SF 3492

1st Engrossment - 92nd Legislature (2021 - 2022) Posted on 06/27/2022 08:27am

A bill for an act
relating to human services; establishing the Department of Human Services systemic
critical incident review team; removing language regarding public health care
programs and certain trusts; modifying the best interests of the child standard;
amending Minnesota Statutes 2020, sections 256.01, by adding a subdivision;
256B.056, subdivision 3b; 518.17, subdivision 1; repealing Minnesota Statutes
2020, section 501C.1206.

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

Section 1.

Minnesota Statutes 2020, section 256.01, is amended by adding a subdivision
to read:

new text begin Subd. 12b. new text end

new text begin Department of Human Services systemic critical incident review team. new text end

new text begin (a)
The commissioner may establish a Department of Human Services systemic critical incident
review team to review critical incidents reported as required under section 626.557 for
which the Department of Human Services is responsible under section 626.5572, subdivision
13; chapter 245D; or Minnesota Rules, chapter 9544. When reviewing a critical incident,
the systemic critical incident review team shall identify systemic influences to the incident
rather than determining the culpability of any actors involved in the incident. The systemic
critical incident review may assess the entire critical incident process from the point of an
entity reporting the critical incident through the ongoing case management process.
Department staff shall lead and conduct the reviews and may utilize county staff as reviewers.
The systemic critical incident review process may include but is not limited to:
new text end

new text begin (1) data collection about the incident and actors involved. Data may include the critical
incident report under review; previous incident reports pertaining to the person receiving
services; the service provider's policies and procedures applicable to the incident; the
coordinated service and support plan as defined in section 245D.02, subdivision 4b, for the
person receiving services; or an interview of an actor involved in the critical incident or the
review of the critical incident. Actors may include:
new text end

new text begin (i) staff of the provider agency;
new text end

new text begin (ii) lead agency staff administering home and community-based services delivered by
the provider;
new text end

new text begin (iii) Department of Human Services staff with oversight of home and community-based
services;
new text end

new text begin (iv) Department of Health staff with oversight of home and community-based services;
new text end

new text begin (v) members of the community including advocates, legal representatives, health care
providers, pharmacy staff, or others with knowledge of the incident or the actors in the
incident; and
new text end

new text begin (vi) staff from the office of the ombudsman for mental health and developmental
disabilities;
new text end

new text begin (2) systemic mapping of the critical incident. The team conducting the systemic mapping
of the incident may include any actors identified in clause (1), designated representatives
of other provider agencies, regional teams, and representatives of the local regional quality
council identified in section 256B.097; and
new text end

new text begin (3) analysis of the case for systemic influences.
new text end

new text begin Data collected by the critical incident review team shall be aggregated and provided to
regional teams, participating regional quality councils, and the commissioner. The regional
teams and quality councils shall analyze the data and make recommendations to the
commissioner regarding systemic changes that would decrease the number and severity of
critical incidents in the future or improve the quality of the home and community-based
service system.
new text end

new text begin (b) Cases selected for the systemic critical incident review process shall be selected by
a selection committee among the following critical incident categories:
new text end

new text begin (1) cases of caregiver neglect identified in section 626.5572, subdivision 17;
new text end

new text begin (2) cases involving financial exploitation identified in section 626.5572, subdivision 9;
new text end

new text begin (3) incidents identified in section 245D.02, subdivision 11;
new text end

new text begin (4) incidents identified in Minnesota Rules, part 9544.0110; and
new text end

new text begin (5) service terminations reported to the department in accordance with section 245D.10,
subdivision 3a.
new text end

new text begin (c) The systemic critical incident review under this section shall not replace the process
for screening or investigating cases of alleged maltreatment of an adult under section 626.557.
The department may select cases for systemic critical incident review, under the jurisdiction
of the commissioner, reported for suspected maltreatment and closed following initial or
final disposition.
new text end

new text begin (d) The proceedings and records of the review team are confidential data on individuals
or protected nonpublic data as defined in section 13.02, subdivisions 3 and 13. Data that
document a person's opinions formed as a result of the review are not subject to discovery
or introduction into evidence in a civil or criminal action against a professional, the state,
or a county agency arising out of the matters that the team is reviewing. Information,
documents, and records otherwise available from other sources are not immune from
discovery or use in a civil or criminal action solely because the information, documents,
and records were assessed or presented during proceedings of the review team. A person
who presented information before the systemic critical incident review team or who is a
member of the team shall not be prevented from testifying about matters within the person's
knowledge. In a civil or criminal proceeding, a person shall not be questioned about opinions
formed by the person as a result of the review.
new text end

new text begin (e) By October 1 of each year, the commissioner shall prepare an annual public report
containing the following information:
new text end

new text begin (1) the number of cases reviewed under each critical incident category identified in
paragraph (b) and a geographical description of where cases under each category originated;
new text end

new text begin (2) an aggregate summary of the systemic themes from the critical incidents examined
by the critical incident review team during the previous year;
new text end

new text begin (3) a synopsis of the conclusions, incident analyses, or exploratory activities taken in
regard to the critical incidents examined by the critical incident review team; and
new text end

new text begin (4) recommendations made to the commissioner regarding systemic changes that could
decrease the number and severity of critical incidents in the future or improve the quality
of the home and community-based service system.
new text end

Sec. 2.

Minnesota Statutes 2020, section 256B.056, subdivision 3b, is amended to read:

Subd. 3b.

Treatment of trusts.

(a) new text begin It is the public policy of this state that individuals
use all available resources to pay for the cost of long-term care services, as defined in section
256B.0595, before turning to Minnesota health care program funds, and that trust instruments
should not be permitted to shield available resources of an individual or an individual's
spouse from such use.
new text end

new text begin (b) new text end A "medical assistance qualifying trust" is a revocable or irrevocable trust, or similar
legal device, established on or before August 10, 1993, by a person or the person's spouse
under the terms of which the person receives or could receive payments from the trust
principal or income and the trustee has discretion in making payments to the person from
the trust principal or income. Notwithstanding that definition, a medical assistance qualifying
trust does not include: (1) a trust set up by will; (2) a trust set up before April 7, 1986, solely
to benefit a person with a developmental disability living in an intermediate care facility
for persons with developmental disabilities; or (3) a trust set up by a person with payments
made by the Social Security Administration pursuant to the United States Supreme Court
decision in Sullivan v. Zebley, 110 S. Ct. 885 (1990). The maximum amount of payments
that a trustee of a medical assistance qualifying trust may make to a person under the terms
of the trust is considered to be available assets to the person, without regard to whether the
trustee actually makes the maximum payments to the person and without regard to the
purpose for which the medical assistance qualifying trust was established.

deleted text begin (b) deleted text end new text begin (c) new text end Trusts established after August 10, 1993, are treated according to United States
Code, title 42, section 1396p(d).

deleted text begin (c) deleted text end new text begin (d) new text end For purposes of paragraph deleted text begin (d) deleted text end new text begin (e) new text end , a pooled trust means a trust established under
United States Code, title 42, section 1396p(d)(4)(C).

deleted text begin (d) deleted text end new text begin (e) new text end A beneficiary's interest in a pooled trust is considered an available asset unless
the trust provides that upon the death of the beneficiary or termination of the trust during
the beneficiary's lifetime, whichever is sooner, the department receives any amount, up to
the amount of medical assistance benefits paid on behalf of the beneficiary, remaining in
the beneficiary's trust account after a deduction for reasonable administrative fees and
expenses, and an additional remainder amount. The retained remainder amount of the
subaccount must not exceed ten percent of the account value at the time of the beneficiary's
death or termination of the trust, and must only be used for the benefit of disabled individuals
who have a beneficiary interest in the pooled trust.

deleted text begin (e) deleted text end new text begin (f) new text end Trusts may be established on or after December 12, 2016, by a person who has
been determined to be disabled, according to United States Code, title 42, section
1396p(d)(4)(A), as amended by section 5007 of the 21st Century Cures Act, Public Law
114-255.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3.

Minnesota Statutes 2020, section 518.17, subdivision 1, is amended to read:

Subdivision 1.

Best interests of the child.

(a) In evaluating the best interests of the child
for purposes of determining issues of custody and parenting time, the court must consider
and evaluate all relevant factors, including:

(1) a child's physical, emotional, cultural, spiritual, and other needs, and the effect of
the proposed arrangements on the child's needs and development;

(2) any special medical, mental health, new text begin developmental disability, new text end or educational needs
that the child may have that may require special parenting arrangements or access to
recommended services;

(3) the reasonable preference of the child, if the court deems the child to be of sufficient
ability, age, and maturity to express an independent, reliable preference;

(4) whether domestic abuse, as defined in section 518B.01, has occurred in the parents'
or either parent's household or relationship; the nature and context of the domestic abuse;
and the implications of the domestic abuse for parenting and for the child's safety, well-being,
and developmental needs;

(5) any physical, mental, or chemical health issue of a parent that affects the child's
safety or developmental needs;

(6) the history and nature of each parent's participation in providing care for the child;

(7) the willingness and ability of each parent to provide ongoing care for the child; to
meet the child's ongoing developmental, emotional, spiritual, and cultural needs; and to
maintain consistency and follow through with parenting time;

(8) the effect on the child's well-being and development of changes to home, school,
and community;

(9) the effect of the proposed arrangements on the ongoing relationships between the
child and each parent, siblings, and other significant persons in the child's life;

(10) the benefit to the child in maximizing parenting time with both parents and the
detriment to the child in limiting parenting time with either parent;

(11) except in cases in which domestic abuse as described in clause (4) has occurred,
the disposition of each parent to support the child's relationship with the other parent and
to encourage and permit frequent and continuing contact between the child and the other
parent; and

(12) the willingness and ability of parents to cooperate in the rearing of their child; to
maximize sharing information and minimize exposure of the child to parental conflict; and
to utilize methods for resolving disputes regarding any major decision concerning the life
of the child.

(b) Clauses (1) to (9) govern the application of the best interests of the child factors by
the court:

(1) The court must make detailed findings on each of the factors in paragraph (a) based
on the evidence presented and explain how each factor led to its conclusions and to the
determination of custody and parenting time. The court may not use one factor to the
exclusion of all others, and the court shall consider that the factors may be interrelated.

(2) The court shall consider that it is in the best interests of the child to promote the
child's healthy growth and development through safe, stable, nurturing relationships between
a child and both parents.

(3) The court shall consider both parents as having the capacity to develop and sustain
nurturing relationships with their children unless there are substantial reasons to believe
otherwise. In assessing whether parents are capable of sustaining nurturing relationships
with their children, the court shall recognize that there are many ways that parents can
respond to a child's needs with sensitivity and provide the child love and guidance, and
these may differ between parents and among cultures.

(4) The court shall not consider conduct of a party that does not affect the party's
relationship with the child.

(5) Disability alone, as defined in section 363A.03, of a proposed custodian or the child
shall not be determinative of the custody of the child.

(6) The court shall consider evidence of a violation of section 609.507 in determining
the best interests of the child.

(7) There is no presumption for or against joint physical custody, except as provided in
clause (9).

(8) Joint physical custody does not require an absolutely equal division of time.

(9) The court shall use a rebuttable presumption that upon request of either or both
parties, joint legal custody is in the best interests of the child. However, the court shall use
a rebuttable presumption that joint legal custody or joint physical custody is not in the best
interests of the child if domestic abuse, as defined in section 518B.01, has occurred between
the parents. In determining whether the presumption is rebutted, the court shall consider
the nature and context of the domestic abuse and the implications of the domestic abuse for
parenting and for the child's safety, well-being, and developmental needs. Disagreement
alone over whether to grant sole or joint custody does not constitute an inability of parents
to cooperate in the rearing of their children as referenced in paragraph (a), clause (12).

(c) In a proceeding involving the custodial responsibility of a service member's child, a
court may not consider only a parent's past deployment or possible future deployment in
determining the best interests of the child. For purposes of this paragraph, "custodial
responsibility" has the meaning given in section 518E.102, paragraph (f).

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 4. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2020, section 501C.1206, new text end new text begin is repealed.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

APPENDIX

Repealed Minnesota Statutes: S3492-1

501C.1206 PUBLIC HEALTH CARE PROGRAMS AND CERTAIN TRUSTS.

(a) It is the public policy of this state that individuals use all available resources to pay for the cost of long-term care services, as defined in section 256B.0595, before turning to Minnesota health care program funds, and that trust instruments should not be permitted to shield available resources of an individual or an individual's spouse from such use.

(b) When a state or local agency makes a determination on an application by the individual or the individual's spouse for payment of long-term care services through a Minnesota public health care program pursuant to chapter 256B, any irrevocable inter vivos trust or any legal instrument, device, or arrangement similar to an irrevocable inter vivos trust created on or after July 1, 2005, containing assets or income of an individual or an individual's spouse, including those created by a person, court, or administrative body with legal authority to act in place of, at the direction of, upon the request of, or on behalf of the individual or individual's spouse, becomes revocable for the sole purpose of that determination. For purposes of this section, any inter vivos trust and any legal instrument, device, or arrangement similar to an inter vivos trust:

(1) shall be deemed to be located in and subject to the laws of this state; and

(2) is created as of the date it is fully executed by or on behalf of all of the settlors or others.

(c) For purposes of this section, a legal instrument, device, or arrangement similar to an irrevocable inter vivos trust means any instrument, device, or arrangement which involves a settlor who transfers or whose property is transferred by another including, but not limited to, any court, administrative body, or anyone else with authority to act on their behalf or at their direction, to an individual or entity with fiduciary, contractual, or legal obligations to the settlor or others to be held, managed, or administered by the individual or entity for the benefit of the settlor or others. These legal instruments, devices, or other arrangements are irrevocable inter vivos trusts for purposes of this section.

(d) In the event of a conflict between this section and the provisions of an irrevocable trust created on or after July 1, 2005, this section shall control.

(e) This section does not apply to trusts that qualify as supplemental needs trusts under section 501C.1205 or to trusts meeting the criteria of United States Code, title 42, section 1396p (d)(4)(a) and (c) for purposes of eligibility for medical assistance.

(f) This section applies to all trusts first created on or after July 1, 2005, as permitted under United States Code, title 42, section 1396p, and to all interests in real or personal property regardless of the date on which the interest was created, reserved, or acquired.