Minnesota Legislature
HF 2117
as introduced - 87th Legislature (2011 - 2012) Posted on 02/08/2012 12:03pm
Current Version - as introduced
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A bill for an act
relating to health occupations; modifying complaint processes; prohibiting
licenses to certain individuals with felony-level sexual conduct convictions;
amending Minnesota Statutes 2010, sections 214.103; 364.09; proposing coding
for new law in Minnesota Statutes, chapter 214.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1.
Minnesota Statutes 2010, section 214.103, is amended to read:
214.103 HEALTH-RELATED LICENSING BOARDS; COMPLAINT,
INVESTIGATION, AND HEARING.
Subdivision 1.
Application.
For purposes of this section, "board" means
"health-related licensing board" and does not include the non-health-related licensing
boards. Nothing in this section supersedes section 214.10, subdivisions 2a, 3, 8, and 9, as
they apply to the health-related licensing boards.
Subd. 2.
Receipt of complaint.
The boards shall receive and resolve complaints
or other communications, whether oral or written, against regulated persons. Before
resolving an oral complaint, the executive director or a board member designated by the
board to review complaints deleted text begin maydeleted text end new text begin shall new text end require the complainant to state the complaint in
writingnew text begin or authorize transcribing the complaintnew text end . The executive director or the designated
board member shall determine whether the complaint alleges or implies a violation of
a statute or rule which the board is empowered to enforce. The executive director or
the designated board member may consult with the designee of the attorney general as
to a board's jurisdiction over a complaint. If the executive director or the designated
board member determines that it is necessary, the executive director may seek additional
information to determine whether the complaint is jurisdictional or to clarify the nature
of the allegations by obtaining records or other written material, obtaining a handwriting
sample from the regulated person, clarifying the alleged facts with the complainant, and
requesting a written response from the subject of the complaint.
new text begin Subd. 2a. new text end
new text begin Notifications and resolution. new text end
new text begin
(a) No more than 14 calendar days after
receiving a complaint regarding a licensee, the board shall notify the complainant that
the board has received the complaint and shall provide the complainant with the written
description of the board's complaint process. The board shall periodically, but no less
than every 120 days, notify the complainant of the status of the complaint consistent
with section 13.41.
new text end
new text begin
(b) Except as provided in paragraph (d), no more than 60 calendar days after
receiving a complaint regarding a licensee, the board must notify the licensee that the
board has received a complaint and inform the licensee of:
new text end
new text begin
(1) the substance of the complaint;
new text end
new text begin
(2) the sections of the law that have allegedly been violated;
new text end
new text begin
(3) the sections of the professional rules that have allegedly been violated; and
new text end
new text begin
(4) whether an investigation is being conducted.
new text end
new text begin
(c) The board shall periodically, but not less than every 120 days, notify the licensee
of the status of the complaint consistent with section 13.41.
new text end
new text begin
(d) Paragraphs (b) and (c) do not apply if the board determines that the notice
would compromise the board's investigation and that the notice cannot reasonably be
accomplished within this time.
new text end
new text begin
(e) No more than one year after receiving a complaint regarding a licensee, the
board must resolve or dismiss the complaint unless the board determines that resolving or
dismissing the complaint cannot reasonably be accomplished in this time and is not in
the public interest.
new text end
new text begin
(f) Failure to make notifications or to resolve the complaint within the time
established in this subdivision shall not deprive the board of jurisdiction to complete the
investigation or to take corrective, disciplinary, or other action against the licensee that is
authorized by law. Such a failure by the board shall not be the basis for a licensee's request
for the board to dismiss a complaint, and shall not be considered by an administrative law
judge, the board, or any reviewing court.
new text end
Subd. 3.
Referral to other agencies.
The executive director shall forward to
another governmental agency any complaints received by the board which do not relate
to the board's jurisdiction but which relate to matters within the jurisdiction of another
governmental agency. The agency shall advise the executive director of the disposition
of the complaint. A complaint or other information received by another governmental
agency relating to a statute or rule which a board is empowered to enforce must be
forwarded to the executive director of the board to be processed in accordance with this
section.new text begin Governmental agencies may coordinate and conduct joint investigations of
complaints that involve more than one governmental agency.
new text end
Subd. 4.
Role of the attorney general.
The executive director or the designated
board member shall forward a complaint and any additional information to the designee
of the attorney general when the executive director or the designated board member
determines that a complaint is jurisdictional and:
(1) requires investigation before the executive director or the designated board
member may resolve the complaint;
(2) that attempts at resolution for disciplinary action or the initiation of a contested
case hearing is appropriate;
(3) that an agreement for corrective action is warranted; or
(4) that the complaint should be dismissed, consistent with subdivision 8.
Subd. 5.
Investigation by attorney general.
new text begin (a) new text end If the executive director or the
designated board member determines that investigation is necessary before resolving
the complaint, the executive director shall forward the complaint and any additional
information to the designee of the attorney general. The designee of the attorney general
shall evaluate the communications forwarded and investigate as appropriate.
new text begin (b) new text end The designee of the attorney general may also investigate any other complaint
forwarded under subdivision 3 when the designee of the attorney general determines that
investigation is necessary.
new text begin (c) new text end In the process of evaluation and investigation, the designee shall consult with
or seek the assistance of the executive director or the designated board member. The
designee may also consult with or seek the assistance of other qualified persons who are
not members of the board who the designee believes will materially aid in the process of
evaluation or investigation.
new text begin (d) new text end Upon completion of the investigation, the designee shall forward the investigative
report to the executive directornew text begin with recommendations for further consideration or
dismissalnew text end .
Subd. 6.
Attempts at resolution.
(a) At any time after receipt of a complaint, the
executive director or the designated board member may attempt to resolve the complaint
with the regulated person. The available means for resolution include a conference or
any other written or oral communication with the regulated person. A conference may
be held for the purposes of investigation, negotiation, education, or conciliation. new text begin Neither
the executive director nor any member of a board's staff shall be a voting member in any
attempts at resolutions that may result in disciplinary or corrective action. new text end The results
of attempts at resolution with the regulated person may include a recommendation to
the board for disciplinary action, an agreement between the executive director or the
designated board member and the regulated person for corrective action, or the dismissal
of a complaint. If attempts at resolution are not in the public interest deleted text begin or are not satisfactory
to the executive director or the designated board member, then the executive director or
the designated board member may initiatedeleted text end new text begin ,new text end a contested case hearingnew text begin may be initiatednew text end .
(1) The designee of the attorney general shall represent the board in all attempts at
resolution which the executive director or the designated board member anticipate may
result in disciplinary action. A stipulation between the executive director or the designated
board member and the regulated person shall be presented to the board for the board's
consideration. An approved stipulation and resulting order shall become public data.
(2) The designee of the attorney general shall represent the board upon the request of
the executive director or the designated board member in all attempts at resolution which
the executive director or the designated board member anticipate may result in corrective
action. Any agreement between the executive director or the designated board member
and the regulated person for corrective action shall be in writing and shall be reviewed by
the designee of the attorney general prior to its execution. The agreement for corrective
action shall provide for dismissal of the complaint upon successful completion by the
regulated person of the corrective action.
(b) Upon receipt of a complaint alleging sexual contact or sexual conduct with a
client, the board must forward the complaint to the designee of the attorney general for
an investigation. If, after it is investigated, the complaint appears to provide a basis for
disciplinary action, the board shall resolve the complaint by disciplinary action or initiate
a contested case hearing. Notwithstanding paragraph (a), clause (2), a board may not take
corrective action or dismiss a complaint alleging sexual contact or sexual conduct with a
client unless, in the opinion of the executive director, the designated board member, and the
designee of the attorney general, there is insufficient evidence to justify disciplinary action.
Subd. 7.
Contested case hearing.
If the executive director or the designated board
member determines that attempts at resolution of a complaint are not in the public interest
deleted text begin or are not satisfactory to the executive director or the designated board memberdeleted text end , the
executive director or the designated board member, after consultation with the designee
of the attorney general, new text begin and the concurrence of a second board member, new text end may initiate a
contested case hearing under chapter 14. The designated board member or any board
member who was consulted during the course of an investigation may participate at the
contested case hearing. A designated or consulted board member may not deliberate or
vote in any proceeding before the board pertaining to the case.
Subd. 8.
Dismissal new text begin and reopening new text end of a complaint.
new text begin (a) new text end A complaint may not be
dismissed without the concurrence of at least two board members and, upon the request
of the complainant, a review by a representative of the attorney general's office. The
designee of the attorney general must review before dismissal any complaints which
allege any violation of chapter 609, any conduct which would be required to be reported
under section 626.556 or 626.557, any sexual contact or sexual conduct with a client,
any violation of a federal law, any actual or potential inability to practice the regulated
profession or occupation by reason of illness, use of alcohol, drugs, chemicals, or any other
materials, or as a result of any mental or physical condition, any violation of state medical
assistance laws, or any disciplinary action related to credentialing in another jurisdiction
or country which was based on the same or related conduct specified in this subdivision.
new text begin
(b) The board may reopen a dismissed complaint if the board receives newly
discovered information that was not available to the board during the initial investigation
of the complaint, or if the board receives a new complaint that indicates a pattern of
behavior or conduct.
new text end
Subd. 9.
Information to complainant.
A board shall furnish to a person who made
a complaint a written description of the board's complaint process, and actions of the
board relating to the complaint.
Subd. 10.
Prohibited participation by board member.
A board member who
has actual bias or a current or former direct financial or professional connection with a
regulated person may not vote in board actions relating to the regulated person.
Sec. 2.
new text begin
[214.107] CONVICTION OF FELONY-LEVEL CRIMINAL SEXUAL
CONDUCT OFFENSE.
new text end
new text begin Subdivision 1. new text end
new text begin Applicability. new text end
new text begin
This section applies to the health-related licensing
boards, as defined in section 214.01, subdivision 2, except the Board of Medical Practice
and the Board of Chiropractic Examiners, and also applies to the Board of Barber
Examiners, the Board of Cosmetologist Examiners, and professions credentialed by the
Minnesota Department of Health: (1) speech-language pathologists and audiologists; (2)
hearing instrument dispensers; and (3) occupational therapists and occupational therapy
assistants.
new text end
new text begin Subd. 2. new text end
new text begin Issuing and renewing credential to practice. new text end
new text begin
(a) Except as provided in
paragraph (f), a credentialing authority listed in subdivision 1 shall not issue or renew a
credential to practice to any person who has been convicted on or after August 1, 2011, of
any of the provisions of section 609.342, subdivision 1; 609.343, subdivision 1; 609.344,
subdivision 1, clauses (c) to (o); or 609.345, subdivision 1, clauses (b) to (o).
new text end
new text begin
(b) A credentialing authority listed in subdivision 1 shall not issue or renew a
credential to practice to any person who has been convicted in any other state or country on
or after August 1, 2011, of an offense where the elements of the offense are substantially
similar to any of the offenses listed in paragraph (a).
new text end
new text begin
(c) A credential to practice is automatically revoked if the credentialed person is
convicted of an offense listed in paragraph (a).
new text end
new text begin
(d) A credential to practice that has been denied or revoked under this section is
not subject to chapter 364.
new text end
new text begin
(e) For purposes of this section, "conviction" means a plea of guilty, a verdict of
guilty by a jury, or a finding of guilty by the court, unless the court stays imposition or
execution of the sentence and final disposition of the case is accomplished at a nonfelony
level.
new text end
new text begin
(f) A credentialing authority listed in subdivision 1 may establish criteria whereby
an individual convicted of an offense listed in paragraph (a) may become credentialed
provided that the criteria:
new text end
new text begin
(1) utilize a rebuttable presumption that the applicant is not suitable for credentialing;
new text end
new text begin
(2) provide a standard for overcoming the presumption; and
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new text begin
(3) require that a minimum of ten years has elapsed since the applicant was released
from any incarceration or supervisory jurisdiction related to the offense.
new text end
new text begin
A credentialing authority listed in subdivision 1 shall not consider an application under
this paragraph if the board determines that the victim involved in the offense was a patient
or a client of the applicant at the time of the offense.
new text end
new text begin EFFECTIVE DATE. new text end
new text begin
This section is effective for credentials issued or renewed on
or after August 1, 2011.
new text end
Sec. 3.
Minnesota Statutes 2010, section 364.09, is amended to read:
364.09 EXCEPTIONS.
(a) This chapter does not apply to the licensing process for peace officers; to law
enforcement agencies as defined in section 626.84, subdivision 1, paragraph (f); to fire
protection agencies; to eligibility for a private detective or protective agent license; to the
licensing and background study process under chapters 245A and 245C; to eligibility
for school bus driver endorsements; to eligibility for special transportation service
endorsements; to eligibility for a commercial driver training instructor license, which is
governed by section 171.35 and rules adopted under that section; to emergency medical
services personnel, or to the licensing by political subdivisions of taxicab drivers, if the
applicant for the license has been discharged from sentence for a conviction within the ten
years immediately preceding application of a violation of any of the following:
(1) sections 609.185 to 609.21, 609.221 to 609.223, 609.342 to 609.3451, or 617.23,
subdivision 2 or 3;
(2) any provision of chapter 152 that is punishable by a maximum sentence of
15 years or more; or
(3) a violation of chapter 169 or 169A involving driving under the influence, leaving
the scene of an accident, or reckless or careless driving.
This chapter also shall not apply to eligibility for juvenile corrections employment, where
the offense involved child physical or sexual abuse or criminal sexual conduct.
(b) This chapter does not apply to a school district or to eligibility for a license
issued or renewed by the Board of Teaching or the commissioner of education.
(c) Nothing in this section precludes the Minnesota Police and Peace Officers
Training Board or the state fire marshal from recommending policies set forth in this
chapter to the attorney general for adoption in the attorney general's discretion to apply to
law enforcement or fire protection agencies.
(d) This chapter does not apply to a license to practice medicine that has been denied
or revoked by the Board of Medical Practice pursuant to section 147.091, subdivision 1a.
(e) This chapter does not apply to any person who has been denied a license to
practice chiropractic or whose license to practice chiropractic has been revoked by the
board in accordance with section 148.10, subdivision 7.
new text begin
(f) This chapter does not apply to any person who has been denied a credential to
practice or whose credential to practice has been revoked by a credentialing authority
according to section 214.107, subdivision 2.
new text end
new text begin EFFECTIVE DATE. new text end
new text begin
This section is effective for credentials issued or renewed on
or after August 1, 2011.
new text end
Sec. 4. new text begin WORKING GROUP; PSYCHIATRIC MEDICATIONS.
new text end
new text begin
(a) The commissioner of health shall convene a working group composed of the
executive directors of the Boards of Medical Practice, Psychology, Social Work, Nursing,
and Behavioral Health and Therapy and one representative from each professional
association to make recommendations on the feasibility of developing collaborative
agreements between psychiatrists and psychologists, social workers, and licensed
professional clinical counselors for administration and management of psychiatric
medications.
new text end
new text begin
(b) The executive directors shall take the lead in setting the agenda, convening
subsequent meetings, and presenting a written report to the chairs and ranking minority
members of the legislative committees with jurisdiction over health and human services.
The report and recommendations for legislation shall be submitted no later than January
1, 2012.
new text end
new text begin
(c) The working group is not subject to Minnesota Statutes, section 15.059.
new text end