Does Mississippi's Fresh Start Act let a person with a serious felony become a licensed nursing home administrator?
Plain-English summary
Mississippi's State Board of Nursing Home Administrators asked the AG whether the 2019 Fresh Start Act, Miss. Code Ann. §§ 73-77-1 et seq., overrode the Board's existing felony-bar and good-moral-character licensing rules. Under Miss. Code Ann. § 73-17-11(1), an applicant must show good moral character and submit a recent criminal-background check under § 43-11-13. That latter section, § 43-11-13(5)(c), specifies a list of serious felonies (drug possession or sale, murder, manslaughter, armed robbery, rape, sexual battery, child abuse, arson, grand larceny, burglary, gratification of lust, aggravated assault, and felonious abuse or battery of a vulnerable adult) that automatically disqualify a person from being employed by a covered entity such as a nursing home.
The AG concluded that § 43-11-13(5)(c) and the moral-character requirement of § 73-17-11(1) are "applicable state law" that exempt the Board from Fresh Start Act §§ 73-77-5 and 73-77-7(1). Both Fresh Start Act provisions begin with "absent applicable state law," and the Board's enabling and ancillary statutes squarely qualified.
The petition right under § 73-77-9 was preserved without exception. Anyone with a criminal record could petition the Board for a pre-application determination on disqualification, applicants and non-applicants alike, and the Board had 30 days to inform the petitioner of his or her standing.
The AG flagged one practical limit: it could not interpret federal law, so the opinion addressed only Mississippi statutes and did not contemplate federal eligibility requirements that may also apply to nursing home administrators.
Currency note
This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
The Fresh Start Act of 2019 (SB 2781) was Mississippi's contribution to a nationwide push to lower licensing barriers for people with criminal records. The Act has three operative pieces: § 73-77-5 (no disqualification absent direct relation between conviction and the licensed occupation), § 73-77-7(1) (no vague terms like "moral turpitude" or "any felony"), and § 73-77-9 (universal petition right with 30-day response and $25 fee cap). The first two are subject to "absent applicable state law."
For nursing home administrators, two preexisting statutes did the work the Fresh Start Act would otherwise have undone:
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§ 73-17-11(1) sets the licensure prerequisites, including (b) good moral character and (g) submission of a recent criminal-background check under § 43-11-13. The "good moral character" requirement triggers § 73-77-7(1)'s vague-term restriction, but the carve-out preserves it.
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§ 43-11-13(5)(c) disqualifies applicants for "covered entity" employment if a criminal-history check shows specific serious felonies that have not been reversed or pardoned. The list is the substantive heart of the disqualification: drug possession or sale, murder, manslaughter, armed robbery, rape, sexual battery, sex offenses listed in § 45-44-34(h), child abuse, arson, grand larceny, burglary, gratification of lust, aggravated assault, and felonious abuse or battery of a vulnerable adult. These are not "vague" categories; they are specific statutory crimes.
The AG also noted that nursing home administrators in Mississippi may be subject to federal eligibility requirements (the federal Nursing Home Reform Act and the Centers for Medicare & Medicaid Services regulations both touch this), but AG opinions are limited to questions of state law. The Board would need to consult its own counsel or federal regulators on federal-law overlay questions.
The petition right under § 73-77-9 remains intact for nursing home administrator candidates. A person concerned that their record disqualifies them can file a petition, supply criminal-record details, and receive a determination on standing within 30 days, with no more than a $25 fee.
Common questions
Q: Does this opinion close every door for someone with a felony conviction?
A: For the felonies enumerated in § 43-11-13(5)(c), yes. Those are absolute disqualifiers from covered-entity employment under Mississippi law. For other convictions, the Board still has to exercise factual judgment, applying the "good moral character" test and the directly-related test from the Fresh Start Act backstop where it applies.
Q: Could a federal pardon or reversal cure disqualification?
A: Section 43-11-13(5)(c) excludes convictions that have been "reversed on appeal or for which a pardon has not been granted." A pardon or reversal removes the absolute bar. The Board would still apply its discretionary good-moral-character review.
Q: How long does a felony stay disqualifying?
A: The opinion does not impose a time limit on the § 43-11-13(5)(c) bar. Unlike the social-work statute, which has a 10-year felony-related-to-practice clause, the nursing home disqualifier is open-ended for the listed crimes.
Q: What about the AG's note that it cannot interpret federal law?
A: It is a reminder. Even if a Mississippi applicant cleared the Board's state-law analysis, federal Medicare and Medicaid rules can still bar an individual from working in a federally certified nursing home. Counsel should review both layers.
Q: Does the Board still have to handle § 73-77-9 petitions if the answer is "automatically disqualified"?
A: Yes. The petition right runs without the "absent applicable state law" carve-out. The Board still has to receive the petition, charge no more than $25, and inform the petitioner of his or her standing within 30 days. The standing determination might just be straightforward where § 43-11-13(5)(c) applies.
Citations and references
Statutes:
- Miss. Code Ann. § 73-77-1 et seq. (Fresh Start Act of 2019, SB 2781)
- Miss. Code Ann. § 73-77-5 (Disqualification limited to directly related convictions)
- Miss. Code Ann. § 73-77-7(1) (Prohibits vague terms; limits criminal-record review)
- Miss. Code Ann. § 73-77-9(1) (Petition right, 30-day response, $25 fee cap)
- Miss. Code Ann. § 73-17-11(1) (Nursing home administrator licensure prerequisites)
- Miss. Code Ann. § 43-11-13(5)(c) (Felony bar from covered-entity employment)
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/C.Rowden_January-30-2020-Fresh-Start-Act-of-2019-1.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
ATTORNEY GENERAL
OPINIONS DIVISION
January 30, 2020
Carrie Rowden
Executive Director
Mississippi State Board of
Nursing Home Administrators
1755 Lelia Drive, Suite 305
Jackson, Mississippi 39206
Re: Fresh Start Act of 2019
Dear Ms. Rowden:
Attorney General Lynn Fitch has received your opinion request on behalf of the Mississippi State Board of Nursing Home Administrators ("the Board") and has assigned it to me for research and reply.
Questions Presented
Due to the length of your request and the number of questions presented, a copy of the same is attached hereto.
Response
Your request seeks an interpretation of the Fresh Start Act of 2019, Miss. Code Ann. Sections 73-77-1, et seq. ("the Act"), primarily by reference to hypothetical scenarios. This office cannot issue an opinion with regard to those scenarios which are not specifically addressed by the Act. Furthermore, this office is precluded from interpreting federal law; thus, this opinion is solely limited to state statute and does not contemplate eligibility requirements imposed by federal law. See Section 73-17-11(1)(g), Miss. Code Ann.
Subject to the above and foregoing, this office provides the following in response to your request.
Question: Is Miss. Code Ann. Section 73-77-5 applicable where a Board's enabling statute allows for denial of licensure or the imposition of discipline based on the conviction of any crime or felony?
Response: Section 73-77-5 of the Act provides as follows:
Absent applicable state law, no person shall be disqualified from pursuing, practicing, or engaging in any occupation for which a license is required solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation.
(Emphasis added).
If the Board's enabling statute prohibits the issuance of a license based upon a prior criminal conviction, then "applicable state law" would exempt the Board from the requirements of the above-cited section. However, if no such "applicable state law" exists, then the Board must comply with Section 73-77-5 of the Act.
Among the eligibility requirements of Section 73-17-11(1), Miss. Code Ann., an individual must submit evidence of a criminal background check within the last six (6) months under Section 43-11-13.
Section 43-11-13(5)(c) provides, in relevant part:
If the criminal history record check discloses a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sex offense listed in Section 45-44-34(h), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault, or felonious abuse and/or battery of a vulnerable adult that has not been reversed on appeal or for which a pardon has not been granted, the employee applicant shall not be eligible to be employed by a covered entity.
Based upon the above-cited statutes, it is this office's opinion that "applicable state law" exists which exempts the Board from Section 73-77-5 of the Act. A determination of whether an applicant has met the requirements of the applicable statute(s) is a factual determination to be made by the Board.
Question: Are licensing boards to interpret Section 73-77-7(1) as "not applicable" or "controlling" when a Board's enabling statute authorizes boards to deny licensure based upon a determination of good moral character or upon a conviction of any crime involving moral turpitude?
Response: Section 73-77-7(1) of the Act states:
(1) Absent applicable state law, licensing authorities shall not have in any rulemaking for their qualifications for licensure vague or generic terms including, but not limited to, "moral turpitude," "any felony," and "good character." Absent applicable state law, licensing authorities may only consider criminal records that are specific and directly related to the duties and responsibilities for the licensed occupation when evaluating applicants.
(Emphasis added).
Among the eligibility requirements of Section 73-17-11(1), Miss. Code Ann., an individual must submit evidence satisfactory to the board that he or she "is of good moral character." Based upon the Board's enabling statute, it is this office's opinion that "applicable state law" exists which exempts the Board from Section 73-77-7(1) of the Act. A determination of whether an applicant has met the qualification as set forth by the statute is a factual determination to be made by the Board.
Question: Is Section 73-77-9 applicable only when an individual has filed an application for license or may an individual who has not filed an application for license, petition at any time for a determination of criminal record disqualification?
Response: Section 73-77-9(1) of the Act provides as follows:
Absent applicable state law, an individual with a criminal record may petition a licensing authority at any time for a determination of whether the individual's criminal record will disqualify the individual from obtaining a license. This petition shall include details on the individual's criminal records. The licensing authority shall inform the individual of his standing within thirty (30) days of receiving the petition from the applicant. The licensing authority may charge a fee to recoup its costs not to exceed Twenty-Five Dollars ($25.00) for each petition.
(Emphasis added).
Section 73-77-9(1), Miss. Code Ann., does not differentiate between applicants and non-applicants, but refers only to "an individual." Thus, the above-cited section applies to both applicants and non-applicants alike.
Question: What type of response is required of the licensing Board within thirty (30) days of receiving the petition regarding the criminal record disqualification?
Response: Section 73-77-9(1) of the Act provides, in part, as follows:
The licensing authority shall inform the individual of his standing within thirty (30) days of receiving the petition from the applicant.
The Act is not specific as to the "type" of required response, requiring only that the individual be informed of his or her "standing" within thirty (30) days.
Question: If Section 73-77-9 is applicable to non-licensure applicants, does subsection 2 require a hearing for the non-licensing applicants?
Response: As stated above, Section 73-77-9(1) of the Act is applicable to both applicants and non-applicants alike. Thus, the remaining provisions of this section would likewise apply to both applicants and non-applicants.
If we may be of further service, please let us know.
Very truly yours,
LYNN FITCH, ATTORNEY GENERAL
By: Tommy D. Goodwin
Special Assistant Attorney General
Attachment