SF 1397

2nd Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to health and human services; changing 
  1.3             requirements to background studies for licensed 
  1.4             programs; amending Minnesota Statutes 2000, sections 
  1.5             13.46, subdivision 4; 144.057; 245A.02, subdivisions 
  1.6             1, 9, by adding a subdivision; 245A.03, subdivision 2, 
  1.7             by adding a subdivision; 245A.035, subdivision 1; 
  1.8             245A.04, subdivisions 3, 3a, 3b, 3d, 6, 11, by adding 
  1.9             a subdivision; 245A.06, subdivision 6; 245A.16, 
  1.10            subdivision 1; proposing coding for new law in 
  1.11            Minnesota Statutes, chapter 245A; repealing Minnesota 
  1.12            Rules, parts 9543.3000; 9543.3010; 9543.3020; 
  1.13            9543.3030; 9543.3040; 9543.3050; 9543.3060; 9543.3080; 
  1.14            9543.3090. 
  1.15  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.16     Section 1.  Minnesota Statutes 2000, section 13.46, 
  1.17  subdivision 4, is amended to read: 
  1.18     Subd. 4.  [LICENSING DATA.] (a) As used in this subdivision:
  1.19     (1) "licensing data" means all data collected, maintained, 
  1.20  used, or disseminated by the welfare system pertaining to 
  1.21  persons licensed or registered or who apply for licensure or 
  1.22  registration or who formerly were licensed or registered under 
  1.23  the authority of the commissioner of human services; 
  1.24     (2) "client" means a person who is receiving services from 
  1.25  a licensee or from an applicant for licensure; and 
  1.26     (3) "personal and personal financial data" means social 
  1.27  security numbers, identity of and letters of reference, 
  1.28  insurance information, reports from the bureau of criminal 
  1.29  apprehension, health examination reports, and social/home 
  1.30  studies. 
  2.1      (b) (1) Except as provided in paragraph (c), the following 
  2.2   data on current and former licensees are public:  name, address, 
  2.3   telephone number of licensees, date of receipt of a completed 
  2.4   application, dates of licensure, licensed capacity, type of 
  2.5   client preferred, variances granted, type of dwelling, name and 
  2.6   relationship of other family members, previous license history, 
  2.7   class of license, and the existence and status of complaints.  
  2.8   When disciplinary action has been taken against a licensee a 
  2.9   correction order or fine has been issued, a license is 
  2.10  suspended, immediately suspended, revoked, denied, or made 
  2.11  conditional, or the a complaint is resolved, the following data 
  2.12  on current and former licensees are public:  the substance and 
  2.13  investigative findings of the complaint, the findings of the 
  2.14  investigation of the complaint, licensing violation, or 
  2.15  substantiated maltreatment; the record of informal resolution of 
  2.16  a licensing violation,; orders of hearing,; findings of fact 
  2.17  ,; conclusions of law, and; specifications of the final 
  2.18  disciplinary action correction order, fine, suspension, 
  2.19  immediate suspension, revocation, denial, or conditional license 
  2.20  contained in the record of disciplinary licensing action; and 
  2.21  the status of any appeal of these actions.  When an individual 
  2.22  licensee is a substantiated perpetrator of maltreatment, and the 
  2.23  substantiated maltreatment is a reason for the licensing action, 
  2.24  the identity of the licensee as a perpetrator is public data.  
  2.25  For purposes of this clause, a person is a substantiated 
  2.26  perpetrator if the maltreatment determination has been upheld 
  2.27  under section 626.556, subdivision 10i, 626.557, subdivision 9d, 
  2.28  or 256.045, or an individual or facility has not timely 
  2.29  exercised appeal rights under these sections. 
  2.30     (2) For applicants who withdraw their application prior to 
  2.31  licensure or denial of a license, the following data are 
  2.32  public:  the name of the applicant, the city and county in which 
  2.33  the applicant was seeking licensure, the dates of the 
  2.34  commissioner's receipt of the initial application and completed 
  2.35  application, the type of license sought, and the date of 
  2.36  withdrawal of the application. 
  3.1      (3) For applicants who are denied a license, the following 
  3.2   data are public:  the name of the applicant, the city and county 
  3.3   in which the applicant was seeking licensure, the dates of the 
  3.4   commissioner's receipt of the initial application and completed 
  3.5   application, the type of license sought, the date of denial of 
  3.6   the application, the nature of the basis for the denial, and the 
  3.7   status of any appeal of the denial. 
  3.8      (4) The following data on persons subject to 
  3.9   disqualification under section 245A.04 in connection with a 
  3.10  license to provide family day care for children, child care 
  3.11  center services, foster care for children in the provider's 
  3.12  home, or foster care or day care services for adults in the 
  3.13  provider's home, are public:  the nature of any disqualification 
  3.14  set aside under section 245A.04, subdivision 3b, and the reasons 
  3.15  for setting aside the disqualification; and the reasons for 
  3.16  granting any variance under section 245A.04, subdivision 9. 
  3.17     (c) The following are private data on individuals under 
  3.18  section 13.02, subdivision 12, or nonpublic data under section 
  3.19  13.02, subdivision 9:  personal and personal financial data on 
  3.20  family day care program and family foster care program 
  3.21  applicants and licensees and their family members who provide 
  3.22  services under the license. 
  3.23     (d) The following are private data on individuals:  the 
  3.24  identity of persons who have made reports concerning licensees 
  3.25  or applicants that appear in inactive investigative data, and 
  3.26  the records of clients or employees of the licensee or applicant 
  3.27  for licensure whose records are received by the licensing agency 
  3.28  for purposes of review or in anticipation of a contested 
  3.29  matter.  The names of reporters under sections 626.556 and 
  3.30  626.557 may be disclosed only as provided in section 626.556, 
  3.31  subdivision 11, or 626.557, subdivision 12b. 
  3.32     (e) Data classified as private, confidential, nonpublic, or 
  3.33  protected nonpublic under this subdivision become public data if 
  3.34  submitted to a court or administrative law judge as part of a 
  3.35  disciplinary proceeding in which there is a public hearing 
  3.36  concerning the disciplinary action a license which has been 
  4.1   suspended, immediately suspended, revoked, or denied. 
  4.2      (f) Data generated in the course of licensing 
  4.3   investigations that relate to an alleged violation of law are 
  4.4   investigative data under subdivision 3. 
  4.5      (g) Data that are not public data collected, maintained, 
  4.6   used, or disseminated under this subdivision that relate to or 
  4.7   are derived from a report as defined in section 626.556, 
  4.8   subdivision 2, or 626.5572, subdivision 18, are subject to the 
  4.9   destruction provisions of section sections 626.556, subdivision 
  4.10  11 11c, and 626.557, subdivision 12b.  
  4.11     Sec. 2.  Minnesota Statutes 2000, section 144.057, is 
  4.12  amended to read: 
  4.13     144.057 [BACKGROUND STUDIES ON LICENSEES.] 
  4.14     Subdivision 1.  [BACKGROUND STUDIES REQUIRED.] The 
  4.15  commissioner of health shall contract with the commissioner of 
  4.16  human services to conduct background studies of: 
  4.17     (1) individuals providing services which have direct 
  4.18  contact, as defined under section 245A.04, subdivision 3, with 
  4.19  patients and residents in hospitals, boarding care homes, 
  4.20  outpatient surgical centers licensed under sections 144.50 to 
  4.21  144.58; nursing homes and home care agencies licensed under 
  4.22  chapter 144A; residential care homes licensed under chapter 
  4.23  144B, and board and lodging establishments that are registered 
  4.24  to provide supportive or health supervision services under 
  4.25  section 157.17; and 
  4.26     (2) individuals specified in section 245A.04, subdivision 
  4.27  3, paragraph (c), who perform direct contact services in a 
  4.28  nursing home or a home care agency licensed under chapter 144A 
  4.29  or a boarding care home licensed under sections 144.50 to 
  4.30  144.58, and if the individual under study resides outside 
  4.31  Minnesota, the study must be at least as comprehensive as that 
  4.32  of a Minnesota resident and include a search of information from 
  4.33  the criminal justice data communications network in the state 
  4.34  where the subject of the study resides; and 
  4.35     (3) beginning July 1, 1999, all other employees in nursing 
  4.36  homes licensed under chapter 144A, and boarding care homes 
  5.1   licensed under sections 144.50 to 144.58.  A disqualification of 
  5.2   an individual in this section shall disqualify the individual 
  5.3   from positions allowing direct contact or access to patients or 
  5.4   residents receiving services.  "Access" means physical access to 
  5.5   a client or the client's personal property without continuous, 
  5.6   direct supervision as defined in section 245A.04, subdivision 3, 
  5.7   paragraph (b), clause (2), when the employee's employment 
  5.8   responsibilities do not include providing direct contact 
  5.9   services. 
  5.10     If a facility or program is licensed by the department of 
  5.11  human services and subject to the background study provisions of 
  5.12  chapter 245A and is also licensed by the department of health, 
  5.13  the department of human services is solely responsible for the 
  5.14  background studies of individuals in the jointly licensed 
  5.15  programs. 
  5.16     Subd. 2.  [RESPONSIBILITIES OF DEPARTMENT OF HUMAN 
  5.17  SERVICES.] The department of human services shall conduct the 
  5.18  background studies required by subdivision 1 in compliance with 
  5.19  the provisions of chapter 245A and Minnesota Rules, parts 
  5.20  9543.3000 to 9543.3090.  For the purpose of this section, the 
  5.21  term "residential program" shall include all facilities 
  5.22  described in subdivision 1.  The department of human services 
  5.23  shall provide necessary forms and instructions, shall conduct 
  5.24  the necessary background studies of individuals, and shall 
  5.25  provide notification of the results of the studies to the 
  5.26  facilities, individuals, and the commissioner of health.  
  5.27  Individuals shall be disqualified under the provisions of 
  5.28  chapter 245A and Minnesota Rules, parts 9543.3000 to 9543.3090.  
  5.29  If an individual is disqualified, the department of human 
  5.30  services shall notify the facility and the individual and shall 
  5.31  inform the individual of the right to request a reconsideration 
  5.32  of the disqualification by submitting the request to the 
  5.33  department of health. 
  5.34     Subd. 3.  [RECONSIDERATIONS.] The commissioner of health 
  5.35  shall review and decide reconsideration requests, including the 
  5.36  granting of variances, in accordance with the procedures and 
  6.1   criteria contained in chapter 245A and Minnesota Rules, parts 
  6.2   9543.3000 to 9543.3090.  The commissioner's decision shall be 
  6.3   provided to the individual and to the department of human 
  6.4   services.  The commissioner's decision to grant or deny a 
  6.5   reconsideration of disqualification is the final administrative 
  6.6   agency action. 
  6.7      Subd. 4.  [RESPONSIBILITIES OF FACILITIES.] Facilities 
  6.8   described in subdivision 1 shall be responsible for cooperating 
  6.9   with the departments in implementing the provisions of this 
  6.10  section.  The responsibilities imposed on applicants and 
  6.11  licensees under chapter 245A and Minnesota Rules, parts 
  6.12  9543.3000 to 9543.3090, shall apply to these facilities.  The 
  6.13  provision of section 245A.04, subdivision 3, paragraph (e), 
  6.14  shall apply to applicants, licensees, or an individual's refusal 
  6.15  to cooperate with the completion of the background studies. 
  6.16     Sec. 3.  Minnesota Statutes 2000, section 245A.02, 
  6.17  subdivision 1, is amended to read: 
  6.18     Subdivision 1.  [SCOPE.] The terms used in this chapter and 
  6.19  chapter 245B have the meanings given them in this section. 
  6.20     Sec. 4.  Minnesota Statutes 2000, section 245A.02, is 
  6.21  amended by adding a subdivision to read: 
  6.22     Subd. 3a.  [CERTIFICATION.] "Certification" means the 
  6.23  commissioner's written authorization for a license holder 
  6.24  licensed by the commissioner of human services or the 
  6.25  commissioner of corrections to serve children in a residential 
  6.26  program and provide specialized services based on certification 
  6.27  standards in Minnesota Rules.  The term "certification" and its 
  6.28  derivatives have the same meaning and may be substituted for the 
  6.29  term "licensure" and its derivatives in this chapter. 
  6.30     Sec. 5.  Minnesota Statutes 2000, section 245A.02, 
  6.31  subdivision 9, is amended to read: 
  6.32     Subd. 9.  [LICENSE HOLDER.] "License holder" means an 
  6.33  individual, corporation, partnership, voluntary association, or 
  6.34  other organization that is legally responsible for the operation 
  6.35  of the program, has been granted a license by the commissioner 
  6.36  under this chapter or chapter 245B and the rules of the 
  7.1   commissioner, and is a controlling individual. 
  7.2      Sec. 6.  Minnesota Statutes 2000, section 245A.03, 
  7.3   subdivision 2, is amended to read: 
  7.4      Subd. 2.  [EXCLUSION FROM LICENSURE.] This chapter does not 
  7.5   apply to: 
  7.6      (1) residential or nonresidential programs that are 
  7.7   provided to a person by an individual who is related unless the 
  7.8   residential program is a child foster care placement made by a 
  7.9   local social services agency or a licensed child-placing agency, 
  7.10  except as provided in subdivision 2a; 
  7.11     (2) nonresidential programs that are provided by an 
  7.12  unrelated individual to persons from a single related family; 
  7.13     (3) residential or nonresidential programs that are 
  7.14  provided to adults who do not abuse chemicals or who do not have 
  7.15  a chemical dependency, a mental illness, mental retardation or a 
  7.16  related condition, a functional impairment, or a physical 
  7.17  handicap; 
  7.18     (4) sheltered workshops or work activity programs that are 
  7.19  certified by the commissioner of economic security; 
  7.20     (5) programs for children enrolled in kindergarten to the 
  7.21  12th grade and prekindergarten special education in a school as 
  7.22  defined in section 120A.22, subdivision 4, and programs serving 
  7.23  children in combined special education and regular 
  7.24  prekindergarten programs that are operated or assisted by the 
  7.25  commissioner of children, families, and learning; 
  7.26     (6) nonresidential programs primarily for children that 
  7.27  provide care or supervision, without charge for ten or fewer 
  7.28  days a year, and for periods of less than three hours a day 
  7.29  while the child's parent or legal guardian is in the same 
  7.30  building as the nonresidential program or present within another 
  7.31  building that is directly contiguous to the building in which 
  7.32  the nonresidential program is located; 
  7.33     (7) nursing homes or hospitals licensed by the commissioner 
  7.34  of health except as specified under section 245A.02; 
  7.35     (8) board and lodge facilities licensed by the commissioner 
  7.36  of health that provide services for five or more persons whose 
  8.1   primary diagnosis is mental illness who have refused an 
  8.2   appropriate residential program offered by a county agency.  
  8.3   This exclusion expires on July 1, 1990; 
  8.4      (9) homes providing programs for persons placed there by a 
  8.5   licensed agency for legal adoption, unless the adoption is not 
  8.6   completed within two years; 
  8.7      (10) programs licensed by the commissioner of corrections; 
  8.8      (11) recreation programs for children or adults that 
  8.9   operate for fewer than 40 calendar days in a calendar year or 
  8.10  programs operated by a park and recreation board of a city of 
  8.11  the first class whose primary purpose is to provide social and 
  8.12  recreational activities to school age children, provided the 
  8.13  program is approved by the park and recreation board; 
  8.14     (12) programs operated by a school as defined in section 
  8.15  120A.22, subdivision 4, whose primary purpose is to provide 
  8.16  child care to school-age children, provided the program is 
  8.17  approved by the district's school board; 
  8.18     (13) Head Start nonresidential programs which operate for 
  8.19  less than 31 days in each calendar year; 
  8.20     (14) noncertified boarding care homes unless they provide 
  8.21  services for five or more persons whose primary diagnosis is 
  8.22  mental illness or mental retardation; 
  8.23     (15) nonresidential programs for nonhandicapped children 
  8.24  provided for a cumulative total of less than 30 days in any 
  8.25  12-month period; 
  8.26     (16) residential programs for persons with mental illness, 
  8.27  that are located in hospitals, until the commissioner adopts 
  8.28  appropriate rules; 
  8.29     (17) the religious instruction of school-age children; 
  8.30  Sabbath or Sunday schools; or the congregate care of children by 
  8.31  a church, congregation, or religious society during the period 
  8.32  used by the church, congregation, or religious society for its 
  8.33  regular worship; 
  8.34     (18) camps licensed by the commissioner of health under 
  8.35  Minnesota Rules, chapter 4630; 
  8.36     (19) mental health outpatient services for adults with 
  9.1   mental illness or children with emotional disturbance; 
  9.2      (20) residential programs serving school-age children whose 
  9.3   sole purpose is cultural or educational exchange, until the 
  9.4   commissioner adopts appropriate rules; 
  9.5      (21) unrelated individuals who provide out-of-home respite 
  9.6   care services to persons with mental retardation or related 
  9.7   conditions from a single related family for no more than 90 days 
  9.8   in a 12-month period and the respite care services are for the 
  9.9   temporary relief of the person's family or legal representative; 
  9.10     (22) respite care services provided as a home and 
  9.11  community-based service to a person with mental retardation or a 
  9.12  related condition, in the person's primary residence; 
  9.13     (23) community support services programs as defined in 
  9.14  section 245.462, subdivision 6, and family community support 
  9.15  services as defined in section 245.4871, subdivision 17; 
  9.16     (24) the placement of a child by a birth parent or legal 
  9.17  guardian in a preadoptive home for purposes of adoption as 
  9.18  authorized by section 259.47; or 
  9.19     (25) settings registered under chapter 144D which provide 
  9.20  home care services licensed by the commissioner of health to 
  9.21  fewer than seven adults.; or 
  9.22     (26) consumer-directed community support service funded 
  9.23  under the Medicaid waiver for persons with mental retardation 
  9.24  and related conditions when the individual who provided the 
  9.25  service is:  
  9.26     (i) the same individual who is the direct payee of these 
  9.27  specific waiver funds; and 
  9.28     (ii) not under the control of a residential or 
  9.29  nonresidential program that is required to be licensed under 
  9.30  this chapter when providing the service. 
  9.31     For purposes of clause (6), a building is directly 
  9.32  contiguous to a building in which a nonresidential program is 
  9.33  located if it shares a common wall with the building in which 
  9.34  the nonresidential program is located or is attached to that 
  9.35  building by skyway, tunnel, atrium, or common roof. 
  9.36     Sec. 7.  Minnesota Statutes 2000, section 245A.03, is 
 10.1   amended by adding a subdivision to read: 
 10.2      Subd. 6.  [RIGHT TO SEEK CERTIFICATION.] Nothing in this 
 10.3   section shall prohibit a residential program licensed by the 
 10.4   commissioner of corrections to serve children, that is excluded 
 10.5   from licensure under subdivision 2, clause (10), from seeking 
 10.6   certification from the commissioner of human services under this 
 10.7   chapter for program services for which certification standards 
 10.8   have been adopted. 
 10.9      Sec. 8.  Minnesota Statutes 2000, section 245A.035, 
 10.10  subdivision 1, is amended to read: 
 10.11     Subdivision 1.  [GRANT OF EMERGENCY LICENSE.] 
 10.12  Notwithstanding section 245A.03, subdivision 2a, a county agency 
 10.13  may place a child for foster care with a relative who is not 
 10.14  licensed to provide foster care, provided the requirements of 
 10.15  subdivision 2 are met.  As used in this section, the term 
 10.16  "relative" has the meaning given it under section 260.181, 
 10.17  subdivision 3 260C.007, subdivision 14. 
 10.18     Sec. 9.  Minnesota Statutes 2000, section 245A.04, 
 10.19  subdivision 3, is amended to read: 
 10.20     Subd. 3.  [BACKGROUND STUDY OF THE APPLICANT; DEFINITIONS.] 
 10.21  (a) Before the commissioner issues a license, the commissioner 
 10.22  shall conduct a study of the individuals specified in paragraph 
 10.23  (c), clauses (1) to (5), according to rules of the commissioner. 
 10.24     Beginning January 1, 1997, the commissioner shall also 
 10.25  conduct a study of employees providing direct contact services 
 10.26  for nonlicensed personal care provider organizations Individuals 
 10.27  and organizations that are required in statute to initiate 
 10.28  background studies under this section shall comply with the 
 10.29  following requirements: 
 10.30     (1) Applicants for licensure, license holders, and other 
 10.31  entities as provided in this section must submit completed 
 10.32  background study forms to the commissioner before individuals 
 10.33  specified in paragraph (c), clauses (1) to (4), (6), and (7), 
 10.34  begin positions allowing direct contact in any licensed program. 
 10.35     (2) Applicants and license holders under the jurisdiction 
 10.36  of other state agencies who are required in other statutory 
 11.1   sections to initiate background studies under this section must 
 11.2   submit completed background study forms to the commissioner 
 11.3   prior to the background study subject beginning in a position 
 11.4   allowing direct contact in the licensed program, or where 
 11.5   applicable, prior to being employed. 
 11.6      (3) Organizations required to initiate background studies 
 11.7   under section 256B.0627 for individuals described in paragraph 
 11.8   (c), clause (5), must submit a completed background study form 
 11.9   to the commissioner before those individuals begin a position 
 11.10  allowing direct contact with persons served by the organization. 
 11.11  The commissioner shall recover the cost of these background 
 11.12  studies through a fee of no more than $12 per study charged to 
 11.13  the personal care provider organization responsible for 
 11.14  submitting the background study form.  
 11.15     Beginning August 1, 1997, Upon receipt of the background 
 11.16  study forms from the entities in clauses (1) to (3), the 
 11.17  commissioner shall conduct all background studies required under 
 11.18  this chapter for adult foster care providers who are licensed by 
 11.19  the commissioner of human services and registered under chapter 
 11.20  144D.  The commissioner shall conduct these background studies 
 11.21  in accordance with this chapter.  The commissioner shall 
 11.22  initiate a pilot project to conduct up to 5,000 background 
 11.23  studies under this chapter complete the background study as 
 11.24  specified under this section and provide notices required in 
 11.25  subdivision 3a.  Unless otherwise specified, the subject of a 
 11.26  background study may have direct contact with persons served by 
 11.27  a program after the background study form is mailed or submitted 
 11.28  to the commissioner pending notification of the study results 
 11.29  under subdivision 3a.  A county agency may accept a background 
 11.30  study completed by the commissioner under this section in place 
 11.31  of the background study required under section 245A.16, 
 11.32  subdivision 3, in programs with joint licensure as home and 
 11.33  community-based services and adult foster care for people with 
 11.34  developmental disabilities when the license holder does not 
 11.35  reside in the foster care residence and the subject of the study 
 11.36  has been continuously affiliated with the license holder since 
 12.1   the date of the commissioner's study. 
 12.2      (b) Beginning July 1, 1998, the commissioner shall conduct 
 12.3   a background study on individuals specified in paragraph (c), 
 12.4   clauses (1) to (5), who perform direct contact services in a 
 12.5   nursing home or a home care agency licensed under chapter 144A 
 12.6   or a boarding care home licensed under sections 144.50 to 
 12.7   144.58, when the subject of the study resides outside Minnesota; 
 12.8   the study must be at least as comprehensive as that of a 
 12.9   Minnesota resident and include a search of information from the 
 12.10  criminal justice data communications network in the state where 
 12.11  the subject of the study resides The definitions in this 
 12.12  paragraph apply only to subdivisions 3 to 3e. 
 12.13     (1) "Background study" means the review of records 
 12.14  conducted by the commissioner to determine whether a subject is 
 12.15  disqualified from direct contact with persons served by a 
 12.16  program, and where specifically provided in statutes, whether a 
 12.17  subject is disqualified from having access to persons served by 
 12.18  a program. 
 12.19     (2) "Continuous, direct supervision" means an individual is 
 12.20  within sight or hearing of the supervising person to the extent 
 12.21  that supervising person is capable at all times of intervening 
 12.22  to protect the health and safety of the persons served by the 
 12.23  program. 
 12.24     (3) "Contractor" means any person, regardless of employer, 
 12.25  who is providing program services for hire under the control of 
 12.26  the provider. 
 12.27     (4) "Direct contact" means providing face-to-face care, 
 12.28  training, supervision, counseling, consultation, or medication 
 12.29  assistance to persons served by the program. 
 12.30     (5) "Reasonable cause" means information or circumstances 
 12.31  exist which provide the commissioner with articulable suspicion 
 12.32  that further pertinent information may exist concerning a 
 12.33  subject.  The commissioner has reasonable cause when, but not 
 12.34  limited to, the commissioner has received a report from the 
 12.35  subject, the license holder, or a third party indicating that 
 12.36  the subject has a history that would disqualify the person or 
 13.1   that may pose a risk to the health or safety of persons 
 13.2   receiving services. 
 13.3      (6) "Subject of a background study" means an individual on 
 13.4   whom a background study is required or completed. 
 13.5      (c) The applicant, license holder, the bureau of criminal 
 13.6   apprehension, the commissioner of health and county agencies, 
 13.7   after written notice to the individual who is the subject of the 
 13.8   study, shall help with the study by giving the commissioner 
 13.9   criminal conviction data and reports about the maltreatment of 
 13.10  adults substantiated under section 626.557 and the maltreatment 
 13.11  of minors in licensed programs substantiated under section 
 13.12  626.556.  The individuals to be studied shall include: 
 13.13     (1) the applicant; 
 13.14     (2) persons over the age of 13 and over living in the 
 13.15  household where the licensed program will be provided; 
 13.16     (3) current employees or contractors of the applicant who 
 13.17  will have direct contact with persons served by the facility, 
 13.18  agency, or program; 
 13.19     (4) volunteers or student volunteers who have direct 
 13.20  contact with persons served by the program to provide program 
 13.21  services, if the contact is not directly supervised by the 
 13.22  individuals listed in clause (1) or (3); and 
 13.23     (5) any person who, as an individual or as a member of an 
 13.24  organization, exclusively offers, provides, or arranges for 
 13.25  personal care assistant services under the medical assistance 
 13.26  program as authorized under sections 256B.04, subdivision 16, 
 13.27  and 256B.0625, subdivision 19a. required under section 256B.0627 
 13.28  to have a background study completed under this section; 
 13.29     (6) persons age 10 to 12 living in the household where the 
 13.30  licensed services will be provided when the commissioner has 
 13.31  reasonable cause; and 
 13.32     (7) persons who, without providing direct contact services 
 13.33  at a licensed program, may have unsupervised access to children 
 13.34  or vulnerable adults receiving services from the program 
 13.35  licensed to provide family child care for children, foster care 
 13.36  for children in the provider's own home, or foster care or day 
 14.1   care services for adults in the provider's own home when the 
 14.2   commissioner has reasonable cause. 
 14.3      (d) According to paragraph (c), clauses (2) and (6), the 
 14.4   commissioner shall review records from the juvenile courts.  For 
 14.5   persons under paragraph (c), clauses (1), (3), (4), (5), and 
 14.6   (7), who are ages 13 to 17, the commissioner shall review 
 14.7   records from the juvenile courts when the commissioner has 
 14.8   reasonable cause.  The juvenile courts shall also help with the 
 14.9   study by giving the commissioner existing juvenile court records 
 14.10  on individuals described in clause paragraph (c), clauses (2), 
 14.11  (6), and (7), relating to delinquency proceedings held within 
 14.12  either the five years immediately preceding the application 
 14.13  background study or the five years immediately preceding the 
 14.14  individual's 18th birthday, whichever time period is longer.  
 14.15  The commissioner shall destroy juvenile records obtained 
 14.16  pursuant to this subdivision when the subject of the records 
 14.17  reaches age 23. 
 14.18     (e) For purposes of this section and Minnesota Rules, part 
 14.19  9543.3070, a finding that a delinquency petition is proven in 
 14.20  juvenile court shall be considered a conviction in state 
 14.21  district court. 
 14.22     For purposes of this subdivision, "direct contact" means 
 14.23  providing face-to-face care, training, supervision, counseling, 
 14.24  consultation, or medication assistance to persons served by a 
 14.25  program.  For purposes of this subdivision, "directly supervised"
 14.26  means an individual listed in clause (1), (3), or (5) is within 
 14.27  sight or hearing of a volunteer to the extent that the 
 14.28  individual listed in clause (1), (3), or (5) is capable at all 
 14.29  times of intervening to protect the health and safety of the 
 14.30  persons served by the program who have direct contact with the 
 14.31  volunteer. 
 14.32     (f) A study of an individual in paragraph (c), clauses (1) 
 14.33  to (5) (7), shall be conducted at least upon application for 
 14.34  initial license for all license types and at reapplication for a 
 14.35  license for family child care, child foster care, and adult 
 14.36  foster care.  The commissioner is not required to conduct a 
 15.1   study of an individual at the time of reapplication for a 
 15.2   license or if the individual has been continuously affiliated 
 15.3   with a foster care provider licensed by the commissioner of 
 15.4   human services and registered under chapter 144D, other than a 
 15.5   family day care or foster care license, if:  (i) a study of the 
 15.6   individual was conducted either at the time of initial licensure 
 15.7   or when the individual became affiliated with the license 
 15.8   holder; (ii) the individual has been continuously affiliated 
 15.9   with the license holder since the last study was conducted; and 
 15.10  (iii) the procedure described in paragraph (d) (i) has been 
 15.11  implemented and was in effect continuously since the last study 
 15.12  was conducted.  For the purposes of this section, a physician 
 15.13  licensed under chapter 147 is considered to be continuously 
 15.14  affiliated upon the license holder's receipt from the 
 15.15  commissioner of health or human services of the physician's 
 15.16  background study results.  For individuals who are required to 
 15.17  have background studies under clauses (1) to (5) paragraph (c) 
 15.18  and who have been continuously affiliated with a foster care 
 15.19  provider that is licensed in more than one county, criminal 
 15.20  conviction data may be shared among those counties in which the 
 15.21  foster care programs are licensed.  A county agency's receipt of 
 15.22  criminal conviction data from another county agency shall meet 
 15.23  the criminal data background study requirements of this section. 
 15.24     (g) The commissioner may also conduct studies on 
 15.25  individuals specified in paragraph (c), clauses (3) and (4), 
 15.26  when the studies are initiated by: 
 15.27     (i) personnel pool agencies; 
 15.28     (ii) temporary personnel agencies; 
 15.29     (iii) educational programs that train persons by providing 
 15.30  direct contact services in licensed programs; and 
 15.31     (iv) professional services agencies that are not licensed 
 15.32  and which contract with licensed programs to provide direct 
 15.33  contact services or individuals who provide direct contact 
 15.34  services. 
 15.35     (h) Studies on individuals in paragraph (g), items (i) to 
 15.36  (iv), must be initiated annually by these agencies, programs, 
 16.1   and individuals.  Except for personal care provider 
 16.2   organizations as provided in paragraph (a), clause (3), no 
 16.3   applicant, license holder, or individual who is the subject of 
 16.4   the study shall pay any fees required to conduct the study. 
 16.5      (1) At the option of the licensed facility, rather than 
 16.6   initiating another background study on an individual required to 
 16.7   be studied who has indicated to the licensed facility that a 
 16.8   background study by the commissioner was previously completed, 
 16.9   the facility may make a request to the commissioner for 
 16.10  documentation of the individual's background study status, 
 16.11  provided that: 
 16.12     (i) the facility makes this request using a form provided 
 16.13  by the commissioner; 
 16.14     (ii) in making the request the facility informs the 
 16.15  commissioner that either: 
 16.16     (A) the individual has been continuously affiliated with a 
 16.17  licensed facility since the individual's previous background 
 16.18  study was completed, or since October 1, 1995, whichever is 
 16.19  shorter; or 
 16.20     (B) the individual is affiliated only with a personnel pool 
 16.21  agency, a temporary personnel agency, an educational program 
 16.22  that trains persons by providing direct contact services in 
 16.23  licensed programs, or a professional services agency that is not 
 16.24  licensed and which contracts with licensed programs to provide 
 16.25  direct contact services or individuals who provide direct 
 16.26  contact services; and 
 16.27     (iii) the facility provides notices to the individual as 
 16.28  required in paragraphs (a) to (d) (i), and that the facility is 
 16.29  requesting written notification of the individual's background 
 16.30  study status from the commissioner.  
 16.31     (2) The commissioner shall respond to each request under 
 16.32  paragraph (1) with a written or electronic notice to the 
 16.33  facility and the study subject.  If the commissioner determines 
 16.34  that a background study is necessary, the study shall be 
 16.35  completed without further request from a licensed agency or 
 16.36  notifications to the study subject.  
 17.1      (3) When a background study is being initiated by a 
 17.2   licensed facility or a foster care provider that is also 
 17.3   registered under chapter 144D, a study subject affiliated with 
 17.4   multiple licensed facilities may attach to the background study 
 17.5   form a cover letter indicating the additional facilities' names, 
 17.6   addresses, and background study identification numbers.  When 
 17.7   the commissioner receives such notices, each facility identified 
 17.8   by the background study subject shall be notified of the study 
 17.9   results.  The background study notice sent to the subsequent 
 17.10  agencies shall satisfy those facilities' responsibilities for 
 17.11  initiating a background study on that individual. 
 17.12     (d) (i) If an individual who is affiliated with a program 
 17.13  or facility regulated by the department of human services or 
 17.14  department of health or who is affiliated with a nonlicensed 
 17.15  personal care provider organization any type of home care agency 
 17.16  or provider of personal care assistance services, is convicted 
 17.17  of a crime constituting a disqualification under subdivision 3d, 
 17.18  the probation officer or corrections agent shall notify the 
 17.19  commissioner of the conviction.  For the purpose of this 
 17.20  paragraph, "conviction" has the meaning given it in section 
 17.21  609.02, subdivision 5.  The commissioner, in consultation with 
 17.22  the commissioner of corrections, shall develop forms and 
 17.23  information necessary to implement this paragraph and shall 
 17.24  provide the forms and information to the commissioner of 
 17.25  corrections for distribution to local probation officers and 
 17.26  corrections agents.  The commissioner shall inform individuals 
 17.27  subject to a background study that criminal convictions for 
 17.28  disqualifying crimes will be reported to the commissioner by the 
 17.29  corrections system.  A probation officer, corrections agent, or 
 17.30  corrections agency is not civilly or criminally liable for 
 17.31  disclosing or failing to disclose the information required by 
 17.32  this paragraph.  Upon receipt of disqualifying information, the 
 17.33  commissioner shall provide the notifications required in 
 17.34  subdivision 3a, as appropriate to agencies on record as having 
 17.35  initiated a background study or making a request for 
 17.36  documentation of the background study status of the individual.  
 18.1   This paragraph does not apply to family day care and child 
 18.2   foster care programs. 
 18.3      (e) (j) The individual who is the subject of the study must 
 18.4   provide the applicant or license holder with sufficient 
 18.5   information to ensure an accurate study including the 
 18.6   individual's first, middle, and last name and all other names by 
 18.7   which the individual has been known; home address, city, county, 
 18.8   and state of residence for the past five years; zip code; sex; 
 18.9   date of birth; and driver's license number or state 
 18.10  identification number.  The applicant or license holder shall 
 18.11  provide this information about an individual in paragraph (c), 
 18.12  clauses (1) to (5) (7), on forms prescribed by the commissioner. 
 18.13  By January 1, 2000, for background studies conducted by the 
 18.14  department of human services, the commissioner shall implement a 
 18.15  system for the electronic transmission of:  (1) background study 
 18.16  information to the commissioner; and (2) background study 
 18.17  results to the license holder.  The commissioner may request 
 18.18  additional information of the individual, which shall be 
 18.19  optional for the individual to provide, such as the individual's 
 18.20  social security number or race. 
 18.21     (f) Except for child foster care, adult foster care, and 
 18.22  family day care homes (k) For programs directly licensed by the 
 18.23  commissioner, a study must include information related to names 
 18.24  of substantiated perpetrators of maltreatment of vulnerable 
 18.25  adults that has been received by the commissioner as required 
 18.26  under section 626.557, subdivision 9c, paragraph (i), and the 
 18.27  commissioner's records relating to the maltreatment of minors in 
 18.28  licensed programs, information from juvenile courts as required 
 18.29  in paragraph (c) for persons listed in paragraph (c), 
 18.30  clause clauses (2), (6), and (7), and information from the 
 18.31  bureau of criminal apprehension.  For child foster care, adult 
 18.32  foster care, and family day care homes, the study must include 
 18.33  information from the county agency's record of substantiated 
 18.34  maltreatment of adults, and the maltreatment of minors, 
 18.35  information from juvenile courts as required in paragraph (c) 
 18.36  for persons listed in paragraph (c), clause clauses (2), (6), 
 19.1   and (7), and information from the bureau of criminal 
 19.2   apprehension.  The commissioner may also review arrest and 
 19.3   investigative information from the bureau of criminal 
 19.4   apprehension, the commissioner of health, a county attorney, 
 19.5   county sheriff, county agency, local chief of police, other 
 19.6   states, the courts, or the Federal Bureau of Investigation if 
 19.7   the commissioner has reasonable cause to believe the information 
 19.8   is pertinent to the disqualification of an individual listed in 
 19.9   paragraph (c), clauses (1) to (5) (7).  The commissioner is not 
 19.10  required to conduct more than one review of a subject's records 
 19.11  from the Federal Bureau of Investigation if a review of the 
 19.12  subject's criminal history with the Federal Bureau of 
 19.13  Investigation has already been completed by the commissioner and 
 19.14  there has been no break in the subject's affiliation with the 
 19.15  license holder who initiated the background studies study. 
 19.16     (l) When the commissioner has reasonable cause to believe 
 19.17  that further pertinent information may exist on the subject, the 
 19.18  subject shall provide a set of classifiable fingerprints 
 19.19  obtained from an authorized law enforcement agency.  For 
 19.20  purposes of requiring fingerprints, the commissioner shall be 
 19.21  considered to have reasonable cause under, but not limited to, 
 19.22  the following circumstances: 
 19.23     (1) information from the bureau of criminal apprehension 
 19.24  indicates that the subject is a multistate offender; 
 19.25     (2) information from the bureau of criminal apprehension 
 19.26  indicates that multistate offender status is undetermined; or 
 19.27     (3) the commissioner has received a report from the subject 
 19.28  or a third party indicating that the subject has a criminal 
 19.29  history in a jurisdiction other than Minnesota. 
 19.30     (g) (m) An applicant's or license holder's failure or 
 19.31  refusal to cooperate with the commissioner is reasonable cause 
 19.32  to disqualify a subject, deny a license application or 
 19.33  immediately suspend, suspend, or revoke a license.  Failure or 
 19.34  refusal of an individual to cooperate with the study is just 
 19.35  cause for denying or terminating employment of the individual if 
 19.36  the individual's failure or refusal to cooperate could cause the 
 20.1   applicant's application to be denied or the license holder's 
 20.2   license to be immediately suspended, suspended, or revoked. 
 20.3      (h) (n) The commissioner shall not consider an application 
 20.4   to be complete until all of the information required to be 
 20.5   provided under this subdivision has been received.  
 20.6      (i) (o) No person in paragraph (c), clause clauses (1), 
 20.7   (2), (3), (4), or (5) to (7), who is disqualified as a result of 
 20.8   this section may be retained by the agency in a position 
 20.9   involving direct contact with persons served by the program. or 
 20.10  in a position allowing access to persons served by the program 
 20.11  as provided for in statutes, unless the commissioner has 
 20.12  provided written notice to the agency stating that: 
 20.13     (1) the individual may remain in direct contact during the 
 20.14  period in which the individual may request reconsideration as 
 20.15  provided in subdivision 3a, paragraph (b), clause (2) or (3); 
 20.16     (2) the individual's disqualification has been set aside 
 20.17  for that agency as provided in subdivision 3b, paragraph (b); or 
 20.18     (3) the license holder has been granted a variance for the 
 20.19  disqualified individual under subdivision 3e. 
 20.20     (j) (p) Termination of persons in paragraph (c), clause 
 20.21  clauses (1), (2), (3), (4), or (5) to (7), made in good faith 
 20.22  reliance on a notice of disqualification provided by the 
 20.23  commissioner shall not subject the applicant or license holder 
 20.24  to civil liability. 
 20.25     (k) (q) The commissioner may establish records to fulfill 
 20.26  the requirements of this section. 
 20.27     (l) (r) The commissioner may not disqualify an individual 
 20.28  subject to a study under this section because that person has, 
 20.29  or has had, a mental illness as defined in section 245.462, 
 20.30  subdivision 20. 
 20.31     (m) (s) An individual subject to disqualification under 
 20.32  this subdivision has the applicable rights in subdivision 3a, 
 20.33  3b, or 3c. 
 20.34     (n) (t) For the purposes of background studies completed by 
 20.35  tribal organizations performing licensing activities otherwise 
 20.36  required of the commissioner under this chapter, after obtaining 
 21.1   consent from the background study subject, tribal licensing 
 21.2   agencies shall have access to criminal history data in the same 
 21.3   manner as county licensing agencies and private licensing 
 21.4   agencies under this chapter. 
 21.5      Sec. 10.  Minnesota Statutes 2000, section 245A.04, 
 21.6   subdivision 3a, is amended to read: 
 21.7      Subd. 3a.  [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF 
 21.8   STUDY RESULTS; DETERMINATION OF RISK OF HARM.] (a) Within 15 
 21.9   working days, the commissioner shall notify the applicant or 
 21.10  license holder and the individual who is the subject of the 
 21.11  study, in writing or by electronic transmission, of the results 
 21.12  of the study or that more time is needed to complete the study.  
 21.13  When the study is completed, a notice that the study was 
 21.14  undertaken and completed shall be maintained in the personnel 
 21.15  files of the program.  For studies on individuals pertaining to 
 21.16  a license to provide family day care or group family day care, 
 21.17  foster care for children in the provider's own home, or foster 
 21.18  care or day care services for adults in the provider's own home, 
 21.19  the commissioner is not required to provide a separate notice of 
 21.20  the background study results to the individual who is the 
 21.21  subject of the study unless the study results in a 
 21.22  disqualification of the individual. 
 21.23     The commissioner shall notify the individual studied if the 
 21.24  information in the study indicates the individual is 
 21.25  disqualified from direct contact with persons served by the 
 21.26  program.  The commissioner shall disclose the information 
 21.27  causing disqualification and instructions on how to request a 
 21.28  reconsideration of the disqualification to the individual 
 21.29  studied.  An applicant or license holder who is not the subject 
 21.30  of the study shall be informed that the commissioner has found 
 21.31  information that disqualifies the subject from direct contact 
 21.32  with persons served by the program.  However, only the 
 21.33  individual studied must be informed of the information contained 
 21.34  in the subject's background study unless the only basis for the 
 21.35  disqualification is failure to cooperate, the Data Practices Act 
 21.36  provides for release of the information, or the individual 
 22.1   studied authorizes the release of the information.  
 22.2      (b) If the commissioner determines that the individual 
 22.3   studied has a disqualifying characteristic, the commissioner 
 22.4   shall review the information immediately available and make a 
 22.5   determination as to the subject's immediate risk of harm to 
 22.6   persons served by the program where the individual studied will 
 22.7   have direct contact.  The commissioner shall consider all 
 22.8   relevant information available, including the following factors 
 22.9   in determining the immediate risk of harm:  the recency of the 
 22.10  disqualifying characteristic; the recency of discharge from 
 22.11  probation for the crimes; the number of disqualifying 
 22.12  characteristics; the intrusiveness or violence of the 
 22.13  disqualifying characteristic; the vulnerability of the victim 
 22.14  involved in the disqualifying characteristic; and the similarity 
 22.15  of the victim to the persons served by the program where the 
 22.16  individual studied will have direct contact.  The commissioner 
 22.17  may determine that the evaluation of the information immediately 
 22.18  available gives the commissioner reason to believe one of the 
 22.19  following: 
 22.20     (1) The individual poses an imminent risk of harm to 
 22.21  persons served by the program where the individual studied will 
 22.22  have direct contact.  If the commissioner determines that an 
 22.23  individual studied poses an imminent risk of harm to persons 
 22.24  served by the program where the individual studied will have 
 22.25  direct contact, the individual and the license holder must be 
 22.26  sent a notice of disqualification.  The commissioner shall order 
 22.27  the license holder to immediately remove the individual studied 
 22.28  from direct contact.  The notice to the individual studied must 
 22.29  include an explanation of the basis of this determination. 
 22.30     (2) The individual poses a risk of harm requiring 
 22.31  continuous, direct supervision while providing direct contact 
 22.32  services during the period in which the subject may request a 
 22.33  reconsideration.  If the commissioner determines that an 
 22.34  individual studied poses a risk of harm that requires 
 22.35  continuous, direct supervision, the individual and the license 
 22.36  holder must be sent a notice of disqualification.  The 
 23.1   commissioner shall order the license holder to immediately 
 23.2   remove the individual studied from direct contact services or 
 23.3   assure that the individual studied is within sight or hearing of 
 23.4   another staff person when providing direct contact services 
 23.5   during the period in which the individual may request a 
 23.6   reconsideration of the disqualification.  If the individual 
 23.7   studied does not submit a timely request for reconsideration, or 
 23.8   the individual submits a timely request for reconsideration, but 
 23.9   the disqualification is not set aside for that license holder, 
 23.10  the license holder will be notified of the disqualification and 
 23.11  ordered to immediately remove the individual from any position 
 23.12  allowing direct contact with persons receiving services from the 
 23.13  license holder. 
 23.14     (3) The individual does not pose an imminent risk of harm 
 23.15  or a risk of harm requiring continuous, direct supervision while 
 23.16  providing direct contact services during the period in which the 
 23.17  subject may request a reconsideration.  If the commissioner 
 23.18  determines that an individual studied does not pose a risk of 
 23.19  harm that requires continuous, direct supervision, only the 
 23.20  individual must be sent a notice of disqualification.  The 
 23.21  license holder must be sent a notice that more time is needed to 
 23.22  complete the individual's background study.  If the individual 
 23.23  studied submits a timely request for reconsideration, and if the 
 23.24  disqualification is set aside for that license holder, the 
 23.25  license holder will receive the same notification received by 
 23.26  license holders in cases where the individual studied has no 
 23.27  disqualifying characteristic.  If the individual studied does 
 23.28  not submit a timely request for reconsideration, or the 
 23.29  individual submits a timely request for reconsideration, but the 
 23.30  disqualification is not set aside for that license holder, the 
 23.31  license holder will be notified of the disqualification and 
 23.32  ordered to immediately remove the individual from any position 
 23.33  allowing direct contact with persons receiving services from the 
 23.34  license holder.  
 23.35     (c) County licensing agencies performing duties under this 
 23.36  subdivision may develop an alternative system for determining 
 24.1   the subject's immediate risk of harm to persons served by the 
 24.2   program, providing the notices under paragraph (b), and 
 24.3   documenting the action taken by the county licensing agency.  
 24.4   Each county licensing agency's implementation of the alternative 
 24.5   system is subject to approval by the commissioner.  
 24.6   Notwithstanding this alternative system, county licensing 
 24.7   agencies shall complete the requirements of paragraph (a). 
 24.8      Sec. 11.  Minnesota Statutes 2000, section 245A.04, 
 24.9   subdivision 3b, is amended to read: 
 24.10     Subd. 3b.  [RECONSIDERATION OF DISQUALIFICATION.] (a) The 
 24.11  individual who is the subject of the disqualification may 
 24.12  request a reconsideration of the disqualification.  
 24.13     The individual must submit the request for reconsideration 
 24.14  to the commissioner in writing.  A request for reconsideration 
 24.15  for an individual who has been sent a notice of disqualification 
 24.16  under subdivision 3a, paragraph (b), clause (1) or (2), must be 
 24.17  submitted within 30 calendar days of the disqualified 
 24.18  individual's receipt of the notice of disqualification.  Upon 
 24.19  showing that the information in clause (1) or (2) cannot be 
 24.20  obtained within 30 days, the disqualified individual may request 
 24.21  additional time, not to exceed 30 days, to obtain that 
 24.22  information.  A request for reconsideration for an individual 
 24.23  who has been sent a notice of disqualification under subdivision 
 24.24  3a, paragraph (b), clause (3), must be submitted within 15 
 24.25  calendar days of the disqualified individual's receipt of the 
 24.26  notice of disqualification.  Removal of a disqualified 
 24.27  individual from direct contact shall be ordered if the 
 24.28  individual does not request reconsideration within the 
 24.29  prescribed time, and for an individual who submits a timely 
 24.30  request for reconsideration, if the disqualification is not set 
 24.31  aside.  The individual must present information showing that: 
 24.32     (1) the information the commissioner relied upon is 
 24.33  incorrect or inaccurate.  If the basis of a reconsideration 
 24.34  request is that a maltreatment determination or disposition 
 24.35  under section 626.556 or 626.557 is incorrect, and the 
 24.36  commissioner has issued a final order in an appeal of that 
 25.1   determination or disposition under section 256.045, the 
 25.2   commissioner's order is conclusive on the issue of maltreatment; 
 25.3   or 
 25.4      (2) the subject of the study does not pose a risk of harm 
 25.5   to any person served by the applicant or license holder. 
 25.6      (b) The commissioner shall rescind the disqualification if 
 25.7   the commissioner finds that the information relied on to 
 25.8   disqualify the subject is incorrect.  The commissioner may set 
 25.9   aside the disqualification under this section if the 
 25.10  commissioner finds that the information the commissioner relied 
 25.11  upon is incorrect or the individual does not pose a risk of harm 
 25.12  to any person served by the applicant or license holder.  In 
 25.13  determining that an individual does not pose a risk of harm, the 
 25.14  commissioner shall consider the nature, severity, and 
 25.15  consequences of the event or events that lead to 
 25.16  disqualification, whether there is more than one disqualifying 
 25.17  event, the age and vulnerability of the victim at the time of 
 25.18  the event, the harm suffered by the victim, the similarity 
 25.19  between the victim and persons served by the program, the time 
 25.20  elapsed without a repeat of the same or similar event, 
 25.21  documentation of successful completion by the individual studied 
 25.22  of training or rehabilitation pertinent to the event, and any 
 25.23  other information relevant to reconsideration.  In reviewing a 
 25.24  disqualification under this section, the commissioner shall give 
 25.25  preeminent weight to the safety of each person to be served by 
 25.26  the license holder or applicant over the interests of the 
 25.27  license holder or applicant. 
 25.28     (c) Unless the information the commissioner relied on in 
 25.29  disqualifying an individual is incorrect, the commissioner may 
 25.30  not set aside the disqualification of an individual in 
 25.31  connection with a license to provide family day care for 
 25.32  children, foster care for children in the provider's own home, 
 25.33  or foster care or day care services for adults in the provider's 
 25.34  own home if: 
 25.35     (1) less than ten years have passed since the discharge of 
 25.36  the sentence imposed for the offense; and the individual has 
 26.1   been convicted of a violation of any offense listed in sections 
 26.2   609.20 (manslaughter in the first degree), 609.205 (manslaughter 
 26.3   in the second degree), criminal vehicular homicide under 609.21 
 26.4   (criminal vehicular homicide and injury), 609.215 (aiding 
 26.5   suicide or aiding attempted suicide), felony violations under 
 26.6   609.221 to 609.2231 (assault in the first, second, third, or 
 26.7   fourth degree), 609.713 (terroristic threats), 609.235 (use of 
 26.8   drugs to injure or to facilitate crime), 609.24 (simple 
 26.9   robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 
 26.10  609.255 (false imprisonment), 609.561 or 609.562 (arson in the 
 26.11  first or second degree), 609.71 (riot), burglary in the first or 
 26.12  second degree under 609.582 (burglary), 609.66 (dangerous 
 26.13  weapon), 609.665 (spring guns), 609.67 (machine guns and 
 26.14  short-barreled shotguns), 609.749 (harassment; stalking), 
 26.15  152.021 or 152.022 (controlled substance crime in the first or 
 26.16  second degree), 152.023, subdivision 1, clause (3) or (4), or 
 26.17  subdivision 2, clause (4) (controlled substance crime in the 
 26.18  third degree), 152.024, subdivision 1, clause (2), (3), or (4) 
 26.19  (controlled substance crime in the fourth degree), 609.224, 
 26.20  subdivision 2, paragraph (c) (fifth-degree assault by a 
 26.21  caregiver against a vulnerable adult), 609.228 (great bodily 
 26.22  harm caused by distribution of drugs), 609.23 (mistreatment of 
 26.23  persons confined), 609.231 (mistreatment of residents or 
 26.24  patients), 609.2325 (criminal abuse of a vulnerable adult), 
 26.25  609.233 (criminal neglect of a vulnerable adult), 609.2335 
 26.26  (financial exploitation of a vulnerable adult), 609.234 (failure 
 26.27  to report), 609.265 (abduction), 609.2664 to 609.2665 
 26.28  (manslaughter of an unborn child in the first or second degree), 
 26.29  609.267 to 609.2672 (assault of an unborn child in the first, 
 26.30  second, or third degree), 609.268 (injury or death of an unborn 
 26.31  child in the commission of a crime), 617.293 (disseminating or 
 26.32  displaying harmful material to minors), a felony level 
 26.33  conviction involving alcohol or drug use, a gross misdemeanor 
 26.34  offense under 609.324, subdivision 1 (other prohibited acts), a 
 26.35  gross misdemeanor offense under 609.378 (neglect or endangerment 
 26.36  of a child), a gross misdemeanor offense under 609.377 
 27.1   (malicious punishment of a child), 609.72, subdivision 3 
 27.2   (disorderly conduct against a vulnerable adult); or an attempt 
 27.3   or conspiracy to commit any of these offenses, as each of these 
 27.4   offenses is defined in Minnesota Statutes; or an offense in any 
 27.5   other state, the elements of which are substantially similar to 
 27.6   the elements of any of the foregoing offenses; 
 27.7      (2) regardless of how much time has passed since the 
 27.8   involuntary termination of parental rights under section 
 27.9   260C.301 or the discharge of the sentence imposed for the 
 27.10  offense, the individual was convicted of a violation of any 
 27.11  offense listed in sections 609.185 to 609.195 (murder in the 
 27.12  first, second, or third degree), 609.2661 to 609.2663 (murder of 
 27.13  an unborn child in the first, second, or third degree), a felony 
 27.14  offense under 609.377 (malicious punishment of a child), a 
 27.15  felony offense under 609.324, subdivision 1 (other prohibited 
 27.16  acts), a felony offense under 609.378 (neglect or endangerment 
 27.17  of a child), 609.322 (solicitation, inducement, and promotion of 
 27.18  prostitution), 609.342 to 609.345 (criminal sexual conduct in 
 27.19  the first, second, third, or fourth degree), 609.352 
 27.20  (solicitation of children to engage in sexual conduct), 617.246 
 27.21  (use of minors in a sexual performance), 617.247 (possession of 
 27.22  pictorial representations of a minor), 609.365 (incest), a 
 27.23  felony offense under sections 609.2242 and 609.2243 (domestic 
 27.24  assault), a felony offense of spousal abuse, a felony offense of 
 27.25  child abuse or neglect, a felony offense of a crime against 
 27.26  children, or an attempt or conspiracy to commit any of these 
 27.27  offenses as defined in Minnesota Statutes, or an offense in any 
 27.28  other state, the elements of which are substantially similar to 
 27.29  any of the foregoing offenses; 
 27.30     (3) within the seven years preceding the study, the 
 27.31  individual committed an act that constitutes maltreatment of a 
 27.32  child under section 626.556, subdivision 10e, and that resulted 
 27.33  in substantial bodily harm as defined in section 609.02, 
 27.34  subdivision 7a, or substantial mental or emotional harm as 
 27.35  supported by competent psychological or psychiatric evidence; or 
 27.36     (4) within the seven years preceding the study, the 
 28.1   individual was determined under section 626.557 to be the 
 28.2   perpetrator of a substantiated incident of maltreatment of a 
 28.3   vulnerable adult that resulted in substantial bodily harm as 
 28.4   defined in section 609.02, subdivision 7a, or substantial mental 
 28.5   or emotional harm as supported by competent psychological or 
 28.6   psychiatric evidence. 
 28.7      In the case of any ground for disqualification under 
 28.8   clauses (1) to (4), if the act was committed by an individual 
 28.9   other than the applicant or license holder residing in the 
 28.10  applicant's or license holder's home, the applicant or license 
 28.11  holder may seek reconsideration when the individual who 
 28.12  committed the act no longer resides in the home.  
 28.13     The disqualification periods provided under clauses (1), 
 28.14  (3), and (4) are the minimum applicable disqualification 
 28.15  periods.  The commissioner may determine that an individual 
 28.16  should continue to be disqualified from licensure because the 
 28.17  license holder or applicant poses a risk of harm to a person 
 28.18  served by that individual after the minimum disqualification 
 28.19  period has passed. 
 28.20     (d) The commissioner shall respond in writing or by 
 28.21  electronic transmission to all reconsideration requests for 
 28.22  which the basis for the request is that the information relied 
 28.23  upon by the commissioner to disqualify is incorrect or 
 28.24  inaccurate within 30 working days of receipt of a request and 
 28.25  all relevant information.  If the basis for the request is that 
 28.26  the individual does not pose a risk of harm, the commissioner 
 28.27  shall respond to the request within 15 working days after 
 28.28  receiving the request for reconsideration and all relevant 
 28.29  information.  If the disqualification is set aside, the 
 28.30  commissioner shall notify the applicant or license holder in 
 28.31  writing or by electronic transmission of the decision. 
 28.32     (e) Except as provided in subdivision 3c, the 
 28.33  commissioner's decision to disqualify an individual, including 
 28.34  the decision to grant or deny a rescission or set aside a 
 28.35  disqualification under this section, is the final administrative 
 28.36  agency action and shall not be subject to further review in a 
 29.1   contested case under chapter 14 involving a negative licensing 
 29.2   appeal taken in response to the disqualification or involving an 
 29.3   accuracy and completeness appeal under section 13.04. 
 29.4      Sec. 12.  Minnesota Statutes 2000, section 245A.04, 
 29.5   subdivision 3d, is amended to read: 
 29.6      Subd. 3d.  [DISQUALIFICATION.] (a) Except as provided in 
 29.7   paragraph (b), Upon receipt of information showing, or when a 
 29.8   background study completed under subdivision 3 shows any of the 
 29.9   following:  a conviction of one or more crimes listed in clauses 
 29.10  (1) to (4); the individual has admitted to or a preponderance of 
 29.11  the evidence indicates the individual has committed an act or 
 29.12  acts that meet the definition of any of the crimes listed in 
 29.13  clauses (1) to (4); or an administrative determination listed 
 29.14  under clause (4), the individual shall be disqualified from any 
 29.15  position allowing direct contact with persons receiving services 
 29.16  from the license holder or entity identified in subdivision 3, 
 29.17  paragraph (a): 
 29.18     (1) regardless of how much time has passed since the 
 29.19  involuntary termination of parental rights under section 
 29.20  260C.301 or the discharge of the sentence imposed for the 
 29.21  offense, and unless otherwise specified, regardless of the level 
 29.22  of the conviction, the individual was convicted of any of the 
 29.23  following offenses:  sections 609.185 (murder in the first 
 29.24  degree); 609.19 (murder in the second degree); 609.195 (murder 
 29.25  in the third degree); 609.2661 (murder of an unborn child in the 
 29.26  first degree); 609.2662 (murder of an unborn child in the second 
 29.27  degree); 609.2663 (murder of an unborn child in the third 
 29.28  degree); 609.322 (solicitation, inducement, and promotion of 
 29.29  prostitution); 609.342 (criminal sexual conduct in the first 
 29.30  degree); 609.343 (criminal sexual conduct in the second degree); 
 29.31  609.344 (criminal sexual conduct in the third degree); 609.345 
 29.32  (criminal sexual conduct in the fourth degree); 609.352 
 29.33  (solicitation of children to engage in sexual conduct); 609.365 
 29.34  (incest); felony offense under 609.377 (malicious punishment of 
 29.35  a child); a felony offense under 609.378 (neglect or 
 29.36  endangerment of a child); a felony offense under 609.324, 
 30.1   subdivision 1 (other prohibited acts); 617.246 (use of minors in 
 30.2   sexual performance prohibited); 617.247 (possession of pictorial 
 30.3   representations of minors); a felony offense under sections 
 30.4   609.2242 and 609.2243 (domestic assault), a felony offense of 
 30.5   spousal abuse, a felony offense of child abuse or neglect, a 
 30.6   felony offense of a crime against children; or attempt or 
 30.7   conspiracy to commit any of these offenses as defined in 
 30.8   Minnesota Statutes, or an offense in any other state or country, 
 30.9   where the elements are substantially similar to any of the 
 30.10  offenses listed in this clause; 
 30.11     (2) if less than 15 years have passed since the discharge 
 30.12  of the sentence imposed for the offense; and the individual has 
 30.13  received a felony conviction for a violation of any of these 
 30.14  offenses:  sections 609.20 (manslaughter in the first degree); 
 30.15  609.205 (manslaughter in the second degree); 609.21 (criminal 
 30.16  vehicular homicide and injury); 609.215 (suicide); 609.221 to 
 30.17  609.2231 (assault in the first, second, third, or fourth 
 30.18  degree); repeat offenses under 609.224 (assault in the fifth 
 30.19  degree); repeat offenses under 609.3451 (criminal sexual conduct 
 30.20  in the fifth degree); 609.713 (terroristic threats); 609.235 
 30.21  (use of drugs to injure or facilitate crime); 609.24 (simple 
 30.22  robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 
 30.23  609.255 (false imprisonment); 609.561 (arson in the first 
 30.24  degree); 609.562 (arson in the second degree); 609.563 (arson in 
 30.25  the third degree); repeat offenses under 617.23 (indecent 
 30.26  exposure; penalties); repeat offenses under 617.241 (obscene 
 30.27  materials and performances; distribution and exhibition 
 30.28  prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 
 30.29  609.67 (machine guns and short-barreled shotguns); 609.749 
 30.30  (harassment; stalking; penalties); 609.228 (great bodily harm 
 30.31  caused by distribution of drugs); 609.2325 (criminal abuse of a 
 30.32  vulnerable adult); 609.2664 (manslaughter of an unborn child in 
 30.33  the first degree); 609.2665 (manslaughter of an unborn child in 
 30.34  the second degree); 609.267 (assault of an unborn child in the 
 30.35  first degree); 609.2671 (assault of an unborn child in the 
 30.36  second degree); 609.268 (injury or death of an unborn child in 
 31.1   the commission of a crime); 609.52 (theft); 609.2335 (financial 
 31.2   exploitation of a vulnerable adult); 609.521 (possession of 
 31.3   shoplifting gear); 609.582 (burglary); 609.625 (aggravated 
 31.4   forgery); 609.63 (forgery); 609.631 (check forgery; offering a 
 31.5   forged check); 609.635 (obtaining signature by false pretense); 
 31.6   609.27 (coercion); 609.275 (attempt to coerce); 609.687 
 31.7   (adulteration); 260C.301 (grounds for termination of parental 
 31.8   rights); and chapter 152 (drugs; controlled substance); and a 
 31.9   felony level conviction involving alcohol or drug use.  An 
 31.10  attempt or conspiracy to commit any of these offenses, as each 
 31.11  of these offenses is defined in Minnesota Statutes; or an 
 31.12  offense in any other state or country, the elements of which are 
 31.13  substantially similar to the elements of the offenses in this 
 31.14  clause.  If the individual studied is convicted of one of the 
 31.15  felonies listed in this clause, but the sentence is a gross 
 31.16  misdemeanor or misdemeanor disposition, the lookback period for 
 31.17  the conviction is the period applicable to the disposition, that 
 31.18  is the period for gross misdemeanors or misdemeanors; 
 31.19     (3) if less than ten years have passed since the discharge 
 31.20  of the sentence imposed for the offense; and the individual has 
 31.21  received a gross misdemeanor conviction for a violation of any 
 31.22  of the following offenses:  sections 609.224 (assault in the 
 31.23  fifth degree); 609.2242 and 609.2243 (domestic assault); 
 31.24  violation of an order for protection under 518B.01, subdivision 
 31.25  14; 609.3451 (criminal sexual conduct in the fifth degree); 
 31.26  repeat offenses under 609.746 (interference with privacy); 
 31.27  repeat offenses under 617.23 (indecent exposure); 617.241 
 31.28  (obscene materials and performances); 617.243 (indecent 
 31.29  literature, distribution); 617.293 (harmful materials; 
 31.30  dissemination and display to minors prohibited); 609.71 (riot); 
 31.31  609.66 (dangerous weapons); 609.749 (harassment; stalking; 
 31.32  penalties); 609.224, subdivision 2, paragraph (c) (assault in 
 31.33  the fifth degree by a caregiver against a vulnerable adult); 
 31.34  609.23 (mistreatment of persons confined); 609.231 (mistreatment 
 31.35  of residents or patients); 609.2325 (criminal abuse of a 
 31.36  vulnerable adult); 609.233 (criminal neglect of a vulnerable 
 32.1   adult); 609.2335 (financial exploitation of a vulnerable adult); 
 32.2   609.234 (failure to report maltreatment of a vulnerable adult); 
 32.3   609.72, subdivision 3 (disorderly conduct against a vulnerable 
 32.4   adult); 609.265 (abduction); 609.378 (neglect or endangerment of 
 32.5   a child); 609.377 (malicious punishment of a child); 609.324, 
 32.6   subdivision 1a (other prohibited acts; minor engaged in 
 32.7   prostitution); 609.33 (disorderly house); 609.52 (theft); 
 32.8   609.582 (burglary); 609.631 (check forgery; offering a forged 
 32.9   check); 609.275 (attempt to coerce); or an attempt or conspiracy 
 32.10  to commit any of these offenses, as each of these offenses is 
 32.11  defined in Minnesota Statutes; or an offense in any other state 
 32.12  or country, the elements of which are substantially similar to 
 32.13  the elements of any of the offenses listed in this clause.  If 
 32.14  the defendant is convicted of one of the gross misdemeanors 
 32.15  listed in this clause, but the sentence is a misdemeanor 
 32.16  disposition, the lookback period for the conviction is the 
 32.17  period applicable to misdemeanors; or 
 32.18     (4) if less than seven years have passed since the 
 32.19  discharge of the sentence imposed for the offense; and the 
 32.20  individual has received a misdemeanor conviction for a violation 
 32.21  of any of the following offenses:  sections 609.224 (assault in 
 32.22  the fifth degree); 609.2242 (domestic assault); violation of an 
 32.23  order for protection under 518B.01 (Domestic Abuse Act); 
 32.24  violation of an order for protection under 609.3232 (protective 
 32.25  order authorized; procedures; penalties); 609.746 (interference 
 32.26  with privacy); 609.79 (obscene or harassing phone calls); 
 32.27  609.795 (letter, telegram, or package; opening; harassment); 
 32.28  617.23 (indecent exposure; penalties); 609.2672 (assault of an 
 32.29  unborn child in the third degree); 617.293 (harmful materials; 
 32.30  dissemination and display to minors prohibited); 609.66 
 32.31  (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
 32.32  exploitation of a vulnerable adult); 609.234 (failure to report 
 32.33  maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
 32.34  (coercion); or an attempt or conspiracy to commit any of these 
 32.35  offenses, as each of these offenses is defined in Minnesota 
 32.36  Statutes; or an offense in any other state or country, the 
 33.1   elements of which are substantially similar to the elements of 
 33.2   any of the offenses listed in this clause; a determination or 
 33.3   disposition of failure to make required reports under section 
 33.4   626.556, subdivision 3, or 626.557, subdivision 3, for incidents 
 33.5   in which:  (i) the final disposition under section 626.556 or 
 33.6   626.557 was substantiated maltreatment, and (ii) the 
 33.7   maltreatment was recurring or serious; or a determination or 
 33.8   disposition of substantiated serious or recurring maltreatment 
 33.9   of a minor under section 626.556 or of a vulnerable adult under 
 33.10  section 626.557 for which there is a preponderance of evidence 
 33.11  that the maltreatment occurred, and that the subject was 
 33.12  responsible for the maltreatment. 
 33.13     For the purposes of this section, "serious maltreatment" 
 33.14  means sexual abuse; maltreatment resulting in death; or 
 33.15  maltreatment resulting in serious injury which reasonably 
 33.16  requires the care of a physician whether or not the care of a 
 33.17  physician was sought; or abuse resulting in serious injury.  For 
 33.18  purposes of this section, "abuse resulting in serious injury" 
 33.19  means:  bruises, bites, skin laceration or tissue damage; 
 33.20  fractures; dislocations; evidence of internal injuries; head 
 33.21  injuries with loss of consciousness; extensive second-degree or 
 33.22  third-degree burns and other burns for which complications are 
 33.23  present; extensive second-degree or third-degree frostbite, and 
 33.24  others for which complications are present; irreversible 
 33.25  mobility or avulsion of teeth; injuries to the eyeball; 
 33.26  ingestion of foreign substances and objects that are harmful; 
 33.27  near drowning; and heat exhaustion or sunstroke.  For purposes 
 33.28  of this section, "care of a physician" is treatment received or 
 33.29  ordered by a physician, but does not include diagnostic testing, 
 33.30  assessment, or observation.  For the purposes of this section, 
 33.31  "recurring maltreatment" means more than one incident of 
 33.32  maltreatment for which there is a preponderance of evidence that 
 33.33  the maltreatment occurred, and that the subject was responsible 
 33.34  for the maltreatment. 
 33.35     (b) If the subject of a background study is licensed by a 
 33.36  health-related licensing board, the board shall make the 
 34.1   determination regarding a disqualification under this 
 34.2   subdivision based on a finding of substantiated maltreatment 
 34.3   under section 626.556 or 626.557.  The commissioner shall notify 
 34.4   the health-related licensing board if a background study shows 
 34.5   that a licensee would be disqualified because of substantiated 
 34.6   maltreatment and the board shall make a determination under 
 34.7   section 214.104. 
 34.8      Sec. 13.  Minnesota Statutes 2000, section 245A.04, is 
 34.9   amended by adding a subdivision to read: 
 34.10     Subd. 3e.  [VARIANCE FOR A DISQUALIFIED PERSON.] (a) When a 
 34.11  background study subject's disqualification has not been set 
 34.12  aside by the commissioner, and there are conditions under which 
 34.13  the disqualified individual may provide direct contact services 
 34.14  or have access to people receiving services that minimize the 
 34.15  risk of harm to people receiving services, the commissioner may 
 34.16  grant a time limited variance to a license holder that states 
 34.17  the reason for the disqualification, the services that may be 
 34.18  provided by the disqualified individual, and the conditions with 
 34.19  which the license holder or applicant must comply for the 
 34.20  variance to be effective. 
 34.21     (b) Except for programs licensed to provide family day care 
 34.22  for children, foster care for children in the provider's own 
 34.23  home, or foster care or day care services for adults in the 
 34.24  provider's own home, the commissioner may not grant a variance 
 34.25  for a disqualified person unless the applicant or license holder 
 34.26  has requested the variance and the disqualified individual has 
 34.27  provided written consent for the commissioner to disclose to the 
 34.28  applicant or license holder the reason for the disqualification. 
 34.29     (c) When a license holder permits a disqualified individual 
 34.30  to provide any services for which the subject is disqualified 
 34.31  without complying with the conditions of the variance, 
 34.32  termination of the variance is immediate and the license holder 
 34.33  may be subject to fines or sanctions under sections 245A.06 and 
 34.34  245A.07. 
 34.35     (d) The commissioner may terminate a variance for a 
 34.36  disqualified person at any time for cause. 
 35.1      (e) The commissioner's decision to grant or deny a variance 
 35.2   request is final and not subject to appeal under the provisions 
 35.3   of chapter 14. 
 35.4      Sec. 14.  Minnesota Statutes 2000, section 245A.04, 
 35.5   subdivision 6, is amended to read: 
 35.6      Subd. 6.  [COMMISSIONER'S EVALUATION.] Before granting 
 35.7   issuing, denying, suspending, revoking, or making conditional a 
 35.8   license, the commissioner shall evaluate information gathered 
 35.9   under this section.  The commissioner's evaluation shall 
 35.10  consider facts, conditions, or circumstances concerning the 
 35.11  program's operation, the well-being of persons served by the 
 35.12  program, available consumer evaluations of the program, and 
 35.13  information about the qualifications of the personnel employed 
 35.14  by the applicant or license holder. 
 35.15     The commissioner shall evaluate the results of the study 
 35.16  required in subdivision 3 and determine whether a risk of harm 
 35.17  to the persons served by the program exists.  In conducting this 
 35.18  evaluation, the commissioner shall apply the disqualification 
 35.19  standards set forth in rules adopted under this chapter.  
 35.20     Sec. 15.  Minnesota Statutes 2000, section 245A.04, 
 35.21  subdivision 11, is amended to read: 
 35.22     Subd. 11.  [EDUCATION PROGRAM; ADDITIONAL REQUIREMENT.] (a) 
 35.23  The education program offered in a residential or nonresidential 
 35.24  program, except for child care, foster care, or services for 
 35.25  adults, must be approved by the commissioner of children, 
 35.26  families, and learning before the commissioner of human services 
 35.27  may grant a license to the program. 
 35.28     (b) A residential program licensed under Minnesota Rules, 
 35.29  parts 9545.0905 to 9545.1125 or 9545.1400 to 9545.1480, may 
 35.30  serve persons through the age of 19 when: 
 35.31     (1) the admission is necessary for a person to complete a 
 35.32  secondary school program or its equivalent, or it is necessary 
 35.33  to facilitate a transition period after completing the secondary 
 35.34  school program or its equivalent for up to four months in order 
 35.35  for the resident to obtain other living arrangements; 
 35.36     (2) the facility develops policies, procedures, and plans 
 36.1   required under section 245A.65; 
 36.2      (3) the facility documents an assessment of the 18- or 
 36.3   19-year-old person's risk of victimizing children residing in 
 36.4   the facility, and develops necessary risk reduction measures, 
 36.5   including sleeping arrangements, to minimize any risk of harm to 
 36.6   children; and 
 36.7      (4) notwithstanding the license holder's target population 
 36.8   age range, whenever persons age 18 or 19 years old are receiving 
 36.9   residential services, the age difference among residents may not 
 36.10  exceed five years. 
 36.11     (c) Nothing in this paragraph precludes the license holder 
 36.12  from seeking other variances under section 245A.04, subdivision 
 36.13  9. 
 36.14     Sec. 16.  Minnesota Statutes 2000, section 245A.06, 
 36.15  subdivision 6, is amended to read: 
 36.16     Subd. 6.  [AMOUNT OF FINES.] Fines shall be assessed as 
 36.17  follows: 
 36.18     (1) the license holder shall forfeit $1,000 for each 
 36.19  occurrence of substantiated maltreatment or violation of law or 
 36.20  rule prohibiting the maltreatment of children or the 
 36.21  maltreatment of vulnerable adults, including but not limited to 
 36.22  corporal punishment, illegal or unauthorized use of physical, 
 36.23  mechanical, or chemical restraints, and illegal or unauthorized 
 36.24  use of aversive or deprivation procedures; 
 36.25     (2) the license holder shall forfeit $200 for each 
 36.26  occurrence of a violation of law or rule governing matters of 
 36.27  health, safety, or supervision, including but not limited to the 
 36.28  provision of adequate staff to child or adult ratios, failure to 
 36.29  submit a background form to the commissioner; and 
 36.30     (3) the license holder shall forfeit $100 for each 
 36.31  occurrence of a violation of law or rule other than those 
 36.32  included in clauses (1) and (2). 
 36.33     For the purposes of this section, "occurrence" means each 
 36.34  violation identified in the commissioner's forfeiture order. 
 36.35     Sec. 17.  [245A.144] [REDUCTION OF RISK OF SUDDEN INFANT 
 36.36  DEATH SYNDROME IN CHILD CARE PROGRAMS.] 
 37.1      License holders must ensure that before staff persons, 
 37.2   caregivers, and helpers assist in the care of infants, they 
 37.3   receive training on reducing the risk of sudden infant death 
 37.4   syndrome.  The training on reducing the risk of sudden infant 
 37.5   death syndrome may be provided as orientation training under 
 37.6   Minnesota Rules, part 9503.0035, subpart 1, as initial training 
 37.7   under Minnesota Rules, part 9502.0385, subpart 2, as in-service 
 37.8   training under Minnesota Rules, part 9503.0035, subpart 4, or as 
 37.9   ongoing training under Minnesota Rules, part 9502.0385, subpart 
 37.10  3.  Training required under this section must be completed at 
 37.11  least once every five years. 
 37.12     Sec. 18.  Minnesota Statutes 2000, section 245A.16, 
 37.13  subdivision 1, is amended to read: 
 37.14     Subdivision 1.  [DELEGATION OF AUTHORITY TO AGENCIES.] (a) 
 37.15  County agencies and private agencies that have been designated 
 37.16  or licensed by the commissioner to perform licensing functions 
 37.17  and activities under section 245A.04, to recommend denial of 
 37.18  applicants under section 245A.05, to issue correction orders, to 
 37.19  issue variances, and recommend fines under section 245A.06, or 
 37.20  to recommend suspending, revoking, and making licenses 
 37.21  probationary under section 245A.07, shall comply with rules and 
 37.22  directives of the commissioner governing those functions and 
 37.23  with this section.  The following variances are excluded from 
 37.24  the delegation of variance authority and may be issued only by 
 37.25  the commissioner: 
 37.26     (1) dual licensure of family child care and child foster 
 37.27  care, dual licensure of child and adult foster care, and adult 
 37.28  foster care and family child care; 
 37.29     (2) adult foster care maximum capacity; 
 37.30     (3) adult foster care minimum age requirement; 
 37.31     (4) child foster care maximum age requirement; 
 37.32     (5) variances regarding disqualified individuals; and 
 37.33     (6) the required presence of a caregiver in the adult 
 37.34  foster care residence during normal sleeping hours. 
 37.35     (b) For family day care programs, the commissioner may 
 37.36  authorize licensing reviews every two years after a licensee has 
 38.1   had at least one annual review. 
 38.2      Sec. 19.  [INSTRUCTION TO REVISOR.] 
 38.3      (a) The revisor of statutes shall replace any references to 
 38.4   "sections 245A.01 to 245A.16" in chapter 245A with "this 
 38.5   chapter." 
 38.6      (b) The revisor of statutes shall replace references in 
 38.7   Minnesota Rules and Minnesota Statutes to "parts 9543.3000 to 
 38.8   9543.3090" with "section 245A.04." 
 38.9      (c) The revisor of statutes shall replace references in 
 38.10  Minnesota Rules and Minnesota Statutes to "part 9543.3070" with 
 38.11  "section 245A.04, subdivision 3d." 
 38.12     (d) The revisor of statutes shall replace references in 
 38.13  Minnesota Rules and Minnesota Statutes to "part 9543.3080" with 
 38.14  "section 245A.04, subdivision 3b." 
 38.15     Sec. 20.  [REPEALER.] 
 38.16     Minnesota Rules, parts 9543.3000; 9543.3010; 9543.3020; 
 38.17  9543.3030; 9543.3040; 9543.3050; 9543.3060; 9543.3080; and 
 38.18  9543.3090, are repealed.