as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to child protection; establishing provisions 1.3 dealing with maltreatment of a child in a facility; 1.4 clarifying access to medical records for purposes of 1.5 maltreatment investigations; providing additional 1.6 appeal rights for interested persons acting on behalf 1.7 of a child; expanding duties of facility operators; 1.8 providing additional criminal liability for knowingly 1.9 permitting conditions that allow maltreatment of a 1.10 child in a facility to occur; requiring training; 1.11 imposing criminal penalties; amending Minnesota 1.12 Statutes 2000, sections 13.461, subdivision 17; 1.13 626.556, subdivisions 2, 10, 10b, 10d, 10e, 10f, 10i, 1.14 11, and 12; and 626.559, subdivision 2; proposing 1.15 coding for new law in Minnesota Statutes, chapter 256. 1.16 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.17 Section 1. Minnesota Statutes 2000, section 13.461, 1.18 subdivision 17, is amended to read: 1.19 Subd. 17. [VULNERABLE ADULTMALTREATMENT REVIEWPANEL1.20 PANELS.] Data of the vulnerable adult maltreatment review 1.21 panel or the child maltreatment review panel are classified 1.22 under section 256.021 or section 2. 1.23 Sec. 2. [256.022] [CHILD MALTREATMENT REVIEW PANEL.] 1.24 Subdivision 1. [CREATION.] The commissioner of human 1.25 services shall establish a review panel for purposes of 1.26 reviewing investigating agency determinations regarding 1.27 maltreatment of a child in response to requests received under 1.28 section 626.556, subdivision 10i, paragraph (b). The review 1.29 panel consists of the commissioners of health; human services; 1.30 children, families, and learning; and the ombudsman for crime 2.1 victims; or their designees. 2.2 Subd. 2. [REVIEW PROCEDURE.] (a) The panel shall hold 2.3 quarterly meetings for purposes of conducting reviews under this 2.4 section. If an interested person acting on behalf of a child 2.5 requests a review under this section, the panel shall review the 2.6 request at its next quarterly meeting. If the next quarterly 2.7 meeting is within ten days of the panel's receipt of the request 2.8 for review, the review may be delayed until the next subsequent 2.9 meeting. The panel shall review the request and the final 2.10 determination regarding maltreatment made by the investigating 2.11 agency and may review any other data on the investigation 2.12 maintained by the agency that are pertinent and necessary to its 2.13 review of the determination. If more than one person requests a 2.14 review under this section with respect to the same 2.15 determination, the review panel shall combine the requests into 2.16 one review. 2.17 (b) Within 30 days of the review under this section, the 2.18 panel shall notify the investigating agency and the interested 2.19 person who requested the review as to whether the panel agrees 2.20 with the determination or whether the investigating agency must 2.21 reconsider the determination. If the panel determines that the 2.22 agency must reconsider the determination, the panel must make 2.23 specific investigative recommendations to the agency. Within 30 2.24 days the investigating agency shall conduct a review and report 2.25 back to the panel with its reconsidered determination and the 2.26 specific rationale for its determination. 2.27 Subd. 3. [REPORT.] By January 15 of each year, the panel 2.28 shall submit a report to the committees of the legislature with 2.29 jurisdiction over section 626.556 regarding the number of 2.30 requests for review it receives under this section, the number 2.31 of cases where the panel requires the investigating agency to 2.32 reconsider its final determination, the number of cases where 2.33 the final determination is changed, and any recommendations to 2.34 improve the review or investigative process. 2.35 Subd. 4. [DATA.] Data of the review panel created as part 2.36 of a review under this section are private data on individuals 3.1 as defined in section 13.02. 3.2 Sec. 3. Minnesota Statutes 2000, section 626.556, 3.3 subdivision 2, is amended to read: 3.4 Subd. 2. [DEFINITIONS.] As used in this section, the 3.5 following terms have the meanings given them unless the specific 3.6 content indicates otherwise: 3.7 (a) "Sexual abuse" means the subjection of a child by a 3.8 person responsible for the child's care, by a person who has a 3.9 significant relationship to the child, as defined in section 3.10 609.341, or by a person in a position of authority, as defined 3.11 in section 609.341, subdivision 10, to any act which constitutes 3.12 a violation of section 609.342 (criminal sexual conduct in the 3.13 first degree), 609.343 (criminal sexual conduct in the second 3.14 degree), 609.344 (criminal sexual conduct in the third degree), 3.15 609.345 (criminal sexual conduct in the fourth degree), or 3.16 609.3451 (criminal sexual conduct in the fifth degree). Sexual 3.17 abuse also includes any act which involves a minor which 3.18 constitutes a violation of prostitution offenses under sections 3.19 609.321 to 609.324 or 617.246. Sexual abuse includes threatened 3.20 sexual abuse. 3.21 (b) "Person responsible for the child's care" means (1) an 3.22 individual functioning within the family unit and having 3.23 responsibilities for the care of the child such as a parent, 3.24 guardian, or other person having similar care responsibilities, 3.25 or (2) an individual functioning outside the family unit and 3.26 having responsibilities for the care of the child such as a 3.27 teacher, school administrator, or other lawful custodian of a 3.28 child having either full-time or short-term care 3.29 responsibilities including, but not limited to, day care, 3.30 babysitting whether paid or unpaid, counseling, teaching, and 3.31 coaching. 3.32 (c) "Neglect" means: 3.33 (1) failure by a person responsible for a child's care to 3.34 supply a child with necessary food, clothing, shelter, health, 3.35 medical, or other care required for the child's physical or 3.36 mental health when reasonably able to do so; 4.1 (2) failure to protect a child from conditions or actions 4.2 which imminently and seriously endanger the child's physical or 4.3 mental health when reasonably able to do so; 4.4 (3) failure to provide for necessary supervision or child 4.5 care arrangements appropriate for a child after considering 4.6 factors as the child's age, mental ability, physical condition, 4.7 length of absence, or environment, when the child is unable to 4.8 care for the child's own basic needs or safety, or the basic 4.9 needs or safety of another child in their care; 4.10 (4) failure to ensure that the child is educated as defined 4.11 in sections 120A.22 and 260C.163, subdivision 11; 4.12 (5) nothing in this section shall be construed to mean that 4.13 a child is neglected solely because the child's parent, 4.14 guardian, or other person responsible for the child's care in 4.15 good faith selects and depends upon spiritual means or prayer 4.16 for treatment or care of disease or remedial care of the child 4.17 in lieu of medical care; except that a parent, guardian, or 4.18 caretaker, or a person mandated to report pursuant to 4.19 subdivision 3, has a duty to report if a lack of medical care 4.20 may cause serious danger to the child's health. This section 4.21 does not impose upon persons, not otherwise legally responsible 4.22 for providing a child with necessary food, clothing, shelter, 4.23 education, or medical care, a duty to provide that care; 4.24 (6) prenatal exposure to a controlled substance, as defined 4.25 in section 253B.02, subdivision 2, used by the mother for a 4.26 nonmedical purpose, as evidenced by withdrawal symptoms in the 4.27 child at birth, results of a toxicology test performed on the 4.28 mother at delivery or the child at birth, or medical effects or 4.29 developmental delays during the child's first year of life that 4.30 medically indicate prenatal exposure to a controlled substance; 4.31 (7) "medical neglect" as defined in section 260C.007, 4.32 subdivision 4, clause (5); 4.33 (8) chronic and severe use of alcohol or a controlled 4.34 substance by a parent or person responsible for the care of the 4.35 child that adversely affects the child's basic needs and safety; 4.36 or 5.1 (9) emotional harm from a pattern of behavior which 5.2 contributes to impaired emotional functioning of the child which 5.3 may be demonstrated by a substantial and observable effect in 5.4 the child's behavior, emotional response, or cognition that is 5.5 not within the normal range for the child's age and stage of 5.6 development, with due regard to the child's culture. 5.7 (d) "Physical abuse" means any physical injury, mental 5.8 injury, or threatened injury, inflicted by a person responsible 5.9 for the child's care on a child other than by accidental means, 5.10 or any physical or mental injury that cannot reasonably be 5.11 explained by the child's history of injuries, or any aversive 5.12 and deprivation procedures that have not been authorized under 5.13 section 245.825. Abuse does not include reasonable and moderate 5.14 physical discipline of a child administered by a parent or legal 5.15 guardian which does not result in an injury. Actions which are 5.16 not reasonable and moderate include, but are not limited to, any 5.17 of the following that are done in anger or without regard to the 5.18 safety of the child: 5.19 (1) throwing, kicking, burning, biting, or cutting a child; 5.20 (2) striking a child with a closed fist; 5.21 (3) shaking a child under age three; 5.22 (4) striking or other actions which result in any 5.23 nonaccidental injury to a child under 18 months of age; 5.24 (5) unreasonable interference with a child's breathing; 5.25 (6) threatening a child with a weapon, as defined in 5.26 section 609.02, subdivision 6; 5.27 (7) striking a child under age one on the face or head; 5.28 (8) purposely giving a child poison, alcohol, or dangerous, 5.29 harmful, or controlled substances which were not prescribed for 5.30 the child by a practitioner, in order to control or punish the 5.31 child; or other substances that substantially affect the child's 5.32 behavior, motor coordination, or judgment or that results in 5.33 sickness or internal injury, or subjects the child to medical 5.34 procedures that would be unnecessary if the child were not 5.35 exposed to the substances; or 5.36 (9) unreasonable physical confinement or restraint not 6.1 permitted under section 609.379, including but not limited to 6.2 tying, caging,orchaining, or any other physical or manual 6.3 method of restricting or prohibiting movement. 6.4 (e) "Report" means any report received by the local welfare 6.5 agency, police department, or county sheriff pursuant to this 6.6 section. 6.7 (f) "Facility" means a licensed or unlicensed day care 6.8 facility, residential facility, agency, hospital, sanitarium, or 6.9 other facility or institution required to be licensed under 6.10 sections 144.50 to 144.58, 241.021, or 245A.01 to 245A.16, or 6.11 chapter 245B; or a school as defined in sections 120A.05, 6.12 subdivisions 9, 11, and 13; and 124D.10; or a nonlicensed 6.13 personal care provider organization as defined in sections 6.14 256B.04, subdivision 16, and 256B.0625, subdivision 19a. 6.15 (g) "Operator" means an operator or agency as defined in 6.16 section 245A.02. 6.17 (h) "Commissioner" means the commissioner of human services. 6.18 (i) "Assessment" includes authority to interview the child, 6.19 the person or persons responsible for the child's care, the 6.20 alleged perpetrator, and any other person with knowledge of the 6.21 abuse or neglect for the purpose of gathering the facts, 6.22 assessing the risk to the child, and formulating a plan. 6.23 (j) "Practice of social services," for the purposes of 6.24 subdivision 3, includes but is not limited to employee 6.25 assistance counseling and the provision of guardian ad litem and 6.26 parenting time expeditor services. 6.27 (k) "Mental injury" means an injury to the psychological 6.28 capacity or emotional stability of a child as evidenced by an 6.29 observable or substantial impairment in the child's ability to 6.30 function within a normal range of performance and behavior with 6.31 due regard to the child's culture. 6.32 (l) "Threatened injury" means a statement, overt act, 6.33 condition, or status that represents a substantial risk of 6.34 physical or sexual abuse or mental injury. 6.35 (m) Persons who conduct assessments or investigations under 6.36 this section shall take into account accepted child-rearing 7.1 practices of the culture in which a child participates, which 7.2 are not injurious to the child's health, welfare, and safety. 7.3 (n) "Maltreatment of a child in a facility" means physical 7.4 abuse, sexual abuse, or neglect that occurs while a child is 7.5 under the care of a facility, or the following acts committed by 7.6 a person other than a child receiving services, with a child or 7.7 in the presence of a child who is or should be under the 7.8 supervision of the facility: 7.9 (1) an act against a child that constitutes a violation of, 7.10 an attempt to violate, or aiding and abetting a violation of: 7.11 (i) sections 609.221 to 609.224 (assault in the first 7.12 through fifth degrees); or 7.13 (ii) section 609.52 (theft); 7.14 (2) conduct that is not an accident or authorized conduct 7.15 that produces or could reasonably be expected to produce 7.16 physical pain or injury or emotional distress, including, but 7.17 not limited to, the following: 7.18 (i) hitting, slapping, kicking, pinching, biting, or 7.19 shaking; 7.20 (ii) use of repeated or malicious oral, written, or 7.21 gestured language toward a child or the treatment of a child, 7.22 that is disparaging, derogatory, humiliating, harassing, or 7.23 threatening; or 7.24 (iii) use of an aversive or deprivation procedure, 7.25 unreasonable confinement or restraint, or involuntary seclusion, 7.26 including forced separation of the child from other persons, 7.27 except aversive or deprivation procedures for developmentally 7.28 disabled children authorized under section 245.825; 7.29 (3) in the absence of legal authority, willfully using, 7.30 withholding, or disposing of funds or property of a child 7.31 receiving services in a facility that is not considered to be 7.32 contraband by the facility or school; 7.33 (4) sexual conduct with a child or in the presence of a 7.34 child that a reasonable person would consider to be sexual 7.35 behavior or exposing the child to sexual behavior or material 7.36 that is inappropriate for the age and developmental level of the 8.1 child; or 8.2 (5) sexual contact as defined in section 609.341 between a 8.3 facility staff, or an associate of the facility staff, and a 8.4 child receiving services. 8.5 For purposes of this paragraph (n), a child is not abused 8.6 for the sole reason that a person is engaged in authorized 8.7 conduct. 8.8 (o) "Authorized conduct" means the provision of program 8.9 services, education for schools, health care, or other personal 8.10 care services; or provision of services or education under a 8.11 written program plan, individual education plan, or school 8.12 discipline plan, done in the best interests of the child by an 8.13 individual, facility, or employee or person providing services 8.14 or education in a facility under the rights, privileges, and 8.15 responsibilities conferred by state license, certification, or 8.16 registration. 8.17 Sec. 4. Minnesota Statutes 2000, section 626.556, 8.18 subdivision 10, is amended to read: 8.19 Subd. 10. [DUTIES OF LOCAL WELFARE AGENCY AND LOCAL LAW 8.20 ENFORCEMENT AGENCY UPON RECEIPT OF A REPORT.] (a) If the report 8.21 alleges neglect, physical abuse, or sexual abuse by a parent, 8.22 guardian, or individual functioning within the family unit as a 8.23 person responsible for the child's care, the local welfare 8.24 agency shall immediately conduct an assessment including 8.25 gathering information on the existence of substance abuse and 8.26 offer protective social services for purposes of preventing 8.27 further abuses, safeguarding and enhancing the welfare of the 8.28 abused or neglected minor, and preserving family life whenever 8.29 possible. If the report alleges a violation of a criminal 8.30 statute involving sexual abuse, physical abuse, or neglect or 8.31 endangerment, under section 609.378, the local law enforcement 8.32 agency and local welfare agency shall coordinate the planning 8.33 and execution of their respective investigation and assessment 8.34 efforts to avoid a duplication of fact-finding efforts and 8.35 multiple interviews. Each agency shall prepare a separate 8.36 report of the results of its investigation. In cases of alleged 9.1 child maltreatment resulting in death, the local agency may rely 9.2 on the fact-finding efforts of a law enforcement investigation 9.3 to make a determination of whether or not maltreatment 9.4 occurred. When necessary the local welfare agency shall seek 9.5 authority to remove the child from the custody of a parent, 9.6 guardian, or adult with whom the child is living. In performing 9.7 any of these duties, the local welfare agency shall maintain 9.8 appropriate records. 9.9 If the assessment indicates there is a potential for abuse 9.10 of alcohol or other drugs by the parent, guardian, or person 9.11 responsible for the child's care, the local welfare agency shall 9.12 conduct a chemical use assessment pursuant to Minnesota Rules, 9.13 part 9530.6615. The local welfare agency shall report the 9.14 determination of the chemical use assessment, and the 9.15 recommendations and referrals for alcohol and other drug 9.16 treatment services to the state authority on alcohol and drug 9.17 abuse. 9.18 (b) When a local agency receives a report or otherwise has 9.19 information indicating that a child who is a client, as defined 9.20 in section 245.91, has been the subject of physical abuse, 9.21 sexual abuse, or neglect at an agency, facility, or program as 9.22 defined in section 245.91, it shall, in addition to its other 9.23 duties under this section, immediately inform the ombudsman 9.24 established under sections 245.91 to 245.97. 9.25 (c) Authority of the local welfare agency responsible for 9.26 assessing the child abuse or neglect report and of the local law 9.27 enforcement agency for investigating the alleged abuse or 9.28 neglect includes, but is not limited to, authority to interview, 9.29 without parental consent, the alleged victim and any other 9.30 minors who currently reside with or who have resided with the 9.31 alleged offender. The interview may take place at school or at 9.32 any facility or other place where the alleged victim or other 9.33 minors might be found or the child may be transported to, and 9.34 the interview conducted at, a place appropriate for the 9.35 interview of a child designated by the local welfare agency or 9.36 law enforcement agency. The interview may take place outside 10.1 the presence of the alleged offender or parent, legal custodian, 10.2 guardian, or school official. Except as provided in this 10.3 paragraph, the parent, legal custodian, or guardian shall be 10.4 notified by the responsible local welfare or law enforcement 10.5 agency no later than the conclusion of the investigation or 10.6 assessment that this interview has occurred. Notwithstanding 10.7 rule 49.02 of the Minnesota rules of procedure for juvenile 10.8 courts, the juvenile court may, after hearing on an ex parte 10.9 motion by the local welfare agency, order that, where reasonable 10.10 cause exists, the agency withhold notification of this interview 10.11 from the parent, legal custodian, or guardian. If the interview 10.12 took place or is to take place on school property, the order 10.13 shall specify that school officials may not disclose to the 10.14 parent, legal custodian, or guardian the contents of the 10.15 notification of intent to interview the child on school 10.16 property, as provided under this paragraph, and any other 10.17 related information regarding the interview that may be a part 10.18 of the child's school record. A copy of the order shall be sent 10.19 by the local welfare or law enforcement agency to the 10.20 appropriate school official. 10.21 (d) When the local welfare or local law enforcement agency 10.22 determines that an interview should take place on school 10.23 property, written notification of intent to interview the child 10.24 on school property must be received by school officials prior to 10.25 the interview. The notification shall include the name of the 10.26 child to be interviewed, the purpose of the interview, and a 10.27 reference to the statutory authority to conduct an interview on 10.28 school property. For interviews conducted by the local welfare 10.29 agency, the notification shall be signed by the chair of the 10.30 local social services agency or the chair's designee. The 10.31 notification shall be private data on individuals subject to the 10.32 provisions of this paragraph. School officials may not disclose 10.33 to the parent, legal custodian, or guardian the contents of the 10.34 notification or any other related information regarding the 10.35 interview until notified in writing by the local welfare or law 10.36 enforcement agency that the investigation or assessment has been 11.1 concluded. Until that time, the local welfare or law 11.2 enforcement agency shall be solely responsible for any 11.3 disclosures regarding the nature of the assessment or 11.4 investigation. 11.5 Except where the alleged offender is believed to be a 11.6 school official or employee, the time and place, and manner of 11.7 the interview on school premises shall be within the discretion 11.8 of school officials, but the local welfare or law enforcement 11.9 agency shall have the exclusive authority to determine who may 11.10 attend the interview. The conditions as to time, place, and 11.11 manner of the interview set by the school officials shall be 11.12 reasonable and the interview shall be conducted not more than 24 11.13 hours after the receipt of the notification unless another time 11.14 is considered necessary by agreement between the school 11.15 officials and the local welfare or law enforcement agency. 11.16 Where the school fails to comply with the provisions of this 11.17 paragraph, the juvenile court may order the school to comply. 11.18 Every effort must be made to reduce the disruption of the 11.19 educational program of the child, other students, or school 11.20 staff when an interview is conducted on school premises. 11.21 (e) Where the alleged offender or a person responsible for 11.22 the care of the alleged victim or other minor prevents access to 11.23 the victim or other minor by the local welfare agency, the 11.24 juvenile court may order the parents, legal custodian, or 11.25 guardian to produce the alleged victim or other minor for 11.26 questioning by the local welfare agency or the local law 11.27 enforcement agency outside the presence of the alleged offender 11.28 or any person responsible for the child's care at reasonable 11.29 places and times as specified by court order. 11.30 (f) Before making an order under paragraph (e), the court 11.31 shall issue an order to show cause, either upon its own motion 11.32 or upon a verified petition, specifying the basis for the 11.33 requested interviews and fixing the time and place of the 11.34 hearing. The order to show cause shall be served personally and 11.35 shall be heard in the same manner as provided in other cases in 11.36 the juvenile court. The court shall consider the need for 12.1 appointment of a guardian ad litem to protect the best interests 12.2 of the child. If appointed, the guardian ad litem shall be 12.3 present at the hearing on the order to show cause. 12.4 (g) The commissioner, the ombudsman for mental health and 12.5 mental retardation, the local welfare agencies responsible for 12.6 investigating reports, and the local law enforcement agencies 12.7 have the right to enter facilities as defined in subdivision 2 12.8 and to inspect and copy the facility's records, including 12.9 medical records, as part of the investigation. Notwithstanding 12.10 the provisions of chapter 13, they also have the right to inform 12.11 the facility under investigation that they are conducting an 12.12 investigation, to disclose to the facility the names of the 12.13 individuals under investigation for abusing or neglecting a 12.14 child, and to provide the facility with a copy of the report and 12.15 the investigative findings. 12.16 (h) The local welfare agency shall collect available and 12.17 relevant information to ascertain whether maltreatment occurred 12.18 and whether protective services are needed. Information 12.19 collected includes, when relevant, information with regard to 12.20 the person reporting the alleged maltreatment, including the 12.21 nature of the reporter's relationship to the child and to the 12.22 alleged offender, and the basis of the reporter's knowledge for 12.23 the report; the child allegedly being maltreated; the alleged 12.24 offender; the child's caretaker; and other collateral sources 12.25 having relevant information related to the alleged 12.26 maltreatment. The local welfare agency may make a determination 12.27 of no maltreatment early in an assessment, and close the case 12.28 and retain immunity, if the collected information shows no basis 12.29 for a full assessment or investigation. 12.30 Information relevant to the assessment or investigation 12.31 must be asked for, and may include: 12.32 (1) the child's sex and age, prior reports of maltreatment, 12.33 information relating to developmental functioning, credibility 12.34 of the child's statement, and whether the information provided 12.35 under this clause is consistent with other information collected 12.36 during the course of the assessment or investigation; 13.1 (2) the alleged offender's age, a record check for prior 13.2 reports of maltreatment, and criminal charges and convictions. 13.3 The local welfare agency must provide the alleged offender with 13.4 an opportunity to make a statement. The alleged offender may 13.5 submit supporting documentation relevant to the assessment or 13.6 investigation; 13.7 (3) collateral source information regarding the alleged 13.8 maltreatment and care of the child. Collateral information 13.9 includes, when relevant: (i) a medical examination of the 13.10 child; (ii) prior medical records relating to the alleged 13.11 maltreatment or the care of the child maintained by any 13.12 facility, clinic, or health care professional and an interview 13.13 with the treating professionals; and (iii) interviews with the 13.14 child's caretakers, including the child's parent, guardian, 13.15 foster parent, child care provider, teachers, counselors, family 13.16 members, relatives, and other persons who may have knowledge 13.17 regarding the alleged maltreatment and the care of the child; 13.18 and 13.19 (4) information on the existence of domestic abuse and 13.20 violence in the home of the child, and substance abuse. 13.21 Nothing in this paragraph precludes the local welfare 13.22 agency from collecting other relevant information necessary to 13.23 conduct the assessment or investigation. Notwithstanding 13.24 section 13.384 or 144.335, the local welfare agency has access 13.25 to medical data and records for purposes of clause (3). 13.26 Notwithstanding the data's classification in the possession of 13.27 any other agency, data acquired by the local welfare agency 13.28 during the course of the assessment or investigation are private 13.29 data on individuals and must be maintained in accordance with 13.30 subdivision 11. 13.31 (i) In the initial stages of an assessment or 13.32 investigation, the local welfare agency shall conduct a 13.33 face-to-face observation of the child reported to be maltreated 13.34 and a face-to-face interview of the alleged offender. The 13.35 interview with the alleged offender may be postponed if it would 13.36 jeopardize an active law enforcement investigation. 14.1 (j) The local welfare agency shall use a question and 14.2 answer interviewing format with questioning as nondirective as 14.3 possible to elicit spontaneous responses. The following 14.4 interviewing methods and procedures must be used whenever 14.5 possible when collecting information: 14.6 (1) audio recordings of all interviews with witnesses and 14.7 collateral sources; and 14.8 (2) in cases of alleged sexual abuse, audio-video 14.9 recordings of each interview with the alleged victim and child 14.10 witnesses. 14.11 Sec. 5. Minnesota Statutes 2000, section 626.556, 14.12 subdivision 10b, is amended to read: 14.13 Subd. 10b. [DUTIES OF COMMISSIONER; NEGLECT OR ABUSE IN 14.14 FACILITY.] (a) This section applies to the commissioners of 14.15 human services, health, and children, families, and learning. 14.16 The commissioner of the agency responsible for assessing or 14.17 investigating the report shall immediately investigate if the 14.18 report alleges that: 14.19 (1) a child who is in the care of a facility as defined in 14.20 subdivision 2 is neglected, physically abused,orsexually 14.21 abused, or is the victim of maltreatment in a facility by an 14.22 individual in that facility, or has been so neglected or 14.23 abused or been the victim of maltreatment in a facility by an 14.24 individual in that facility within the three years preceding the 14.25 report; or 14.26 (2) a child was neglected, physically abused,orsexually 14.27 abused, or is the victim of maltreatment in a facility by an 14.28 individual in a facility defined in subdivision 2, while in the 14.29 care of that facility within the three years preceding the 14.30 report. 14.31 The commissioner of the agency responsible for assessing or 14.32 investigating the report shall arrange for the transmittal to 14.33 the commissioner of reports received by local agencies and may 14.34 delegate to a local welfare agency the duty to investigate 14.35 reports. In conducting an investigation under this section, the 14.36 commissioner has the powers and duties specified for local 15.1 welfare agencies under this section. The commissioner of the 15.2 agency responsible for assessing or investigating the report or 15.3 local welfare agency may interview any children who are or have 15.4 been in the care of a facility under investigation and their 15.5 parents, guardians, or legal custodians. 15.6 (b) Prior to any interview, the commissioner of the agency 15.7 responsible for assessing or investigating the report or local 15.8 welfare agency shall notify the parent, guardian, or legal 15.9 custodian of a child who will be interviewed in the manner 15.10 provided for in subdivision 10d, paragraph (a). If reasonable 15.11 efforts to reach the parent, guardian, or legal custodian of a 15.12 child in an out-of-home placement have failed, the child may be 15.13 interviewed if there is reason to believe the interview is 15.14 necessary to protect the child or other children in the 15.15 facility. The commissioner of the agency responsible for 15.16 assessing or investigating the report or local agency must 15.17 provide the information required in this subdivision to the 15.18 parent, guardian, or legal custodian of a child interviewed 15.19 without parental notification as soon as possible after the 15.20 interview. When the investigation is completed, any parent, 15.21 guardian, or legal custodian notified under this subdivision 15.22 shall receive the written memorandum provided for in subdivision 15.23 10d, paragraph (c). 15.24 (c) In conducting investigations under this subdivision the 15.25 commissioner or local welfare agency shall obtain access to 15.26 information consistent with subdivision 10, paragraphs (h), (i), 15.27 and (j). 15.28 (d) Except for foster care and family child care, the 15.29 commissioner has the primary responsibility for the 15.30 investigations and notifications required under subdivisions 10d 15.31 and 10f for reports that allege maltreatment related to the care 15.32 provided by or in facilities licensed by the commissioner. The 15.33 commissioner may request assistance from the local social 15.34 services agency. 15.35 Sec. 6. Minnesota Statutes 2000, section 626.556, 15.36 subdivision 10d, is amended to read: 16.1 Subd. 10d. [NOTIFICATION OF NEGLECT OR ABUSE IN FACILITY.] 16.2 (a) When a report is received that alleges neglect, physical 16.3 abuse,orsexual abuse, or maltreatment of a child while in the 16.4 care of a licensed or unlicensed day care facility, residential 16.5 facility, agency, hospital, sanitarium, or other facility or 16.6 institution required to be licensed according to sections 144.50 16.7 to 144.58; 241.021; or 245A.01 to 245A.16; or chapter 245B, or a 16.8 school as defined in sections 120A.05, subdivisions 9, 11, and 16.9 13; and 124D.10; or a nonlicensed personal care provider 16.10 organization as defined in section 256B.04, subdivision 16, and 16.11 256B.0625, subdivision 19a, the commissioner of the agency 16.12 responsible for assessing or investigating the report or local 16.13 welfare agency investigating the report shall provide the 16.14 following information to the parent, guardian, or legal 16.15 custodian of a child alleged to have been neglected, physically 16.16 abused,orsexually abused, or the victim of maltreatment of a 16.17 child in the facility: the name of the facility; the fact that 16.18 a report alleging neglect, physical abuse,orsexual abuse, or 16.19 maltreatment of a child in the facility has been received; the 16.20 nature of the alleged neglect, physical abuse,orsexual abuse, 16.21 or maltreatment of a child in the facility; that the agency is 16.22 conducting an investigation; any protective or corrective 16.23 measures being taken pending the outcome of the investigation; 16.24 and that a written memorandum will be provided when the 16.25 investigation is completed. 16.26 (b) The commissioner of the agency responsible for 16.27 assessing or investigating the report or local welfare agency 16.28 may also provide the information in paragraph (a) to the parent, 16.29 guardian, or legal custodian of any other child in the facility 16.30 if the investigative agency knows or has reason to believe the 16.31 alleged neglect, physical abuse,orsexual abuse, or 16.32 maltreatment of a child in the facility has occurred. In 16.33 determining whether to exercise this authority, the commissioner 16.34 of the agency responsible for assessing or investigating the 16.35 report or local welfare agency shall consider the seriousness of 16.36 the alleged neglect, physical abuse,orsexual abuse, or 17.1 maltreatment of a child in the facility; the number of children 17.2 allegedly neglected, physically abused,orsexually abused, or 17.3 victims of maltreatment of a child in the facility; the number 17.4 of alleged perpetrators; and the length of the investigation. 17.5 The facility shall be notified whenever this discretion is 17.6 exercised. 17.7 (c) When the commissioner of the agency responsible for 17.8 assessing or investigating the report or local welfare agency 17.9 has completed its investigation, every parent, guardian, or 17.10 legal custodian notified of the investigation by the 17.11 commissioner or local welfare agency shall be provided with the 17.12 following information in a written memorandum: the name of the 17.13 facility investigated; the nature of the alleged neglect, 17.14 physical abuse,orsexual abuse, or maltreatment of a child in 17.15 the facility; the investigator's name; a summary of the 17.16 investigation findings; a statement whether maltreatment was 17.17 found; and the protective or corrective measures that are being 17.18 or will be taken. The memorandum shall be written in a manner 17.19 that protects the identity of the reporter and the child and 17.20 shall not contain the name, or to the extent possible, reveal 17.21 the identity of the alleged perpetrator or of those interviewed 17.22 during the investigation. The commissioner or local welfare 17.23 agency shall also provide the written memorandum to the parent, 17.24 guardian, or legal custodian of each child in the facility if 17.25 maltreatment is determined to exist. 17.26 Sec. 7. Minnesota Statutes 2000, section 626.556, 17.27 subdivision 10e, is amended to read: 17.28 Subd. 10e. [DETERMINATIONS.] Upon the conclusion of every 17.29 assessment or investigation it conducts, the local welfare 17.30 agency shall make two determinations: first, whether 17.31 maltreatment has occurred; and second, whether child protective 17.32 services are needed. When maltreatment is determined in an 17.33 investigation involving a facility, the investigating agency 17.34 shall also determine whether the facility or individual was 17.35 responsible for the maltreatment using the mitigating factors in 17.36 paragraph (d). Determinations under this subdivision must be 18.1 made based on a preponderance of the evidence. 18.2 (a) For the purposes of this subdivision, "maltreatment" 18.3 means any of the following acts or omissionscommitted by a18.4person responsible for the child's care: 18.5 (1) physical abuse as defined in subdivision 2, paragraph 18.6 (d); 18.7 (2) neglect as defined in subdivision 2, paragraph (c); 18.8 (3) sexual abuse as defined in subdivision 2, paragraph 18.9 (a);or18.10 (4) mental injury as defined in subdivision 2, paragraph 18.11 (k); or 18.12 (5) maltreatment of a child in a facility as defined in 18.13 subdivision 2, paragraph (n). 18.14 (b) For the purposes of this subdivision, a determination 18.15 that child protective services are needed means that the local 18.16 welfare agency has documented conditions during the assessment 18.17 or investigation sufficient to cause a child protection worker, 18.18 as defined in section 626.559, subdivision 1, to conclude that a 18.19 child is at significant risk of maltreatment if protective 18.20 intervention is not provided and that the individuals 18.21 responsible for the child's care have not taken or are not 18.22 likely to take actions to protect the child from maltreatment or 18.23 risk of maltreatment. 18.24 (c) This subdivision does not mean that maltreatment has 18.25 occurred solely because the child's parent, guardian, or other 18.26 person responsible for the child's care in good faith selects 18.27 and depends upon spiritual means or prayer for treatment or care 18.28 of disease or remedial care of the child, in lieu of medical 18.29 care. However, if lack of medical care may result in serious 18.30 danger to the child's health, the local welfare agency may 18.31 ensure that necessary medical services are provided to the child. 18.32 (d) When determining whether the facility or individual is 18.33 the responsible party for determined maltreatment in a facility, 18.34 the investigating agency shall consider at least the following 18.35 mitigating factors: 18.36 (1) whether the actions of the facility or the individual 19.1 caregivers were according to, and followed the terms of, an 19.2 erroneous physician order, prescription, individual care plan, 19.3 or directive; however, this is not a mitigating factor when the 19.4 facility or caregiver was responsible for the issuance of the 19.5 erroneous order, prescription, individual care plan, or 19.6 directive or knew or should have known of the errors and took no 19.7 reasonable measures to correct the defect before administering 19.8 care; 19.9 (2) comparative responsibility between the facility, other 19.10 caregivers, and requirements placed upon an employee, including 19.11 the facility's compliance with related regulatory standards and 19.12 the adequacy of facility policies and procedures, facility 19.13 training, an individual's participation in the training, the 19.14 caregiver's supervision, and facility staffing levels and the 19.15 scope of the individual employee's authority and discretion; and 19.16 (3) whether the facility or individual followed 19.17 professional standards in exercising professional judgment. 19.18 Individual counties may implement more detailed definitions 19.19 or criteria that indicate which allegations to investigate, as 19.20 long as a county's policies are consistent with the definitions 19.21 in the statutes and rules and are approved by the county board. 19.22 Each local welfare agency shall periodically inform mandated 19.23 reporters under subdivision 3 who work in the county of the 19.24 definitions of maltreatment in the statutes and rules and any 19.25 additional definitions or criteria that have been approved by 19.26 the county board. 19.27 Sec. 8. Minnesota Statutes 2000, section 626.556, 19.28 subdivision 10f, is amended to read: 19.29 Subd. 10f. [NOTICE OF DETERMINATIONS.] Within ten working 19.30 days of the conclusion of an assessment, the local welfare 19.31 agency or agency responsible for assessing or investigating the 19.32 report shall notify the parent or guardian of the child, the 19.33 person determined to be maltreating the child, and if 19.34 applicable, the director of the facility, of the determination 19.35 and a summary of the specific reasons for the determination. 19.36 The notice must also include a certification that the 20.1 information collection procedures under subdivision 10, 20.2 paragraphs (h), (i), and (j), were followed and a notice of the 20.3 right of a data subject to obtain access to other private data 20.4 on the subject collected, created, or maintained under this 20.5 section. In addition, the notice shall include the length of 20.6 time that the records will be kept under subdivision 11c. The 20.7 investigating agency shall notify the parent or guardian of the 20.8 child who is the subject of the report, and any person or 20.9 facility determined to have maltreated a child, of their 20.10 appeal or review rights under this section or section 2. 20.11 Sec. 9. Minnesota Statutes 2000, section 626.556, 20.12 subdivision 10i, is amended to read: 20.13 Subd. 10i. [ADMINISTRATIVE RECONSIDERATION OF FINAL 20.14 DETERMINATION OF MALTREATMENT; REVIEW PANEL.] (a) An individual 20.15 or facility that the commissioner or a local social service 20.16 agency determines has maltreated a child, orthe child's20.17designeean interested person acting on behalf of the child, 20.18 regardless of the determination, who contests the investigating 20.19 agency's final determination regarding maltreatment, may request 20.20 the investigating agency to reconsider its final determination 20.21 regarding maltreatment. The request for reconsideration must be 20.22 submitted in writing to the investigating agency within 15 20.23 calendar days after receipt of notice of the final determination 20.24 regarding maltreatment or, if the request is made by an 20.25 interested person who is not entitled to notice, within 15 days 20.26 after receipt of the notice by the parent or guardian of the 20.27 child. 20.28 (b) If the investigating agency denies the request or fails 20.29 to act upon the request within 15 calendar days after receiving 20.30 the request for reconsideration, the person or facility entitled 20.31 to a fair hearing under section 256.045 may submit to the 20.32 commissioner of human services a written request for a hearing 20.33 under that section. An interested person acting on behalf of 20.34 the child may request a review by the child maltreatment review 20.35 panel under section 2 if the investigating agency denies the 20.36 request or fails to act upon the request or if the interested 21.1 person contests a reconsidered determination. The investigating 21.2 agency shall notify persons who request reconsideration of their 21.3 rights under this paragraph. The request must be submitted in 21.4 writing to the review panel and a copy sent to the investigating 21.5 agency within 30 calendar days of receipt of notice of a denial 21.6 of a request for reconsideration or of a reconsidered 21.7 determination. The request must specifically identify the 21.8 aspects of the agency determination with which the person is 21.9 dissatisfied. 21.10 (c) If, as a result ofthea reconsideration or review, the 21.11 investigating agency changes the final determination of 21.12 maltreatment, that agency shall notify the parties specified in 21.13 subdivisions 10b, 10d, and 10f. 21.14 (d) If an individual or facility contests the investigating 21.15 agency's final determination regarding maltreatment by 21.16 requesting a fair hearing under section 256.045, the 21.17 commissioner of human services shall assure that the hearing is 21.18 conducted and a decision is reached within 90 days of receipt of 21.19 the request for a hearing. The time for action on the decision 21.20 may be extended for as many days as the hearing is postponed or 21.21 the record is held open for the benefit of either party. 21.22 (e) For purposes of this subdivision, "interested person 21.23 acting on behalf of the child" means a parent or legal guardian; 21.24 stepparent; grandparent; guardian ad litem; adult stepbrother, 21.25 stepsister, or sibling; or adult aunt or uncle. 21.26 Sec. 10. Minnesota Statutes 2000, section 626.556, 21.27 subdivision 11, is amended to read: 21.28 Subd. 11. [RECORDS.] (a) Except as provided in paragraph 21.29 (b) or (c) and subdivisions 10b, 10d, 10g, and 11b, all records 21.30 concerning individuals maintained by a local welfare agency or 21.31 agency responsible for assessing or investigating the report 21.32 under this section, including any written reports filed under 21.33 subdivision 7, shall be private data on individuals, except 21.34 insofar as copies of reports are required by subdivision 7 to be 21.35 sent to the local police department or the county sheriff. 21.36 Reports maintained by any police department or the county 22.1 sheriff shall be private data on individuals except the reports 22.2 shall be made available to the investigating, petitioning, or 22.3 prosecuting authority, including county medical examiners or 22.4 county coroners. Section 13.82, subdivisions 7, 5a, and 5b, 22.5 apply to law enforcement data other than the reports. The local 22.6 social services agency or agency responsible for assessing or 22.7 investigating the report shall make available to the 22.8 investigating, petitioning, or prosecuting authority, including 22.9 county medical examiners or county coroners or their 22.10 professional delegates, any records which contain information 22.11 relating to a specific incident of neglect or abuse which is 22.12 under investigation, petition, or prosecution and information 22.13 relating to any prior incidents of neglect or abuse involving 22.14 any of the same persons. The records shall be collected and 22.15 maintained in accordance with the provisions of chapter 13. In 22.16 conducting investigations and assessments pursuant to this 22.17 section, the notice required by section 13.04, subdivision 2, 22.18 need not be provided to a minor under the age of ten who is the 22.19 alleged victim of abuse or neglect. An individual subject of a 22.20 record shall have access to the record in accordance with those 22.21 sections, except that the name of the reporter shall be 22.22 confidential while the report is under assessment or 22.23 investigation except as otherwise permitted by this 22.24 subdivision. Any person conducting an investigation or 22.25 assessment under this section who intentionally discloses the 22.26 identity of a reporter prior to the completion of the 22.27 investigation or assessment is guilty of a misdemeanor. After 22.28 the assessment or investigation is completed, the name of the 22.29 reporter shall be confidential. The subject of the report may 22.30 compel disclosure of the name of the reporter only with the 22.31 consent of the reporter or upon a written finding by the court 22.32 that the report was false and that there is evidence that the 22.33 report was made in bad faith. This subdivision does not alter 22.34 disclosure responsibilities or obligations under the rules of 22.35 criminal procedure. 22.36 (b) Upon request of the legislative auditor, data on 23.1 individuals maintained under this section must be released to 23.2 the legislative auditor in order for the auditor to fulfill the 23.3 auditor's duties under section 3.971. The auditor shall 23.4 maintain the data in accordance with chapter 13. 23.5 (c) The investigating agency shall exchange not public data 23.6 with the child maltreatment review panel under section 2 if the 23.7 data are pertinent and necessary for a review requested under 23.8 section 2. Upon completion of the review, the not public data 23.9 received by the review panel must be returned to the 23.10 investigating agency. 23.11 Sec. 11. Minnesota Statutes 2000, section 626.556, 23.12 subdivision 12, is amended to read: 23.13 Subd. 12. [DUTIES OF FACILITY OPERATORS.] Any operator, 23.14 employee, or volunteer worker at any facility who intentionally 23.15 neglects, physically abuses, or sexually abuses any child in the 23.16 care of that facility may be charged with a violation of section 23.17 609.255, 609.377, or 609.378. Any operator of a facility who 23.18 knowingly permits conditions to exist which result in neglect, 23.19 physical abuse,orsexual abuse, or maltreatment of a child in a 23.20 facility while in the care of that facility may be charged with 23.21 a violation of section 609.378. The facility operator shall 23.22 inform all mandated reporters employed by or otherwise 23.23 associated with the facility of the duties required of mandated 23.24 reporters and shall inform all mandatory reporters of the 23.25 prohibition against retaliation for reports made in good faith 23.26 under this section. 23.27 Sec. 12. Minnesota Statutes 2000, section 626.559, 23.28 subdivision 2, is amended to read: 23.29 Subd. 2. [JOINT TRAINING.] The commissioners of human 23.30 services and public safety shall cooperate in the development of 23.31 a joint program for training child abuse services professionals 23.32 in the appropriate techniques for child abuse assessment and 23.33 investigation. The program shall include but need not be 23.34 limited to the following areas: 23.35 (1) the public policy goals of the state as set forth in 23.36 section 260C.001 and the role of the assessment or investigation 24.1 in meeting these goals; 24.2 (2) the special duties of child protection workers and law 24.3 enforcement officers under section 626.556; 24.4 (3) the appropriate methods for directing and managing 24.5 affiliated professionals who may be utilized in providing 24.6 protective services and strengthening family ties; 24.7 (4) the appropriate methods for interviewing alleged 24.8 victims of child abuse and other minors in the course of 24.9 performing an assessment or an investigation; 24.10 (5) the dynamics of child abuse and neglect within family 24.11 systems and the appropriate methods for interviewing parents in 24.12 the course of the assessment or investigation, including 24.13 training in recognizing cases in which one of the parents is a 24.14 victim of domestic abuse and in need of special legal or medical 24.15 services; 24.16 (6) the legal, evidentiary considerations that may be 24.17 relevant to the conduct of an assessment or an investigation; 24.18 (7) the circumstances under which it is appropriate to 24.19 remove the alleged abuser or the alleged victim from the home; 24.20 (8) the protective social services that are available to 24.21 protect alleged victims from further abuse, to prevent child 24.22 abuse and domestic abuse, and to preserve the family unit, and 24.23 training in the preparation of case plans to coordinate services 24.24 for the alleged child abuse victim with services for any parents 24.25 who are victims of domestic abuse;and24.26 (9) the methods by which child protection workers and law 24.27 enforcement workers cooperate in conducting assessments and 24.28 investigations in order to avoid duplication of efforts; and 24.29 (10) appropriate methods for interviewing alleged victims 24.30 of child abuse and conducting investigations in cases where the 24.31 alleged victim is developmentally, physically, or mentally 24.32 disabled.