Does Mississippi's Department of Mental Health have to certify any county jail or county hospital that holds someone awaiting transfer to a state mental health facility?

Plain-English summary

The Executive Director of the Mississippi Department of Mental Health asked the AG to clarify how the certification system for county holding facilities works. Two statutes overlap: § 41-21-77(1), which speaks to certification of county facilities used to hold involuntarily committed people, and § 41-4-7(kk), which gives the State Board of Mental Health power to set certification standards.

The AG's answer divides the labor:

• The State Board of Mental Health (a separate body from the Department) "certif[ies] and establish[es] minimum standards and minimum required services" under § 41-4-7(kk). Think of the Board as the standard-setter.
• The Department of Mental Health ("DMH") is the operational arm that has to actually certify any county facility used to hold involuntarily committed people. Its duty is mandatory: § 41-21-77(1) says such facilities "shall be certified" by DMH.
• The duty kicks in when a county actually uses the facility for this purpose, not before. DMH does not have to proactively certify every county jail or hospital in case it might someday be used. Counties decide which facilities they use, and once used, certification becomes mandatory.
• There is no exception for county hospitals. § 41-21-77(1) applies to "[a]ny county facility" used for housing, maintenance, and medical treatment of involuntarily committed people. County jails, county hospitals, and any other county facility used in this way must be certified.
• If a facility falls short, DMH gives a six-month probationary period. After that, DMH may revoke certification and require the county to contract with another county that has a certified facility.

The opinion also reminds the Department of the longstanding rule that "a mentally ill person awaiting a competency hearing or awaiting admission to a mental institution should not be held in a jail unless the court determines that there is no reasonable alternative" (citing § 41-21-67(4) and a 1995 AG opinion).

What this means for you

If you are an administrator at the Mississippi Department of Mental Health

Your role is mandatory, not discretionary. When a county facility is used to hold involuntarily committed people pending state transfer, you must certify it. Practical implications:

1. Maintain a current list of which counties are actually using which facilities. The certification duty turns on use, not on facility existence.
2. Coordinate with the State Board of Mental Health on standards. The Board sets them; you apply them.
3. Document inspections and findings. When you find deficiencies, the statute gives the county six months to fix them. Track that clock carefully.
4. Use the contracting remedy when probation fails. § 41-4-7(kk) lets you pull certification and require the county to contract with a certified neighbor. This is a real tool, not a paper threat.

If you are a sheriff or jail administrator

If your jail is being used to hold people awaiting transfer to a state mental health facility, expect DMH to certify (or seek to certify) it. The standards are set by the State Board of Mental Health. Two rules of thumb:

1. Holding people with serious mental illness in a county jail should be the last resort. § 41-21-67(4) and prior AG opinions caution against it absent a court finding that there is no reasonable alternative.
2. If you are doing it, expect the certification process. Plan for inspections, work to meet the minimum standards and minimum required services, and treat the six-month probationary period as a real deadline.

If you are a hospital administrator at a county-owned hospital

The opinion is direct: there is no exemption for county hospitals. If your hospital holds involuntarily committed individuals awaiting transfer to a state treatment facility, your hospital is subject to the certification regime under § 41-21-77(1). Coordinate with DMH and the State Board to understand what standards apply to a hospital setting (which may differ from a jail setting).

The opinion also flags the Legislature's intent that "county-owned hospitals work with regional community mental health/intellectual disability centers in providing care to local patients." Building those partnerships may improve quality of care and your standing during certification reviews.

If you are a county attorney or county supervisor

Two things to manage:

1. Decisions about which facilities to use are the county's call. But once you make that decision, you trigger DMH's mandatory certification duty.
2. If certification is revoked, your county must contract with a certified facility in another county. That has costs (transportation, contract terms, accountability for in-transit and in-custody care). It is far cheaper to fix deficiencies during the six-month probation than to lose certification.

If you are an attorney for an involuntarily committed person or a family member

The certification regime exists to protect basic care standards in county facilities. If your loved one is being held in a non-certified facility, or in a facility that has been deficient and not corrected, that may be relevant to a habeas or civil rights claim. The standards themselves come from the State Board of Mental Health.

Common questions

Q: What's the difference between "the State Board of Mental Health" and "the Department of Mental Health"?
A: The Board is a policymaking body that sets statewide standards. The Department is the operational agency that runs services and applies standards. § 41-4-7(kk) gives the Board the power to set certification standards for county holding facilities; § 41-21-77(1) makes the Department the certifying agency for facilities actually used to hold involuntarily committed people.

Q: Does DMH have to certify every county jail in Mississippi?
A: No. DMH must certify those that are actually used to hold involuntarily committed people pending transfer. If a county does not use its jail for this purpose, DMH has no proactive certification duty for that jail.

Q: What if a county hospital admits an involuntarily committed person but doesn't think of itself as a "holding facility"?
A: Use, not labeling, controls. If the hospital is being used for housing, maintenance, and medical treatment for involuntarily committed people pending transfer to a state treatment facility, certification under § 41-21-77(1) is mandatory.

Q: What standards have to be met for certification?
A: § 41-4-7(kk) authorizes the State Board to "certify and establish minimum standards and minimum required services" for these facilities. Specific standards are in Board policies and rules, not in this AG opinion. Contact DMH for the current standards.

Q: What happens if a county facility fails inspection?
A: § 41-4-7(kk) gives a six-month probationary period to come up to standards. If the facility still doesn't meet the standards after probation, DMH "may remove the certification of the county or provider and require the county to contract with another county having a certified facility."

Q: Is "shall" really mandatory?
A: Yes. The Mississippi Supreme Court in Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006), said: "Simply stated, 'shall' is mandatory, while 'may' is discretionary." The AG used that rule to read § 41-21-77(1)'s "shall be certified" as a mandatory duty.

Q: Can a county hold someone with mental illness in jail at all?
A: A 1995 AG opinion (Glennis) and § 41-21-67(4) say a person awaiting a competency hearing or admission to a mental institution should not be held in jail unless the court finds there is no reasonable alternative. It is a last resort, not a routine practice.

Background and statutory framework

Mississippi's involuntary commitment system relies on a network of state and county facilities. A person who is involuntarily committed by a court must be transported to a state treatment facility (such as Mississippi State Hospital or East Mississippi State Hospital). In the meantime, the person is often held in a county facility, sometimes a jail, sometimes a hospital, until transport is available.

The Legislature recognized that holding mentally ill people in non-mental-health settings creates risk and built in a quality-control system. § 41-4-7(kk) gives the State Board of Mental Health the standard-setting role: defining "minimum standards and minimum required services" for these facilities. § 41-21-77(1) makes certification mandatory for facilities actually used. The Department of Mental Health is the operational certifier.

The interaction with § 41-21-67(4) (the "no reasonable alternative" rule for jails) is important. The certification scheme does not bless the use of jails; it acknowledges that jails are sometimes used and ensures the state knows about and inspects those uses. Counties remain under pressure (legal and ethical) to find alternatives, particularly community mental health centers, before defaulting to jail holding.

The opinion makes clear that if certification is revoked, the county does not get to keep using the facility informally. It must contract with a certified facility in another county. That gives the certification system real teeth.

Citations and references

Statutes:
- Miss. Code Ann. § 41-21-77(1) (certification of county facilities used for housing, maintenance, and medical treatment of involuntarily committed persons)
- Miss. Code Ann. § 41-21-67(4) (mentally ill person should not be held in jail absent court finding of no reasonable alternative)
- Miss. Code Ann. § 41-4-7(kk) (State Board of Mental Health authority to set minimum standards and required services for county holding facilities)

Case:
- Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006) (Mississippi Supreme Court, holding "shall" is mandatory and "may" is discretionary)

Prior AG opinion referenced:
- MS AG Op., Glennis (July 7, 1995): mentally ill person awaiting commitment should not be held in jail absent court finding of no reasonable alternative.

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/08/W.Bailey-August-24-2023-County-Holding-Facility-Certification-by-Mississippi-Department-of-Mental-Health.pdf

Original opinion text

August 24, 2023

Wendy D. Bailey, Executive Director
Mississippi Department of Mental Health
239 North Lamar Street
1101 Robert E. Lee Building
Jackson, Mississippi 39201

Re: County Holding Facility Certification by Mississippi Department of Mental Health

Dear Director Bailey:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. Does Mississippi Code Annotated Section 41-21-77 require the Mississippi Department of Mental Health to proactively certify county jails if they are being used for providing housing, maintenance, and medical treatment for an involuntarily committed person, or does the statute indicate that the Department of Mental Health has the authority to certify county facilities pursuant to Section 41-4-7(kk)?
2. Does Section 41-4-7(kk) require the State Board of Mental Health to certify county holding facilities, such as county jails?
3. If the answer to Question 2 is yes, would this also include county hospitals that may hold someone who has been involuntarily committed?

Brief Response

1. Section 41-21-77(1) not only gives the Mississippi Department of Mental Health ("Department") the authority to certify county facilities pursuant to Section 41-4-7(kk), but it is a mandatory requirement that the Department certify "[a]ny county facility used for providing housing, maintenance, and medical treatment for involuntarily committed persons pending their transportation and admission to a state treatment facility . . . ." This said, as it is the county's determination as to what facilities will be used, there is no requirement to proactively certify county facilities that may be but are not being used in this manner.
2. Section 41-4-7(kk) provides that the State Board of Mental Health has the power and duty "[t]o certify and establish minimum standards and minimum required services" for county holding facilities. However, read in conjunction with Section 41-21-77(1), the two statutes indicate that it is the responsibility of the Department to ensure each county holding facility meets the certification standards and requirements set forth by the State Board of Mental Health.
3. Section 41-21-77(1)'s certification requirement applies to "[a]ny county facility providing housing, maintenance and medical treatment for involuntarily committed persons pending their transportation and admission to a state treatment facility . . . ." (emphasis added). There is no exception to this requirement for county hospitals.

Applicable Law and Discussion

Section 41-21-77(1) provides, in part:

Any county facility used for providing housing, maintenance and medical treatment for involuntarily committed persons pending their transportation and admission to a state treatment facility shall be certified by the State Department of Mental Health under the provisions of Section 41-4-7(kk). No person shall be delivered or admitted to any non-Department of Mental Health treatment facility unless the treatment facility is licensed and/or certified to provide the appropriate level of psychiatric care for persons with mental illness. It is the intent of this Legislature that county-owned hospitals work with regional community mental health/intellectual disability centers in providing care to local patients.

(emphasis added).

It is the opinion of this office that the term "shall" in Section 41-21-77(1) indicates that it is a mandatory requirement that the Department certify any county facility used for providing housing, maintenance, and medical treatment for involuntarily committed persons pending their transportation and admission to a state treatment facility. See Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006) ("Simply stated, 'shall' is mandatory, while 'may' is discretionary.") (citation omitted). This said, as it is the county that determines what facility shall be used for this purpose, there is no requirement to proactively certify county facilities that may be but are not being used in this manner.

Regarding your second question, we first note "that a mentally ill person awaiting a competency hearing or awaiting admission to a mental institution should not be held in a jail unless the court determines that there is no reasonable alternative." MS AG Op., Glennis at *1 (July 7, 1995) (referencing Miss. Code Ann. § 41-21-67(4)). Nonetheless, Section 41-4-7(kk) provides the State Board of Mental Health (as opposed to the Department) with the "power[] and duty[] . . . [t]o certify and establish minimum standards and minimum required services for county facilities used for housing, feeding and providing medical treatment for any person who has been involuntarily ordered admitted to a treatment center by a court of competent jurisdiction." However, consistent with Section 41-21-77(1), Section 41-4-7(kk) goes on to provide that it is the Department's responsibility to certify the requisite facilities with the established standards:

If the department finds deficiencies in any such county facility or its provider based on the minimum standards and minimum required services established for certification, the department shall give the county or its provider a six-month probationary period to bring its standards and services up to the established minimum standards and minimum required services. After the six-month probationary period, if the department determines that the county or its provider still does not meet the minimum standards and minimum required services, the department may remove the certification of the county or provider and require the county to contract with another county having a certified facility to hold those persons for that period of time pending transportation and admission to a state treatment facility.

(emphasis added).

As provided supra, Section 41-21-77(1) likewise requires that such county facilities "shall be certified by the State Department of Mental Health . . . ." Accordingly, it is the opinion of this office that it is the responsibility of the Department to ensure that each county holding facility, including but not limited to county jails, meets the appropriate certification standards and requirements. In the instance the Department finds that a county facility fails to meet the requisite standards, the Department shall give the county a six-month probationary period to rectify any issues. Miss. Code Ann. § 41-4-7(kk). If the Department determines that the facility still does not meet the requisite standards following the probationary period, "the department may remove the certification of the county or provider and require the county to contract with another county having a certified facility to hold those persons for that period of time pending transportation and admission to a state treatment facility." Id.

Regarding your third question, Section 41-21-77(1)'s certification requirement applies to "[a]ny county facility used for providing housing, maintenance and medical treatment for involuntarily committed persons pending their transportation and admission to a state treatment facility. . . ." (emphasis added). There is no exception to this requirement for county hospitals. It is therefore the opinion of this office that Section 41-21-77(1)'s certification requirement would also include county hospitals that may hold someone who has been involuntarily committed.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General