The Mississippi Vulnerable Persons Act of 1986 (“MVPA”) was passed by the Mississippi Legislature in 1986 to provide protection for vulnerable persons in Mississippi who are abused, neglected, or exploited.[1] In addition to providing the penalties associated with abusing, neglecting, and exploiting a vulnerable individual, the MVPA requires that individuals report instances of known or suspected abuse of vulnerable persons. It also provides certain protections for individuals that comply with these requirements. In Brandi’s Hope Community Services, LLC v. Walters, the Supreme Court of Mississippi recently held that one of the protections provided in the MVPA was not available where the individual did not comply with the reporting requirements of the statute.[2] Fortunately for the individual in question, they were still able to utilize another common law avenue to seek damages from her employer for wrongful termination.
MVPA Reporting Requirements and Protection
The MVPA defines a vulnerable person as “a person, whether a minor or adult, whose ability to perform the normal activities of daily living or to provide for his or her own care or protection from abuse, neglect, exploitation or improper sexual contact is impaired due to a mental, emotional, physical or developmental disability or dysfunction, or brain damage or the infirmities of aging.[3] Generally, any person who knows or suspects that a vulnerable person is currently being or has previously been abused, neglect, or exploited is required to report their knowledge or suspicion to the Department of Human Services or to the county department of human services where the vulnerable person is located in the case of an adult, or to the Department of Child Protection Services in the case of a minor.[4] The report may be made orally or in writing, but where made orally, it must be followed up by a written report.
Failing to make a report where, based upon the circumstances, the person knew or should have known or suspected beyond a reasonable doubt, that a vulnerable person was suffering from exploitation, abuse, neglect, or self-neglect is a misdemeanor punishable by a fine of up to $5,000 and/or imprisonment in the county jail for up to six months.[5] Additionally, filing a false report may result in the reporter being liable for any actual damages suffered by the person or persons so reported and for any punitive damages set by a court or jury.[6]
The reporting requirement is heightened where the individual works at a care facility, or in his or her professional capacity, has knowledge of or reasonable cause to believe that any patient or resident of a care facility has been the victim of abuse, neglect, or exploitation.[7] In such a situation, the report must be made to the Medicaid Fraud Control Unit of the Attorney General’s office (a) orally or telephonically by an employee of any home health agency within twenty-four hours of discovery, (b) in writing by a home health agency itself within seventy-two hours of discovery, (c) orally or telephonically by all other care facilities within twenty-four hours of discovery, and (d) in writing by all other care facilities within seventy-two hours of discovery.[8] Individuals who report are immune from civil and criminal liability and are presumed to be acting in good faith, but this does not apply to a suspect or perpetrator.[9] Further where the reporter was an employee, they are protected from retaliatory action by their employer related to the report, including but not limited to, termination, demotion, and rejection from promotion.[10]
Brandi’s Hope
Heather Walters (“Walters”) was an employee at the Tupelo, Mississippi location of Brandi’s Hope Community Services (“Brandi’s Hope”), a long-term care facility for people with intellectual and developmental disabilities. Her position at Brandi’s Hope was one of a direct support professional, tasked with assisting residents with their daily needs. One morning in March of 2017, Walters noticed that a resident had a bruised face and black eyes. The resident suffered from cerebral palsy and mental retardation, such that he had the mental capacity of a five or six-year-old. The resident informed Walters that a different direct support professional of Brandi’s Hope hit him. Walters called her immediate supervisor and the site manager to report the incident per company policy, but neither answered. She then took a picture of the resident’s face with her personal cell phone and texted it to her supervisor and site manager along with a message describing what had occurred, but the texts did not go through. The site manager returned her call later that morning and indicated that she would look into the incident. After finishing her shift, Walters went to the home of Frankie Crump (“Crump”). Crump was a former coworker from Brandi’s Hope and also was one of Walters’s friends. Walters told Crump about the incident and asked if there was anyone else she needed to report to. Walters also allowed Crump to take a picture of the picture she had taken of the resident. Allegedly, Walters did this because she was having trouble getting the picture to send on her phone.
Meanwhile, the site manager investigated the incident over the course of the next two days, and in doing so, interviewed all of the witnesses. When she interviewed Walters, Walters told her that she did not take a picture of the resident and send it to a former staff member of Brandi’s Hope. As part of her training, Walters had been told that taking a picture of residents was against company policy and violated HIPAA regulations. After reviewing the investigation a few days later, Danny Cowart (“Cowart”) the founder and CEO of Brandi’s Hope, terminated Walters for violating company policy.
Walters brought an action in the County Court of Lee County against Brandi’s Hope and Cowart for retaliatory discharge and malicious interference with employment, respectively. Brandi’s Hope and Cowart moved for directed verdicts at the close of trial, but the court denied them. The jury found the termination eligible for legal recourse under the public policy exception to at-will employment for employees that report illegal acts of the employer established in McArn v. Allied Bruce-Terminix Co., Inc. (discussed below), and the jury awarded a combined verdict of $100,000 in damages to Walters.[11] The Circuit Court of Lee County affirmed on appeal, but the Court of Appeals reversed and rendered, finding a conflict between McArn and Mississippi Code § 43-47-37. Walters appealed to the Mississippi Supreme Court.
The Mississippi Supreme Court began its analysis by discussing long standing at-will employment law in Mississippi. The general rule is that parties have the agency to perform particular services from time to time, to be paid for as the services are rendered, and without any agreement as to the time of its continuance, as determinable at the pleasure of either party.[12] By default, employers may fire employees for good reason, bad reason, or no reason at all, excepting only reasons independently declared legally impermissible.[13] However, when an employer fires an employee for a legally impermissible reason, the employer is liable for a claim of wrongful termination.
The general at-will employment rule is subject to two public policy exceptions established by the Mississippi Supreme Court in McArn.[14] These exceptions allow an employee to bring a tort action for damages against their employer where the employee either refused to participate in illegal acts or was discharged for reporting the employer’s illegal actions. Importantly, the exception related to reporting the employer’s illegal actions applies when the employee reports the actions to their “employer or anyone else.”[15]
As previously discussed above, Mississippi Code § 43-47-37 places an affirmative duty on individuals to report knowledge or reasonable cause to believe that abuse, neglect, or exploitation of a patient or resident of a care facility has occurred. Mississippi Code § 43-47-37(5)(b) protects employees from retaliatory action by their employer when the employee follows the reporting requirement of the statute. However, the statute also provides specific requirements for the report, such as what information must be included in the report, who the report must be made to, and in what time frame the report has to be made. Generally, the report must be made to the Medicaid Fraud Control Unit of the Attorney General’s office.[16]
The Court of Appeals found that provisions of Mississippi Code § 43-47-37 superseded the McArn exceptions. However, the Mississippi Supreme Court found that the statute and the McArn exceptions were not in conflict, even if there were situations where the two overlap somewhat, meaning that an individual could potentially utilize both if the correct facts were present. The protection from retaliatory action in Mississippi Code § 43-47-37(5)(b) only protects individuals who make a report as required by the statute. Unfortunately for Walters, she did not report the potential abuse to the Medicaid Fraud Control Unit of the Attorney General’s office as required by the statute. Accordingly, the Mississippi Supreme Court found that Walters was disqualified from the protection under the statute. However, the court also held that she could still avail herself of the protections provided under McArn. Thus, the question became whether Walters was fired because she reported the illegal act.
Brandi’s Hope and Cowart claimed that Walters was terminated because she violated company policy. Walters claimed that she was fired because she reported the abuse of the resident. In awarding its verdict for Walters, the jury had found that Walters was terminated because she reported the abuse. The Court found that the evidence at trial was sufficient to support the jury’s determination, and that Walters was therefore eligible to bring a wrongful termination claim against Brandi’s Hope using one of the McArn exceptions. Accordingly, the Court reversed the Court of Appeals and reinstated the jury verdict.
Conclusion
The MVPA requires that individuals report known or reasonably suspected instances of abuse, neglect, or exploitation of vulnerable individuals. These requirements are heightened when a care facility is involved. Walters took some actions to attempt to report the suspected abuse that she discovered, but unfortunately did not follow the procedures in the statute. If it was not already clear from the wording of Mississippi Code § 43-47-37(5)(b), the Mississippi Supreme Court stated in this case that an individual must comply with the requirements of the statute to obtain the protection from retaliatory action by an employer. With respect to the statute, the protections are not available for almost compliance or reasonable efforts to comply. Fortunately, the exceptions to the at-will employment laws established in the McArn case are not as strict, providing protection where a report is made to an employer or anyone else. Additionally, the Court made it clear that the two are not in conflict, thus allowing individuals to potentially rely on both the statute and McArn. As happened in this case, one could also be used as a backup argument to the first.
[1] Miss. Code Ann. §§ 43-47-1 & 43-47-3.
[2] Brandi’s Hope Community Services, LLC v. Walters, 2024 WL 2074705 (Miss. 2024).
[3] Miss. Code Ann. § 43-47-5(a).
[4] Miss. Code Ann. § 43-47-7(1)(a).
[5] Miss. Code Ann. § 43-47-7(1)(c).
[6] Miss. Code Ann. § 43-47-7(5).
[7] Miss. Code Ann. § 43-47-37(1).
[8] Miss. Code Ann. § 43-47-37(2).
[9] Miss. Code Ann. § 43-47-37(5)(a).
[10] Miss. Code Ann. § 43-47-37(5)(b).
[11] McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993).
[12] Butler v. Smith, 35 Miss. 457, 464 (Miss. 1858).
[13] McArn, 626 So. 2d at 606 (quoting Shaw v. Burchfield, 481 So. 2d 247, 253-54 (Miss. 1985)).
[14] McArn, 626 So. 2d 603.
[15] McArn, 626 So. 2d at 607.
[16] Miss. Code Ann. § 43-47-37(4).
