HF 1488

as introduced - 88th Legislature (2013 - 2014) Posted on 03/13/2013 02:55pm

A bill for an act
relating to human services; modifying background study provisions; requiring
the use of NETStudy for background studies; modifying fair hearing provisions;
amending Minnesota Statutes 2012, sections 245C.04; 245C.05, subdivision
6; 245C.08, subdivision 1; 245C.16, subdivision 1; 245C.20, subdivision 1;
245C.22, subdivision 1; 245C.23, subdivision 2; 245C.24, subdivision 2;
245C.28, subdivisions 1, 3; 245C.29, subdivision 2; 256.045, subdivision 3b.

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

Section 1.

Minnesota Statutes 2012, section 245C.04, is amended to read:

245C.04 WHEN BACKGROUND STUDY MUST OCCUR.

Subdivision 1.

Licensed programs.

(a) The commissioner shall conduct a
background study of an individual required to be studied under section 245C.03,
subdivision 1, at least upon application for initial license for all license types.

(b) The commissioner shall conduct a background study of an individual required
to be studied under section 245C.03, subdivision 1, at reapplication for a license for
family child care.

(c) The commissioner is not required to conduct a study of an individual at the time
of reapplication for a license if the individual's background study was completed by the
commissioner of human services for an adult foster care license holder that is also:

(1) registered under chapter 144D; or

(2) licensed to provide home and community-based services to people with
disabilities at the foster care location and the license holder does not reside in the foster
care residence; and

(3) the following conditions are met:

(i) a study of the individual was conducted either at the time of initial licensure or
when the individual became affiliated with the license holder;

(ii) the individual has been continuously affiliated with the license holder since
the last study was conducted; and

(iii) the last study of the individual was conducted on or after October 1, 1995.

(d) From July 1, 2007, to June 30, 2009, the commissioner of human services shall
conduct a study of an individual required to be studied under section 245C.03, at the
time of reapplication for a child foster care license. The county or private agency shall
collect and forward to the commissioner the information required under section 245C.05,
subdivisions 1, paragraphs (a) and (b), and 5, paragraphs (a) and (b). The background
study conducted by the commissioner of human services under this paragraph must
include a review of the information required under section 245C.08, subdivisions 1,
paragraph (a), clauses (1) to (5), 3, and 4.

(e) The commissioner of human services shall conduct a background study of an
individual specified under section 245C.03, subdivision 1, paragraph (a), clauses (2)
to (6), who is newly affiliated with a child foster care license holder. The county or
private agency shall collect and forward to the commissioner the information required
under section 245C.05, subdivisions 1 and 5. The background study conducted by the
commissioner of human services under this paragraph must include a review of the
information required under section 245C.08, subdivisions 1, 3, and 4.

(f) From January 1, 2010, to December 31, 2012, unless otherwise specified in
paragraph (c), the commissioner shall conduct a study of an individual required to
be studied under section 245C.03 at the time of reapplication for an adult foster care
or family adult day services license: (1) the county shall collect and forward to the
commissioner the information required under section 245C.05, subdivision 1, paragraphs
(a) and (b), and subdivision 5, paragraphs (a) and (b), for background studies conducted
by the commissioner for all family adult day services and for adult foster care when
the adult foster care license holder resides in the adult foster care or family adult day
services residence; (2) the license holder shall collect and forward to the commissioner
the information required under section 245C.05, subdivisions 1, paragraphs (a) and (b);
and 5, paragraphs (a) and (b), for background studies conducted by the commissioner for
adult foster care when the license holder does not reside in the adult foster care residence;
and (3) the background study conducted by the commissioner under this paragraph must
include a review of the information required under section 245C.08, subdivision 1,
paragraph (a), clauses (1) to (5), and subdivisions 3 and 4.

(g) The commissioner shall conduct a background study of an individual specified
under section 245C.03, subdivision 1, paragraph (a), clauses (2) to (6), who is newly
affiliated with an adult foster care or family adult day services license holder: (1) the
county shall collect and forward to the commissioner the information required under
section 245C.05, subdivision 1, paragraphs (a) and (b), and subdivision 5, paragraphs (a)
and (b), for background studies conducted by the commissioner for all family adult day
services and for adult foster care when the adult foster care license holder resides in
the adult foster care residence; (2) the license holder shall collect and forward to the
commissioner the information required under section 245C.05, subdivisions 1, paragraphs
(a) and (b); and 5, paragraphs (a) and (b), for background studies conducted by the
commissioner for adult foster care when the license holder does not reside in the adult
foster care residence; and (3) the background study conducted by the commissioner under
this paragraph must include a review of the information required under section 245C.08,
subdivision 1, paragraph (a), and subdivisions 3 and 4.

(h) Applicants for licensure, license holders, and other entities as provided in this
chapter must submit completed background study deleted text begin forms deleted text end new text begin requests new text end to the commissioner
new text begin using the electronic system known as NETStudy new text end before individuals specified in section
245C.03, subdivision 1, begin positions allowing direct contact in any licensed program.

(i) A license holder must initiate a new background study through deleted text begin the commissioner's
online background study system deleted text end new text begin NETStudy new text end when:

(1) an individual returns to a position requiring a background study following an
absence of deleted text begin 90 deleted text end new text begin 120 new text end or more consecutive days; or

(2) a program that discontinued providing licensed direct contact services for deleted text begin 90 deleted text end new text begin 120
new text end or more consecutive days begins to provide direct contact licensed services again.

The license holder shall maintain a copy of the notification provided to
the commissioner under this paragraph in the program's files. If the individual's
disqualification was previously set aside for the license holder's program and the new
background study results in no new information that indicates the individual may pose a
risk of harm to persons receiving services from the license holder, the previous set-aside
shall remain in effect.

(j) For purposes of this section, a physician licensed under chapter 147 is considered
to be continuously affiliated upon the license holder's receipt from the commissioner of
health or human services of the physician's background study results.

(k) For purposes of family child care, a substitute caregiver must receive repeat
background studies at the time of each license renewal.

Subd. 2.

Other state agencies.

Applicants and license holders under the jurisdiction
of other state agencies who are required in other statutory sections to initiate background
studies under this chapter must submit completed background study forms to the
commissioner before the background study subject begins in a position allowing direct
contact in the licensed program or, where applicable, prior to being employed.

Subd. 3.

Personal care provider organizations.

(a) The commissioner shall
conduct a background study of an individual required to be studied under section 245C.03,
subdivision 2, at least upon application for initial enrollment under sections 256B.0651 to
256B.0656 and 256B.0659.

(b) Organizations required to initiate background studies under sections 256B.0651
to 256B.0656 and 256B.0659 for individuals described in section 245C.03, subdivision 2,
must submit a completed background study deleted text begin form deleted text end new text begin request new text end to the commissioner new text begin using the
electronic system known as NETStudy new text end before those individuals begin a position allowing
direct contact with persons served by the organization.

new text begin (c) Organizations required to initiate background studies under sections 256B.0651
to 256B.0656 and 256B.0659 for individuals described in section 245C.03, subdivision 2,
must initiate a new background study through NETStudy when an individual returns to a
position requiring a background study following an absence of 120 or more consecutive
days.
new text end

Subd. 4.

Supplemental nursing services agencies.

(a) The commissioner shall
conduct a background study of an individual required to be studied under section 245C.03,
subdivision 3, at least upon application for registration under section 144A.71, subdivision
1.

(b) Each supplemental nursing services agency must initiate background studies
new text begin using the electronic system known as NETStudy new text end before an individual begins a position
allowing direct contact with persons served by the agency and annually thereafter.

Subd. 5.

Personnel agencies; educational programs; professional services
agencies.

Agencies, programs, and individuals who initiate background studies under
section 245C.03, subdivision 4, must initiate the studies annually new text begin using the electronic
system known as NETStudy new text end .

Subd. 6.

Unlicensed home and community-based waiver providers of service to
seniors and individuals with disabilities.

(a) Providers required to initiate background
studies under section 256B.4912 must initiate a study new text begin using the electronic system known
as NETStudy new text end before the individual begins in a position allowing direct contact with
persons served by the provider.

(b) Except as provided in paragraph (c), the providers must initiate a background
study annually of an individual required to be studied under section 245C.03, subdivision 6.

(c) After an initial background study under this subdivision is initiated on an
individual by a provider of both services licensed by the commissioner and the unlicensed
services under this subdivision, a repeat annual background study is not required if:

(1) the provider maintains compliance with the requirements of section 245C.07,
paragraph (a), regarding one individual with one address and telephone number as the
person to receive sensitive background study information for the multiple programs that
depend on the same background study, and that the individual who is designated to receive
the sensitive background information is capable of determining, upon the request of the
commissioner, whether a background study subject is providing direct contact services
in one or more of the provider's programs or services and, if so, at which location or
locations; and

(2) the individual who is the subject of the background study provides direct
contact services under the provider's licensed program for at least 40 hours per year so
the individual will be recognized by a probation officer or corrections agent to prompt
a report to the commissioner regarding criminal convictions as required under section
245C.05, subdivision 7.

new text begin Subd. 7. new text end

new text begin New study required with legal name change. new text end

new text begin For a background study
completed on an individual required to be studied under section 245C.03, the license
holder or other entity that initiated the background study must initiate a new background
study using the electronic system known as NETStudy when an individual who is affiliated
with the license holder or other entity undergoes a legal name change.
new text end

Sec. 2.

Minnesota Statutes 2012, section 245C.05, subdivision 6, is amended to read:

Subd. 6.

Applicant, license holder, other entities, and agencies.

(a) The applicant,
license holder, other entities as provided in this chapter, Bureau of Criminal Apprehension,
new text begin law enforcement agencies, new text end commissioner of health, and county agencies shall help with
the study by giving the commissioner criminal conviction data and reports about the
maltreatment of adults substantiated under section 626.557 and the maltreatment of
minors substantiated under section 626.556.

(b) If a background study is initiated by an applicant, license holder, or other entities
as provided in this chapter, and the applicant, license holder, or other entity receives
information about the possible criminal or maltreatment history of an individual who is
the subject of the background study, the applicant, license holder, or other entity must
immediately provide the information to the commissioner.

(c) The program or county or other agency must provide written notice to the
individual who is the subject of the background study of the requirements under this
subdivision.

Sec. 3.

Minnesota Statutes 2012, section 245C.08, subdivision 1, is amended to read:

Subdivision 1.

Background studies conducted by Department of Human
Services.

(a) For a background study conducted by the Department of Human Services,
the commissioner shall review:

(1) information related to names of substantiated perpetrators of maltreatment of
vulnerable adults that has been received by the commissioner as required under section
626.557, subdivision 9c, paragraph (j);

(2) the commissioner's records relating to the maltreatment of minors in licensed
programs, and from findings of maltreatment of minors as indicated through the social
service information system;

(3) information from juvenile courts as required in subdivision 4 for individuals
listed in section 245C.03, subdivision 1, paragraph (a), when there is reasonable cause;

(4) information from the Bureau of Criminal Apprehension;

(5) except as provided in clause (6), information from the national crime information
system when the commissioner has reasonable cause as defined under section 245C.05,
subdivision 5; and

(6) for a background study related to a child foster care application for licensure or
adoptions, the commissioner shall also review:

(i) information from the child abuse and neglect registry for any state in which the
background study subject has resided for the past five years; and

(ii) information from national crime information databases, when the background
study subject is 18 years of age or older.

(b) Notwithstanding expungement by a court, the commissioner may consider
information obtained under paragraph (a), clauses (3) and (4), unless the commissioner
received notice of the petition for expungement and the court order for expungement is
directed specifically to the commissioner.

new text begin (c) When the commissioner has reasonable cause to believe that the identity of
a background study subject is uncertain, the commissioner may require the subject to
provide a set of classifiable fingerprints for purposes of completing a fingerprint-based
record check with the Bureau of Criminal Apprehension.
new text end

Sec. 4.

Minnesota Statutes 2012, section 245C.16, subdivision 1, is amended to read:

Subdivision 1.

Determining immediate risk of harm.

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

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

(1) the recency of the disqualifying characteristic;

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

(3) the number of disqualifying characteristics;

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

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

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

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

(8) if the individual has a disqualification which may not be set aside because it is
a permanent bar under section 245C.24, subdivision 1, the commissioner may order the
immediate removal of the individual from any position allowing direct contact with, or
access to, persons receiving services from the program.

(c) This section does not apply when the subject of a background study is regulated
by a health-related licensing board as defined in chapter 214, and the subject is determined
to be responsible for substantiated maltreatment under section 626.556 or 626.557.

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

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

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

Sec. 5.

Minnesota Statutes 2012, section 245C.20, subdivision 1, is amended to read:

Subdivision 1.

Background studies initiated by program.

A licensed program
shall document the date the program initiates a background study under this chapter
new text begin and the date the subject of the study first has direct contact with persons served by the
program new text end in the program's personnel files. When a background study is completed under
this chapter, a licensed program shall maintain a notice that the study was undertaken and
completed in the program's personnel files. Except when background studies are initiated
through the commissioner's online system, if a licensed program has not received a
response from the commissioner under section 245C.17 within 45 days of initiation of the
background study request, the licensed program must contact the human services licensing
division to inquire about the status of the study. If a license holder initiates a background
study under the commissioner's online system, but the background study subject's name
does not appear in the list of active or recent studies initiated by that license holder, the
license holder must either contact the human services licensing division or resubmit the
background study information online for that individual.

Sec. 6.

Minnesota Statutes 2012, section 245C.22, subdivision 1, is amended to read:

Subdivision 1.

Time frame; response to disqualification reconsideration
requests.

(a) The commissioner shall respond in writing or by electronic transmission to
all reconsideration requests for which the basis for the request is that the information the
commissioner relied upon to disqualify is incorrect or inaccurate within 30 working days
of receipt of a new text begin complete new text end request and all new text begin required new text end relevant information.

(b) If the basis for a disqualified individual's reconsideration request is that the
individual does not pose a risk of harm, the commissioner shall respond to the request
within 15 working days after receiving deleted text begin the deleted text end new text begin a complete new text end request for reconsideration and
all new text begin required new text end relevant information.

(c) If the disqualified individual's reconsideration request is based on both the
correctness or accuracy of the information the commissioner relied upon to disqualify the
individual and the individual's risk of harm, the commissioner shall respond to the request
within 45 working days after receiving deleted text begin the deleted text end new text begin a complete new text end request for reconsideration and
all new text begin required new text end relevant information.

Sec. 7.

Minnesota Statutes 2012, section 245C.23, subdivision 2, is amended to read:

Subd. 2.

Commissioner's notice of disqualification that is not set aside.

(a) The
commissioner shall notify the license holder of the disqualification and order the license
holder to immediately remove the individual from any position allowing direct contact
with persons receiving services from the license holder if:

(1) the individual studied does not submit a timely request for reconsideration
under section 245C.21;

(2) the individual submits a timely request for reconsideration, but the commissioner
does not set aside the disqualification for that license holder under section 245C.22 new text begin , unless
the individual has a right to request a hearing under section 245C.27, 245C.28, or 256.045 new text end ;

(3) an individual who has a right to request a hearing under sections 245C.27 and
256.045, or 245C.28 and chapter 14 for a disqualification that has not been set aside, does
not request a hearing within the specified time; or

(4) an individual submitted a timely request for a hearing under sections 245C.27
and 256.045, or 245C.28 and chapter 14, but the commissioner does not set aside the
disqualification under section 245A.08, subdivision 5, or 256.045.

(b) If the commissioner does not set aside the disqualification under section 245C.22,
and the license holder was previously ordered under section 245C.17 to immediately
remove the disqualified individual from direct contact with persons receiving services or
to ensure that the individual is under continuous, direct supervision when providing direct
contact services, the order remains in effect pending the outcome of a hearing under
sections 245C.27 and 256.045, or 245C.28 and chapter 14.

new text begin (c) If the commissioner does not set aside the disqualification under section 245C.22,
and the license holder was not previously ordered under section 245C.17 to immediately
remove the disqualified individual from direct contact with persons receiving services or
to ensure that the individual is under continuous direct supervision when providing direct
contact services, the commissioner shall order the individual to remain under continuous
direct supervision pending the outcome of a hearing under sections 245C.27 and 256.045,
or 245C.28 and chapter 14.
new text end

deleted text begin (c) deleted text end new text begin (d) new text end For background studies related to child foster care, the commissioner shall
also notify the county or private agency that initiated the study of the results of the
reconsideration.

deleted text begin (d) deleted text end new text begin (e) new text end For background studies related to adult foster care and family adult day
services, the commissioner shall also notify the county that initiated the study of the
results of the reconsideration.

Sec. 8.

Minnesota Statutes 2012, section 245C.24, subdivision 2, is amended to read:

Subd. 2.

Permanent bar to set aside a disqualification.

(a) Except as new text begin otherwise
new text end provided in deleted text begin paragraph (b) deleted text end new text begin this subdivision new text end , the commissioner may not set aside the
disqualification of any individual disqualified pursuant to this chapter, regardless of how
much time has passed, if the individual was disqualified for a crime or conduct listed in
section 245C.15, subdivision 1.

(b) For an individual deleted text begin in the chemical dependency or corrections field deleted text end who was
disqualified for a crime or conduct listed under section 245C.15, subdivision 1, and deleted text begin whose
disqualification was deleted text end new text begin who received a new text end set aside prior to July 1, 2005, the commissioner
must consider granting a variance pursuant to section 245C.30 for the license holder for
a program dealing primarily with adults. A request for reconsideration evaluated under
this paragraph must include a letter of recommendation from the license holder that was
subject to the prior set-aside decision addressing the individual's quality of care to children
or vulnerable adults and the circumstances of the individual's departure from that service.

(c) When a licensed foster care provider adopts an individual who had received
foster care services from the provider for over six months, and the adopted individual is
required to receive a background study under section 245C.03, subdivision 1, paragraph
(a), clause (2) or (6), the commissioner may grant a variance to the license holder under
section 245C.30 to permit the adopted individual with a permanent disqualification
to remain affiliated with the license holder under the conditions of the variance when
the variance is recommended by the county of responsibility for each of the remaining
individuals in placement in the home and the licensing agency for the home.

new text begin (d) The commissioner shall consider granting a set aside under section 245C.22 or a
variance under section 245C.30 to an individual who is now 21 years of age or older and
who was disqualified for a crime or conduct listed under section 245C.15, subdivision 1,
occurring while the individual was under the age of 18. This paragraph does not apply to
individuals who were convicted of the disqualifying crime following certification under
section 260B.125.
new text end

Sec. 9.

Minnesota Statutes 2012, section 245C.28, subdivision 1, is amended to read:

Subdivision 1.

License holder.

(a) If a maltreatment determination or a
disqualification for which reconsideration was new text begin timely new text end requested and which was not set
aside is the basis for a denial of a license under section 245A.05 or a licensing sanction
under section 245A.07, the license holder has the right to a contested case hearing under
chapter 14 and Minnesota Rules, parts 1400.8505 to 1400.8612. The license holder must
submit the appeal under section 245A.05 or 245A.07, subdivision 3.

(b) As provided under section 245A.08, subdivision 2a, if the denial of a license
or licensing sanction is based on a disqualification for which reconsideration was new text begin timely
new text end requested and was not set aside, the scope of the consolidated contested case hearing
must include:

(1) the disqualification, to the extent the license holder otherwise has a hearing right
on the disqualification under this chapter; and

(2) the licensing sanction or denial of a license.

(c) As provided for under section 245A.08, subdivision 2a, if the denial of a license
or licensing sanction is based on a determination of maltreatment under section 626.556
or 626.557, or a disqualification for serious or recurring maltreatment which was not set
aside, the scope of the contested case hearing must include:

(1) the maltreatment determination, if the maltreatment is not conclusive under
section 245C.29;

(2) the disqualification, if the disqualification is not conclusive under section
245C.29; and

(3) the licensing sanction or denial of a license. In such cases, a fair hearing must not
be conducted under section 256.045. If the disqualification was based on a determination
of substantiated serious or recurring maltreatment under section 626.556 or 626.557, the
appeal must be submitted under sections 245A.07, subdivision 3, and 626.556, subdivision
10i, or 626.557, subdivision 9d.

(d) Except for family child care and child foster care, reconsideration of a
maltreatment determination under sections 626.556, subdivision 10i, and 626.557,
subdivision 9d, and reconsideration of a disqualification under section 245C.22, must
not be conducted when:

(1) a denial of a license under section 245A.05, or a licensing sanction under section
245A.07, is based on a determination that the license holder is responsible for maltreatment
or the disqualification of a license holder based on serious or recurring maltreatment;

(2) the denial of a license or licensing sanction is issued at the same time as the
maltreatment determination or disqualification; and

(3) the license holder appeals the maltreatment determination, disqualification, and
denial of a license or licensing sanction. In such cases a fair hearing under section 256.045
must not be conducted under sections 245C.27, 626.556, subdivision 10i, and 626.557,
subdivision 9d. Under section 245A.08, subdivision 2a, the scope of the consolidated
contested case hearing must include the maltreatment determination, disqualification, and
denial of a license or licensing sanction.

Notwithstanding clauses (1) to (3), if the license holder appeals the maltreatment
determination or disqualification, but does not appeal the denial of a license or a licensing
sanction, reconsideration of the maltreatment determination shall be conducted under
sections 626.556, subdivision 10i, and 626.557, subdivision 9d, and reconsideration of the
disqualification shall be conducted under section 245C.22. In such cases, a fair hearing
shall also be conducted as provided under sections 245C.27, 626.556, subdivision 10i, and
626.557, subdivision 9d.

Sec. 10.

Minnesota Statutes 2012, section 245C.28, subdivision 3, is amended to read:

Subd. 3.

Employees of public employer.

(a) A disqualified individual who is an
employee of an employer, as defined in section 179A.03, subdivision 15, may request
a contested case hearing under chapter 14 new text begin , and specifically Minnesota Rules, parts
1400.8505 to 1400.8612, new text end following a reconsideration decision under section 245C.23,
unless the disqualification is deemed conclusive under section 245C.29. The request for a
contested case hearing must be made in writing and must be postmarked and sent within
30 calendar days after the employee receives notice of the reconsideration decision. If
the individual was disqualified based on a conviction or admission to any crimes listed in
section 245C.15, the scope of the contested case hearing shall be limited solely to whether
the individual poses a risk of harm pursuant to section 245C.22.

(b) When an individual is disqualified based on a maltreatment determination, the
scope of the contested case hearing under paragraph (a), must include the maltreatment
determination and the disqualification. In such cases, a fair hearing must not be conducted
under section 256.045.

(c) Rules adopted under this chapter may not preclude an employee in a contested
case hearing for a disqualification from submitting evidence concerning information
gathered under this chapter.

(d) When an individual has been disqualified from multiple licensed programs, if
at least one of the disqualifications entitles the person to a contested case hearing under
this subdivision, the scope of the contested case hearing shall include all disqualifications
from licensed programs.

(e) In determining whether the disqualification should be set aside, the administrative
law judge shall consider all of the characteristics that cause the individual to be disqualified new text begin ,
as well as all the factors set forth in section 245C.22, new text end in order to determine whether the
individual deleted text begin poses deleted text end new text begin has met the burden of demonstrating that the individual does not pose
new text end a risk of harm. The administrative law judge's recommendation and the commissioner's
order to set aside a disqualification that is the subject of the hearing constitutes a
determination that the individual does not pose a risk of harm and that the individual may
provide direct contact services in the individual program specified in the set aside.

new text begin (f) An individual may not request a contested case hearing under this section if a
contested case hearing has previously been held regarding the individual's disqualification
on the same basis.
new text end

Sec. 11.

Minnesota Statutes 2012, section 245C.29, subdivision 2, is amended to read:

Subd. 2.

Conclusive disqualification determination.

(a) deleted text begin Unless otherwise
specified in statute, a determination that:
deleted text end

deleted text begin (1) the information the commissioner relied upon to disqualify an individual under
section 245C.14 was correct based on serious or recurring maltreatment;
deleted text end

deleted text begin (2) a preponderance of the evidence shows that the individual committed an act or
acts that meet the definition of any of the crimes listed in section 245C.15; or
deleted text end

deleted text begin (3) the individual failed to make required reports under section 626.556, subdivision
3, or 626.557, subdivision 3, is conclusive if: deleted text end new text begin A disqualification is conclusive for purposes
of current and future background studies if:
new text end

deleted text begin (i) deleted text end new text begin (1) new text end the commissioner has issued a final order in an appeal of deleted text begin that determination
deleted text end new text begin the disqualification new text end under section 245A.08, subdivision 5, new text begin 245C.28, subdivision 3, new text end or
256.045, or a court has issued a final decision;

deleted text begin (ii) deleted text end new text begin (2) new text end the individual did not request reconsideration of the disqualification under
section 245C.21 new text begin on the basis that the information relied upon to disqualify the individual
was incorrect new text end ; or

deleted text begin (iii) deleted text end new text begin (3) new text end the individual did not new text begin timely new text end request a hearing on the disqualification under
deleted text begin section 256.045 or deleted text end new text begin this chapter, new text end chapter 14 new text begin , or section 256.045 after previously being
given the right to do so new text end .

(b) When a licensing action under section 245A.05, 245A.06, or 245A.07 is based
on the disqualification of an individual in connection with a license to provide family child
care, foster care for children in the provider's own home, or foster care services for adults
in the provider's own home, that disqualification shall be conclusive for purposes of the
licensing action if a request for reconsideration was not submitted within 30 calendar days
of the individual's receipt of the notice of disqualification.

(c) If a deleted text begin determination that the information relied upon to disqualify an individual
was correct and deleted text end new text begin disqualification new text end is conclusive under this section, deleted text begin and deleted text end the individual deleted text begin is
subsequently disqualified under section 245C.15, the individual deleted text end has a right to request
reconsideration on the risk of harm under section 245C.21 new text begin unless the commissioner is
barred from setting aside the disqualification under 245C.24 new text end . deleted text begin Subsequent determinations
deleted text end new text begin The commissioner's decision new text end regarding the risk of harm shall be deleted text begin made according to section
245C.22 and are not subject to another deleted text end new text begin the final agency decision and is not subject to a
new text end hearing under new text begin this chapter, new text end deleted text begin section 256.045 or deleted text end chapter 14 new text begin , or section 256.045 new text end .

Sec. 12.

Minnesota Statutes 2012, section 256.045, subdivision 3b, is amended to read:

Subd. 3b.

Standard of evidence for maltreatment and disqualification hearings.

(a) The state human services referee shall determine that maltreatment has occurred if a
preponderance of evidence exists to support the final disposition under sections 626.556
and 626.557. For purposes of hearings regarding disqualification, the state human services
referee shall affirm the proposed disqualification in an appeal under subdivision 3,
paragraph (a), clause (9), if a preponderance of the evidence shows the individual has:

(1) committed maltreatment under section 626.556 or 626.557, which is serious or
recurring;

(2) committed an act or acts meeting the definition of any of the crimes listed in
section 245C.15, subdivisions 1 to 4; or

(3) failed to make required reports under section 626.556 or 626.557, for incidents
in which the final disposition under section 626.556 or 626.557 was substantiated
maltreatment that was serious or recurring.

(b) If the disqualification is affirmed, the state human services referee shall
determine whether the individual poses a risk of harm in accordance with the requirements
of section 245C.22, and whether the disqualification should be set aside or not set aside.
In determining whether the disqualification should be set aside, the human services
referee shall consider all of the characteristics that cause the individual to be disqualified,
including those characteristics that were not subject to review under paragraph (a), in
order to determine whether the individual poses a risk of harm. A decision to set aside
a disqualification that is the subject of the hearing constitutes a determination that the
individual does not pose a risk of harm and that the individual may provide direct contact
services in the individual program specified in the set aside. deleted text begin If a determination that the
information relied upon to disqualify an individual was correct and is conclusive under
section 245C.29, and the individual is subsequently disqualified under section 245C.14,
the individual has a right to again request reconsideration on the risk of harm under section
245C.21. Subsequent determinations regarding risk of harm are not subject to another
hearing under this section.
deleted text end

new text begin (c) If a disqualification is based solely on a conviction or is conclusive for any
reason under section 245C.29, the disqualified individual does not have a right to a
hearing under this section.
new text end

deleted text begin (c) deleted text end new text begin (d) new text end The state human services referee shall recommend an order to the
commissioner of health, education, or human services, as applicable, who shall issue a
final order. The commissioner shall affirm, reverse, or modify the final disposition. Any
order of the commissioner issued in accordance with this subdivision is conclusive upon
the parties unless appeal is taken in the manner provided in subdivision 7. In any licensing
appeal under chapters 245A and 245C and sections 144.50 to 144.58 and 144A.02 to
144A.46, the commissioner's determination as to maltreatment is conclusive, as provided
under section 245C.29.