other states to implement
one or more of the purposes set forth in Sections 93-17-101 through 93-17-109.
When so entered into, and for so long as it shall remain in force, such a
compact shall have the force and effect of law.
(2) For the purposes of Sections 93-17-101 through 93-17-109, the term "state" shall mean a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands or a territory or possession of or administered by the United States.
(3) For the purposes of Sections 93-17-101 through 93-17-109, the term "adoption assistance state" means the state that is signatory to an adoption assistance agreement in a particular case.
(4) For the purposes of Sections 93-17-101 through 93-17-109, the term "residence state" means the state of which the child is a resident by virtue of the residence of the adoptive parents.
SECTION 43. Section 93-17-107, Mississippi Code of 1972, is amended as follows:
93-17-107. (1) A child
with special needs resident in this state who is the subject of an adoption
assistance agreement with another state and who has been determined eligible
for Medicaid in that state shall be entitled to receive a medical assistance
identification from this state upon filing with the Mississippi Department of * * * Child Protection Services
a certified copy of the adoption assistance agreement obtained from the
adoption assistance state which certifies to the eligibility of the child for
Medicaid. In accordance with regulations of the Mississippi Department of * * * Child Protection Services,
the adoptive parents shall be required, at least annually, to show that the
agreement is still in force or has been renewed.
(2) The Division of Medicaid, Office of the Governor, shall consider the holder of a medical assistance identification pursuant to this section as any other holder of a medical assistance identification under the laws of this state and shall process and make payment on claims on account of such holder in the same manner and pursuant to the same conditions and procedures as for other recipients of medical assistance.
(3) The submission of any claim for payment or reimbursement for services or benefits pursuant to this section or the making of any statement in connection therewith, which claim or statement the maker knows or should know to be false, misleading or fraudulent shall be punishable as perjury and shall also be subject to a fine not to exceed Ten Thousand Dollars ($10,000.00), or imprisonment for not to exceed two (2) years, or both.
(4) The provisions of this section shall apply only to medical assistance for children under adoption assistance agreements from states that have entered into a compact with this state under which the other state provides medical assistance to children with special needs under adoption assistance agreements made by this state. All other children entitled to medical assistance pursuant to adoption assistance agreements entered into by this state shall be eligible to receive it in accordance with the laws and procedures applicable thereto.
SECTION 44. Section 93-17-109, Mississippi Code of 1972, is amended as follows:
93-17-109. Consistent with
federal law, the Mississippi Department of * * * Child Protection Services
and the Division of Medicaid, Office of the Governor of the State of
Mississippi, in connection with the administration of Sections 93-17-101
through 93-17-109 and any compact entered into pursuant hereto, shall include
in any state plan made pursuant to the Adoption Assistance and Child Welfare
Act of 1980 (P.L. 96-272), Titles IV(e) and XIX of the Social Security Act, and
any other applicable federal laws, the provision of adoption assistance and
medical assistance for which the federal government pays some or all of the
cost provided such authority is granted under the provisions of some law of
this state other than the provisions of Sections 93-17-101 through 93-17-109.
Such departments shall apply for and administer all relevant federal aid in
accordance with law.
SECTION 45. Section 93-17-203, Mississippi Code of 1972, is amended as follows:
93-17-203. The following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise:
(a) "Agency" means a county welfare department, a licensed or nonlicensed adoption agency or any other individual or entity assisting in the finalization of an adoption.
(b) "Adoptee" means a person who is or has been adopted in this state at any time.
(c) "Birth parent" means either:
(i) The mother designated on the adoptee's original birth certificate; or
(ii) The person named by the mother designated on the adoptee's original birth certificate as the father of the adoptee.
(d) "Board" means the Mississippi State Board of Health
(e) "Bureau" means the Bureau of Vital Records of the Mississippi State Board of Health.
(f) "Licensed
adoption agency" means any agency or organization performing adoption
services and duly licensed by the * * * Department of Child Protection
Services.
SECTION 46. Section 93-21-307, Mississippi Code of 1972, is amended as follows:
93-21-307. The
administration of the Mississippi Children's Trust Fund shall be vested in the * * *
Mississippi Department
of Child Protection Services. In carrying out the provisions of Sections
93-21-301 through 93-21-311, the * * * Department
of Child Protection Services shall have the following powers and duties:
(a) To assist in developing programs aimed at discovering and preventing the many factors causing child abuse and neglect;
(b) To prepare and disseminate, including the presentation of, educational programs and materials on child abuse and neglect;
(c) To provide educational programs for professionals required by law to make reports of child abuse and neglect;
(d) To help coordinate child protective services at the state, regional and local levels with the efforts of other state and voluntary social, medical and legal agencies;
(e) To provide advocacy for children in public and private state and local agencies affecting children;
(f) To encourage citizen and community awareness as to the needs and problems of children;
(g) To facilitate the exchange of information between groups concerned with families and children;
(h) To consult with state departments, agencies, commissions and boards to help determine the probable effectiveness, fiscal soundness and need for proposed educational and service programs for the prevention of child abuse and neglect;
(i) To adopt rules and regulations, subject to approval of the State Board of Public Welfare, in accordance with the Administrative Procedures Law to discharge its responsibilities;
(j) To report
annually, through the annual report of the * * * Department
of Child Protection Services, to the Governor and the Legislature
concerning the division's activities under Sections 93-21-301 through 93-21-311
and the effectiveness of those activities in fostering the prevention of child
abuse and neglect;
(k) To recommend to the Governor and the Legislature changes in state programs, statutes, policies and standards which will reduce child abuse and neglect, improve coordination among state agencies which provide services to prevent abuse and neglect, improve the condition of children and assist parents and guardians;
(l) To evaluate and strengthen all local, regional and state programs dealing with child abuse and neglect;
(m) To prepare and submit annually to the Governor and the Legislature reports evaluating the level and quality of all programs, services and facilities provided to children by state agencies;
(n) To contract with public or private nonprofit institutions, organizations, agencies or schools or with qualified individuals for the establishment of community-based educational and service programs designed to reduce the occurrence of child abuse and neglect;
(o) To determine the eligibility of programs applying for financial assistance and to make grants and loans from the fund for the purposes set forth in Sections 93-21-301 through 93-21-311;
(p) To develop, within one (1) year after July 1, 1989, a state plan for the distribution of funds from the trust fund which shall assure that an equal opportunity exists for establishment of prevention programs and for receipt of trust fund money among all geographic areas in this state, and to submit the plan to the Governor and the Legislature and annually thereafter submit revisions thereto as needed;
(q) To provide for the coordination and exchange of information on the establishment and maintenance of local prevention programs;
(r) To develop and publicize criteria for the receipt of trust fund money by eligible local prevention programs;
(s) To enter into contracts with public or private agencies to fulfill the requirements of Sections 93-21-301 through 93-21-311; and
(t) Review, monitor and approve the expenditure of trust fund money by eligible local programs.
SECTION 47. Section 93-31-3, Mississippi Code of 1972, is amended as follows:
93-31-3. (1) (a) A parent or legal custodian of a child, by means of a properly executed power of attorney as provided in Section 93-31-5, may delegate to another willing person or persons as attorney-in-fact any of the powers regarding the care and custody of the child other than the following:
(i) The power to consent to marriage or adoption of the child;
(ii) The performance or inducement of an abortion on or for the child; or
(iii) The termination of parental rights to the child.
(b) A delegation of powers under this section does not:
(i) Change or modify any parental or legal rights, obligations, or authority established by an existing court order;
(ii) Deprive any custodial or noncustodial parent or legal guardian of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of the child; or
(iii) Affect a court's ability to determine the best interests of a child.
(c) If both parents are living and have shared custody as a matter of law or under an existing court order, both parents must execute the power of attorney.
(d) A power of attorney under this chapter must be facilitated by either a child welfare agency that is licensed to place children for adoption and that is operating under the Safe Families for Children model or another charitable organization that is operating under the Safe Families for Children model. A full criminal history and child abuse and neglect background check must be conducted on any person who is not a grandparent, aunt, uncle, or sibling of the child if the person is:
(i) Designated or proposed to be designated as the attorney-in-fact; or
(ii) Is a person over the age of fifteen (15) who resides in the home of the designated attorney-in-fact.
(2) A power of attorney executed under this chapter shall not be used for the sole purposes of enrolling a child in a school to participate in the academic or interscholastic athletic programs provided by that school or for any other unlawful purposes, except as may be permitted by the federal Every Student Succeeds Act (Public Law 114-95).
(3) The parent or legal custodian of the child has the authority to revoke or withdraw the power of attorney authorized by this section at any time. Upon the termination, expiration, or revocation of the power of attorney, the child must be returned to the custody of the parent or legal custodian as soon as reasonably possible.
(4) Until the authority expires or is revoked or withdrawn by the parent or legal custodian, the attorney-in-fact shall exercise parental or legal authority on a continuous basis without compensation for the duration of the power of attorney.
(5) The execution of a
power of attorney by a parent or legal custodian does not, in the absence of
other evidence, constitute abandonment, desertion, abuse, neglect, or any
evidence of unfitness as a parent unless the parent or legal custodian fails to
take custody of the child or execute a new power of attorney after the one-year
time limit, or after a longer time period as allowed for a serving parent, has
elapsed. Nothing in this subsection prevents the Department of * * * Child Protection Services or law
enforcement from investigating allegations of abuse, abandonment, desertion,
neglect or other mistreatment of a child.
(6) When the custody of a child is transferred by a power of attorney under this chapter, the child is not considered to have been placed in foster care and the attorney-in-fact will not be subject to any of the requirements or licensing regulations for foster care or other regulations relating to out-of-home care for children and will not be subject to any statutes or regulations dealing with the licensing or regulation of foster care homes.
(7) (a) "Serving parent" means a parent who is a member of the Armed Forces of the United States, including any reserve component thereof, or the National Oceanic and Atmospheric Administration Commissioned Officer Corps or the Public Health Service of the United States Department of Health and Human Services detailed by proper authority for duty with the Armed Forces of the United States, or who is required to enter or serve in the active military service of the United States under a call or order of the President of the United States or to serve on state active duty.
(b) A serving parent may delegate the powers designated in subsection (1) of this section for longer than one (1) year if on active-duty service or if scheduled to be on active-duty service. The term of delegation, however, may not exceed the term of active-duty service plus thirty (30) days.
SECTION 48. Section 97-5-24, Mississippi Code of 1972, is amended as follows:
97-5-24. If any person
eighteen (18) years or older who is employed by any public school district or
private school in this state is accused of fondling or having any type of
sexual involvement with any child under the age of eighteen (18) years who is
enrolled in such school, the principal of such school and the superintendent of
such school district shall timely notify the district attorney with
jurisdiction where the school is located of such accusation, the Mississippi
Department of Education and the Department of * * * Child Protection Services,
provided that such accusation is reported to the principal and to the school
superintendent and that there is a reasonable basis to believe that such
accusation is true. Any superintendent, or his designee, who fails to make a
report required by this section shall be subject to the penalties provided in
Section 37-11-35. Any superintendent, principal, teacher or other school
personnel participating in the making of a required report pursuant to this
section or participating in any judicial proceeding resulting therefrom shall
be presumed to be acting in good faith. Any person reporting in good faith
shall be immune from any civil liability that might otherwise be incurred or
imposed.
SECTION 49. Section 97-29-49, Mississippi Code of 1972, is amended as follows:
97-29-49. (1) A person commits the misdemeanor of prostitution if the person knowingly or intentionally performs, or offers or agrees to perform, sexual intercourse or sexual conduct for money or other property. "Sexual conduct" includes cunnilingus, fellatio, masturbation of another, anal intercourse or the causing of penetration to any extent and with any object or body part of the genital or anal opening of another.
(2) Any person violating the provisions of this section shall, upon conviction, be punished by a fine not exceeding Two Hundred Dollars ($200.00) or by confinement in the county jail for not more than six (6) months, or both.
(3) In addition to the
mandatory reporting provisions contained in Section 97-5-51, any law
enforcement officer who takes a minor under eighteen (18) years of age into custody
for suspected prostitution shall immediately make a report to the Department of * * * Child Protection Services as
required in Section 43-21-353 for suspected child sexual abuse or neglect, and
the department shall commence an initial investigation into suspected child
sexual abuse or neglect as required in Section 43-21-353.
(4) If it is determined that a person suspected of or charged with engaging in prostitution is engaging in those acts as a direct result of being a trafficked person, as defined by Section 97-3-54.4, that person shall be immune from prosecution for prostitution as a juvenile or adult and, if a minor, the provisions of Section 97-3-54.1(4) shall be applicable.
SECTION 50. Section 25-65-5, Mississippi Code of 1972, is amended as follows:
25-65-5. The following words and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise:
(a) "University" means and includes Alcorn State University, Delta State University, Jackson State University, Mississippi State University, Mississippi State University Agriculture and Forestry Experiment Station, Mississippi State University Cooperative Extension Service, Mississippi State University Forest and Wildlife Research Center, Mississippi State University State Chemical Laboratory, Mississippi University for Women, Mississippi Valley State University, the University of Mississippi, University of Mississippi Medical Center and the University of Southern Mississippi.
(b) "Community/Junior college" means and includes Coahoma Community College, Copiah-Lincoln Community College, East Central Community College, East Mississippi Community College, Hinds Community College, Holmes Community College, Itawamba Community College, Jones County Junior College, Meridian Community College, Mississippi Delta Community College, Mississippi Gulf Coast Community College, Northeast Mississippi Community College, Northwest Mississippi Community College, Pearl River Community College and Southwest Mississippi Community College.
(c) "State agency" means and includes the Department of Finance and Administration, the State Tax Commission, the Department of Education, the State Department of Health, the Department of Mental Health, the Department of Agriculture and Commerce, the Mississippi Development Authority, the Department of Environmental Quality, the Department of Wildlife, Fisheries and Parks, the Department of Corrections, the Division of Medicaid, the Department of Rehabilitation Services, the Department of Public Safety, the Mississippi Employment Security Commission, the Mississippi Department of Information Technology Services, the Public Employees' Retirement System, the Mississippi Department of Transportation, the Mississippi Gaming Commission and the Mississippi Department of Human Services.
(d) "Agency head" means an elected official who heads an agency, an executive director or a governing board or commission responsible for heading an agency or a president or chancellor of a university or a president of a community/junior college.
(e) "Agency internal audit director" means the person appointed by the agency head to direct the internal audit function for the state agency. Where consistent with responsibilities described in this chapter, the term agency internal audit director may also be referred to as inspector general, audit director, chief auditor or similar internal audit administrator descriptions.
(f) "Audit committee" means a standing committee external to organization management that collectively has the expertise to provide effective guidance regarding the acquisition and provision of internal audit services and to provide guidance in the provision of those services.
SECTION 51. Section 25-65-7, Mississippi Code of 1972, is amended as follows:
25-65-7. The provisions of
this chapter shall only apply (a) to the following universities: (i) Alcorn
State University, (ii) Delta State University, (iii) Jackson State University,
(iv) Mississippi State University, (v) Mississippi State University Agriculture
and Forestry Experiment Station, (vi) Mississippi State University Cooperative
Extension Service, (vii) Mississippi State University Forest and Wildlife
Research Center, (viii) Mississippi State University State Chemical Laboratory,
(ix) Mississippi University for Women, (x) Mississippi Valley State University,
(xi) The University of Mississippi, (xii) University of Mississippi Medical
Center, and * * *
(xiii) The University of Southern Mississippi; (b) to the following
community/junior colleges: (i) Coahoma Community College, (ii) Copiah-Lincoln
Community College, (iii) East Central Community College, (iv) East Mississippi
Community College, (v) Hinds Community College, (vi) Holmes Community College,
(vii) Itawamba Community College, (viii) Jones County Junior College, (ix)
Meridian Community College, (x) Mississippi Delta Community College, (xi)
Mississippi Gulf Coast Community College, (xii) Northeast Mississippi Community
College, (xiii) Northwest Mississippi Community College, (xiv) Pearl River
Community College and (xv) Southwest Mississippi Community College; and (c) to
the following agencies: (i) the Department of Finance and Administration, (ii)
the State Tax Commission, (iii) the Department of Education, (iv) the State
Department of Health, (v) the Department of Mental Health, (vi) the Department
of Agriculture and Commerce, (vii) the Mississippi Development Authority,
(viii) the Department of Environmental Quality, (ix) the Department of
Wildlife, Fisheries and Parks, (x) the Department of Corrections, (xi) the
Division of Medicaid, (xii) the Department of Rehabilitation Services, (xiii)
the Department of Public Safety, (xiv) the Mississippi Employment Security
Commission, (xv) the Mississippi Department of Information Technology Services,
(xvi) the Public Employees' Retirement System, (xvii) the Mississippi
Department of Transportation, (xviii) the Mississippi Gaming Commission,
(xix) the Mississippi Department of Human Services, and ( * * *xx) the Mississippi Department of Human
Services.
SECTION 52. The following provision shall be codified as Section 43-26-3, Mississippi Code of 1972:
43-26-3. The Commissioner of the Department of Child Protection Services is authorized:
(a) To formulate the policy of the department;
(b) To adopt, modify, repeal and promulgate, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing or effectuating the powers and duties of the department under any and all statutes within the department's jurisdiction;
(c) To employ personnel;
(d) To apply for, receive and expend any federal or state funds or contributions, gifts, devises, bequests or funds from any other source;
(e) To fingerprint and perform a criminal history record check on every employee or volunteer who, by virtue of such position, (i) has direct access to children, or (ii) is in a position of fiduciary responsibility; and
(f) To discharge such other duties, responsibilities and powers as are necessary to implement the programs of the department.
SECTION 53. The following shall be codified as Section 43-26-5, Mississippi Code of 1972:
43-26-5. Authority to provide protective services. The Department of Child Protection Services is hereby authorized to provide protective services for children as will conserve home life; assume responsibility for the care and support of dependent children needing public care away from their homes; place children found by the department to be dependent or without proper care in suitable institutions or private homes, and cooperate with public and private institutions and agencies in placing such children in suitable institutions or private homes; accept custody or guardianship, through one (1) of its designated employees, of any child, when appointed as custodian or guardian in the manner provided by law. The grant of authority in this section is not intended to diminish the authority granted by any other section.
The board of supervisors in each county is hereby empowered, in its discretion, to set aside and appropriate out of the tax levied and collected to support the poor of the county or out of the county general fund necessary monies to be administered by the county office of the Department of Child Protection Services to carry out the provisions of this section.
SECTION 54. Section 43-18-5, Mississippi Code of 1972, is amended as follows:
43-18-5. As used in
paragraph (a) of Article V of the Interstate Compact on the Placement of
Children, the phrase "appropriate authority in the receiving state"
with reference to this state shall mean the * * * Department of Human Services.
SECTION 55. Section 7-9-41, Mississippi Code of 1972, is amended as follows:
7-9-41. (1) All support and maintenance funds appropriated for the operating expenses of all departments, institutions, agencies, boards and commissions, supported wholly or in part by the state, shall be drawn from the State Treasury only upon the issuance of individual warrants by the State Fiscal Officer in direct payment for goods sold or services performed, except where specifically provided otherwise in these statutes. The said State Fiscal Officer shall issue his warrants only upon requisitions signed by the proper person, officer or officers.
(2) In the case of the state institutions of higher learning, meeting with the written approval of the State Fiscal Officer, such funds may be drawn from the Treasury in the manner prescribed hereinbelow, and when such system of withdrawal is approved by the State Fiscal Officer, it shall not be changed except on the approval of both said parties.
The executive heads, together with the secretary or other person in charge of the books and accounts, of the state institutions of higher learning, if they receive such written approval, shall make up, in the form prescribed by the State Fiscal Officer and the State Treasurer, checklists of all salaries, accounts, bills, contracts and claims which shall have accrued during the month. Based upon such statement and in company with it, the state institutions of higher learning, through their proper officers, shall make requisition upon the State Fiscal Officer for only so much money as shall then be needed to pay salaries, accounts, bills, contracts and claims which may then be due, together with a reasonable amount for contingent expenses.
Such requisitions may be drawn upon the State Fiscal Officer's accounts, who shall draw its warrants on the Treasurer from time to time as required, payable to the official depository provided in Section 7-9-43. In the case of special appropriations made for buildings and permanent improvements, repairs, furniture, fixtures, and special supplies, and in all cases where it is not practicable to furnish a detailed statement, such funds may be drawn in installments at such times and in such amounts as necessity may require, and the requisitions for same must be accompanied by a general statement of the proposed purchases and expenditures.
In all cases where such lump-sum payments are authorized and paid as provided in this section, the proper officer or officers of the state institutions of higher learning shall make such additional reports to the State Fiscal Officer in the manner and at such times as he may require. Such reports shall also include other funds coming into the possession of or for the use and benefit of the state institutions of higher learning, whether such funds are regularly handled through the State Treasury or not.
(3) In the case of the * * * Department
of Human Services and the Department of Child Protection Services, lump-sum
withdrawals may only be made as provided for in subsection (2) of this section
for payments to recipients of services provided by the department.
SECTION 56. Section 7-9-43, Mississippi Code of 1972, is amended as follows:
7-9-43. The state
institutions of higher learning * * *, the Department of Human Services and
the Department of Child Protection Services, after receiving the written
approval of the State Fiscal Officer as provided in Section 7-9-41, shall
select and make a contract with some bank to serve as a depository for funds of
the same. Said bank so selected shall qualify to receive said fund and secure
the same as required of state depositories under Section 27-105-5 before
receiving any funds, except as herein noted in the case of private hospitals.
The life of said contract with a depository shall be for five (5) years. Each
bank shall enter into a written contract, the terms of which shall be to perform
faithfully all acts and duties required of it by this and other laws of the
state. As such depository, it shall receive and keep account of all funds and
pay out same on the check of the secretary or business manager, countersigned
by the president or chairman of the board or institution. Such bank shall
receive, keep, disburse and account for all funds of the Department of Human
Services, the Department of Child Protection Services and such state
institution of higher learning for which it shall be a depository, and turn
over all funds and accounts to its legal successor, provided all private
hospitals shall be exempted from providing depositories.
All books, accounts and reports made thereon for any funds shall conform to the requirements of the General Accounting Office, and shall be filed with the said General Accounting Office.
SECTION 57. Section 25-9-127, Mississippi Code of 1972, is amended as follows:
25-9-127. (1) No employee of any department, agency or institution who is included under this chapter or hereafter included under its authority, and who is subject to the rules and regulations prescribed by the state personnel system, may be dismissed or otherwise adversely affected as to compensation or employment status except for inefficiency or other good cause, and after written notice and hearing within the department, agency or institution as shall be specified in the rules and regulations of the State Personnel Board complying with due process of law; and any employee who has by written notice of dismissal or action adversely affecting his compensation or employment status shall, on hearing and on any appeal of any decision made in such action, be required to furnish evidence that the reasons stated in the notice of dismissal or action adversely affecting his compensation or employment status are not true or are not sufficient grounds for the action taken; provided, however, that this provision shall not apply (a) to persons separated from any department, agency or institution due to curtailment of funds or reduction in staff when such separation is in accordance with rules and regulations of the state personnel system; (b) during the probationary period of state service of twelve (12) months; and (c) to an executive officer of any state agency who serves at the will and pleasure of the Governor, board, commission or other appointing authority.
(2) The operation of a state-owned motor vehicle without a valid Mississippi driver's license by an employee of any department, agency or institution that is included under this chapter and that is subject to the rules and regulations of the state personnel system shall constitute good cause for dismissal of such person from employment.
(3) Beginning July 1, 1999, every male between the ages of eighteen (18) and twenty-six (26) who is required to register under the federal Military Selective Service Act, 50 USCS App. 453, and who is an employee of the state shall not be promoted to any higher position of employment with the state until he submits to the person, commission, board or agency by which he is employed satisfactory documentation of his compliance with the draft registration requirements of the Military Selective Service Act. The documentation shall include a signed affirmation under penalty of perjury that the male employee has complied with the requirements of the Military Selective Service Act.
(4) For a period of two (2) years beginning July 1, 2014, the provisions of subsection (1) shall not apply to the personnel actions of the State Department of Education that are subject to the rules and regulations of the State Personnel Board, and all employees of the department shall be classified as nonstate service during that period. However, any employee hired after July 1, 2014, by the department shall meet the criteria of the State Personnel Board as it presently exists for employment. The State Superintendent of Public Education and the State Board of Education shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
It is not the intention or effect of this section to include any school attendance officer in any exemption from coverage under the State Personnel Board policy or regulations, including, but not limited to, termination and conditions of employment.
(5) (a) For a period of two (2) years beginning July 1, 2015, the provisions of subsection (1) shall not apply to the personnel actions of the Department of Corrections, and all employees of the department shall be classified as nonstate service during that period. However, any employee hired after July 1, 2015, by the department shall meet the criteria of the State Personnel Board as it presently exists for employment.
(b) Additionally, for a period of one (1) year beginning July 1, 2016, the personnel actions of the Commissioner of the Department of Corrections shall be exempt from State Personnel Board rules, regulations and procedures in order to give the commissioner flexibility in making an orderly, effective and timely reorganization and realignment of the department.
(c) The Commissioner of Corrections shall consult with the Office of the Attorney General before personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
(6) Through July 1, 2019, the provisions of subsection (1) of this section shall not apply to the personnel actions of the Department of Human Services that are subject to the rules and regulations of the State Personnel Board, and all employees of the department shall be classified as nonstate service during that period. Any employee hired on or after July 1, 2019, by the department shall meet the criteria of the State Personnel Board as it presently exists for employment. The Executive Director of Human Services shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
(7) Through July 1, 2019, the provisions of subsection (1) of this section shall not apply to the personnel actions of the Department of Child Protection Services that are subject to the rules and regulations of the State Personnel Board, and all employees of the department shall be classified as nonstate service during that period. Any employee hired on or after July 1, 2019, by the division shall meet the criteria of the State Personnel Board as it presently exists for employment. Additionally, for a period of one (1) year beginning July 1, 2017, the personnel actions of the Department of Child Protection Services shall be exempt from State Personnel Board rules, regulations and procedures in order to give the department flexibility in making an orderly, effective and timely reorganization and realignment of the department. The Commissioner of Child Protection Services shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
(8) Any state agency whose
personnel actions are exempted in this section from the rules, regulations and
procedures of the State Personnel Board shall file with the Lieutenant
Governor, the Speaker of the House of Representatives, and the members of the
Senate and House Accountability, Efficiency * * * and Transparency Committees an annual
report no later than July 1, 2016, and each year thereafter while under the
exemption. Such annual report shall contain the following information:
(a) The number of current employees who received an increase in salary during the past fiscal year and the amount of the increase;
(b) The number of employees who were dismissed from the agency or otherwise adversely affected as to compensation or employment status during the past fiscal year, including a description of such adverse effects; and
(c) The number of new employees hired during the past fiscal year and the starting salaries of each new employee.
SECTION 58. Section 97-5-51, Mississippi Code of 1972, is amended as follows:
97-5-51. (1) Definitions. For the purposes of this section:
(a) "Sex crime against a minor" means any offense under at least one (1) of the following statutes when committed by an adult against a minor who is under the age of sixteen (16):
(i) Section 97-3-65 relating to rape;
(ii) Section 97-3-71 relating to rape and assault with intent to ravish;
(iii) Section 97-3-95 relating to sexual battery;
(iv) Section 97-5-23 relating to the touching of a child, mentally defective or incapacitated person or physically helpless person for lustful purposes;
(v) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;
(vi) Section 97-5-33 relating to exploitation of children;
(vii) Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor;
(viii) Section 43-47-18 relating to sexual abuse of a vulnerable person;
(ix) Section 97-1-7 relating to the attempt to commit any of the offenses listed in this subsection.
(b) "Mandatory reporter" means any of the following individuals performing their occupational duties: health care practitioner, clergy member, teaching or child care provider, law enforcement officer, or commercial image processor.
(c) "Health care practitioner" means any individual who provides health care services, including a physician, surgeon, physical therapist, psychiatrist, psychologist, medical resident, medical intern, hospital staff member, licensed nurse, midwife and emergency medical technician or paramedic.
(d) "Clergy member" means any priest, rabbi or duly ordained deacon or minister.
(e) "Teaching or child care provider" means anyone who provides training or supervision of a minor under the age of sixteen (16), including a teacher, teacher's aide, principal or staff member of a public or private school, social worker, probation officer, foster home parent, group home or other child care institutional staff member, personnel of residential home facilities, a licensed or unlicensed day care provider.
(f) "Commercial image processor" means any person who, for compensation: (i) develops exposed photographic film into negatives, slides or prints; (ii) makes prints from negatives or slides; or (iii) processes or stores digital media or images from any digital process, including, but not limited to, website applications, photography, live streaming of video, posting, creation of power points or any other means of intellectual property communication or media including conversion or manipulation of still shots or video into a digital show stored on a photography site or a media storage site.
(g) "Caretaker" means any person legally obligated to provide or secure adequate care for a minor under the age of sixteen (16), including a parent, guardian, tutor, legal custodian or foster home parent.
(2) (a) Mandatory reporter requirement. A mandatory reporter shall make a report if it would be reasonable for the mandatory reporter to suspect that a sex crime against a minor has occurred.
(b) Failure to file a mandatory report shall be punished as provided in this section.
(c) Reports made under this section and the identity of the mandatory reporter are confidential except when the court determines the testimony of the person reporting to be material to a judicial proceeding or when the identity of the reporter is released to law enforcement agencies and the appropriate prosecutor. The identity of the reporting party shall not be disclosed to anyone other than law enforcement or prosecutors except under court order; violation of this requirement is a misdemeanor. Reports made under this section are for the purpose of criminal investigation and prosecution only and information from these reports is not a public record. Disclosure of any information by the prosecutor shall conform to the Mississippi Uniform Rules of Circuit and County Court Procedure.
(d) Any mandatory reporter who makes a required report under this section or participates in a judicial proceeding resulting from a mandatory report shall be presumed to be acting in good faith. Any person or institution reporting in good faith shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed.
(3) (a) Mandatory reporting procedure. A report required under subsection (2) must be made immediately to the law enforcement agency in whose jurisdiction the reporter believes the sex crime against the minor occurred. Except as otherwise provided in this subsection (3), a mandatory reporter may not delegate to any other person the responsibility to report, but shall make the report personally.
(i) The reporting
requirement under this subsection (3) is satisfied if a mandatory reporter in
good faith reports a suspected sex crime against a minor to the Department of * * * Child Protection Services under
Section 43-21-353 if the reporter reasonably suspects the sex crime
constitutes abuse or neglect.
(ii) The reporting requirement under this subsection (3) is satisfied if a mandatory reporter reports a suspected sex crime against a minor by following a reporting procedure that is imposed:
1. By state agency rule as part of licensure of any person or entity holding a state license to provide services that include the treatment or education of abused or neglected children; or
2. By statute.
(b) Contents of the report. The report shall identify, to the extent known to the reporter, the following:
(i) The name and address of the minor victim;
(ii) The name and address of the minor's caretaker;
(iii) Any other pertinent information known to the reporter.
(4) A law enforcement officer who receives a mandated report under this section shall file an affidavit against the offender on behalf of the State of Mississippi if there is probable cause to believe that the offender has committed a sex crime against a minor.
(5) Collection of forensic samples. (a) (i) When an abortion is performed on a minor who is less than fourteen (14) years of age at the time of the abortion procedure, fetal tissue extracted during the abortion shall be collected in accordance with rules and regulations adopted pursuant to this section if it would be reasonable to suspect that the pregnancy being terminated is the result of a sex crime against a minor.
(ii) When a minor who is under sixteen (16) years of age gives birth to an infant, umbilical cord blood shall be collected, if possible, in accordance with rules and regulations adopted pursuant to this section if it would be reasonable to suspect that the minor's pregnancy resulted from a sex crime against a minor.
(iii) It shall be reasonable to suspect that a sex crime against a minor has occurred if the mother of an infant was less than sixteen (16) years of age at the time of conception and at least one (1) of the following conditions also applies:
1. The mother of the infant will not identify the father of the infant;
2. The mother of the infant lists the father of the infant as unknown;
3. The person the mother identifies as the father of the infant disputes his fatherhood;
4. The person the mother identifies as the father of the infant is twenty-one (21) years of age or older; or
5. The person the mother identifies as the father is deceased.
(b) The State Medical Examiner shall adopt rules and regulations consistent with Section 99-49-1 that prescribe:
(i) The amount and type of fetal tissue or umbilical cord blood to be collected pursuant to this section;
(ii) Procedures for the proper preservation of the tissue or blood for the purpose of DNA testing and examination;
(iii) Procedures for documenting the chain of custody of such tissue or blood for use as evidence;
(iv) Procedures for proper disposal of fetal tissue or umbilical cord blood collected pursuant to this section;
(v) A uniform reporting instrument mandated to be utilized, which shall include the complete residence address and name of the parent or legal guardian of the minor who is the subject of the report required under this subsection (5); and
(vi) Procedures for communication with law enforcement agencies regarding evidence and information obtained pursuant to this section.
(6) Penalties. (a) A person who is convicted of a first offense under this section shall be guilty of a misdemeanor and fined not more than Five Hundred Dollars ($500.00).
(b) A person who is convicted of a second offense under this section shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00), or imprisoned for not more than thirty (30) days, or both.
(c) A person who is convicted of a third or subsequent offense under this section shall be guilty of a misdemeanor and fined not more than Five Thousand Dollars ($5,000.00), or imprisoned for not more than one (1) year, or both.
(7) A health care practitioner or health care facility shall be immune from any penalty, civil or criminal, for good-faith compliance with any rules and regulations adopted pursuant to this section.
SECTION 59. Section 97-3-54.1, Mississippi Code of 1972, is amended as follows:
97-3-54.1. (1) (a) A person who coerces, recruits, entices, harbors, transports, provides or obtains by any means, or attempts to coerce, recruit, entice, harbor, transport, provide or obtain by any means, another person, intending or knowing that the person will be subjected to forced labor or services, or who benefits, whether financially or by receiving anything of value from participating in an enterprise that he knows or reasonably should have known has engaged in such acts, shall be guilty of the crime of human-trafficking.
(b) A person who knowingly purchases the forced labor or services of a trafficked person or who otherwise knowingly subjects, or attempts to subject, another person to forced labor or services or who benefits, whether financially or by receiving anything of value from participating in an enterprise that he knows or reasonably should have known has engaged in such acts, shall be guilty of the crime of procuring involuntary servitude.
(c) A person who knowingly subjects, or attempts to subject, or who recruits, entices, harbors, transports, provides or obtains by any means, or attempts to recruit, entice, harbor, transport, provide or obtain by any means, a minor, knowing that the minor will engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, or causes or attempts to cause a minor to engage in commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, shall be guilty of procuring sexual servitude of a minor and shall be punished by commitment to the custody of the Department of Corrections for not less than five (5) nor more than thirty (30) years, or by a fine of not less than Fifty Thousand Dollars ($50,000.00) nor more than Five Hundred Thousand Dollars ($500,000.00), or both. It is not a defense in a prosecution under this section that a minor consented to engage in the commercial sexual activity, sexually explicit performance, or the production of sexually oriented material, or that the defendant reasonably believed that the minor was eighteen (18) years of age or older.
(2) If the victim is not a minor, a person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section shall be committed to the custody of the Department of Corrections for not less than two (2) years nor more than twenty (20) years, or by a fine of not less than Ten Thousand Dollars ($10,000.00) nor more than One Hundred Thousand Dollars ($100,000.00), or both. If the victim of the offense is a minor, a person who is convicted of an offense set forth in subsection (1)(a) or (b) of this section shall be committed to the custody of the Department of Corrections for not less than five (5) years nor more than twenty (20) years, or by a fine of not less than Twenty Thousand Dollars ($20,000.00) nor more than One Hundred Thousand Dollars ($100,000.00), or both.
(3) An enterprise may be prosecuted for an offense under this chapter if:
(a) An agent of the enterprise knowingly engages in conduct that constitutes an offense under this chapter while acting within the scope of employment and for the benefit of the entity.
(b) An employee of the enterprise engages in conduct that constitutes an offense under this chapter and the commission of the offense was part of a pattern of illegal activity for the benefit of the enterprise, which an agent of the enterprise either knew was occurring or recklessly disregarded, and the agent failed to take effective action to stop the illegal activity.
(c) It is an affirmative defense to a prosecution of an enterprise that the enterprise had in place adequate procedures, including an effective complaint procedure, designed to prevent persons associated with the enterprise from engaging in the unlawful conduct and to promptly correct any violations of this chapter.
(d) The court may consider the severity of the enterprise's offense and order penalties, including: (i) a fine of not more than One Million Dollars ($1,000,000.00); (ii) disgorgement of profit; and (iii) debarment from government contracts. Additionally, the court may order any of the relief provided in Section 97-3-54.7.
(4) In addition to the
mandatory reporting provisions contained in Section 97-5-51, any person who has
reasonable cause to suspect that a minor under the age of eighteen (18) is a
trafficked person shall immediately make a report * * * to the Statewide Human Trafficking
Coordinator. * * * A minor who has been
identified as a victim of trafficking shall not be liable for criminal activity
in violation of this section.
(5) It is an affirmative defense in a prosecution under this act that the defendant:
(a) Is a victim; and
(b) Committed the offense under a reasonable apprehension created by a person that, if the defendant did not commit the act, the person would inflict serious harm on the defendant, a member of the defendant's family, or a close associate.
SECTION 60. Section 43-13-115, Mississippi Code of 1972, is amended as follows:
43-13-115. Recipients of Medicaid shall be the following persons only:
(1) Those who are
qualified for public assistance grants under provisions of Title IV-A and E of
the federal Social Security Act, as amended, including those statutorily deemed
to be IV-A and low-income families and children under Section 1931 of
the federal Social Security Act. For the purposes of this paragraph (1) and
paragraphs (8), (17) and (18) of this section, any reference to Title IV-A or
to Part A of Title IV of the federal Social Security Act, as amended, or the
state plan under Title IV-A or Part A of Title IV, shall be considered as a
reference to Title IV-A of the federal Social Security Act, as amended, and the
state plan under Title IV-A, including the income and resource standards and
methodologies under Title IV-A and the state plan, as they existed on July 16,
1996. The Department of * * * Human Child Protection Services shall determine Medicaid
eligibility for children receiving public assistance grants under Title IV-E.
The * * *
department shall determine eligibility for low-income families
under Section 1931 of the federal Social Security Act and shall redetermine
eligibility for those continuing under Title IV-A grants.
(2) Those qualified for Supplemental Security Income (SSI) benefits under Title XVI of the federal Social Security Act, as amended, and those who are deemed SSI eligible as contained in federal statute. The eligibility of individuals covered in this paragraph shall be determined by the Social Security Administration and certified to the Division of Medicaid.
(3) Qualified pregnant women who would be eligible for Medicaid as a low-income family member under Section 1931 of the federal Social Security Act if her child were born. The eligibility of the individuals covered under this paragraph shall be determined by the division.
(4) [Deleted]
(5) A child born on or after October 1, 1984, to a woman eligible for and receiving Medicaid under the state plan on the date of the child's birth shall be deemed to have applied for Medicaid and to have been found eligible for Medicaid under the plan on the date of that birth, and will remain eligible for Medicaid for a period of one (1) year so long as the child is a member of the woman's household and the woman remains eligible for Medicaid or would be eligible for Medicaid if pregnant. The eligibility of individuals covered in this paragraph shall be determined by the Division of Medicaid.
(6) Children certified by the State Department of Human Services to the Division of Medicaid of whom the state and county departments of human services have custody and financial responsibility, and children who are in adoptions subsidized in full or part by the Department of Human Services, including special needs children in non-Title IV-E adoption assistance, who are approvable under Title XIX of the Medicaid program. The eligibility of the children covered under this paragraph shall be determined by the State Department of Human Services.
(7) Persons certified by the Division of Medicaid who are patients in a medical facility (nursing home, hospital, tuberculosis sanatorium or institution for treatment of mental diseases), and who, except for the fact that they are patients in that medical facility, would qualify for grants under Title IV, Supplementary Security Income (SSI) benefits under Title XVI or state supplements, and those aged, blind and disabled persons who would not be eligible for Supplemental Security Income (SSI) benefits under Title XVI or state supplements if they were not institutionalized in a medical facility but whose income is below the maximum standard set by the Division of Medicaid, which standard shall not exceed that prescribed by federal regulation.
(8) Children under eighteen (18) years of age and pregnant women (including those in intact families) who meet the financial standards of the state plan approved under Title IV-A of the federal Social Security Act, as amended. The eligibility of children covered under this paragraph shall be determined by the Division of Medicaid.
(9) Individuals who are:
(a) Children born after September 30, 1983, who have not attained the age of nineteen (19), with family income that does not exceed one hundred percent (100%) of the nonfarm official poverty level;
(b) Pregnant women, infants and children who have not attained the age of six (6), with family income that does not exceed one hundred thirty-three percent (133%) of the federal poverty level; and
(c) Pregnant women and infants who have not attained the age of one (1), with family income that does not exceed one hundred eighty-five percent (185%) of the federal poverty level.
The eligibility of individuals covered in (a), (b) and (c) of this paragraph shall be determined by the division.
(10) Certain disabled children age eighteen (18) or under who are living at home, who would be eligible, if in a medical institution, for SSI or a state supplemental payment under Title XVI of the federal Social Security Act, as amended, and therefore for Medicaid under the plan, and for whom the state has made a determination as required under Section 1902(e)(3)(b) of the federal Social Security Act, as amended. The eligibility of individuals under this paragraph shall be determined by the Division of Medicaid.
(11) Until the end of the day on December 31, 2005, individuals who are sixty-five (65) years of age or older or are disabled as determined under Section 1614(a)(3) of the federal Social Security Act, as amended, and whose income does not exceed one hundred thirty-five percent (135%) of the nonfarm official poverty level as defined by the Office of Management and Budget and revised annually, and whose resources do not exceed those established by the Division of Medicaid. The eligibility of individuals covered under this paragraph shall be determined by the Division of Medicaid. After December 31, 2005, only those individuals covered under the 1115(c) Healthier Mississippi waiver will be covered under this category.
Any individual who applied for Medicaid during the period from July 1, 2004, through March 31, 2005, who otherwise would have been eligible for coverage under this paragraph (11) if it had been in effect at the time the individual submitted his or her application and is still eligible for coverage under this paragraph (11) on March 31, 2005, shall be eligible for Medicaid coverage under this paragraph (11) from March 31, 2005, through December 31, 2005. The division shall give priority in processing the applications for those individuals to determine their eligibility under this paragraph (11).
(12) Individuals who are qualified Medicare beneficiaries (QMB) entitled to Part A Medicare as defined under Section 301, Public Law 100-360, known as the Medicare Catastrophic Coverage Act of 1988, and whose income does not exceed one hundred percent (100%) of the nonfarm official poverty level as defined by the Office of Management and Budget and revised annually.
The eligibility of individuals covered under this paragraph shall be determined by the Division of Medicaid, and those individuals determined eligible shall receive Medicare cost-sharing expenses only as more fully defined by the Medicare Catastrophic Coverage Act of 1988 and the Balanced Budget Act of 1997.
(13) (a) Individuals who are entitled to Medicare Part A as defined in Section 4501 of the Omnibus Budget Reconciliation Act of 1990, and whose income does not exceed one hundred twenty percent (120%) of the nonfarm official poverty level as defined by the Office of Management and Budget and revised annually. Eligibility for Medicaid benefits is limited to full payment of Medicare Part B premiums.
(b) Individuals entitled to Part A of Medicare, with income above one hundred twenty percent (120%), but less than one hundred thirty-five percent (135%) of the federal poverty level, and not otherwise eligible for Medicaid. Eligibility for Medicaid benefits is limited to full payment of Medicare Part B premiums. The number of eligible individuals is limited by the availability of the federal capped allocation at one hundred percent (100%) of federal matching funds, as more fully defined in the Balanced Budget Act of 1997.
The eligibility of individuals covered under this paragraph shall be determined by the Division of Medicaid.
(14) [Deleted]
(15) Disabled workers who are eligible to enroll in Part A Medicare as required by Public Law 101-239, known as the Omnibus Budget Reconciliation Act of 1989, and whose income does not exceed two hundred percent (200%) of the federal poverty level as determined in accordance with the Supplemental Security Income (SSI) program. The eligibility of individuals covered under this paragraph shall be determined by the Division of Medicaid and those individuals shall be entitled to buy-in coverage of Medicare Part A premiums only under the provisions of this paragraph (15).
(16) In accordance with the terms and conditions of approved Title XIX waiver from the United States Department of Health and Human Services, persons provided home- and community-based services who are physically disabled and certified by the Division of Medicaid as eligible due to applying the income and deeming requirements as if they were institutionalized.
(17) In accordance with the terms of the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193), persons who become ineligible for assistance under Title IV-A of the federal Social Security Act, as amended, because of increased income from or hours of employment of the caretaker relative or because of the expiration of the applicable earned income disregards, who were eligible for Medicaid for at least three (3) of the six (6) months preceding the month in which the ineligibility begins, shall be eligible for Medicaid for up to twelve (12) months. The eligibility of the individuals covered under this paragraph shall be determined by the division.
(18) Persons who become ineligible for assistance under Title IV-A of the federal Social Security Act, as amended, as a result, in whole or in part, of the collection or increased collection of child or spousal support under Title IV-D of the federal Social Security Act, as amended, who were eligible for Medicaid for at least three (3) of the six (6) months immediately preceding the month in which the ineligibility begins, shall be eligible for Medicaid for an additional four (4) months beginning with the month in which the ineligibility begins. The eligibility of the individuals covered under this paragraph shall be determined by the division.
(19) Disabled workers, whose incomes are above the Medicaid eligibility limits, but below two hundred fifty percent (250%) of the federal poverty level, shall be allowed to purchase Medicaid coverage on a sliding fee scale developed by the Division of Medicaid.
(20) Medicaid eligible children under age eighteen (18) shall remain eligible for Medicaid benefits until the end of a period of twelve (12) months following an eligibility determination, or until such time that the individual exceeds age eighteen (18).
(21) Women of childbearing age whose family income does not exceed one hundred eighty-five percent (185%) of the federal poverty level. The eligibility of individuals covered under this paragraph (21) shall be determined by the Division of Medicaid, and those individuals determined eligible shall only receive family planning services covered under Section 43-13-117(13) and not any other services covered under Medicaid. However, any individual eligible under this paragraph (21) who is also eligible under any other provision of this section shall receive the benefits to which he or she is entitled under that other provision, in addition to family planning services covered under Section 43-13-117(13).
The Division of Medicaid shall apply to the United States Secretary of Health and Human Services for a federal waiver of the applicable provisions of Title XIX of the federal Social Security Act, as amended, and any other applicable provisions of federal law as necessary to allow for the implementation of this paragraph (21). The provisions of this paragraph (21) shall be implemented from and after the date that the Division of Medicaid receives the federal waiver.
(22) Persons who are workers with a potentially severe disability, as determined by the division, shall be allowed to purchase Medicaid coverage. The term "worker with a potentially severe disability" means a person who is at least sixteen (16) years of age but under sixty-five (65) years of age, who has a physical or mental impairment that is reasonably expected to cause the person to become blind or disabled as defined under Section 1614(a) of the federal Social Security Act, as amended, if the person does not receive items and services provided under Medicaid.
The eligibility of persons under this paragraph (22) shall be conducted as a demonstration project that is consistent with Section 204 of the Ticket to Work and Work Incentives Improvement Act of 1999, Public Law 106-170, for a certain number of persons as specified by the division. The eligibility of individuals covered under this paragraph (22) shall be determined by the Division of Medicaid.
(23) Children certified by the Mississippi Department of Human Services for whom the state and county departments of human services have custody and financial responsibility who are in foster care on their eighteenth birthday as reported by the Mississippi Department of Human Services shall be certified Medicaid eligible by the Division of Medicaid until their twenty-first birthday.
(24) Individuals who have not attained age sixty-five (65), are not otherwise covered by creditable coverage as defined in the Public Health Services Act, and have been screened for breast and cervical cancer under the Centers for Disease Control and Prevention Breast and Cervical Cancer Early Detection Program established under Title XV of the Public Health Service Act in accordance with the requirements of that act and who need treatment for breast or cervical cancer. Eligibility of individuals under this paragraph (24) shall be determined by the Division of Medicaid.
(25) The division shall apply to the Centers for Medicare and Medicaid Services (CMS) for any necessary waivers to provide services to individuals who are sixty-five (65) years of age or older or are disabled as determined under Section 1614(a)(3) of the federal Social Security Act, as amended, and whose income does not exceed one hundred thirty-five percent (135%) of the nonfarm official poverty level as defined by the Office of Management and Budget and revised annually, and whose resources do not exceed those established by the Division of Medicaid, and who are not otherwise covered by Medicare. Nothing contained in this paragraph (25) shall entitle an individual to benefits. The eligibility of individuals covered under this paragraph shall be determined by the Division of Medicaid.
(26) The division shall apply to the Centers for Medicare and Medicaid Services (CMS) for any necessary waivers to provide services to individuals who are sixty-five (65) years of age or older or are disabled as determined under Section 1614(a)(3) of the federal Social Security Act, as amended, who are end stage renal disease patients on dialysis, cancer patients on chemotherapy or organ transplant recipients on antirejection drugs, whose income does not exceed one hundred thirty-five percent (135%) of the nonfarm official poverty level as defined by the Office of Management and Budget and revised annually, and whose resources do not exceed those established by the division. Nothing contained in this paragraph (26) shall entitle an individual to benefits. The eligibility of individuals covered under this paragraph shall be determined by the Division of Medicaid.
(27) Individuals who are entitled to Medicare Part D and whose income does not exceed one hundred fifty percent (150%) of the nonfarm official poverty level as defined by the Office of Management and Budget and revised annually. Eligibility for payment of the Medicare Part D subsidy under this paragraph shall be determined by the division.
The division shall redetermine eligibility for all categories of recipients described in each paragraph of this section not less frequently than required by federal law.
SECTION 61. Section 43-21-257, Mississippi Code of 1972, is amended as follows:
43-21-257. (1) Unless otherwise provided in this section, any record involving children, including valid and invalid complaints, and the contents thereof maintained by the Department of Human Services, or any other state agency, shall be kept confidential and shall not be disclosed except as provided in Section 43-21-261.
(2) The Office of Youth Services shall maintain a state central registry containing the number and disposition of all cases together with such other useful information regarding those cases as may be requested and is obtainable from the records of the youth court. The Office of Youth Services shall annually publish a statistical record of the number and disposition of all cases, but the names or identity of any children shall not be disclosed in the reports or records. The Office of Youth Services shall adopt such rules as may be necessary to carry out this subsection. The central registry files and the contents thereof shall be confidential and shall not be open to public inspection. Any person who discloses or encourages the disclosure of any record involving children from the central registry shall be subject to the penalty in Section 43-21-267. The youth court shall furnish, upon forms provided by the Office of Youth Services, the necessary information, and these completed forms shall be forwarded to the Office of Youth Services.
(3) The Department of * * * Child Protection Services shall
maintain a state central registry on neglect and abuse cases containing (a) the
name, address and age of each child, (b) the nature of the harm reported, (c)
the name and address of the person responsible for the care of the child, and
(d) the name and address of the substantiated perpetrator of the harm
reported. "Substantiated perpetrator" shall be defined as an
individual who has committed an act(s) of sexual abuse or physical abuse that
would otherwise be deemed as a felony or any child neglect that would be deemed
as a threat to life, as determined upon investigation by the * * * Department
of Child Protection Services. "Substantiation" for the purposes
of the Mississippi Department of * * * Child Protection Services Central
Registry shall require a criminal conviction or an adjudication by a youth
court judge or court of competent jurisdiction, ordering that the name of the
perpetrator be listed on the central registry, pending due process. The
Department of * * *
Child Protection Services shall adopt such rules and administrative
procedures, especially those procedures to afford due process to individuals
who have been named as substantiated perpetrators before the release of their
name from the central registry, as may be necessary to carry out this
subsection. The central registry shall be confidential and shall not be open
to public inspection. Any person who discloses or encourages the disclosure of
any record involving children from the central registry without following the
rules and administrative procedures of the department shall be subject to the
penalty in Section 43-21-267. The Department of * * * Child Protection Services and its
employees are exempt from any civil liability as a result of any action taken
pursuant to the compilation and/or release of information on the central
registry under this section and any other applicable section of the code,
unless determined that an employee has willfully and maliciously violated the
rules and administrative procedures of the department, pertaining to the
central registry or any section of this code. If an employee is determined to
have willfully and maliciously performed such a violation, said employee shall
not be exempt from civil liability in this regard.
(4) The Mississippi State Department of Health may release the findings of investigations into allegations of abuse within licensed day care centers made under the provisions of Section 43-21-353(8) to any parent of a child who is enrolled in the day care center at the time of the alleged abuse or at the time the request for information is made. The findings of any such investigation may also be released to parents who are considering placing children in the day care center. No information concerning those investigations may contain the names or identifying information of individual children.
The Department of Health shall not be held civilly liable for the release of information on any findings, recommendations or actions taken pursuant to investigations of abuse that have been conducted under Section 43-21-353(8).
SECTION 62. Section 43-21-261, Mississippi Code of 1972, is amended as follows:
43-21-261. (1) Except as otherwise provided in this section, records involving children shall not be disclosed, other than to necessary staff of the youth court, except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure. Such court orders for disclosure shall be limited to those instances in which the youth court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the functioning of the youth court and then only to the following persons:
(a) The judge of another youth court or member of another youth court staff;
(b) The court of the parties in a child custody or adoption cause in another court;
(c) A judge of any other court or members of another court staff;
(d) Representatives of a public or private agency providing supervision or having custody of the child under order of the youth court;
(e) Any person engaged in a bona fide research purpose, provided that no information identifying the subject of the records shall be made available to the researcher unless it is absolutely essential to the research purpose and the judge gives prior written approval, and the child, through his or her representative, gives permission to release the information;
(f) The Mississippi Department of Employment Security, or its duly authorized representatives, for the purpose of a child's enrollment into the Job Corps Training Program as authorized by Title IV of the Comprehensive Employment Training Act of 1973 (29 USCS Section 923 et seq.). However, no records, reports, investigations or information derived therefrom pertaining to child abuse or neglect shall be disclosed;
(g) To any person pursuant to a finding by a judge of the youth court of compelling circumstances affecting the health, safety or well-being of a child and that such disclosure is in the best interests of the child or an adult who was formerly the subject of a youth court delinquency proceeding.
Law enforcement agencies may disclose information to the public concerning the taking of a child into custody for the commission of a delinquent act without the necessity of an order from the youth court. The information released shall not identify the child or his address unless the information involves a child convicted as an adult.
(2) Any records involving children which are disclosed under an order of the youth court or pursuant to the terms of this section and the contents thereof shall be kept confidential by the person or agency to whom the record is disclosed unless otherwise provided in the order. Any further disclosure of any records involving children shall be made only under an order of the youth court as provided in this section.
(3) Upon request, the parent, guardian or custodian of the child who is the subject of a youth court cause or any attorney for such parent, guardian or custodian, shall have the right to inspect any record, report or investigation which is to be considered by the youth court at a hearing, except that the identity of the reporter shall not be released, nor the name of any other person where the person or agency making the information available finds that disclosure of the information would be likely to endanger the life or safety of such person.
(4) Upon request, the child who is the subject of a youth court cause shall have the right to have his counsel inspect and copy any record, report or investigation which is filed with the youth court or which is to be considered by the youth court at a hearing.
(5) (a) The youth court prosecutor or prosecutors, the county attorney, the district attorney, the youth court defender or defenders, or any attorney representing a child shall have the right to inspect and copy any law enforcement record involving children.
(b) The Department of * * * Child Protection Services shall
disclose to a county prosecuting attorney or district attorney any and all records
resulting from an investigation into suspected child abuse or neglect when the
case has been referred by the Department of * * * Child Protection Services to the
county prosecuting attorney or district attorney for criminal prosecution.
(c) Agency records made confidential under the provisions of this section may be disclosed to a court of competent jurisdiction.
(d) Records involving children shall be disclosed to the Division of Victim Compensation of the Office of the Attorney General upon the division's request without order of the youth court for purposes of determination of eligibility for victim compensation benefits.
(6) Information concerning
an investigation into a report of child abuse or child neglect may be disclosed
by the Department of * * * Child Protection Services without order of the youth
court to any attorney, physician, dentist, intern, resident, nurse,
psychologist, social worker, family protection worker, family protection
specialist, child caregiver, minister, law enforcement officer, public or
private school employee making that report pursuant to Section 43-21-353(1) if
the reporter has a continuing professional relationship with the child and a
need for such information in order to protect or treat the child.
(7) Information concerning an investigation into a report of child abuse or child neglect may be disclosed without further order of the youth court to any interagency child abuse task force established in any county or municipality by order of the youth court of that county or municipality.
(8) Names and addresses of juveniles twice adjudicated as delinquent for an act which would be a felony if committed by an adult or for the unlawful possession of a firearm shall not be held confidential and shall be made available to the public.
(9) Names and addresses of juveniles adjudicated as delinquent for murder, manslaughter, burglary, arson, armed robbery, aggravated assault, any sex offense as defined in Section 45-33-23, for any violation of Section 41-29-139(a)(1) or for any violation of Section 63-11-30, shall not be held confidential and shall be made available to the public.
(10) The judges of the circuit and county courts, and presentence investigators for the circuit courts, as provided in Section 47-7-9, shall have the right to inspect any youth court records of a person convicted of a crime for sentencing purposes only.
(11) The victim of an offense committed by a child who is the subject of a youth court cause shall have the right to be informed of the child's disposition by the youth court.
(12) A classification hearing officer of the State Department of Corrections, as provided in Section 47-5-103, shall have the right to inspect any youth court records, excluding abuse and neglect records, of any offender in the custody of the department who as a child or minor was a juvenile offender or was the subject of a youth court cause of action, and the State Parole Board, as provided in Section 47-7-17, shall have the right to inspect such records when the offender becomes eligible for parole.
(13) The youth court shall notify the Department of Public Safety of the name, and any other identifying information such department may require, of any child who is adjudicated delinquent as a result of a violation of the Uniform Controlled Substances Law.
(14) The Administrative Office of Courts shall have the right to inspect any youth court records in order that the number of youthful offenders, abused, neglected, truant and dependent children, as well as children in need of special care and children in need of supervision, may be tracked with specificity through the youth court and adult justice system, and to utilize tracking forms for such purpose.
(15) Upon a request by a youth court, the Administrative Office of Courts shall disclose all information at its disposal concerning any previous youth court intakes alleging that a child was a delinquent child, child in need of supervision, child in need of special care, truant child, abused child or neglected child, as well as any previous youth court adjudications for the same and all dispositional information concerning a child who at the time of such request comes under the jurisdiction of the youth court making such request.
(16) The Administrative Office of Courts may, in its discretion, disclose to the Department of Public Safety any or all of the information involving children contained in the office's youth court data management system known as Mississippi Youth Court Information Delivery System or "MYCIDS."
(17) The youth courts of the state shall disclose to the Joint Legislative Committee on Performance Evaluation and Expenditure Review (PEER) any youth court records in order that the number of youthful offenders, abused, neglected, truant and dependent children, as well as children in need of special care and children in need of supervision, may be tracked with specificity through the youth court and adult justice system, and to utilize tracking forms for such purpose. The disclosure prescribed in this subsection shall not require a court order and shall be made in sortable, electronic format where possible. The PEER Committee may seek the assistance of the Administrative Office of Courts in seeking this information. The PEER Committee shall not disclose the identities of any youth who have been adjudicated in the youth courts of the state and shall only use the disclosed information for the purpose of monitoring the effectiveness and efficiency of programs established to assist adjudicated youth, and to ascertain the incidence of adjudicated youth who become adult offenders.
(18) In every case where an abuse or neglect allegation has been made, the confidentiality provisions of this section shall not apply to prohibit access to a child's records by any state regulatory agency, any state or local prosecutorial agency or law enforcement agency; however, no identifying information concerning the child in question may be released to the public by such agency except as otherwise provided herein.
(19) In every case where
there is any indication or suggestion of either abuse or neglect and a child's
physical condition is medically labeled as medically "serious" or
"critical" or a child dies, the confidentiality provisions of this
section shall not apply. In cases of child deaths, the following information
may be released by the Mississippi Department of * * * Child Protection Services: (a)
child's name; (b) address or location; (c) verification from the Department of * * * Child Protection Services of case
status (no case or involvement, case exists, open or active case, case closed);
(d) if a case exists, the type of report or case (physical abuse, neglect,
etc.), date of intake(s) and investigation(s), and case disposition (substantiated
or unsubstantiated). Notwithstanding the aforesaid, the confidentiality
provisions of this section shall continue if there is a pending or planned
investigation by any local, state or federal governmental agency or
institution.
(20) Any member of a foster
care review board designated by the Department of * * * Child Protection Services shall
have the right to inspect youth court records relating to the abuse, neglect or
child in need of supervision cases assigned to such member for review.
(21) Information concerning
an investigation into a report of child abuse or child neglect may be disclosed
without further order of the youth court in any administrative or due process
hearing held, pursuant to Section 43-21-257, by the Department of * * * Child Protection Services for
individuals whose names will be placed on the central registry as substantiated
perpetrators.
SECTION 63. Section 43-21-301, Mississippi Code of 1972, is amended as follows:
43-21-301. (1) No court other than the youth court shall issue an arrest warrant or custody order for a child in a matter in which the youth court has exclusive original jurisdiction but shall refer the matter to the youth court.
(2) Except as otherwise
provided, no child in a matter in which the youth court has exclusive original
jurisdiction shall be taken into custody by a law enforcement officer, the
Department of * * *
Child Protection Services, or any other person unless the judge or his
designee has issued a custody order to take the child into custody.
(3) The judge or his
designee may require a law enforcement officer, the Department of * * * Child Protection Services, or any
suitable person to take a child into custody for a period not longer than forty-eight
(48) hours, excluding Saturdays, Sundays, and statutory state holidays.
(a) Custody orders under this subsection may be issued if it appears that there is probable cause to believe that:
(i) The child is within the jurisdiction of the court;
(ii) Custody is necessary because of any of the following reasons: the child is endangered, any person would be endangered by the child, to ensure the child's attendance in court at such time as required, or a parent, guardian or custodian is not available to provide for the care and supervision of the child; and
(iii) There is no reasonable alternative to custody.
(b) Custody orders under this subsection shall be written. In emergency cases, a judge or his designee may issue an oral custody order, but the order shall be reduced to writing within forty-eight (48) hours of its issuance.
(c) Each youth court judge shall develop and make available to law enforcement a list of designees who are available after hours, on weekends and on holidays.
(4) The judge or his designee may order, orally or in writing, the immediate release of any child in the custody of any person or agency. Except as otherwise provided in subsection (3) of this section, custody orders as provided by this chapter and authorizations of temporary custody may be written or oral, but, if oral, reduced to writing as soon as practicable. The written order shall:
(a) Specify the name and address of the child, or, if unknown, designate him or her by any name or description by which he or she can be identified with reasonable certainty;
(b) Specify the age of the child, or, if unknown, that he or she is believed to be of an age subject to the jurisdiction of the youth court;
(c) Except in cases where the child is alleged to be a delinquent child or a child in need of supervision, state that the effect of the continuation of the child's residing within his or her own home would be contrary to the welfare of the child, that the placement of the child in foster care is in the best interests of the child, and unless the reasonable efforts requirement is bypassed under Section 43-21-603(7)(c), also state that (i) reasonable efforts have been made to maintain the child within his or her own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or (ii) the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and that there is no reasonable alternative to custody. If the court makes a finding in accordance with (ii) of this paragraph, the court shall order that reasonable efforts be made towards the reunification of the child with his or her family;
(d) State that the child shall be brought immediately before the youth court or be taken to a place designated by the order to be held pending review of the order;
(e) State the date issued and the youth court by which the order is issued; and
(f) Be signed by the judge or his designee with the title of his office.
(5) The taking of a child into custody shall not be considered an arrest except for evidentiary purposes.
(6) (a) No child who has been accused or adjudicated of any offense that would not be a crime if committed by an adult shall be placed in an adult jail or lockup. An accused status offender shall not be held in secure detention longer than twenty-four (24) hours prior to and twenty-four (24) hours after an initial court appearance, excluding Saturdays, Sundays and statutory state holidays, except under the following circumstances: a status offender may be held in secure detention for violating a valid court order pursuant to the criteria as established by the federal Juvenile Justice and Delinquency Prevention Act of 2002, and any subsequent amendments thereto, and out-of-state runaways may be detained pending return to their home state.
(b) No accused or adjudicated juvenile offender, except for an accused or adjudicated juvenile offender in cases where jurisdiction is waived to the adult criminal court, shall be detained or placed into custody of any adult jail or lockup for a period in excess of six (6) hours.
(c) If any county violates the provisions of paragraph (a) or (b) of this subsection, the state agency authorized to allocate federal funds received pursuant to the Juvenile Justice and Delinquency Prevention Act of 1974, 88 Stat. 2750 (codified in scattered Sections of 5, 18, 42 USCS), shall withhold the county's share of such funds.
(d) Any county that does not have a facility in which to detain its juvenile offenders in compliance with the provisions of paragraphs (a) and (b) of this subsection may enter into a contractual agreement to detain or place into custody the juvenile offenders of that county with any county or municipality that does have such a facility, or with the State of Mississippi, or with any private entity that maintains a juvenile correctional facility.
(e) Notwithstanding the provisions of paragraphs (a), (b), (c) and (d) of this subsection, all counties shall be allowed a one-year grace period from March 27, 1993, to comply with the provisions of this subsection.
SECTION 64. Section 43-21-303, Mississippi Code of 1972, is amended as follows:
43-21-303. (1) No child in a matter in which the youth court has original exclusive jurisdiction shall be taken in custody by any person without a custody order except that:
(a) A law enforcement officer may take a child in custody if:
(i) Grounds exist for the arrest of an adult in identical circumstances; and
(ii) Such law
enforcement officer has probable cause to believe that custody is necessary as
defined in * * *
paragraph (d) of this subsection (1); and
(iii) Such law enforcement officer can find no reasonable alternative to custody; or
(b) A law enforcement officer or an agent of the department of public welfare may take a child into custody if:
(i) There is probable cause to believe that the child is in immediate danger of personal harm; and
(ii) Such law
enforcement officer or agent has probable cause to believe that immediate
custody is necessary as defined in Section * * * paragraph (d)
of this subsection (1); and
(iii) Such law
enforcement officer or agent can find no reasonable alternative to custody * * *; and
(c) Any other person may take a child in custody if grounds exist for the arrest of an adult in identical circumstances. Such other person shall immediately surrender custody of the child to the proper law enforcement officer who shall thereupon continue custody only as provided in subsection (1)(a) of this section.
(d) Custody shall be deemed necessary:
(i) When a child is endangered or any person would be endangered by the child; or
(ii) To insure the child's attendance in court at such time as required; or
(iii) When a parent, guardian or custodian is not available to provide for the care and supervision of the child.
(2) When it is necessary to take a child into custody, the least restrictive custody should be selected.
(3) Unless the child is immediately released, the person taking the child into custody shall immediately notify the judge or his designee. A person taking a child into custody shall also make continuing reasonable efforts to notify the child's parent, guardian or custodian and invite the parent, guardian or custodian to be present during any questioning.
(4) A child taken into custody shall not be held in custody for a period longer than reasonably necessary, but not to exceed twenty-four (24) hours, and shall be released to his parent, guardian or custodian unless the judge or his designee authorizes temporary custody.
SECTION 65. Section 43-21-351, Mississippi Code of 1972, is amended as follows:
43-21-351. (1) Any person or agency having knowledge that a child residing or being within the county is within the jurisdiction of the youth court may make a written report to the intake unit alleging facts sufficient to establish the jurisdiction of the youth court. The report shall bear a permanent number that will be assigned by the court in accordance with the standards established by the Administrative Office of Courts pursuant to Section 9-21-9(d), and shall be preserved until destroyed on order of the court.
(2) There shall be in each
youth court of the state an intake officer who shall be responsible for the
accurate and timely entering of all intake and case information into the
Mississippi Youth Court Information Delivery System (MYCIDS) for the Division
of Youth Services, truancy matters and the * * * Department
of Child Protection Services. It shall be the responsibility of the youth
court judge or referee of each county to ensure that the intake officer is
carrying out the responsibility of this section.
SECTION 66. Section 43-21-353, Mississippi Code of 1972, is amended as follows:
43-21-353. (1) Any
attorney, physician, dentist, intern, resident, nurse, psychologist, social
worker, family protection worker, family protection specialist, child
caregiver, minister, law enforcement officer, public or private school employee
or any other person having reasonable cause to suspect that a child is a
neglected child or an abused child, shall cause an oral report to be made
immediately by telephone or otherwise and followed as soon thereafter as
possible by a report in writing to the Department of * * * Child Protection Services, and
immediately a referral shall be made by the Department of * * * Child Protection Services to the
youth court intake unit, which unit shall promptly comply with Section 43-21-357.
In the course of an investigation, at the initial time of contact with the
individual(s) about whom a report has been made under this Youth Court Act or
with the individual(s) responsible for the health or welfare of a child about
whom a report has been made under this chapter, the Department of * * * Child Protection Services shall
inform the individual of the specific complaints or allegations made against
the individual. Consistent with subsection (4), the identity of the person who
reported his or her suspicion shall not be disclosed. Where appropriate, the
Department of * * *
Child Protection Services shall additionally make a referral to the
youth court prosecutor.
Upon receiving a report that
a child has been sexually abused, or burned, tortured, mutilated or otherwise
physically abused in such a manner as to cause serious bodily harm, or upon
receiving any report of abuse that would be a felony under state or federal
law, the Department of * * * Child Protection Services shall immediately notify the
law enforcement agency in whose jurisdiction the abuse occurred and shall
notify the appropriate prosecutor within forty-eight (48) hours, and the
Department of * * *
Child Protection Services shall have the duty to provide the law
enforcement agency all the names and facts known at the time of the report;
this duty shall be of a continuing nature. The law enforcement agency and the
Department of * * *
Child Protection Services shall investigate the reported abuse
immediately and shall file a preliminary report with the appropriate
prosecutor's office within twenty-four (24) hours and shall make additional
reports as new or additional information or evidence becomes available. The
Department of * * *
Child Protection Services shall advise the clerk of the youth court and
the youth court prosecutor of all cases of abuse reported to the department
within seventy-two (72) hours and shall update such report as information
becomes available.
(2) Any report to the
Department of * * *
Child Protection Services shall contain the names and addresses of the
child and his parents or other persons responsible for his care, if known, the
child's age, the nature and extent of the child's injuries, including any
evidence of previous injuries * * *, any other information that might
be helpful in establishing the cause of the injury, and the identity of
the perpetrator.
(3) The Department of * * * Child Protection Services shall
maintain a statewide incoming wide-area telephone service or similar service
for the purpose of receiving reports of suspected cases of child abuse;
provided that any attorney, physician, dentist, intern, resident, nurse,
psychologist, social worker, family protection worker, family protection
specialist, child caregiver, minister, law enforcement officer or public or
private school employee who is required to report under subsection (1) of this
section shall report in the manner required in subsection (1).
(4) Reports of abuse and neglect made under this chapter and the identity of the reporter are confidential except when the court in which the investigation report is filed, in its discretion, determines the testimony of the person reporting to be material to a judicial proceeding or when the identity of the reporter is released to law enforcement agencies and the appropriate prosecutor pursuant to subsection (1). Reports made under this section to any law enforcement agency or prosecutorial officer are for the purpose of criminal investigation and prosecution only and no information from these reports may be released to the public except as provided by Section 43-21-261. Disclosure of any information by the prosecutor shall be according to the Mississippi Uniform Rules of Circuit and County Court Procedure. The identity of the reporting party shall not be disclosed to anyone other than law enforcement officers or prosecutors without an order from the appropriate youth court. Any person disclosing any reports made under this section in a manner not expressly provided for in this section or Section 43-21-261 shall be guilty of a misdemeanor and subject to the penalties prescribed by Section 43-21-267.
(5) All final dispositions
of law enforcement investigations described in subsection (1) of this section
shall be determined only by the appropriate prosecutor or court. All final
dispositions of investigations by the Department of * * * Child Protection Services as
described in subsection (1) of this section shall be determined only by the
youth court. Reports made under subsection (1) of this section by the
Department of * * *
Child Protection Services to the law enforcement agency and to the
district attorney's office shall include the following, if known to the
department:
(a) The name and address of the child;
(b) The names and addresses of the parents;
(c) The name and address of the suspected perpetrator;
(d) The names and addresses of all witnesses, including the reporting party if a material witness to the abuse;
(e) A brief statement of the facts indicating that the child has been abused and any other information from the agency files or known to the family protection worker or family protection specialist making the investigation, including medical records or other records, which may assist law enforcement or the district attorney in investigating and/or prosecuting the case; and
(f) What, if any,
action is being taken by the Department of * * * Child Protection Services.
(6) In any investigation of
a report made under this chapter of the abuse or neglect of a child as defined
in Section 43-21-105(m), the Department of * * * Child Protection Services may
request the appropriate law enforcement officer with jurisdiction to accompany
the department in its investigation, and in such cases the law enforcement
officer shall comply with such request.
(7) Anyone who willfully violates any provision of this section shall be, upon being found guilty, punished by a fine not to exceed Five Thousand Dollars ($5,000.00), or by imprisonment in jail not to exceed one (1) year, or both.
(8) If a report is made
directly to the Department of * * * Child Protection Services that a
child has been abused or neglected in an out-of-home setting, a referral shall
be made immediately to the law enforcement agency in whose jurisdiction the
abuse occurred and the department shall notify the district attorney's office
within forty-eight (48) hours of such report. The Department of * * * Child Protection Services shall
investigate the out-of-home setting report of abuse or neglect to determine
whether the child who is the subject of the report, or other children in the
same environment, comes within the jurisdiction of the youth court and shall
report to the youth court the department's findings and recommendation as to
whether the child who is the subject of the report or other children in the
same environment require the protection of the youth court. The law
enforcement agency shall investigate the reported abuse immediately and shall
file a preliminary report with the district attorney's office within forty-eight
(48) hours and shall make additional reports as new information or evidence
becomes available. If the out-of-home setting is a licensed facility, an
additional referral shall be made by the Department of * * * Child Protection Services to the
licensing agency. The licensing agency shall investigate the report and shall
provide the Department of * * * Human Child Protection Services, the law enforcement
agency and the district attorney's office with their written findings from such
investigation as well as that licensing agency's recommendations and actions
taken.
(9) If a child protective investigation does not result in an out-of-home placement, a child protective investigator must provide information to the parent or guardians about community service programs that provide respite care, voluntary guardianship or other support services for families in crisis.
SECTION 67. Section 43-21-354, Mississippi Code of 1972, is amended as follows:
43-21-354. The statewide
incoming wide area telephone service established pursuant to Section 43-21-353,
Mississippi Code of 1972, shall be maintained by the Department of * * *
Child
Protection Services, on a twenty-four-hour seven (7) days a week basis.
SECTION 68. Section 43-21-357, Mississippi Code of 1972, is amended as follows:
43-21-357. (1) After
receiving a report, the youth court intake unit shall promptly make a
preliminary inquiry to determine whether the interest of the child, other
children in the same environment or the public requires the youth court to take
further action. As part of the preliminary inquiry, the youth court intake
unit may request or the youth court may order the Department of * * * Child Protection Services, the
Department of Youth Services, any successor agency or any other qualified
public employee to make an investigation or report concerning the child and any
other children in the same environment, and present the findings thereof to the
youth court intake unit. If the youth court intake unit receives a neglect or
abuse report, the youth court intake unit shall immediately forward the
complaint to the Department of * * * Child Protection Services to
promptly make an investigation or report concerning the child and any other
children in the same environment and promptly present the findings thereof to
the youth court intake unit. If it appears from the preliminary inquiry that
the child or other children in the same environment are within the jurisdiction
of the court, the youth court intake unit shall recommend to the youth court:
(a) That the youth court take no action;
(b) That an informal adjustment be made;
(c) The Department of * * *
Child Protection Services, monitor the child, family and other children
in the same environment;
(d) That the child is warned or counseled informally;
(e) That the child be referred to the youth court drug court; or
(f) That a petition be filed.
(2) The youth court shall then, without a hearing:
(a) Order that no action be taken;
(b) Order that an informal adjustment be made;
(c) Order that the Department of Human Services, Division of Family and Children Services, monitor the child, family and other children in the same environment;
(d) Order that the child is warned or counseled informally;
(e) That the child be referred to the youth court drug court; or
(f) Order that a petition be filed.
(3) If the preliminary inquiry discloses that a child needs emergency medical treatment, the judge may order the necessary treatment.
SECTION 69. Section 43-21-603, Mississippi Code of 1972, is amended as follows:
43-21-603. (1) At the beginning of each disposition hearing, the judge shall inform the parties of the purpose of the hearing.
(2) All testimony shall be under oath unless waived by all parties and may be in narrative form. The court may consider any evidence that is material and relevant to the disposition of the cause, including hearsay and opinion evidence. At the conclusion of the evidence, the youth court shall give the parties an opportunity to present oral argument.
(3) If the child has been adjudicated a delinquent child, before entering a disposition order, the youth court should consider, among others, the following relevant factors:
(a) The nature of the offense;
(b) The manner in which the offense was committed;
(c) The nature and number of a child's prior adjudicated offenses;
(d) The child's need for care and assistance;
(e) The child's current medical history, including medication and diagnosis;
(f) The child's mental health history, which may include, but not be limited to, the Massachusetts Youth Screening Instrument version 2 (MAYSI-2);
(g) Copies of the child's cumulative record from the last school of record, including special education records, if applicable;
(h) Recommendation from the school of record based on areas of remediation needed;
(i) Disciplinary records from the school of record; and
(j) Records of disciplinary actions outside of the school setting.
(4) If the child has been adjudicated a child in need of supervision, before entering a disposition order, the youth court should consider, among others, the following relevant factors:
(a) The nature and history of the child's conduct;
(b) The family and home situation; and
(c) The child's need of care and assistance.
(5) If the child has been adjudicated a neglected child or an abused child, before entering a disposition order, the youth court shall consider, among others, the following relevant factors:
(a) The child's physical and mental conditions;
(b) The child's need of assistance;
(c) The manner in which the parent, guardian or custodian participated in, tolerated or condoned the abuse, neglect or abandonment of the child;
(d) The ability of a child's parent, guardian or custodian to provide proper supervision and care of a child; and
(e) Relevant testimony and recommendations, where available, from the foster parent of the child, the grandparents of the child, the guardian ad litem of the child, representatives of any private care agency that has cared for the child, the family protection worker or family protection specialist assigned to the case, and any other relevant testimony pertaining to the case.
(6) After consideration of all the evidence and the relevant factors, the youth court shall enter a disposition order that shall not recite any of the facts or circumstances upon which the disposition is based, nor shall it recite that a child has been found guilty; but it shall recite that a child is found to be a delinquent child, a child in need of supervision, a neglected child or an abused child.
(7) If the youth court
orders that the custody or supervision of a child who has been adjudicated
abused or neglected be placed with the Department of * * * Child Protection Services or any
other person or public or private agency, other than the child's parent,
guardian or custodian, the youth court shall find and the disposition order
shall recite that:
(a) (i) Reasonable efforts have been made to maintain the child within his own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or
(ii) The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and that there is no reasonable alternative to custody; and
(b) That the effect of the continuation of the child's residence within his own home would be contrary to the welfare of the child and that the placement of the child in foster care is in the best interests of the child; or
(c) Reasonable efforts to maintain the child within his home shall not be required if the court determines that:
(i) The parent has subjected the child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse and sexual abuse; or
(ii) The parent has been convicted of murder of another child of that parent, voluntary manslaughter of another child of that parent, aided or abetted, attempted, conspired or solicited to commit that murder or voluntary manslaughter, or a felony assault that results in the serious bodily injury to the surviving child or another child of that parent; or
(iii) The parental rights of the parent to a sibling have been terminated involuntarily; and
(iv) That the effect of the continuation of the child's residence within his own home would be contrary to the welfare of the child and that placement of the child in foster care is in the best interests of the child.
Once the reasonable efforts requirement is bypassed, the court shall have a permanency hearing under Section 43-21-613 within thirty (30) days of the finding.
(8) Upon a written motion by a party, the youth court shall make written findings of fact and conclusions of law upon which it relies for the disposition order. If the disposition ordered by the youth court includes placing the child in the custody of a training school, an admission packet shall be prepared for the child that contains the following information:
(a) The child's current medical history, including medications and diagnosis;
(b) The child's mental health history;
(c) Copies of the child's cumulative record from the last school of record, including special education records, if reasonably available;
(d) Recommendation from the school of record based on areas of remediation needed;
(e) Disciplinary records from the school of record; and
(f) Records of disciplinary actions outside of the school setting, if reasonably available.
Only individuals who are permitted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) shall have access to a child's medical records which are contained in an admission packet. The youth court shall provide the admission packet to the training school at or before the child's arrival at the training school. The admittance of any child to a training school shall take place between the hours of 8:00 a.m. and 3:00 p.m. on designated admission days.
(9) When a child in the
jurisdiction of the Youth Court is committed to the custody of the Mississippi
Department of * * *
Child Protection Services and is believed to be in need of treatment for
a mental or emotional disability or infirmity, the Department of * * * Child Protection Services shall
file an affidavit alleging that the child is in need of mental health services
with the Youth Court. The Youth Court shall refer the child to the appropriate
community mental health center for evaluation pursuant to Section 41-21-67. If
the prescreening evaluation recommends residential care, the Youth Court shall
proceed with civil commitment pursuant to Sections 41-21-61 et seq., 43-21-315
and 43-21-611, and the Department of Mental Health, once commitment is ordered,
shall provide appropriate care, treatment and services for at least as many
adolescents as were provided services in fiscal year 2004 in its facilities.
(10) Any screening and assessment examinations ordered by the court may aid in dispositions related to delinquency, but no statements or admissions made during the course thereof may be admitted into evidence against the child on the issue of whether the child committed a delinquent act.
SECTION 70. Section 43-21-609, Mississippi Code of 1972, is amended as follows:
43-21-609. In neglect and abuse cases, the disposition order may include any of the following alternatives, giving precedence in the following sequence:
(a) Release the child without further action;
(b) Place the child in
the custody of his parents, a relative or other person subject to any
conditions and limitations as the court may prescribe. If the court finds that
temporary relative placement, adoption or foster care placement is
inappropriate, unavailable or otherwise not in the best interest of the child,
durable legal custody may be granted by the court to any person subject to any
limitations and conditions the court may prescribe; such durable legal custody
will not take effect unless the child or children have been in the physical
custody of the proposed durable custodians for at least one (1) year under the
supervision of the Department of * * * Child Protection Services. The
requirements of Section 43-21-613 as to disposition review hearings does not
apply to those matters in which the court has granted durable legal custody.
In such cases, the Department of * * * Child Protection Services shall
be released from any oversight or monitoring responsibilities;
(c) Order terms of treatment calculated to assist the child and the child's parent, guardian or custodian which are within the ability of the parent, guardian or custodian to perform;
(d) Order youth court personnel, the Department of Human Services or child care agencies to assist the child and the child's parent, guardian or custodian to secure social or medical services to provide proper supervision and care of the child;
(e) Give legal custody of the child to any of the following but in no event to any state training school:
(i) The Department
of * * * Child
Protection Services for appropriate placement; or
(ii) Any private or public organization, preferably community-based, able to assume the education, care and maintenance of the child, which has been found suitable by the court. Prior to assigning the custody of any child to any private institution or agency, the youth court through its designee shall first inspect the physical facilities to determine that they provide a reasonable standard of health and safety for the child;
(f) If the court makes a finding that custody is necessary as defined in Section 43-21-301(3)(b), and that the child, in the action pending before the youth court had not previously been taken into custody, the disposition order shall recite that the effect of the continuation of the child's residing within his or her own home would be contrary to the welfare of the child, that the placement of the child in foster care is in the best interests of the child, and unless the reasonable efforts requirement is bypassed under Section 43-21-603(7)(c), the order also must state:
(i) That reasonable efforts have been made to maintain the child within his or her own home, but that the circumstances warrant his or her removal, and there is no reasonable alternative to custody; or
(ii) The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his or her own home, and there is no reasonable alternative to custody; or
(iii) If the court
makes a finding in accordance with (ii) of this paragraph, the court shall
order that reasonable efforts be made towards the reunification of the child
with his or her family * * *;
(g) If the court had,
before the disposition hearing in the action pending before the court, taken
the child into custody, the judge or referee shall determine, and the youth
court order shall recite that reasonable efforts were made by the Department of * * * Child Protection Services to
finalize the child's permanency plan that was in effect on the date of the
disposition hearing.
SECTION 71. Section 43-21-613, Mississippi Code of 1972, is amended as follows:
43-21-613. (1) If the youth court finds, after a hearing which complies with the sections governing adjudicatory hearings, that the terms of a delinquency or child in need of supervision disposition order, probation or parole have been violated, the youth court may, in its discretion, revoke the original disposition and make any disposition which it could have originally ordered. The hearing shall be initiated by the filing of a petition that complies with the sections governing petitions in this chapter and that includes a statement of the youth court's original disposition order, probation or parole, the alleged violation of that order, probation or parole, and the facts which show the violation of that order, probation or parole. Summons shall be served in the same manner as summons for an adjudicatory hearing.
(2) On motion of a child or a child's parent, guardian or custodian, the youth court may, in its discretion, conduct an informal hearing to review the disposition order. If the youth court finds a material change of circumstances relating to the disposition of the child, the youth court may modify the disposition order to any appropriate disposition of equal or greater precedence which the youth court could have originally ordered.
(3) (a) Unless the youth court's jurisdiction has been terminated, all disposition orders for supervision, probation or placement of a child with an individual or an agency shall be reviewed by the youth court judge or referee at least annually to determine if continued placement, probation or supervision is in the best interest of the child or the public. For children who have been adjudicated abused or neglected, the youth court shall conduct a permanency hearing within twelve (12) months after the earlier of:
(i) An adjudication that the child has been abused or neglected; or
(ii) The date of
the child's removal from the allegedly abusive or neglectful custodian/parent.
Notice of such hearing shall be given in accordance with the provisions of
Section 43-21-505(5). In conducting the hearing, the judge or referee shall
require a written report and may require information or statements from the
child's youth court counselor, parent, guardian or custodian, which includes,
but is not limited to, an evaluation of the child's progress and
recommendations for further supervision or treatment. The judge or referee shall,
at the permanency hearing determine the future status of the child, including,
but not limited to, whether the child should be returned to the parent(s) or
placed with suitable relatives, placed for adoption, placed for the purpose of
establishing durable legal custody or should, because of the child's special
needs or circumstances, be continued in foster care on a permanent or long-term
basis. If the child is in an out-of-state placement, the hearing shall
determine whether the out-of-state placement continues to be appropriate and in
the best interest of the child. At the permanency hearing the judge or referee
shall determine, and the youth court order shall recite that reasonable efforts
were made by the Department of * * * Child Protection Services to
finalize the child's permanency plan that was in effect on the date of the
permanency hearing. The judge or referee may find that reasonable efforts to
maintain the child within his home shall not be required in accordance with
Section 43-21-603(7)(c), and that the youth court shall continue to conduct
permanency hearings for a child who has been adjudicated abused or neglected,
at least annually thereafter, for as long as the child remains in the custody
of the Mississippi Department of * * * Child Protection Services.
(b) The court may find that the filing of a termination of parental rights petition is not in the child's best interest if:
(i) The child is being cared for by a relative; and/or
(ii) The
Department of * * *
Child Protection Services has documented compelling and extraordinary
reasons why termination of parental rights would not be in the best interests
of the child.
(c) The provisions of this subsection shall also apply to review of cases involving a dependent child; however, such reviews shall take place not less frequently than once each one hundred eighty (180) days. A dependent child shall be ordered by the youth court judge or referee to be returned to the custody and home of the child's parent, guardian or custodian unless the judge or referee, upon such review, makes a written finding that the return of the child to the home would be contrary to the child's best interests.
(d) Reviews are not
to be conducted unless explicitly ordered by the youth court concerning those
cases in which the court has granted durable legal custody. In such cases, the
Department of * * *
Child Protection Services shall be released from any oversight or
monitoring responsibilities, and relieved of physical and legal custody and
supervision of the child.
SECTION 72. This act shall take effect and be in force from and after July 1, 2017.
