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

The Mississippi Department of Mental Health

The opinion holds that certification is mandatory, not discretionary: under § 41-21-77(1), "[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 shall be certified" by the Department, applying the standards the State Board sets. It relies on Pitalo v. GPCH-GP, Inc. for the rule that "shall" is mandatory. The duty attaches to facilities actually used: because the county decides which facility to use, the opinion says there is no requirement to "proactively certify" facilities that are not being used this way. If the Department finds deficiencies, § 41-4-7(kk) provides a six-month probationary period, after which the Department "may remove the certification" and require the county to contract with another county that has a certified facility.

Sheriffs and jail administrators

The opinion confirms that a county jail used to hold involuntarily committed people pending state transfer falls under the mandatory certification requirement, applying the State Board's minimum standards and required services. It also restates, citing § 41-21-67(4) and a 1995 AG opinion, 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."

County-owned hospital administrators

The opinion answers this directly: "There is no exception to this requirement for county hospitals." A county hospital used to house, maintain, and provide medical treatment for involuntarily committed people pending transfer is subject to certification under § 41-21-77(1). The opinion also notes the statute's statement of legislative intent "that county-owned hospitals work with regional community mental health/intellectual disability centers in providing care to local patients."

County attorneys and supervisors

The opinion treats the choice of which facility to use as the county's determination, but holds that once a facility is used for this purpose, the Department's certification duty is triggered. If certification is removed after the probationary period, § 41-4-7(kk) requires the county to contract with another county that has a certified facility.

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: The opinion does not list specific standards. It says § 41-4-7(kk) gives the State Board the power and duty "[t]o certify and establish minimum standards and minimum required services" for these county facilities, and that the Department certifies facilities against those Board-set 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 mix of state and county facilities. A person who is involuntarily committed by a court is transported to a state treatment facility, and in the meantime is sometimes held in a county facility, a jail or a hospital, until transport is available.

The opinion divides the certification roles between two bodies. § 41-4-7(kk) gives the State Board of Mental Health the power and duty to "certify and establish minimum standards and minimum required services" for these county facilities. Read together with § 41-21-77(1), the opinion says it is the Department of Mental Health's responsibility to certify each county holding facility against those standards, and that this certification "shall" occur for any county facility actually used for the purpose.

The opinion also addresses the interaction with § 41-21-67(4), restating the rule from a 1995 AG opinion that a mentally ill person awaiting a competency hearing or admission to a mental institution "should not be held in a jail unless the court determines that there is no reasonable alternative." It further notes the statute's stated legislative intent that county-owned hospitals work with regional community mental health/intellectual disability centers.

If certification is removed after the six-month probationary period, the opinion explains, the county must contract with another county that has a certified facility to hold those persons pending transportation and admission to a state treatment facility.

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