SF 1397

as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to health and human services; changing 
  1.3             requirements to background studies for licensed 
  1.4             programs; amending Minnesota Statutes 2000, sections 
  1.5             13.46, subdivision 4; 144.057; 214.104; 241.021, 
  1.6             subdivision 1; 245A.02, subdivisions 1, 9, and by 
  1.7             adding a subdivision; 245A.03, subdivision 2, and by 
  1.8             adding a subdivision; 245A.035, subdivision 1; 
  1.9             245A.04, subdivisions 3, 3a, 3b, 3d, 6, 11, and by 
  1.10            adding a subdivision; 245A.06, subdivision 6; 245A.14, 
  1.11            by adding a subdivision; and 245A.16, subdivisions 1 
  1.12            and 4; repealing Minnesota Rules, parts 9543.3000; 
  1.13            9543.3010; 9543.3020; 9543.3030; 9543.3040; 9543.3050; 
  1.14            9543.3060; 9543.3080; and 9543.3090. 
  1.15  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.16     Section 1.  Minnesota Statutes 2000, section 13.46, 
  1.17  subdivision 4, is amended to read: 
  1.18     Subd. 4.  [LICENSING DATA.] (a) As used in this subdivision:
  1.19     (1) "licensing data" means all data collected, maintained, 
  1.20  used, or disseminated by the welfare system pertaining to 
  1.21  persons licensed or registered or who apply for licensure or 
  1.22  registration or who formerly were licensed or registered under 
  1.23  the authority of the commissioner of human services; 
  1.24     (2) "client" means a person who is receiving services from 
  1.25  a licensee or from an applicant for licensure; and 
  1.26     (3) "personal and personal financial data" means social 
  1.27  security numbers, identity of and letters of reference, 
  1.28  insurance information, reports from the bureau of criminal 
  1.29  apprehension, health examination reports, and social/home 
  1.30  studies. 
  2.1      (b) (1) Except as provided in paragraph (c), the following 
  2.2   data on current and former licensees and applicants for 
  2.3   licensure are public:  name, address, telephone number of 
  2.4   licensees and applicants, licensed capacity, type of client 
  2.5   preferred, variances granted, type of dwelling, name and 
  2.6   relationship of other family members, previous license history, 
  2.7   class of license, and the existence and status of complaints.  
  2.8   When disciplinary action has been taken against a licensee a 
  2.9   correction order or fine has been issued, a license is 
  2.10  suspended, immediately suspended, revoked, denied, or made 
  2.11  conditional, or the a complaint is resolved, the following data 
  2.12  on current and former licensees and applicants for licensure are 
  2.13  public:  the substance and investigative findings of the 
  2.14  complaint, the findings of the investigation of the 
  2.15  complaint, licensing violation, or substantiated maltreatment; 
  2.16  the record of informal resolution of a licensing violation,; 
  2.17  orders of hearing,; findings of fact,; conclusions of law,; 
  2.18  and specifications of the final disciplinary action correction 
  2.19  order, fine, suspension, immediate suspension, revocation, 
  2.20  denial, or conditional license contained in the record of 
  2.21  disciplinary action.  When an individual licensee or applicant 
  2.22  for licensure is a substantiated perpetrator of maltreatment, 
  2.23  and the substantiated maltreatment is a reason for the licensing 
  2.24  action, the identity of the licensee or applicant as a 
  2.25  perpetrator is public data. 
  2.26     (2) The following data on persons subject to 
  2.27  disqualification under section 245A.04 in connection with a 
  2.28  license to provide family day care for children, child care 
  2.29  center services, foster care for children in the provider's 
  2.30  home, or foster care or day care services for adults in the 
  2.31  provider's home, are public:  the nature of any disqualification 
  2.32  set aside under section 245A.04, subdivision 3b, and the reasons 
  2.33  for setting aside the disqualification; and the reasons for 
  2.34  granting any variance under section 245A.04, subdivision 9. 
  2.35     (3) When maltreatment is substantiated under section 
  2.36  626.556 or 626.557 and the victim and the substantiated 
  3.1   perpetrator are affiliated with a program licensed under chapter 
  3.2   245A, the commissioner of human services, local social services 
  3.3   agency, or county welfare agency may inform the license holder 
  3.4   where the maltreatment occurred, and the identity of the 
  3.5   substantiated perpetrator and the victim. 
  3.6      (c) The following are private data on individuals under 
  3.7   section 13.02, subdivision 12, or nonpublic data under section 
  3.8   13.02, subdivision 9:  personal and personal financial data on 
  3.9   family day care program and family foster care program 
  3.10  applicants and licensees and their family members who provide 
  3.11  services under the license. 
  3.12     (d) The following are private data on individuals:  the 
  3.13  identity of persons who have made reports concerning licensees 
  3.14  or applicants that appear in inactive investigative data, and 
  3.15  the records of clients or employees of the licensee or applicant 
  3.16  for licensure whose records are received by the licensing agency 
  3.17  for purposes of review or in anticipation of a contested 
  3.18  matter.  The names of reporters under sections 626.556 and 
  3.19  626.557 may be disclosed only as provided in section 626.556, 
  3.20  subdivision 11, or 626.557, subdivision 12b. 
  3.21     (e) Data classified as private, confidential, nonpublic, or 
  3.22  protected nonpublic under this subdivision become public data if 
  3.23  submitted to a court or administrative law judge as part of a 
  3.24  disciplinary proceeding in which there is a public hearing 
  3.25  concerning the disciplinary action a license which has been 
  3.26  suspended, immediately suspended, revoked, or denied. 
  3.27     (f) Data generated in the course of licensing 
  3.28  investigations that relate to an alleged violation of law are 
  3.29  investigative data under subdivision 3. 
  3.30     (g) Data that are not public data collected, maintained, 
  3.31  used, or disseminated under this subdivision that relate to or 
  3.32  are derived from a report as defined in section 626.556, 
  3.33  subdivision 2, or 626.5572, subdivision 18, are subject to the 
  3.34  destruction provisions of section sections 626.556, subdivision 
  3.35  11 11c, and 626.557, subdivision 12b.  
  3.36     (h) Upon request, not public data collected, maintained, 
  4.1   used, or disseminated under this subdivision that relate to or 
  4.2   are derived from a report of substantiated maltreatment as 
  4.3   defined in section 626.556 or 626.557, may be exchanged with the 
  4.4   department of health for purposes of completing background 
  4.5   studies pursuant to section 144.057. 
  4.6      (i) Data on individuals collected according to licensing 
  4.7   activities under chapter 245A and data on individuals collected 
  4.8   by the commissioner of human services according to maltreatment 
  4.9   investigations under sections 626.556 and 626.557 may be shared 
  4.10  with the department of human rights, the department of health, 
  4.11  the department of corrections, the ombudsman for mental health 
  4.12  and retardation, and the individual's professional regulatory 
  4.13  board, when there is reason to believe that laws or standards 
  4.14  under the jurisdiction of those agencies may have been violated. 
  4.15     Sec. 2.  Minnesota Statutes 2000, section 144.057, is 
  4.16  amended to read: 
  4.17     144.057 [BACKGROUND STUDIES ON LICENSEES.] 
  4.18     Subdivision 1.  [BACKGROUND STUDIES REQUIRED.] The 
  4.19  commissioner of health shall contract with the commissioner of 
  4.20  human services to conduct background studies of: 
  4.21     (1) individuals providing services which have direct 
  4.22  contact, as defined under section 245A.04, subdivision 3, with 
  4.23  patients and residents in hospitals, boarding care homes, 
  4.24  outpatient surgical centers licensed under sections 144.50 to 
  4.25  144.58; nursing homes and home care agencies licensed under 
  4.26  chapter 144A; residential care homes licensed under chapter 
  4.27  144B, and board and lodging establishments that are registered 
  4.28  to provide supportive or health supervision services under 
  4.29  section 157.17; and 
  4.30     (2) individuals specified in section 245A.04, subdivision 
  4.31  3, paragraph (c), who perform direct contact services in a 
  4.32  nursing home or a home care agency licensed under chapter 144A 
  4.33  or a boarding care home licensed under sections 144.50 to 
  4.34  144.58, and if the individual under study resides outside 
  4.35  Minnesota, the study must be at least as comprehensive as that 
  4.36  of a Minnesota resident and include a search of information from 
  5.1   the criminal justice data communications network in the state 
  5.2   where the subject of the study resides; and 
  5.3      (3) beginning July 1, 1999, all other employees in nursing 
  5.4   homes licensed under chapter 144A, and boarding care homes 
  5.5   licensed under sections 144.50 to 144.58.  A disqualification of 
  5.6   an individual in this section shall disqualify the individual 
  5.7   from positions allowing direct contact or access to patients or 
  5.8   residents receiving services.  Access means physical access to a 
  5.9   client or the client's personal property without continuous, 
  5.10  direct supervision as defined in section 245A.04, subdivision 3, 
  5.11  paragraph (b), clause (2), when the employee's employment 
  5.12  responsibilities do not include providing direct contact 
  5.13  services. 
  5.14     If a facility or program is licensed by the department of 
  5.15  human services and subject to the background study provisions of 
  5.16  chapter 245A and is also licensed by the department of health, 
  5.17  the department of human services is solely responsible for the 
  5.18  background studies of individuals in the jointly licensed 
  5.19  programs. 
  5.20     Subd. 2.  [RESPONSIBILITIES OF DEPARTMENT OF HUMAN 
  5.21  SERVICES.] The department of human services shall conduct the 
  5.22  background studies required by subdivision 1 in compliance with 
  5.23  the provisions of chapter 245A and Minnesota Rules, parts 
  5.24  9543.3000 to 9543.3090.  For the purpose of this section, the 
  5.25  term "residential program" shall include all facilities 
  5.26  described in subdivision 1.  The department of human services 
  5.27  shall provide necessary forms and instructions, shall conduct 
  5.28  the necessary background studies of individuals, and shall 
  5.29  provide notification of the results of the studies to the 
  5.30  facilities, individuals, and the commissioner of health.  
  5.31  Individuals shall be disqualified under the provisions of 
  5.32  chapter 245A and Minnesota Rules, parts 9543.3000 to 9543.3090.  
  5.33  If an individual is disqualified, the department of human 
  5.34  services shall notify the facility and the individual and shall 
  5.35  inform the individual of the right to request a reconsideration 
  5.36  of the disqualification by submitting the request to the 
  6.1   department of health. 
  6.2      Subd. 3.  [RECONSIDERATIONS.] The commissioner of health 
  6.3   shall review and decide reconsideration requests, including the 
  6.4   granting of variances, in accordance with the procedures and 
  6.5   criteria contained in chapter 245A and Minnesota Rules, parts 
  6.6   9543.3000 to 9543.3090.  The commissioner's decision shall be 
  6.7   provided to the individual and to the department of human 
  6.8   services.  The commissioner's decision to grant or deny a 
  6.9   reconsideration of disqualification is the final administrative 
  6.10  agency action. 
  6.11     Subd. 4.  [RESPONSIBILITIES OF FACILITIES.] Facilities 
  6.12  described in subdivision 1 shall be responsible for cooperating 
  6.13  with the departments in implementing the provisions of this 
  6.14  section.  The responsibilities imposed on applicants and 
  6.15  licensees under chapter 245A and Minnesota Rules, parts 
  6.16  9543.3000 to 9543.3090, shall apply to these facilities.  The 
  6.17  provision of section 245A.04, subdivision 3, paragraph (e), 
  6.18  shall apply to applicants, licensees, or an individual's refusal 
  6.19  to cooperate with the completion of the background studies. 
  6.20     Sec. 3.  Minnesota Statutes 2000, section 214.104, is 
  6.21  amended to read: 
  6.22     214.104 [HEALTH-RELATED LICENSING BOARDS; DETERMINATIONS 
  6.23  REGARDING DISQUALIFICATIONS FOR MALTREATMENT.] 
  6.24     (a) A health-related licensing board shall make 
  6.25  determinations as to whether licensees regulated persons who are 
  6.26  under the board's jurisdiction should be disqualified under 
  6.27  section 245A.04, subdivision 3d, from positions allowing direct 
  6.28  contact with persons receiving services the subject of 
  6.29  disciplinary or corrective action because of substantiated 
  6.30  maltreatment under section 626.556 or 626.557.  A determination 
  6.31  under this section may be done as part of an investigation under 
  6.32  section 214.103.  The board shall make a determination within 90 
  6.33  days of upon receipt of an investigation memorandum or other 
  6.34  notice of substantiated maltreatment under section 626.556 or 
  6.35  626.557, or of a notice from the commissioner of human services 
  6.36  that a background study of a licensee regulated person shows 
  7.1   substantiated maltreatment.  The board shall also make a 
  7.2   determination under this section upon consideration of the 
  7.3   licensure of an individual who was subject to disqualification 
  7.4   before licensure because of substantiated maltreatment. 
  7.5      (b) In making a determination under this section, the board 
  7.6   shall consider the nature and extent of any injury or harm 
  7.7   resulting from the conduct that would constitute grounds for 
  7.8   disqualification, the seriousness of the misconduct, the extent 
  7.9   that disqualification is necessary to protect persons receiving 
  7.10  services or the public, and other factors specified in section 
  7.11  245A.04, subdivision 3b, paragraph (b). 
  7.12     (c) The board shall determine the duration and extent of 
  7.13  the disqualification or may establish conditions under which the 
  7.14  licensee may hold a position allowing direct contact with 
  7.15  persons receiving services or in a licensed facility.  Upon 
  7.16  completion of its review of a report of substantiated 
  7.17  maltreatment, the board shall notify the commissioner of human 
  7.18  services and the lead agency that conducted an investigation 
  7.19  under section 626.556 or 626.557, as applicable, of its 
  7.20  determination.  The board shall notify the commissioner of human 
  7.21  services if, following a review of the report of substantiated 
  7.22  maltreatment, the board determines the board does not have 
  7.23  jurisdiction in the matter and the commissioner shall make the 
  7.24  appropriate disqualification decision regarding the regulated 
  7.25  person as otherwise provided in chapter 245A.  The board shall 
  7.26  also notify the commissioner of health or commissioner of human 
  7.27  services immediately upon receipt of knowledge of a facility or 
  7.28  program allowing a regulated person to provide direct contact 
  7.29  services at the facility or program while not complying with 
  7.30  requirements placed on the regulated person. 
  7.31     (c) In addition to any other remedy provided by law, the 
  7.32  board may, through its designated board member, temporarily 
  7.33  suspend the license of a licensee or deny a credential to an 
  7.34  applicant if the board finds there is probable cause to believe 
  7.35  the regulated person referred to the board pursuant to paragraph 
  7.36  (a) poses an immediate risk of harm to vulnerable persons.  The 
  8.1   board shall consider all relevant information available, which 
  8.2   may include, but is not limited to, the extent the action is 
  8.3   needed to protect persons receiving services or the public, the 
  8.4   recency of the maltreatment, the number of incidents of 
  8.5   maltreatment, the intrusiveness or violence of the maltreatment, 
  8.6   and the vulnerability of the victim of maltreatment.  The 
  8.7   suspension or denial of a credential shall take effect upon 
  8.8   written notice to the regulated person, served by first-class 
  8.9   mail, specifying the statute violated.  The board shall notify 
  8.10  the commissioner of health or the commissioner of human services 
  8.11  of the suspension or denial of a credential.  The action shall 
  8.12  remain in effect until the board issues a temporary stay or a 
  8.13  final order in the matter after a hearing or upon agreement 
  8.14  between the board and the regulated person.  At the time it 
  8.15  issues the notice, the board shall schedule a disciplinary 
  8.16  hearing to be held under chapter 14.  The board shall provide 
  8.17  the regulated person with at least 30 days notice of the hearing 
  8.18  and shall schedule the hearing to begin no later than 90 days 
  8.19  after issuance of the notice of hearing. 
  8.20     Sec. 4.  Minnesota Statutes 2000, section 241.021, 
  8.21  subdivision 1, is amended to read: 
  8.22     Subdivision 1.  [SUPERVISION OVER CORRECTIONAL 
  8.23  INSTITUTIONS.] (1) (a) Except as provided in paragraph (b), the 
  8.24  commissioner of corrections shall inspect and license all 
  8.25  correctional facilities throughout the state, whether public or 
  8.26  private, established and operated for the detention and 
  8.27  confinement of persons detained or confined therein according to 
  8.28  law except to the extent that they are inspected or licensed by 
  8.29  other state regulating agencies.  The commissioner shall 
  8.30  promulgate pursuant to chapter 14, rules establishing minimum 
  8.31  standards for these facilities with respect to their management, 
  8.32  operation, physical condition, and the security, safety, health, 
  8.33  treatment, and discipline of persons detained or confined 
  8.34  therein.  Commencing September 1, 1980, no individual, 
  8.35  corporation, partnership, voluntary association, or other 
  8.36  private organization legally responsible for the operation of a 
  9.1   correctional facility may operate the facility unless licensed 
  9.2   by the commissioner of corrections.  The commissioner shall 
  9.3   review the correctional facilities described in this subdivision 
  9.4   at least once every biennium, except as otherwise provided 
  9.5   herein, to determine compliance with the minimum standards 
  9.6   established pursuant to this subdivision.  The commissioner 
  9.7   shall grant a license to any facility found to conform to 
  9.8   minimum standards or to any facility which, in the 
  9.9   commissioner's judgment, is making satisfactory progress toward 
  9.10  substantial conformity and the interests and well-being of the 
  9.11  persons detained or confined therein are protected.  The 
  9.12  commissioner may grant licensure up to two years.  The 
  9.13  commissioner shall have access to the buildings, grounds, books, 
  9.14  records, staff, and to persons detained or confined in these 
  9.15  facilities.  The commissioner may require the officers in charge 
  9.16  of these facilities to furnish all information and statistics 
  9.17  the commissioner deems necessary, at a time and place designated 
  9.18  by the commissioner.  The commissioner may require that any or 
  9.19  all such information be provided through the department of 
  9.20  corrections detention information system.  The education program 
  9.21  offered in a correctional facility for the detention or 
  9.22  confinement of juvenile offenders must be approved by the 
  9.23  commissioner of children, families, and learning before the 
  9.24  commissioner of corrections may grant a license to the facility. 
  9.25     (b) For juvenile facilities licensed by the commissioner of 
  9.26  human services, the commissioner may inspect and certify 
  9.27  programs based on certification standards set forth in Minnesota 
  9.28  Rules.  For the purpose of this paragraph, "certification" has 
  9.29  the meaning given it in section 245A.02, subdivision 4. 
  9.30     (2) (c) Any state agency which regulates, inspects, or 
  9.31  licenses certain aspects of correctional facilities shall, 
  9.32  insofar as is possible, ensure that the minimum standards it 
  9.33  requires are substantially the same as those required by other 
  9.34  state agencies which regulate, inspect, or license the same 
  9.35  aspects of similar types of correctional facilities, although at 
  9.36  different correctional facilities. 
 10.1      (3) (d) Nothing in this section shall be construed to limit 
 10.2   the commissioner of corrections' authority to promulgate rules 
 10.3   establishing standards of eligibility for counties to receive 
 10.4   funds under sections 401.01 to 401.16, or to require counties to 
 10.5   comply with operating standards the commissioner establishes as 
 10.6   a condition precedent for counties to receive that funding. 
 10.7      (4) (e) When the commissioner finds that any facility 
 10.8   described in clause (1) paragraph (a), except foster care 
 10.9   facilities for delinquent children and youth as provided in 
 10.10  subdivision 2, does not substantially conform to the minimum 
 10.11  standards established by the commissioner and is not making 
 10.12  satisfactory progress toward substantial conformance, the 
 10.13  commissioner shall promptly notify the chief executive officer 
 10.14  and the governing board of the facility of the deficiencies and 
 10.15  order that they be remedied within a reasonable period of time.  
 10.16  The commissioner may by written order restrict the use of any 
 10.17  facility which does not substantially conform to minimum 
 10.18  standards to prohibit the detention of any person therein for 
 10.19  more than 72 hours at one time.  When, after due notice and 
 10.20  hearing, the commissioner finds that any facility described in 
 10.21  this subdivision, except county jails and lockups as provided in 
 10.22  sections 641.26, 642.10, and 642.11, does not conform to minimum 
 10.23  standards, or is not making satisfactory progress toward 
 10.24  substantial compliance therewith, the commissioner may issue an 
 10.25  order revoking the license of that facility.  After revocation 
 10.26  of its license, that facility shall not be used until its 
 10.27  license is renewed.  When the commissioner is satisfied that 
 10.28  satisfactory progress towards substantial compliance with 
 10.29  minimum standard is being made, the commissioner may, at the 
 10.30  request of the appropriate officials of the affected facility 
 10.31  supported by a written schedule for compliance, grant an 
 10.32  extension of time for a period not to exceed one year. 
 10.33     (5) (f) As used in this subdivision, "correctional facility"
 10.34  means any facility, including a group home, having a residential 
 10.35  component, the primary purpose of which is to serve persons 
 10.36  placed therein by a court, court services department, parole 
 11.1   authority, or other correctional agency having dispositional 
 11.2   power over persons charged with, convicted, or adjudicated to be 
 11.3   guilty or delinquent. 
 11.4      Sec. 5.  Minnesota Statutes 2000, section 245A.02, 
 11.5   subdivision 1, is amended to read: 
 11.6      Subdivision 1.  [SCOPE.] The terms used in this chapter and 
 11.7   chapter 245B have the meanings given them in this section. 
 11.8      Sec. 6.  Minnesota Statutes 2000, section 245A.02, 
 11.9   subdivision 9, is amended to read: 
 11.10     Subd. 9.  [LICENSE HOLDER.] "License holder" means an 
 11.11  individual, corporation, partnership, voluntary association, or 
 11.12  other organization that is legally responsible for the operation 
 11.13  of the program, has been granted a license by the commissioner 
 11.14  under this chapter or chapter 245B and the rules of the 
 11.15  commissioner, and is a controlling individual. 
 11.16     Sec. 7.  Minnesota Statutes 2000, section 245A.02, is 
 11.17  amended by adding a subdivision to read: 
 11.18     Subd. 3a.  [CERTIFICATION.] "Certification" means the 
 11.19  commissioner's written authorization for a license holder 
 11.20  licensed by the commissioner of human services or the 
 11.21  commissioner of corrections to serve children in a residential 
 11.22  program and provide specialized services based on certification 
 11.23  standards in Minnesota Rules.  The term "certification" and its 
 11.24  derivatives have the same meaning and may be substituted for the 
 11.25  term "licensure" and its derivatives in this chapter. 
 11.26     Sec. 8.  Minnesota Statutes 2000, section 245A.03, 
 11.27  subdivision 2, is amended to read: 
 11.28     Subd. 2.  [EXCLUSION FROM LICENSURE.] This chapter does not 
 11.29  apply to: 
 11.30     (1) residential or nonresidential programs that are 
 11.31  provided to a person by an individual who is related unless the 
 11.32  residential program is a child foster care placement made by a 
 11.33  local social services agency or a licensed child-placing agency, 
 11.34  except as provided in subdivision 2a; 
 11.35     (2) nonresidential programs that are provided by an 
 11.36  unrelated individual to persons from a single related family; 
 12.1      (3) residential or nonresidential programs that are 
 12.2   provided to adults who do not abuse chemicals or who do not have 
 12.3   a chemical dependency, a mental illness, mental retardation or a 
 12.4   related condition, a functional impairment, or a physical 
 12.5   handicap; 
 12.6      (4) sheltered workshops or work activity programs that are 
 12.7   certified by the commissioner of economic security; 
 12.8      (5) programs for children enrolled in kindergarten to the 
 12.9   12th grade and prekindergarten special education in a school as 
 12.10  defined in section 120A.22, subdivision 4, and programs serving 
 12.11  children in combined special education and regular 
 12.12  prekindergarten programs that are operated or assisted by the 
 12.13  commissioner of children, families, and learning; 
 12.14     (6) nonresidential programs primarily for children that 
 12.15  provide care or supervision, without charge for ten or fewer 
 12.16  days a year, and for periods of less than three hours a day 
 12.17  while the child's parent or legal guardian is in the same 
 12.18  building as the nonresidential program or present within another 
 12.19  building that is directly contiguous to the building in which 
 12.20  the nonresidential program is located; 
 12.21     (7) nursing homes or hospitals licensed by the commissioner 
 12.22  of health except as specified under section 245A.02; 
 12.23     (8) board and lodge facilities licensed by the commissioner 
 12.24  of health that provide services for five or more persons whose 
 12.25  primary diagnosis is mental illness who have refused an 
 12.26  appropriate residential program offered by a county agency.  
 12.27  This exclusion expires on July 1, 1990; 
 12.28     (9) homes providing programs for persons placed there by a 
 12.29  licensed agency for legal adoption, unless the adoption is not 
 12.30  completed within two years; 
 12.31     (10) programs licensed by the commissioner of corrections; 
 12.32     (11) recreation programs for children or adults that 
 12.33  operate for fewer than 40 calendar days in a calendar year or 
 12.34  programs operated by a park and recreation board of a city of 
 12.35  the first class whose primary purpose is to provide social and 
 12.36  recreational activities to school age children, provided the 
 13.1   program is approved by the park and recreation board; 
 13.2      (12) programs operated by a school as defined in section 
 13.3   120A.22, subdivision 4, whose primary purpose is to provide 
 13.4   child care to school-age children, provided the program is 
 13.5   approved by the district's school board; 
 13.6      (13) Head Start nonresidential programs which operate for 
 13.7   less than 31 days in each calendar year; 
 13.8      (14) noncertified boarding care homes unless they provide 
 13.9   services for five or more persons whose primary diagnosis is 
 13.10  mental illness or mental retardation; 
 13.11     (15) nonresidential programs for nonhandicapped children 
 13.12  provided for a cumulative total of less than 30 days in any 
 13.13  12-month period; 
 13.14     (16) residential programs for persons with mental illness, 
 13.15  that are located in hospitals, until the commissioner adopts 
 13.16  appropriate rules; 
 13.17     (17) the religious instruction of school-age children; 
 13.18  Sabbath or Sunday schools; or the congregate care of children by 
 13.19  a church, congregation, or religious society during the period 
 13.20  used by the church, congregation, or religious society for its 
 13.21  regular worship; 
 13.22     (18) camps licensed by the commissioner of health under 
 13.23  Minnesota Rules, chapter 4630; 
 13.24     (19) mental health outpatient services for adults with 
 13.25  mental illness or children with emotional disturbance; 
 13.26     (20) residential programs serving school-age children whose 
 13.27  sole purpose is cultural or educational exchange, until the 
 13.28  commissioner adopts appropriate rules; 
 13.29     (21) unrelated individuals who provide out-of-home respite 
 13.30  care services to persons with mental retardation or related 
 13.31  conditions from a single related family for no more than 90 days 
 13.32  in a 12-month period and the respite care services are for the 
 13.33  temporary relief of the person's family or legal representative; 
 13.34     (22) respite care services provided as a home and 
 13.35  community-based service to a person with mental retardation or a 
 13.36  related condition, in the person's primary residence; 
 14.1      (23) community support services programs as defined in 
 14.2   section 245.462, subdivision 6, and family community support 
 14.3   services as defined in section 245.4871, subdivision 17; 
 14.4      (24) the placement of a child by a birth parent or legal 
 14.5   guardian in a preadoptive home for purposes of adoption as 
 14.6   authorized by section 259.47; or 
 14.7      (25) settings registered under chapter 144D which provide 
 14.8   home care services licensed by the commissioner of health to 
 14.9   fewer than seven adults.; or 
 14.10     (26) consumer-directed community support service funded 
 14.11  under the Medicaid waiver for persons with mental retardation 
 14.12  and related conditions when this service is:  (i) not provided 
 14.13  in the same place or same time as any service licensed under 
 14.14  chapter 245B; and (ii) provided to three or fewer persons in the 
 14.15  same place and at the same time. 
 14.16     For purposes of clause (6), a building is directly 
 14.17  contiguous to a building in which a nonresidential program is 
 14.18  located if it shares a common wall with the building in which 
 14.19  the nonresidential program is located or is attached to that 
 14.20  building by skyway, tunnel, atrium, or common roof. 
 14.21     Sec. 9.  Minnesota Statutes 2000, section 245A.03, is 
 14.22  amended by adding a subdivision to read: 
 14.23     Subd. 6.  [RIGHT TO SEEK CERTIFICATION.] Nothing in this 
 14.24  section shall prohibit a residential program licensed by the 
 14.25  commissioner of corrections to serve children, that is excluded 
 14.26  from licensure under subdivision 2, clause (10), from seeking 
 14.27  certification from the commissioner of human services under this 
 14.28  chapter for program services for which certification standards 
 14.29  have been adopted. 
 14.30     Sec. 10.  Minnesota Statutes 2000, section 245A.035, 
 14.31  subdivision 1, is amended to read: 
 14.32     Subdivision 1.  [GRANT OF EMERGENCY LICENSE.] 
 14.33  Notwithstanding section 245A.03, subdivision 2a, a county agency 
 14.34  may place a child for foster care with a relative who is not 
 14.35  licensed to provide foster care, provided the requirements of 
 14.36  subdivision 2 are met.  As used in this section, the term 
 15.1   "relative" has the meaning given it under section 260.181, 
 15.2   subdivision 3 260B.007, subdivision 12. 
 15.3      Sec. 11.  Minnesota Statutes 2000, section 245A.04, 
 15.4   subdivision 3, is amended to read: 
 15.5      Subd. 3.  [BACKGROUND STUDY OF THE APPLICANT; DEFINITIONS.] 
 15.6   (a) Before the commissioner issues a license, the commissioner 
 15.7   shall conduct a study of the individuals specified in paragraph 
 15.8   (c), clauses (1) to (5), according to rules of the commissioner. 
 15.9      Beginning January 1, 1997, the commissioner shall also 
 15.10  conduct a study of employees providing direct contact services 
 15.11  for nonlicensed personal care provider organizations Individuals 
 15.12  and organizations that are required in statute to initiate 
 15.13  background studies under this section shall comply with the 
 15.14  following requirements: 
 15.15     (1) Applicants for licensure, license holders, and other 
 15.16  entities as provided in this section must submit completed 
 15.17  background study forms to the commissioner before individuals 
 15.18  specified in paragraph (c), clauses (1) to (4) and (6) to (8), 
 15.19  begin positions allowing direct contact in any licensed program. 
 15.20     (2) Applicants and license holders under the jurisdiction 
 15.21  of other state agencies who are required in other statutory 
 15.22  sections to initiate background studies under this section must 
 15.23  submit completed background study forms to the commissioner 
 15.24  prior to the background study subject beginning in a position 
 15.25  allowing direct contact in the licensed program, or where 
 15.26  applicable, prior to being employed. 
 15.27     (3) Organizations required to initiate background studies 
 15.28  under section 256B.0627 for individuals described in paragraph 
 15.29  (c), clause (5), must submit a completed background study form 
 15.30  to the commissioner before those individuals begin a position 
 15.31  allowing direct contact with persons served by the organization. 
 15.32  The commissioner shall recover the cost of these background 
 15.33  studies through a fee of no more than $12 per study charged to 
 15.34  the personal care provider organization responsible for 
 15.35  submitting the background study form.  
 15.36     Beginning August 1, 1997, Upon receipt of the background 
 16.1   study forms from the entities in clauses (1) to (3), the 
 16.2   commissioner shall conduct all background studies required under 
 16.3   this chapter for adult foster care providers who are licensed by 
 16.4   the commissioner of human services and registered under chapter 
 16.5   144D.  The commissioner shall conduct these background studies 
 16.6   in accordance with this chapter.  The commissioner shall 
 16.7   initiate a pilot project to conduct up to 5,000 background 
 16.8   studies under this chapter complete the background study as 
 16.9   specified under this section and provide notices required in 
 16.10  subdivision 3a.  Unless otherwise specified, the subject of a 
 16.11  background study may have direct contact with persons served by 
 16.12  a program after the background study form is mailed or submitted 
 16.13  to the commissioner pending notification of the study results 
 16.14  under subdivision 3a.  A county agency may accept a background 
 16.15  study completed by the commissioner under this section in place 
 16.16  of the background study required under section 245A.16, 
 16.17  subdivision 3, in programs with joint licensure as home and 
 16.18  community-based services and adult foster care for people with 
 16.19  developmental disabilities when the license holder does not 
 16.20  reside in the foster care residence and the subject of the study 
 16.21  has been continuously affiliated with the license holder since 
 16.22  the date of the commissioner's study. 
 16.23     (b) Beginning July 1, 1998, the commissioner shall conduct 
 16.24  a background study on individuals specified in paragraph (c), 
 16.25  clauses (1) to (5), who perform direct contact services in a 
 16.26  nursing home or a home care agency licensed under chapter 144A 
 16.27  or a boarding care home licensed under sections 144.50 to 
 16.28  144.58, when the subject of the study resides outside Minnesota; 
 16.29  the study must be at least as comprehensive as that of a 
 16.30  Minnesota resident and include a search of information from the 
 16.31  criminal justice data communications network in the state where 
 16.32  the subject of the study resides The definitions in this 
 16.33  paragraph apply to subdivisions 3 to 3d. 
 16.34     (1) "Background study" means the review of records 
 16.35  conducted by the commissioner to determine whether a subject is 
 16.36  disqualified from direct contact with persons served by a 
 17.1   program, and where specifically provided in statutes, whether a 
 17.2   subject is disqualified from having access to persons served by 
 17.3   a program. 
 17.4      (2) "Continuous, direct supervision" means an individual is 
 17.5   within sight or hearing of the supervising person to the extent 
 17.6   that supervising person is capable at all times of intervening 
 17.7   to protect the health and safety of the persons served by the 
 17.8   program. 
 17.9      (3) "Contractor" means any person, regardless of employer, 
 17.10  who is providing program services for hire under the control of 
 17.11  the provider. 
 17.12     (4) "Direct contact" means providing face-to-face care, 
 17.13  training, supervision, counseling, consultation, or medication 
 17.14  assistance to persons served by the program. 
 17.15     (5) "Reasonable cause" means information or circumstances 
 17.16  exist which provide the commissioner with articulable suspicion 
 17.17  that further pertinent information may exist concerning a 
 17.18  subject.  The commissioner has reasonable cause when, but not 
 17.19  limited to, the commissioner has received a report from the 
 17.20  subject, the license holder, or a third party indicating that 
 17.21  the subject has a history that would disqualify the person or 
 17.22  that may pose a risk to the health or safety of persons 
 17.23  receiving services. 
 17.24     (6) "Subject of a background study" means an individual on 
 17.25  whom a background study is required or completed. 
 17.26     (c) The applicant, license holder, the bureau of criminal 
 17.27  apprehension, the commissioner of health and county agencies, 
 17.28  after written notice to the individual who is the subject of the 
 17.29  study, shall help with the study by giving the commissioner 
 17.30  criminal conviction data and reports about the maltreatment of 
 17.31  adults substantiated under section 626.557 and the maltreatment 
 17.32  of minors in licensed programs substantiated under section 
 17.33  626.556.  The individuals to be studied shall include: 
 17.34     (1) the applicant; 
 17.35     (2) persons over the age of 13 and over living in the 
 17.36  household where the licensed program will be provided; 
 18.1      (3) current employees or contractors of the applicant who 
 18.2   will have direct contact with persons served by the facility, 
 18.3   agency, or program; 
 18.4      (4) volunteers or student volunteers who have direct 
 18.5   contact with persons served by the program to provide program 
 18.6   services, if the contact is not directly supervised by the 
 18.7   individuals listed in clause (1) or (3); and 
 18.8      (5) any person who, as an individual or as a member of an 
 18.9   organization, exclusively offers, provides, or arranges for 
 18.10  personal care assistant services under the medical assistance 
 18.11  program as authorized under sections 256B.04, subdivision 16, 
 18.12  and 256B.0625, subdivision 19a. required under section 256B.0627 
 18.13  to have a background study completed under this section; 
 18.14     (6) persons age 13 to 17 who will have direct contact with 
 18.15  persons served by the facility, agency, or program when the 
 18.16  commissioner has reasonable cause; 
 18.17     (7) persons age 10 to 12 living in the household where the 
 18.18  licensed services will be provided when the commissioner has 
 18.19  reasonable cause; and 
 18.20     (8) persons who, without providing direct contact services 
 18.21  at a licensed program, may have unsupervised access to children 
 18.22  or vulnerable adults receiving services from the program 
 18.23  licensed to provide family day care for children, foster care 
 18.24  for children in the provider's own home, or foster care or day 
 18.25  care services for adults in the provider's own home when the 
 18.26  commissioner has reasonable cause. 
 18.27     (d) According to paragraph (c), clauses (2), (6), and (7), 
 18.28  the commissioner shall review records from the juvenile courts.  
 18.29  The juvenile courts shall also help with the study by giving the 
 18.30  commissioner existing juvenile court records on individuals 
 18.31  described in clause paragraph (c), clauses (2), (6), and (7), 
 18.32  relating to delinquency proceedings held within either the five 
 18.33  years immediately preceding the application background study or 
 18.34  the five years immediately preceding the individual's 18th 
 18.35  birthday, whichever time period is longer.  The commissioner 
 18.36  shall destroy juvenile records obtained pursuant to this 
 19.1   subdivision when the subject of the records reaches age 23.  
 19.2      (e) For purposes of this section and Minnesota Rules, part 
 19.3   9543.3070, a finding that a delinquency petition is proven in 
 19.4   juvenile court shall be considered a conviction in state 
 19.5   district court. 
 19.6      For purposes of this subdivision, "direct contact" means 
 19.7   providing face-to-face care, training, supervision, counseling, 
 19.8   consultation, or medication assistance to persons served by a 
 19.9   program.  For purposes of this subdivision, "directly supervised"
 19.10  means an individual listed in clause (1), (3), or (5) is within 
 19.11  sight or hearing of a volunteer to the extent that the 
 19.12  individual listed in clause (1), (3), or (5) is capable at all 
 19.13  times of intervening to protect the health and safety of the 
 19.14  persons served by the program who have direct contact with the 
 19.15  volunteer. 
 19.16     (f) A study of an individual in paragraph (c), clauses (1) 
 19.17  to (5) (8), shall be conducted at least upon application for 
 19.18  initial license for all license types and at reapplication for a 
 19.19  license for family child care, child foster care, and adult 
 19.20  foster care.  The commissioner is not required to conduct a 
 19.21  study of an individual at the time of reapplication for a 
 19.22  license or if the individual has been continuously affiliated 
 19.23  with a foster care provider licensed by the commissioner of 
 19.24  human services and registered under chapter 144D, other than a 
 19.25  family day care or foster care license, if:  (i) a study of the 
 19.26  individual was conducted either at the time of initial licensure 
 19.27  or when the individual became affiliated with the license 
 19.28  holder; (ii) the individual has been continuously affiliated 
 19.29  with the license holder since the last study was conducted; and 
 19.30  (iii) the procedure described in paragraph (d) (i) has been 
 19.31  implemented and was in effect continuously since the last study 
 19.32  was conducted.  For the purposes of this section, a physician 
 19.33  licensed under chapter 147 is considered to be continuously 
 19.34  affiliated upon the license holder's receipt from the 
 19.35  commissioner of health or human services of the physician's 
 19.36  background study results.  For individuals who are required to 
 20.1   have background studies under clauses (1) to (5) paragraph (c) 
 20.2   and who have been continuously affiliated with a foster care 
 20.3   provider that is licensed in more than one county, criminal 
 20.4   conviction data may be shared among those counties in which the 
 20.5   foster care programs are licensed.  A county agency's receipt of 
 20.6   criminal conviction data from another county agency shall meet 
 20.7   the criminal data background study requirements of this section. 
 20.8      (g) The commissioner may also conduct studies on 
 20.9   individuals specified in paragraph (c), clauses (3) and (4), 
 20.10  when the studies are initiated by: 
 20.11     (i) personnel pool agencies; 
 20.12     (ii) temporary personnel agencies; 
 20.13     (iii) educational programs that train persons by providing 
 20.14  direct contact services in licensed programs; and 
 20.15     (iv) professional services agencies that are not licensed 
 20.16  and which contract with licensed programs to provide direct 
 20.17  contact services or individuals who provide direct contact 
 20.18  services. 
 20.19     (h) Studies on individuals in paragraph (g), items (i) to 
 20.20  (iv), must be initiated annually by these agencies, programs, 
 20.21  and individuals.  Except for personal care provider 
 20.22  organizations as provided in paragraph (a), clause (3), no 
 20.23  applicant, license holder, or individual who is the subject of 
 20.24  the study shall pay any fees required to conduct the study. 
 20.25     (1) At the option of the licensed facility, rather than 
 20.26  initiating another background study on an individual required to 
 20.27  be studied who has indicated to the licensed facility that a 
 20.28  background study by the commissioner was previously completed, 
 20.29  the facility may make a request to the commissioner for 
 20.30  documentation of the individual's background study status, 
 20.31  provided that: 
 20.32     (i) the facility makes this request using a form provided 
 20.33  by the commissioner; 
 20.34     (ii) in making the request the facility informs the 
 20.35  commissioner that either: 
 20.36     (A) the individual has been continuously affiliated with a 
 21.1   licensed facility since the individual's previous background 
 21.2   study was completed, or since October 1, 1995, whichever is 
 21.3   shorter; or 
 21.4      (B) the individual is affiliated only with a personnel pool 
 21.5   agency, a temporary personnel agency, an educational program 
 21.6   that trains persons by providing direct contact services in 
 21.7   licensed programs, or a professional services agency that is not 
 21.8   licensed and which contracts with licensed programs to provide 
 21.9   direct contact services or individuals who provide direct 
 21.10  contact services; and 
 21.11     (iii) the facility provides notices to the individual as 
 21.12  required in paragraphs (a) to (d) (i), and that the facility is 
 21.13  requesting written notification of the individual's background 
 21.14  study status from the commissioner.  
 21.15     (2) The commissioner shall respond to each request under 
 21.16  paragraph (1) with a written or electronic notice to the 
 21.17  facility and the study subject.  If the commissioner determines 
 21.18  that a background study is necessary, the study shall be 
 21.19  completed without further request from a licensed agency or 
 21.20  notifications to the study subject.  
 21.21     (3) When a background study is being initiated by a 
 21.22  licensed facility or a foster care provider that is also 
 21.23  registered under chapter 144D, a study subject affiliated with 
 21.24  multiple licensed facilities may attach to the background study 
 21.25  form a cover letter indicating the additional facilities' names, 
 21.26  addresses, and background study identification numbers.  When 
 21.27  the commissioner receives such notices, each facility identified 
 21.28  by the background study subject shall be notified of the study 
 21.29  results.  The background study notice sent to the subsequent 
 21.30  agencies shall satisfy those facilities' responsibilities for 
 21.31  initiating a background study on that individual. 
 21.32     (d) (i) If an individual who is affiliated with a program 
 21.33  or facility regulated by the department of human services or 
 21.34  department of health or who is affiliated with a nonlicensed 
 21.35  personal care provider organization any type of home care agency 
 21.36  or provider of personal care assistance services, is convicted 
 22.1   of a crime constituting a disqualification under subdivision 3d, 
 22.2   the probation officer or corrections agent shall notify the 
 22.3   commissioner of the conviction.  For the purpose of this 
 22.4   paragraph, "conviction" has the meaning given it in section 
 22.5   609.02, subdivision 5.  The commissioner, in consultation with 
 22.6   the commissioner of corrections, shall develop forms and 
 22.7   information necessary to implement this paragraph and shall 
 22.8   provide the forms and information to the commissioner of 
 22.9   corrections for distribution to local probation officers and 
 22.10  corrections agents.  The commissioner shall inform individuals 
 22.11  subject to a background study that criminal convictions for 
 22.12  disqualifying crimes will be reported to the commissioner by the 
 22.13  corrections system.  A probation officer, corrections agent, or 
 22.14  corrections agency is not civilly or criminally liable for 
 22.15  disclosing or failing to disclose the information required by 
 22.16  this paragraph.  Upon receipt of disqualifying information, the 
 22.17  commissioner shall provide the notifications required in 
 22.18  subdivision 3a, as appropriate to agencies on record as having 
 22.19  initiated a background study or making a request for 
 22.20  documentation of the background study status of the individual.  
 22.21  This paragraph does not apply to family day care and child 
 22.22  foster care programs. 
 22.23     (e) (j) The individual who is the subject of the study must 
 22.24  provide the applicant or license holder with sufficient 
 22.25  information to ensure an accurate study including the 
 22.26  individual's first, middle, and last name and all other names by 
 22.27  which the individual has been known; home address, city, county, 
 22.28  and state of residence for the past five years; zip code; sex; 
 22.29  date of birth; and driver's license number or state 
 22.30  identification number.  The applicant or license holder shall 
 22.31  provide this information about an individual in paragraph (c), 
 22.32  clauses (1) to (5) (8), on forms prescribed by the commissioner. 
 22.33  By January 1, 2000, for background studies conducted by the 
 22.34  department of human services, the commissioner shall implement a 
 22.35  system for the electronic transmission of:  (1) background study 
 22.36  information to the commissioner; and (2) background study 
 23.1   results to the license holder.  The commissioner may request 
 23.2   additional information of the individual, which shall be 
 23.3   optional for the individual to provide, such as the individual's 
 23.4   social security number or race. 
 23.5      (f) Except for child foster care, adult foster care, and 
 23.6   family day care homes (k) For programs directly licensed by the 
 23.7   commissioner, a study must include information related to names 
 23.8   of substantiated perpetrators of maltreatment of vulnerable 
 23.9   adults that has been received by the commissioner as required 
 23.10  under section 626.557, subdivision 9c, paragraph (i), and the 
 23.11  commissioner's records relating to the maltreatment of minors in 
 23.12  licensed programs, information from juvenile courts as required 
 23.13  in paragraph (c) for persons listed in paragraph (c), 
 23.14  clause clauses (2), (6), and (7), and information from the 
 23.15  bureau of criminal apprehension.  For child foster care, adult 
 23.16  foster care, and family day care homes, the study must include 
 23.17  information from the county agency's record of substantiated 
 23.18  maltreatment of adults, and the maltreatment of minors, 
 23.19  information from juvenile courts as required in paragraph (c) 
 23.20  for persons listed in paragraph (c), clause clauses (2), (6), 
 23.21  and (7), and information from the bureau of criminal 
 23.22  apprehension.  The commissioner may also review arrest and 
 23.23  investigative information from the bureau of criminal 
 23.24  apprehension, the commissioner of health, a county attorney, 
 23.25  county sheriff, county agency, local chief of police, other 
 23.26  states, the courts, or the Federal Bureau of Investigation if 
 23.27  the commissioner has reasonable cause to believe the information 
 23.28  is pertinent to the disqualification of an individual listed in 
 23.29  paragraph (c), clauses (1) to (5) (8).  The commissioner is not 
 23.30  required to conduct more than one review of a subject's records 
 23.31  from the Federal Bureau of Investigation if a review of the 
 23.32  subject's criminal history with the Federal Bureau of 
 23.33  Investigation has already been completed by the commissioner and 
 23.34  there has been no break in the subject's affiliation with the 
 23.35  license holder who initiated the background studies study. 
 23.36     (l) When the commissioner has reasonable cause to believe 
 24.1   that further pertinent information may exist on the subject, the 
 24.2   subject shall provide a set of classifiable fingerprints 
 24.3   obtained from an authorized law enforcement agency.  For 
 24.4   purposes of requiring fingerprints, the commissioner shall be 
 24.5   considered to have reasonable cause under, but not limited to, 
 24.6   the following circumstances: 
 24.7      (1) information from the bureau of criminal apprehension 
 24.8   indicates that the subject is a multistate offender; 
 24.9      (2) information from the bureau of criminal apprehension 
 24.10  indicates that multistate offender status is undetermined; or 
 24.11     (3) the commissioner has received a report from the subject 
 24.12  or a third party indicating that the subject has a criminal 
 24.13  history in a jurisdiction other than Minnesota. 
 24.14     (g) (m) An applicant's or license holder's failure or 
 24.15  refusal to cooperate with the commissioner is reasonable cause 
 24.16  to disqualify a subject, deny a license application or 
 24.17  immediately suspend, suspend, or revoke a license.  Failure or 
 24.18  refusal of an individual to cooperate with the study is just 
 24.19  cause for denying or terminating employment of the individual if 
 24.20  the individual's failure or refusal to cooperate could cause the 
 24.21  applicant's application to be denied or the license holder's 
 24.22  license to be immediately suspended, suspended, or revoked. 
 24.23     (h) (n) The commissioner shall not consider an application 
 24.24  to be complete until all of the information required to be 
 24.25  provided under this subdivision has been received.  
 24.26     (i) (o) No person in paragraph (c), clause clauses (1), 
 24.27  (2), (3), (4), or (5) to (8) who is disqualified as a result of 
 24.28  this section may be retained by the agency in a position 
 24.29  involving direct contact with persons served by the program. or 
 24.30  in a position allowing access to persons served by the program 
 24.31  as provided for in statutes, unless the commissioner has 
 24.32  provided written notice to the agency stating that: 
 24.33     (1) the individual may remain in direct contact during the 
 24.34  period in which the individual may request reconsideration as 
 24.35  provided in subdivision 3a, paragraph (b), clause (2) or (3); 
 24.36     (2) the individual's disqualification has been set aside 
 25.1   for that agency as provided in subdivision 3a, paragraph (b), 
 25.2   clause (3); or 
 25.3      (3) the license holder has been granted a variance for the 
 25.4   disqualified individual under subdivision 3e. 
 25.5      (j) (p) Termination of persons in paragraph (c), clause 
 25.6   clauses (1), (2), (3), (4), or (5) to (8), made in good faith 
 25.7   reliance on a notice of disqualification provided by the 
 25.8   commissioner shall not subject the applicant or license holder 
 25.9   to civil liability. 
 25.10     (k) (q) The commissioner may establish records to fulfill 
 25.11  the requirements of this section. 
 25.12     (l) (r) The commissioner may not disqualify an individual 
 25.13  subject to a study under this section because that person has, 
 25.14  or has had, a mental illness as defined in section 245.462, 
 25.15  subdivision 20. 
 25.16     (m) (s) An individual subject to disqualification under 
 25.17  this subdivision has the applicable rights in subdivision 3a, 
 25.18  3b, or 3c. 
 25.19     (n) (t) For the purposes of background studies completed by 
 25.20  tribal organizations performing licensing activities otherwise 
 25.21  required of the commissioner under this chapter, after obtaining 
 25.22  consent from the background study subject, tribal licensing 
 25.23  agencies shall have access to criminal history data in the same 
 25.24  manner as county licensing agencies and private licensing 
 25.25  agencies under this chapter. 
 25.26     Sec. 12.  Minnesota Statutes 2000, section 245A.04, 
 25.27  subdivision 3a, is amended to read: 
 25.28     Subd. 3a.  [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF 
 25.29  STUDY RESULTS; DETERMINATION OF RISK OF HARM.] (a) Within 15 
 25.30  working days, the commissioner shall notify the applicant or 
 25.31  license holder and the individual who is the subject of the 
 25.32  study, in writing or by electronic transmission, of the results 
 25.33  of the study or that more time is needed to complete the study.  
 25.34  When the study is completed, a notice that the study was 
 25.35  undertaken and completed shall be maintained in the personnel 
 25.36  files of the program.  For studies on individuals pertaining to 
 26.1   a license to provide family day care or group family day care, 
 26.2   foster care for children in the provider's own home, or foster 
 26.3   care or day care services for adults in the provider's own home, 
 26.4   the commissioner is not required to provide a separate notice of 
 26.5   the background study results to the individual who is the 
 26.6   subject of the study unless the study results in a 
 26.7   disqualification of the individual. 
 26.8      The commissioner shall notify the individual studied if the 
 26.9   information in the study indicates the individual is 
 26.10  disqualified from direct contact with persons served by the 
 26.11  program.  The commissioner shall disclose the information 
 26.12  causing disqualification and instructions on how to request a 
 26.13  reconsideration of the disqualification to the individual 
 26.14  studied.  An applicant or license holder who is not the subject 
 26.15  of the study shall be informed that the commissioner has found 
 26.16  information that disqualifies the subject from direct contact 
 26.17  with persons served by the program.  However, only the 
 26.18  individual studied must be informed of the information contained 
 26.19  in the subject's background study unless the only basis for the 
 26.20  disqualification is failure to cooperate, substantiated 
 26.21  maltreatment under section 626.556 or 626.557, the Data 
 26.22  Practices Act provides for release of the information, or the 
 26.23  individual studied authorizes the release of the 
 26.24  information.  When the basis of a disqualification is the 
 26.25  subject's failure to cooperate with the background study or 
 26.26  substantiated maltreatment under section 626.556 or 626.557, 
 26.27  only the agency that initiated the study shall be informed of 
 26.28  the basis for the disqualification by the commissioner. 
 26.29     (b) Except as provided in subdivision 3d, paragraph (b), if 
 26.30  the commissioner determines that the individual studied has a 
 26.31  disqualifying characteristic, the commissioner shall review the 
 26.32  information immediately available and make a determination as to 
 26.33  the subject's immediate risk of harm to persons served by the 
 26.34  program where the individual studied will have direct contact.  
 26.35  The commissioner shall consider all relevant information 
 26.36  available, including the following factors in determining the 
 27.1   immediate risk of harm:  the recency of the disqualifying 
 27.2   characteristic; the recency of discharge from probation for the 
 27.3   crimes; the number of disqualifying characteristics; the 
 27.4   intrusiveness or violence of the disqualifying characteristic; 
 27.5   the vulnerability of the victim involved in the disqualifying 
 27.6   characteristic; and the similarity of the victim to the persons 
 27.7   served by the program where the individual studied will have 
 27.8   direct contact.  The commissioner may determine that the 
 27.9   evaluation of the information immediately available gives the 
 27.10  commissioner reason to believe one of the following: 
 27.11     (1) The individual poses an imminent risk of harm to 
 27.12  persons served by the program where the individual studied will 
 27.13  have direct contact.  If the commissioner determines that an 
 27.14  individual studied poses an imminent risk of harm to persons 
 27.15  served by the program where the individual studied will have 
 27.16  direct contact, the individual and the license holder must be 
 27.17  sent a notice of disqualification.  The commissioner shall order 
 27.18  the license holder to immediately remove the individual studied 
 27.19  from direct contact.  The notice to the individual studied must 
 27.20  include an explanation of the basis of this determination. 
 27.21     (2) The individual poses a risk of harm requiring 
 27.22  continuous, direct supervision while providing direct contact 
 27.23  services during the period in which the subject may request a 
 27.24  reconsideration.  If the commissioner determines that an 
 27.25  individual studied poses a risk of harm that requires 
 27.26  continuous, direct supervision, the individual and the license 
 27.27  holder must be sent a notice of disqualification.  The 
 27.28  commissioner shall order the license holder to immediately 
 27.29  remove the individual studied from direct contact services or 
 27.30  assure that the individual studied is within sight or hearing of 
 27.31  another staff person when providing direct contact services 
 27.32  during the period in which the individual may request a 
 27.33  reconsideration of the disqualification.  If the individual 
 27.34  studied does not submit a timely request for reconsideration, or 
 27.35  the individual submits a timely request for reconsideration, but 
 27.36  the disqualification is not set aside for that license holder, 
 28.1   the license holder will be notified of the disqualification and 
 28.2   ordered to immediately remove the individual from any position 
 28.3   allowing direct contact with persons receiving services from the 
 28.4   license holder. 
 28.5      (3) The individual does not pose an imminent risk of harm 
 28.6   or a risk of harm requiring continuous, direct supervision while 
 28.7   providing direct contact services during the period in which the 
 28.8   subject may request a reconsideration.  If the commissioner 
 28.9   determines that an individual studied does not pose a risk of 
 28.10  harm that requires continuous, direct supervision, only the 
 28.11  individual must be sent a notice of disqualification.  The 
 28.12  license holder must be sent a notice that more time is needed to 
 28.13  complete the individual's background study.  If the individual 
 28.14  studied submits a timely request for reconsideration, and if the 
 28.15  disqualification is set aside for that license holder, the 
 28.16  license holder will receive the same notification received by 
 28.17  license holders in cases where the individual studied has no 
 28.18  disqualifying characteristic.  If the individual studied does 
 28.19  not submit a timely request for reconsideration, or the 
 28.20  individual submits a timely request for reconsideration, but the 
 28.21  disqualification is not set aside for that license holder, the 
 28.22  license holder will be notified of the disqualification and 
 28.23  ordered to immediately remove the individual from any position 
 28.24  allowing direct contact with persons receiving services from the 
 28.25  license holder.  
 28.26     (c) County licensing agencies performing duties under this 
 28.27  subdivision may develop an alternative system for determining 
 28.28  the subject's immediate risk of harm to persons served by the 
 28.29  program, providing the notices under paragraph (b), and 
 28.30  documenting the action taken by the county licensing agency.  
 28.31  Each county licensing agency's implementation of the alternative 
 28.32  system is subject to approval by the commissioner.  
 28.33  Notwithstanding this alternative system, county licensing 
 28.34  agencies shall complete the requirements of paragraph (a). 
 28.35     Sec. 13.  Minnesota Statutes 2000, section 245A.04, 
 28.36  subdivision 3b, is amended to read: 
 29.1      Subd. 3b.  [RECONSIDERATION OF DISQUALIFICATION.] (a) The 
 29.2   individual who is the subject of the disqualification may 
 29.3   request a reconsideration of the disqualification.  
 29.4      The individual must submit the request for reconsideration 
 29.5   to the commissioner in writing.  A request for reconsideration 
 29.6   for an individual who has been sent a notice of disqualification 
 29.7   under subdivision 3a, paragraph (b), clause (1) or (2), must be 
 29.8   submitted within 30 calendar days of the disqualified 
 29.9   individual's receipt of the notice of disqualification.  Upon 
 29.10  showing that the information in clause (1) or (2) cannot be 
 29.11  obtained within 30 days, the disqualified individual may request 
 29.12  additional time, not to exceed 30 days, to obtain that 
 29.13  information.  A request for reconsideration for an individual 
 29.14  who has been sent a notice of disqualification under subdivision 
 29.15  3a, paragraph (b), clause (3), must be submitted within 15 
 29.16  calendar days of the disqualified individual's receipt of the 
 29.17  notice of disqualification.  Removal of a disqualified 
 29.18  individual from direct contact shall be ordered if the 
 29.19  individual does not request reconsideration within the 
 29.20  prescribed time, and for an individual who submits a timely 
 29.21  request for reconsideration, if the disqualification is not set 
 29.22  aside.  The individual must present information showing that: 
 29.23     (1) the information the commissioner relied upon is 
 29.24  incorrect or inaccurate.  If the basis of a reconsideration 
 29.25  request is that a maltreatment determination or disposition 
 29.26  under section 626.556 or 626.557 is incorrect, and the 
 29.27  commissioner has issued a final order in an appeal of that 
 29.28  determination or disposition under section 256.045, the 
 29.29  commissioner's order is conclusive on the issue of maltreatment; 
 29.30  or 
 29.31     (2) the subject of the study does not pose a risk of harm 
 29.32  to any person served by the applicant or license holder. 
 29.33     (b) The commissioner may set aside the disqualification 
 29.34  under this section if the commissioner finds that the 
 29.35  information the commissioner relied upon is incorrect or the 
 29.36  individual does not pose a risk of harm to any person served by 
 30.1   the applicant or license holder.  In determining that an 
 30.2   individual does not pose a risk of harm, the commissioner shall 
 30.3   consider the nature, severity, and consequences of the event or 
 30.4   events that lead to disqualification, whether there is more than 
 30.5   one disqualifying event, the age and vulnerability of the victim 
 30.6   at the time of the event, the harm suffered by the victim, the 
 30.7   similarity between the victim and persons served by the program, 
 30.8   the time elapsed without a repeat of the same or similar event, 
 30.9   documentation of successful completion by the individual studied 
 30.10  of training or rehabilitation pertinent to the event, and any 
 30.11  other information relevant to reconsideration.  In reviewing a 
 30.12  disqualification under this section, the commissioner shall give 
 30.13  preeminent weight to the safety of each person to be served by 
 30.14  the license holder or applicant over the interests of the 
 30.15  license holder or applicant. 
 30.16     (c) Unless the information the commissioner relied on in 
 30.17  disqualifying an individual is incorrect, the commissioner may 
 30.18  not set aside the disqualification of an individual in 
 30.19  connection with a license to provide family day care for 
 30.20  children, foster care for children in the provider's own home, 
 30.21  or foster care or day care services for adults in the provider's 
 30.22  own home if: 
 30.23     (1) less than ten years have passed since the discharge of 
 30.24  the sentence imposed for the offense; and the individual has 
 30.25  been convicted of a violation of any offense listed in sections 
 30.26  609.20 (manslaughter in the first degree), 609.205 (manslaughter 
 30.27  in the second degree), criminal vehicular homicide under 609.21 
 30.28  (criminal vehicular homicide and injury), 609.215 (aiding 
 30.29  suicide or aiding attempted suicide), felony violations under 
 30.30  609.221 to 609.2231 (assault in the first, second, third, or 
 30.31  fourth degree), 609.713 (terroristic threats), 609.235 (use of 
 30.32  drugs to injure or to facilitate crime), 609.24 (simple 
 30.33  robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 
 30.34  609.255 (false imprisonment), 609.561 or 609.562 (arson in the 
 30.35  first or second degree), 609.71 (riot), burglary in the first or 
 30.36  second degree under 609.582 (burglary), 609.66 (dangerous 
 31.1   weapon), 609.665 (spring guns), 609.67 (machine guns and 
 31.2   short-barreled shotguns), 609.749 (harassment; stalking), 
 31.3   152.021 or 152.022 (controlled substance crime in the first or 
 31.4   second degree), 152.023, subdivision 1, clause (3) or (4), or 
 31.5   subdivision 2, clause (4) (controlled substance crime in the 
 31.6   third degree), 152.024, subdivision 1, clause (2), (3), or (4) 
 31.7   (controlled substance crime in the fourth degree), 609.224, 
 31.8   subdivision 2, paragraph (c) (fifth-degree assault by a 
 31.9   caregiver against a vulnerable adult), 609.228 (great bodily 
 31.10  harm caused by distribution of drugs), 609.23 (mistreatment of 
 31.11  persons confined), 609.231 (mistreatment of residents or 
 31.12  patients), 609.2325 (criminal abuse of a vulnerable adult), 
 31.13  609.233 (criminal neglect of a vulnerable adult), 609.2335 
 31.14  (financial exploitation of a vulnerable adult), 609.234 (failure 
 31.15  to report), 609.265 (abduction), 609.2664 to 609.2665 
 31.16  (manslaughter of an unborn child in the first or second degree), 
 31.17  609.267 to 609.2672 (assault of an unborn child in the first, 
 31.18  second, or third degree), 609.268 (injury or death of an unborn 
 31.19  child in the commission of a crime), 617.293 (disseminating or 
 31.20  displaying harmful material to minors), a felony level 
 31.21  conviction involving alcohol or drug use, a gross misdemeanor 
 31.22  offense under 609.324, subdivision 1 (other prohibited acts), a 
 31.23  gross misdemeanor offense under 609.378 (neglect or endangerment 
 31.24  of a child), a gross misdemeanor offense under 609.377 
 31.25  (malicious punishment of a child), 609.72, subdivision 3 
 31.26  (disorderly conduct against a vulnerable adult); or an attempt 
 31.27  or conspiracy to commit any of these offenses, as each of these 
 31.28  offenses is defined in Minnesota Statutes; or an offense in any 
 31.29  other state, the elements of which are substantially similar to 
 31.30  the elements of any of the foregoing offenses; 
 31.31     (2) regardless of how much time has passed since the 
 31.32  discharge of the sentence imposed for the offense, the 
 31.33  individual was convicted of a violation of any offense listed in 
 31.34  sections 609.185 to 609.195 (murder in the first, second, or 
 31.35  third degree), 609.2661 to 609.2663 (murder of an unborn child 
 31.36  in the first, second, or third degree), a felony offense under 
 32.1   609.377 (malicious punishment of a child), a felony offense 
 32.2   under 609.324, subdivision 1 (other prohibited acts), a felony 
 32.3   offense under 609.378 (neglect or endangerment of a child), 
 32.4   609.322 (solicitation, inducement, and promotion of 
 32.5   prostitution), 609.342 to 609.345 (criminal sexual conduct in 
 32.6   the first, second, third, or fourth degree), 609.352 
 32.7   (solicitation of children to engage in sexual conduct), 617.246 
 32.8   (use of minors in a sexual performance), 617.247 (possession of 
 32.9   pictorial representations of a minor), 609.365 (incest), a 
 32.10  felony offense under sections 609.2242 and 609.2243 (domestic 
 32.11  assault), 260C.301 (involuntary termination of parental rights), 
 32.12  a felony offense of spousal abuse, a felony offense of child 
 32.13  abuse or neglect, a felony offense of a crime against children, 
 32.14  or an attempt or conspiracy to commit any of these offenses as 
 32.15  defined in Minnesota Statutes, or an offense in any other state, 
 32.16  the elements of which are substantially similar to any of the 
 32.17  foregoing offenses; 
 32.18     (3) within the seven years preceding the study, the 
 32.19  individual committed an act that constitutes maltreatment of a 
 32.20  child under section 626.556, subdivision 10e, and that resulted 
 32.21  in substantial bodily harm as defined in section 609.02, 
 32.22  subdivision 7a, or substantial mental or emotional harm as 
 32.23  supported by competent psychological or psychiatric evidence; or 
 32.24     (4) within the seven years preceding the study, the 
 32.25  individual was determined under section 626.557 to be the 
 32.26  perpetrator of a substantiated incident of maltreatment of a 
 32.27  vulnerable adult that resulted in substantial bodily harm as 
 32.28  defined in section 609.02, subdivision 7a, or substantial mental 
 32.29  or emotional harm as supported by competent psychological or 
 32.30  psychiatric evidence. 
 32.31     In the case of any ground for disqualification under 
 32.32  clauses (1) to (4), if the act was committed by an individual 
 32.33  other than the applicant or license holder residing in the 
 32.34  applicant's or license holder's home, the applicant or license 
 32.35  holder may seek reconsideration when the individual who 
 32.36  committed the act no longer resides in the home.  
 33.1      The disqualification periods provided under clauses (1), 
 33.2   (3), and (4) are the minimum applicable disqualification 
 33.3   periods.  The commissioner may determine that an individual 
 33.4   should continue to be disqualified from licensure because the 
 33.5   license holder or applicant poses a risk of harm to a person 
 33.6   served by that individual after the minimum disqualification 
 33.7   period has passed. 
 33.8      (d) The commissioner shall respond in writing or by 
 33.9   electronic transmission to all reconsideration requests for 
 33.10  which the basis for the request is that the information relied 
 33.11  upon by the commissioner to disqualify is incorrect or 
 33.12  inaccurate within 30 working days of receipt of a request and 
 33.13  all relevant information.  If the basis for the request is that 
 33.14  the individual does not pose a risk of harm, the commissioner 
 33.15  shall respond to the request within 15 working days after 
 33.16  receiving the request for reconsideration and all relevant 
 33.17  information.  If the disqualification is set aside, the 
 33.18  commissioner shall notify the applicant or license holder in 
 33.19  writing or by electronic transmission of the decision. 
 33.20     (e) Except as provided in subdivision 3c, the 
 33.21  commissioner's decision to disqualify an individual, including 
 33.22  the decision to grant or deny a rescission or set aside a 
 33.23  disqualification under this section, is the final administrative 
 33.24  agency action and shall not be subject to further review in a 
 33.25  contested case under chapter 14 involving a negative licensing 
 33.26  appeal taken in response to the disqualification or involving an 
 33.27  accuracy and completeness appeal under section 13.04. 
 33.28     Sec. 14.  Minnesota Statutes 2000, section 245A.04, 
 33.29  subdivision 3d, is amended to read: 
 33.30     Subd. 3d.  [DISQUALIFICATION.] (a) Except as provided in 
 33.31  paragraph (b), upon receipt of information showing, or when a 
 33.32  background study completed under subdivision 3 shows any of the 
 33.33  following:  a conviction of one or more crimes listed in clauses 
 33.34  (1) to (4); the individual has admitted to or a preponderance of 
 33.35  the evidence indicates the individual has committed an act or 
 33.36  acts that meet the definition of any of the crimes listed in 
 34.1   clauses (1) to (4); or an administrative determination listed 
 34.2   under clause (4), the individual shall be disqualified from any 
 34.3   position allowing direct contact with persons receiving services 
 34.4   from the license holder or entity identified in subdivision 3, 
 34.5   paragraph (a): 
 34.6      (1) regardless of how much time has passed since the 
 34.7   discharge of the sentence imposed for the offense, and unless 
 34.8   otherwise specified, regardless of the level of the conviction, 
 34.9   the individual was convicted of any of the following offenses:  
 34.10  sections 609.185 (murder in the first degree); 609.19 (murder in 
 34.11  the second degree); 609.195 (murder in the third degree); 
 34.12  609.2661 (murder of an unborn child in the first degree); 
 34.13  609.2662 (murder of an unborn child in the second degree); 
 34.14  609.2663 (murder of an unborn child in the third degree); 
 34.15  609.322 (solicitation, inducement, and promotion of 
 34.16  prostitution); 609.342 (criminal sexual conduct in the first 
 34.17  degree); 609.343 (criminal sexual conduct in the second degree); 
 34.18  609.344 (criminal sexual conduct in the third degree); 609.345 
 34.19  (criminal sexual conduct in the fourth degree); 609.352 
 34.20  (solicitation of children to engage in sexual conduct); 609.365 
 34.21  (incest); felony offense under 609.377 (malicious punishment of 
 34.22  a child); a felony offense under 609.378 (neglect or 
 34.23  endangerment of a child); a felony offense under 609.324, 
 34.24  subdivision 1 (other prohibited acts); 617.246 (use of minors in 
 34.25  sexual performance prohibited); 617.247 (possession of pictorial 
 34.26  representations of minors); a felony offense under sections 
 34.27  609.2242 and 609.2243 (domestic assault), 260C.301 (involuntary 
 34.28  termination of parental rights), a felony offense of spousal 
 34.29  abuse, a felony offense of child abuse or neglect, a felony 
 34.30  offense of a crime against children; or attempt or conspiracy to 
 34.31  commit any of these offenses as defined in Minnesota Statutes, 
 34.32  or an offense in any other state or country, where the elements 
 34.33  are substantially similar to any of the offenses listed in this 
 34.34  clause; 
 34.35     (2) if less than 15 years have passed since the discharge 
 34.36  of the sentence imposed for the offense; and the individual has 
 35.1   received a felony conviction for a violation of any of these 
 35.2   offenses:  sections 609.20 (manslaughter in the first degree); 
 35.3   609.205 (manslaughter in the second degree); 609.21 (criminal 
 35.4   vehicular homicide and injury); 609.215 (suicide); 609.221 to 
 35.5   609.2231 (assault in the first, second, third, or fourth 
 35.6   degree); repeat offenses under 609.224 (assault in the fifth 
 35.7   degree); repeat offenses under 609.3451 (criminal sexual conduct 
 35.8   in the fifth degree); 609.713 (terroristic threats); 609.235 
 35.9   (use of drugs to injure or facilitate crime); 609.24 (simple 
 35.10  robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 
 35.11  609.255 (false imprisonment); 609.561 (arson in the first 
 35.12  degree); 609.562 (arson in the second degree); 609.563 (arson in 
 35.13  the third degree); repeat offenses under 617.23 (indecent 
 35.14  exposure; penalties); repeat offenses under 617.241 (obscene 
 35.15  materials and performances; distribution and exhibition 
 35.16  prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 
 35.17  609.67 (machine guns and short-barreled shotguns); 609.749 
 35.18  (harassment; stalking; penalties); 609.228 (great bodily harm 
 35.19  caused by distribution of drugs); 609.2325 (criminal abuse of a 
 35.20  vulnerable adult); 609.2664 (manslaughter of an unborn child in 
 35.21  the first degree); 609.2665 (manslaughter of an unborn child in 
 35.22  the second degree); 609.267 (assault of an unborn child in the 
 35.23  first degree); 609.2671 (assault of an unborn child in the 
 35.24  second degree); 609.268 (injury or death of an unborn child in 
 35.25  the commission of a crime); 609.52 (theft); 609.2335 (financial 
 35.26  exploitation of a vulnerable adult); 609.521 (possession of 
 35.27  shoplifting gear); 609.582 (burglary); 609.625 (aggravated 
 35.28  forgery); 609.63 (forgery); 609.631 (check forgery; offering a 
 35.29  forged check); 609.635 (obtaining signature by false pretense); 
 35.30  609.27 (coercion); 609.275 (attempt to coerce); 609.687 
 35.31  (adulteration); 260C.301 (grounds for termination of parental 
 35.32  rights); and chapter 152 (drugs; controlled substance); and a 
 35.33  felony level conviction involving alcohol or drug use.  An 
 35.34  attempt or conspiracy to commit any of these offenses, as each 
 35.35  of these offenses is defined in Minnesota Statutes; or an 
 35.36  offense in any other state or country, the elements of which are 
 36.1   substantially similar to the elements of the offenses in this 
 36.2   clause.  If the individual studied is convicted of one of the 
 36.3   felonies listed in this clause, but the sentence is a gross 
 36.4   misdemeanor or misdemeanor disposition, the lookback period for 
 36.5   the conviction is the period applicable to the disposition, that 
 36.6   is the period for gross misdemeanors or misdemeanors; 
 36.7      (3) if less than ten years have passed since the discharge 
 36.8   of the sentence imposed for the offense; and the individual has 
 36.9   received a gross misdemeanor conviction for a violation of any 
 36.10  of the following offenses:  sections 609.224 (assault in the 
 36.11  fifth degree); 609.2242 and 609.2243 (domestic assault); 
 36.12  violation of an order for protection under 518B.01, subdivision 
 36.13  14; 609.3451 (criminal sexual conduct in the fifth degree); 
 36.14  repeat offenses under 609.746 (interference with privacy); 
 36.15  repeat offenses under 617.23 (indecent exposure); 617.241 
 36.16  (obscene materials and performances); 617.243 (indecent 
 36.17  literature, distribution); 617.293 (harmful materials; 
 36.18  dissemination and display to minors prohibited); 609.71 (riot); 
 36.19  609.66 (dangerous weapons); 609.749 (harassment; stalking; 
 36.20  penalties); 609.224, subdivision 2, paragraph (c) (assault in 
 36.21  the fifth degree by a caregiver against a vulnerable adult); 
 36.22  609.23 (mistreatment of persons confined); 609.231 (mistreatment 
 36.23  of residents or patients); 609.2325 (criminal abuse of a 
 36.24  vulnerable adult); 609.233 (criminal neglect of a vulnerable 
 36.25  adult); 609.2335 (financial exploitation of a vulnerable adult); 
 36.26  609.234 (failure to report maltreatment of a vulnerable adult); 
 36.27  609.72, subdivision 3 (disorderly conduct against a vulnerable 
 36.28  adult); 609.265 (abduction); 609.378 (neglect or endangerment of 
 36.29  a child); 609.377 (malicious punishment of a child); 609.324, 
 36.30  subdivision 1a (other prohibited acts; minor engaged in 
 36.31  prostitution); 609.33 (disorderly house); 609.52 (theft); 
 36.32  609.582 (burglary); 609.631 (check forgery; offering a forged 
 36.33  check); 609.275 (attempt to coerce); or an attempt or conspiracy 
 36.34  to commit any of these offenses, as each of these offenses is 
 36.35  defined in Minnesota Statutes; or an offense in any other state 
 36.36  or country, the elements of which are substantially similar to 
 37.1   the elements of any of the offenses listed in this clause.  If 
 37.2   the defendant is convicted of one of the gross misdemeanors 
 37.3   listed in this clause, but the sentence is a misdemeanor 
 37.4   disposition, the lookback period for the conviction is the 
 37.5   period applicable to misdemeanors; or 
 37.6      (4) if less than seven years have passed since the 
 37.7   discharge of the sentence imposed for the offense; and the 
 37.8   individual has received a misdemeanor conviction for a violation 
 37.9   of any of the following offenses:  sections 609.224 (assault in 
 37.10  the fifth degree); 609.2242 (domestic assault); violation of an 
 37.11  order for protection under 518B.01 (Domestic Abuse Act); 
 37.12  violation of an order for protection under 609.3232 (protective 
 37.13  order authorized; procedures; penalties); 609.746 (interference 
 37.14  with privacy); 609.79 (obscene or harassing phone calls); 
 37.15  609.795 (letter, telegram, or package; opening; harassment); 
 37.16  617.23 (indecent exposure; penalties); 609.2672 (assault of an 
 37.17  unborn child in the third degree); 617.293 (harmful materials; 
 37.18  dissemination and display to minors prohibited); 609.66 
 37.19  (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
 37.20  exploitation of a vulnerable adult); 609.234 (failure to report 
 37.21  maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
 37.22  (coercion); or an attempt or conspiracy to commit any of these 
 37.23  offenses, as each of these offenses is defined in Minnesota 
 37.24  Statutes; or an offense in any other state or country, the 
 37.25  elements of which are substantially similar to the elements of 
 37.26  any of the offenses listed in this clause; a determination or 
 37.27  disposition of failure to make required reports under section 
 37.28  626.556, subdivision 3, or 626.557, subdivision 3, for incidents 
 37.29  in which:  (i) the final disposition under section 626.556 or 
 37.30  626.557 was substantiated maltreatment, and (ii) the 
 37.31  maltreatment was recurring or serious; or a determination or 
 37.32  disposition of substantiated serious or recurring maltreatment 
 37.33  of a minor under section 626.556 or of a vulnerable adult under 
 37.34  section 626.557 for which there is a preponderance of evidence 
 37.35  that the maltreatment occurred, and that the subject was 
 37.36  responsible for the maltreatment. 
 38.1      For the purposes of this section, "serious maltreatment" 
 38.2   means sexual abuse; maltreatment resulting in death; or 
 38.3   maltreatment resulting in serious injury which reasonably 
 38.4   requires the care of a physician whether or not the care of a 
 38.5   physician was sought; or abuse resulting in serious injury.  For 
 38.6   purposes of this section, "abuse resulting in serious injury" 
 38.7   means:  bruises, bites, skin laceration or tissue damage; 
 38.8   fractures; dislocations; evidence of internal injuries; head 
 38.9   injuries with loss of consciousness; extensive second-degree or 
 38.10  third-degree burns and other burns for which complications are 
 38.11  present; extensive second-degree or third-degree frostbite, and 
 38.12  others for which complications are present; irreversible 
 38.13  mobility or avulsion of teeth; injuries to the eyeball; 
 38.14  ingestion of foreign substances and objects that are harmful; 
 38.15  near drowning; and heat exhaustion or sunstroke.  For purposes 
 38.16  of this section, "care of a physician" is treatment received or 
 38.17  ordered by a physician, but does not include diagnostic testing, 
 38.18  assessment, or observation.  For the purposes of this section, 
 38.19  "recurring maltreatment" means more than one incident of 
 38.20  maltreatment for which there is a preponderance of evidence that 
 38.21  the maltreatment occurred, and that the subject was responsible 
 38.22  for the maltreatment. 
 38.23     (b) If Except for background studies related to child 
 38.24  foster care, adult foster care, or family child care licensure, 
 38.25  when the subject of a background study is licensed regulated by 
 38.26  a health-related licensing board, as defined in chapter 214, and 
 38.27  the regulated person has been determined to have been 
 38.28  responsible for substantiated maltreatment under section 626.556 
 38.29  or 626.557, instead of the commissioner making a decision 
 38.30  regarding disqualification, the board shall make the a 
 38.31  determination regarding a disqualification under this 
 38.32  subdivision based on a finding of substantiated maltreatment 
 38.33  under section 626.556 or 626.557.  The commissioner shall notify 
 38.34  the health-related licensing board if a background study shows 
 38.35  that a licensee would be disqualified because of substantiated 
 38.36  maltreatment and the board shall make a determination whether to 
 39.1   impose disciplinary or corrective action under section 214.104. 
 39.2      (1) The commissioner shall notify the health-related 
 39.3   licensing board:  upon completion of a background study that 
 39.4   produces a record showing that the individual was determined to 
 39.5   have been responsible for substantiated maltreatment; upon the 
 39.6   commissioner's completion of an investigation that determined 
 39.7   that the individual was responsible for substantiated 
 39.8   maltreatment; or upon receipt from another agency of a finding 
 39.9   of substantiated maltreatment for which the individual was 
 39.10  responsible. 
 39.11     (2) The commissioner's notice shall indicate whether the 
 39.12  individual would have been disqualified by the commissioner for 
 39.13  the substantiated maltreatment if the individual were not 
 39.14  regulated by the board. 
 39.15     (3) Notwithstanding the exclusion from these provisions for 
 39.16  individuals who provide child foster care, adult foster care, or 
 39.17  family child care, when the commissioner or a local agency has 
 39.18  reason to believe that the direct contact services provided by 
 39.19  the individual may fall within the jurisdiction of a 
 39.20  health-related licensing board, a referral shall be made to the 
 39.21  board as provided in this section. 
 39.22     (4) If, upon review of the information provided by the 
 39.23  commissioner, a health-related licensing board informs the 
 39.24  commissioner that the board does not have jurisdiction to take 
 39.25  disciplinary or corrective action, the commissioner shall make 
 39.26  the appropriate disqualification decision regarding the 
 39.27  individual as otherwise provided in this chapter. 
 39.28     (5) The commissioner has the authority to monitor the 
 39.29  facility's compliance with any requirements that the 
 39.30  health-related licensing board places on regulated persons 
 39.31  practicing in a facility either during the period pending a 
 39.32  final decision on a disciplinary or corrective action or as a 
 39.33  result of a disciplinary or corrective action.  The commissioner 
 39.34  has the authority to order the immediate removal of a regulated 
 39.35  person from direct contact or access when a board issues an 
 39.36  order of temporary suspension based on a determination that the 
 40.1   regulated person poses an immediate risk of harm to persons 
 40.2   receiving services in a licensed facility. 
 40.3      (6) A facility that allows a regulated person to provide 
 40.4   direct contact services while not complying with the 
 40.5   requirements imposed by the health-related licensing board is 
 40.6   subject to action by the commissioner as specified under 
 40.7   sections 245A.06 and 245A.07. 
 40.8      (7) The commissioner shall notify a health-related 
 40.9   licensing board immediately upon receipt of knowledge of 
 40.10  noncompliance with requirements placed on a facility or upon a 
 40.11  person regulated by the board. 
 40.12     Sec. 15.  Minnesota Statutes 2000, section 245A.04, is 
 40.13  amended by adding a subdivision to read: 
 40.14     Subd. 3e.  [VARIANCE FOR A DISQUALIFIED PERSON.] (a) When a 
 40.15  background study subject's disqualification has not been set 
 40.16  aside by the commissioner, and there are conditions under which 
 40.17  the disqualified individual may provide direct contact services 
 40.18  or have access to people receiving services that minimize the 
 40.19  risk of harm to people receiving services, the commissioner may 
 40.20  grant a time limited variance to a license holder that states 
 40.21  the reason for the disqualification, the services that may be 
 40.22  provided by the disqualified individual, and the conditions with 
 40.23  which the license holder or applicant must comply for the 
 40.24  variance to be effective. 
 40.25     (b) Except for programs licensed to provide family day care 
 40.26  for children, foster care for children in the provider's own 
 40.27  home, or foster care or day care services for adults in the 
 40.28  provider's own home, the commissioner may not grant a variance 
 40.29  for a disqualified person unless the applicant or license holder 
 40.30  has requested the variance and the disqualified individual has 
 40.31  provided written consent for the commissioner to disclose to the 
 40.32  applicant or license holder the reason for the disqualification. 
 40.33     (c) When a license holder permits a disqualified individual 
 40.34  to provide any services for which the subject is disqualified 
 40.35  without complying with the conditions of the variance, 
 40.36  termination of the variance is immediate and the license holder 
 41.1   may be subject to fines or sanctions under sections 245A.06 and 
 41.2   245A.07. 
 41.3      (d) The commissioner may terminate a variance for a 
 41.4   disqualified person at any time. 
 41.5      (e) The commissioner's decision to grant or deny a variance 
 41.6   request is final and not subject to appeal under the provisions 
 41.7   of chapter 14. 
 41.8      Sec. 16.  Minnesota Statutes 2000, section 245A.04, 
 41.9   subdivision 6, is amended to read: 
 41.10     Subd. 6.  [COMMISSIONER'S EVALUATION.] Before granting 
 41.11  issuing, denying, suspending, revoking, or making conditional a 
 41.12  license, the commissioner shall evaluate information gathered 
 41.13  under this section.  The commissioner's evaluation shall 
 41.14  consider facts, conditions, or circumstances concerning the 
 41.15  program's operation, the well-being of persons served by the 
 41.16  program, available consumer evaluations of the program, and 
 41.17  information about the qualifications of the personnel employed 
 41.18  by the applicant or license holder. 
 41.19     The commissioner shall evaluate the results of the study 
 41.20  required in subdivision 3 and determine whether a risk of harm 
 41.21  to the persons served by the program exists.  In conducting this 
 41.22  evaluation, the commissioner shall apply the disqualification 
 41.23  standards set forth in rules adopted under this chapter.  
 41.24     Sec. 17.  Minnesota Statutes 2000, section 245A.04, 
 41.25  subdivision 11, is amended to read: 
 41.26     Subd. 11.  [EDUCATION PROGRAM; ADDITIONAL REQUIREMENT.] (a) 
 41.27  The education program offered in a residential or nonresidential 
 41.28  program, except for child care, foster care, or services for 
 41.29  adults, must be approved by the commissioner of children, 
 41.30  families, and learning before the commissioner of human services 
 41.31  may grant a license to the program. 
 41.32     (b) To permit a resident to complete a current school year, 
 41.33  residential programs licensed under Minnesota Rules, parts 
 41.34  9545.0905 to 9545.1125 and 9545.1400 to 9545.1480, may continue 
 41.35  to serve persons who reach 18 years of age while in placement, 
 41.36  provided the license holder: 
 42.1      (1) develops policies, procedures, and plans required under 
 42.2   section 245A.65; 
 42.3      (2) documents an assessment of the 18 year old's risk of 
 42.4   victimizing children residing in the facility and develops 
 42.5   necessary risk reduction measures to minimize any risk of harm 
 42.6   to children; and 
 42.7      (3) does not allow an 18 year old resident to share a 
 42.8   bedroom with any child under age 16. 
 42.9      Sec. 18.  Minnesota Statutes 2000, section 245A.06, 
 42.10  subdivision 6, is amended to read: 
 42.11     Subd. 6.  [AMOUNT OF FINES.] Fines shall be assessed as 
 42.12  follows: 
 42.13     (1) the license holder shall forfeit $1,000 for each 
 42.14  occurrence of substantiated maltreatment or violation of law or 
 42.15  rule prohibiting the maltreatment of children or the 
 42.16  maltreatment of vulnerable adults, including but not limited to 
 42.17  corporal punishment, illegal or unauthorized use of physical, 
 42.18  mechanical, or chemical restraints, and illegal or unauthorized 
 42.19  use of aversive or deprivation procedures; 
 42.20     (2) the license holder shall forfeit $200 for each 
 42.21  occurrence of a violation of law or rule governing matters of 
 42.22  health, safety, or supervision, including but not limited to the 
 42.23  provision of adequate staff to child or adult ratios, failure to 
 42.24  submit a background study; and 
 42.25     (3) the license holder shall forfeit $100 for each 
 42.26  occurrence of a violation of law or rule other than those 
 42.27  included in clauses (1) and (2). 
 42.28     For the purposes of this section, "occurrence" means each 
 42.29  violation identified in the commissioner's forfeiture order. 
 42.30     Sec. 19.  Minnesota Statutes 2000, section 245A.14, is 
 42.31  amended by adding a subdivision to read: 
 42.32     Subd. 10.  [REDUCTION OF RISK OF SUDDEN INFANT DEATH 
 42.33  SYNDROME IN CHILD CARE PROGRAMS.] License holders providing 
 42.34  child care under Minnesota Rules, parts 9503.0005 to 9503.0170 
 42.35  and 9502.0300 to 9502.0445, shall: 
 42.36     (a) place infants on their backs to sleep, unless the 
 43.1   infant's physician has recommended an alternative sleeping 
 43.2   position for the infant; and 
 43.3      (b) place infants on a firm mattress in a crib that meets 
 43.4   current safety requirements.  Infants may not be placed to sleep 
 43.5   on a waterbed, sheepskin, pillow, or other soft materials and 
 43.6   the license holder may not use fluffy blankets or comforters in 
 43.7   the crib or place soft stuffed toys or pillows in the crib. 
 43.8      Sec. 20.  Minnesota Statutes 2000, section 245A.16, 
 43.9   subdivision 1, is amended to read: 
 43.10     Subdivision 1.  [DELEGATION OF AUTHORITY TO AGENCIES.] (a) 
 43.11  County agencies and private agencies that have been designated 
 43.12  or licensed by the commissioner to perform licensing functions 
 43.13  and activities under section 245A.04, to recommend denial of 
 43.14  applicants under section 245A.05, to issue correction orders, to 
 43.15  issue variances, and recommend fines under section 245A.06, or 
 43.16  to recommend suspending, revoking, and making licenses 
 43.17  probationary under section 245A.07, shall comply with rules and 
 43.18  directives of the commissioner governing those functions and 
 43.19  with this section.  The following variances are excluded from 
 43.20  the delegation of variance authority and may be issued only by 
 43.21  the commissioner: 
 43.22     (1) dual licensure of family child care and child foster 
 43.23  care, dual licensure of child and adult foster care, and adult 
 43.24  foster care and family child care; 
 43.25     (2) adult foster care maximum capacity; 
 43.26     (3) adult foster care minimum age requirement; 
 43.27     (4) child foster care maximum age requirement; 
 43.28     (5) variances regarding disqualified individuals; and 
 43.29     (6) the required presence of a caregiver in the adult 
 43.30  foster care residence during normal sleeping hours. 
 43.31     (b) For family day care programs, the commissioner may 
 43.32  authorize licensing reviews every two years after a licensee has 
 43.33  had at least one annual review. 
 43.34     Sec. 21.  Minnesota Statutes 2000, section 245A.16, 
 43.35  subdivision 4, is amended to read: 
 43.36     Subd. 4.  [ENFORCEMENT OF THE COMMISSIONER'S ORDERS.] (a) 
 44.1   The county or private agency shall enforce the commissioner's 
 44.2   orders under sections 245A.07 and 245A.08, subdivision 5, 
 44.3   according to the instructions of the commissioner. 
 44.4      (b) The county attorney shall assist the county agency in 
 44.5   the enforcement and defense of the commissioner's orders under 
 44.6   sections 245A.07 and 245A.08 according to the instructions of 
 44.7   the commissioner, unless a conflict of interest exists between 
 44.8   the county attorney and the commissioner. 
 44.9      (c) When the commissioner's decision under this chapter is 
 44.10  appealed to the Minnesota Court of Appeals or the Minnesota 
 44.11  Supreme Court, the commissioner shall determine whether the 
 44.12  decision shall be defended by the county attorney or by the 
 44.13  attorney general based on the facts and impact of the case. 
 44.14     Sec. 22.  [REPEALER.] 
 44.15     Minnesota Rules, parts 9543.3000; 9543.3010; 9543.3020; 
 44.16  9543.3030; 9543.3040; 9543.3050; 9543.3060; 9543.3080; and 
 44.17  9543.3090, are repealed. 
 44.18     Sec. 23.  [INSTRUCTION TO REVISOR.] 
 44.19     (a) The revisor of statutes shall replace any references to 
 44.20  "sections 245A.01 to 245A.16" in chapter 245A with "this 
 44.21  chapter." 
 44.22     (b) The revisor of statutes shall replace references in 
 44.23  Minnesota Rules and Minnesota Statutes to "parts 9543.3000 to 
 44.24  9543.3090" with "section 245A.04." 
 44.25     (c) The revisor of statutes shall replace references in 
 44.26  Minnesota Rules and Minnesota Statutes to "part 9543.3070" with 
 44.27  "section 245A.04, subdivision 3d." 
 44.28     (d) The revisor of statutes shall replace references in 
 44.29  Minnesota Rules and Minnesota Statutes to "part 9543.3080" with 
 44.30  "section 245A.04, subdivision 3b."