HF 4676

as introduced - 93rd Legislature (2023 - 2024) Posted on 03/07/2024 02:44pm

A bill for an act
relating to human services; prohibiting disqualification of individuals subject to
human services background studies with expunged criminal records; amending
Minnesota Statutes 2022, sections 245C.14, subdivisions 1, 2; 245C.15, by adding
a subdivision; 245C.16, subdivision 1; 245C.24, by adding a subdivision.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2022, section 245C.14, subdivision 1, is amended to read:

Subdivision 1.

Disqualification from direct contact.

(a) The commissioner shall
disqualify an individual who is the subject of a background study from any position allowing
direct contact with persons receiving services from the license holder or entity identified in
section 245C.03, upon receipt of information showing, or when a background study
completed under this chapter shows any of the following:

(1) a conviction of, admission to, or Alford plea to one or more crimes listed in section
245C.15, regardless of whether the conviction or admission is a felony, gross misdemeanor,
or misdemeanor level crime;

(2) a preponderance of the evidence indicates the individual has committed an act or
acts that meet the definition of any of the crimes listed in section 245C.15, regardless of
whether the preponderance of the evidence is for a felony, gross misdemeanor, or
misdemeanor level crime; or

(3) an investigation results in an administrative determination listed under section
245C.15, subdivision 4, paragraph (b).

(b) No individual who is disqualified following a background study under section
245C.03, subdivisions 1 and 2, may be retained in a position involving direct contact with
persons served by a program or entity identified in section 245C.03, unless the commissioner
has provided written notice under section 245C.17 stating that:

(1) the individual may remain in direct contact during the period in which the individual
may request reconsideration as provided in section 245C.21, subdivision 2;

(2) the commissioner has set aside the individual's disqualification for that program or
entity identified in section 245C.03, as provided in section 245C.22, subdivision 4; or

(3) the license holder has been granted a variance for the disqualified individual under
section 245C.30.

(c) Notwithstanding paragraph (a), for the purposes of a background study affiliated
with a licensed family foster setting, the commissioner shall disqualify an individual who
is the subject of a background study from any position allowing direct contact with persons
receiving services from the license holder or entity identified in section 245C.03, upon
receipt of information showing or when a background study completed under this chapter
shows reason for disqualification under section 245C.15, subdivision 4a.

new text begin (d) The commissioner may not permanently disqualify an individual under this
subdivision based on (1) a record of conviction that was expunged under the court's inherent
authority, or (2) any underlying fact of an element of the expunged conviction. This paragraph
does not apply to the expungement of a conviction of an offense for which registration is
required under section 243.166.
new text end

Sec. 2.

Minnesota Statutes 2022, section 245C.14, subdivision 2, is amended to read:

Subd. 2.

Disqualification from access.

(a) If an individual who is studied under section
245C.03, subdivision 1, paragraph (a), clauses (2), (5), and (6), is disqualified from direct
contact under subdivision 1, the commissioner shall also disqualify the individual from
access to a person receiving services from the license holder.

(b) No individual who is disqualified following a background study under section
245C.03, subdivision 1, paragraph (a), clauses (2), (5), and (6), or as provided elsewhere
in statute who is disqualified as a result of this section, may be allowed access to persons
served by the program unless the commissioner has provided written notice under section
245C.17 stating that:

(1) the individual may remain in direct contact during the period in which the individual
may request reconsideration as provided in section 245C.21, subdivision 2;

(2) the commissioner has set aside the individual's disqualification for that licensed
program or entity identified in section 245C.03 as provided in section 245C.22, subdivision
4; or

(3) the license holder has been granted a variance for the disqualified individual under
section 245C.30.

new text begin (c) The commissioner may not permanently disqualify an individual under this subdivision
based on (1) a record of conviction that was expunged under the court's inherent authority,
or (2) any underlying fact of an element of the expunged conviction. This paragraph does
not apply to the expungement of a conviction of an offense for which registration is required
under section 243.166.
new text end

Sec. 3.

Minnesota Statutes 2022, section 245C.15, is amended by adding a subdivision to
read:

new text begin Subd. 7. new text end

new text begin Expunged criminal records. new text end

new text begin The commissioner may not permanently disqualify
an individual subject to a background study under this chapter based on (1) a record of
conviction that was expunged under the court's inherent authority, or (2) any underlying
fact of an element of the expunged conviction. This paragraph does not apply to the
expungement of a conviction of an offense for which registration is required under section
243.166.
new text end

Sec. 4.

Minnesota Statutes 2022, section 245C.16, subdivision 1, is amended to read:

Subdivision 1.

Determining immediate risk of harm.

(a) If the commissioner determines
that the individual studied has a disqualifying characteristic, the commissioner shall review
the information immediately available and make a determination as to the subject's immediate
risk of harm to persons served by the program where the individual studied will have direct
contact with, or access to, people receiving services.

(b) The commissioner shall consider all relevant information available, including the
following factors in determining the immediate risk of harm:

(1) the recency of the disqualifying characteristic;

(2) the recency of discharge from probation for the crimes;

(3) the number of disqualifying characteristics;

(4) the intrusiveness or violence of the disqualifying characteristic;

(5) the vulnerability of the victim involved in the disqualifying characteristic;

(6) the similarity of the victim to the persons served by the program where the individual
studied will have direct contact;

(7) whether the individual has a disqualification from a previous background study that
has not been set aside;

(8) if the individual has a disqualification which may not be set aside because it is a
permanent bar under section 245C.24, subdivision 1, or the individual is a child care
background study subject who has a felony-level conviction for a drug-related offense in
the last five years, the commissioner may order the immediate removal of the individual
from any position allowing direct contact with, or access to, persons receiving services from
the program and from working in a children's residential facility or foster residence setting;
and

(9) if the individual has a disqualification which may not be set aside because it is a
permanent bar under section 245C.24, subdivision 2, or the individual is a child care
background study subject who has a felony-level conviction for a drug-related offense during
the last five years, the commissioner may order the immediate removal of the individual
from any position allowing direct contact with or access to persons receiving services from
the center and from working in a licensed child care center or certified license-exempt child
care center.

(c) This section does not apply when the subject of a background study is regulated by
a health-related licensing board as defined in chapter 214, and the subject is determined to
be responsible for substantiated maltreatment under section 626.557 or chapter 260E.

(d) This section does not apply to a background study related to an initial application
for a child foster family setting license.

(e) Except for paragraph deleted text begin (f) deleted text end new text begin (g) new text end , this section does not apply to a background study that
is also subject to the requirements under section 256B.0659, subdivisions 11 and 13, for a
personal care assistant or a qualified professional as defined in section 256B.0659,
subdivision 1.

new text begin (f) This section may not apply if the subject of a background study has a conviction that
was expunged under the court's inherent authority or for any underlying fact of an element
of the expunged conviction, except for the expungement of a conviction of an offense for
which registration is required under section 243.166.
new text end

deleted text begin (f) deleted text end new text begin (g) new text end If the commissioner has reason to believe, based on arrest information or an active
maltreatment investigation, that an individual poses an imminent risk of harm to persons
receiving services, the commissioner may order that the person be continuously supervised
or immediately removed pending the conclusion of the maltreatment investigation or criminal
proceedings.

Sec. 5.

Minnesota Statutes 2022, section 245C.24, is amended by adding a subdivision to
read:

new text begin Subd. 7. new text end

new text begin Expunged criminal records. new text end

new text begin The commissioner may not permanently disqualify
an individual subject to a background study under this chapter based on (1) a record of
conviction that was expunged under the court's inherent authority, or (2) any underlying
fact of an element of the expunged conviction. This subdivision does not apply to the
expungement of a conviction of an offense for which registration is required under section
243.166.
new text end