1.1 A bill for an act
1.2 relating to human services; recodifying and
1.3 reorganizing the background study provisions in the
1.4 Human Services Licensing Act; making conforming
1.5 changes; amending Minnesota Statutes 2002, sections
1.6 245A.04, subdivisions 1, 3, 3a, 3b, 3c, 3d, 3e, 3f;
1.7 245A.041; proposing coding for new law as Minnesota
1.8 Statutes, chapter 245C.
1.9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.10 ARTICLE 1
1.11 BACKGROUND STUDIES
1.12 Section 1. [245C.01] [TITLE.]
1.13 This chapter may be cited as the "Department of Human
1.14 Services Background Studies Act."
1.15 Sec. 2. [245C.02] [DEFINITIONS.]
1.16 Subdivision 1. [SCOPE.] The definitions in this section
1.17 apply to this chapter.
1.18 Subd. 2. [ACCESS TO PERSONS SERVED BY A PROGRAM.] "Access
1.19 to persons served by a program" means physical access to persons
1.20 receiving services or the persons' personal property without
1.21 continuous, direct supervision, as defined in subdivision 8.
1.22 Subd. 3. [ANNUAL OR ANNUALLY.] "Annual" or "annually" has
1.23 the meaning given in section 245A.02, subdivision 2b.
1.24 Subd. 4. [APPLICANT.] "Applicant" has the meaning given in
1.25 section 245A.02, subdivision 3.
1.26 Subd. 5. [BACKGROUND STUDY.] "Background study" means the
1.27 review of records conducted by the commissioner to determine
2.1 whether a subject is disqualified from direct contact with
2.2 persons served by a program and, where specifically provided in
2.3 statutes, whether a subject is disqualified from having access
2.4 to persons served by a program.
2.5 Subd. 6. [CHILD.] "Child" has the meaning given in section
2.6 245A.02, subdivision 4.
2.7 Subd. 7. [COMMISSIONER.] "Commissioner" has the meaning
2.8 given in section 245A.02, subdivision 5.
2.9 Subd. 8. [CONTINUOUS, DIRECT SUPERVISION.] "Continuous,
2.10 direct supervision" means an individual is within sight or
2.11 hearing of the program's supervising individual to the extent
2.12 that the program's supervising individual is capable at all
2.13 times of intervening to protect the health and safety of the
2.14 persons served by the program.
2.15 Subd. 9. [CONTRACTOR.] "Contractor" means any individual,
2.16 regardless of employer, who is providing program services for
2.17 hire under the control of the provider.
2.18 Subd. 10. [COUNTY AGENCY.] "County agency" has the meaning
2.19 given in section 245A.02, subdivision 6.
2.20 Subd. 11. [DIRECT CONTACT.] "Direct contact" means
2.21 providing face-to-face care, training, supervision, counseling,
2.22 consultation, or medication assistance to persons served by the
2.23 program.
2.24 Subd. 12. [LICENSE.] "License" has the meaning given in
2.25 section 245A.02, subdivision 8.
2.26 Subd. 13. [LICENSE HOLDER.] "License holder" has the
2.27 meaning given in section 245A.02, subdivision 9.
2.28 Subd. 14. [PERSON.] "Person" means a child as defined in
2.29 subdivision 6 or an adult as defined in section 245A.02,
2.30 subdivision 2.
2.31 Subd. 15. [REASONABLE CAUSE.] "Reasonable cause" means
2.32 information or circumstances exist which provide the
2.33 commissioner with articulable suspicion that further pertinent
2.34 information may exist concerning a subject. The commissioner
2.35 has reasonable cause when, but not limited to, the commissioner
2.36 has received a report from the subject, the license holder, or a
3.1 third party indicating that the subject has a history that would
3.2 disqualify the individual or that may pose a risk to the health
3.3 or safety of persons receiving services.
3.4 Subd. 16. [RECURRING MALTREATMENT.] "Recurring
3.5 maltreatment" means more than one incident of maltreatment for
3.6 which there is a preponderance of evidence that the maltreatment
3.7 occurred and that the subject was responsible for the
3.8 maltreatment.
3.9 Subd. 17. [REGISTRANT.] "Registrant" means an individual
3.10 who operates a supplemental nursing services agency and who
3.11 registers the agency with the commissioner of health under
3.12 section 144A.71, subdivision 1.
3.13 Subd. 18. [SERIOUS MALTREATMENT.] (a) "Serious
3.14 maltreatment" means sexual abuse, maltreatment resulting in
3.15 death, maltreatment resulting in serious injury which reasonably
3.16 requires the care of a physician whether or not the care of a
3.17 physician was sought, or abuse resulting in serious injury.
3.18 (b) For purposes of this definition, "care of a physician"
3.19 is treatment received or ordered by a physician but does not
3.20 include diagnostic testing, assessment, or observation.
3.21 (c) For purposes of this definition, "abuse resulting in
3.22 serious injury" means: bruises, bites, skin laceration, or
3.23 tissue damage; fractures; dislocations; evidence of internal
3.24 injuries; head injuries with loss of consciousness; extensive
3.25 second-degree or third-degree burns and other burns for which
3.26 complications are present; extensive second-degree or
3.27 third-degree frostbite and other frostbite for which
3.28 complications are present; irreversible mobility or avulsion of
3.29 teeth; injuries to the eyes; ingestion of foreign substances and
3.30 objects that are harmful; near drowning; and heat exhaustion or
3.31 sunstroke.
3.32 Subd. 19. [SUBJECT OF A BACKGROUND STUDY.] "Subject of a
3.33 background study" means an individual on whom a background study
3.34 is required or completed.
3.35 Sec. 3. [245C.03] [BACKGROUND STUDY; INDIVIDUALS TO BE
3.36 STUDIED.]
4.1 Subdivision 1. [LICENSED PROGRAMS.] The commissioner shall
4.2 conduct a background study on:
4.3 (1) the applicant;
4.4 (2) an individual age 13 and over living in the household
4.5 where the licensed program will be provided;
4.6 (3) current employees or contractors of the applicant who
4.7 will have direct contact with persons served by the facility,
4.8 agency, or program;
4.9 (4) volunteers or student volunteers who will have direct
4.10 contact with persons served by the program to provide program
4.11 services if the contact is not under the continuous, direct
4.12 supervision by an individual listed in clause (1) or (3);
4.13 (5) an individual age ten to 12 living in the household
4.14 where the licensed services will be provided when the
4.15 commissioner has reasonable cause; and
4.16 (6) an individual who, without providing direct contact
4.17 services at a licensed program, may have unsupervised access to
4.18 children or vulnerable adults receiving services from a program
4.19 licensed to provide:
4.20 (i) family child care for children;
4.21 (ii) foster care for children in the provider's own home;
4.22 or
4.23 (iii) foster care or day care services for adults in the
4.24 provider's own home.
4.25 The commissioner must have reasonable cause to study an
4.26 individual under this clause.
4.27 Subd. 2. [PERSONAL CARE PROVIDER ORGANIZATIONS.] The
4.28 commissioner shall conduct background studies on any individual
4.29 required under section 256B.0627 to have a background study
4.30 completed under this chapter.
4.31 Subd. 3. [SUPPLEMENTAL NURSING SERVICES AGENCIES.] The
4.32 commissioner shall conduct all background studies required under
4.33 this chapter and initiated by supplemental nursing services
4.34 agencies registered under section 144A.71, subdivision 1.
4.35 Subd. 4. [PERSONNEL AGENCIES; EDUCATIONAL PROGRAMS;
4.36 PROFESSIONAL SERVICES AGENCIES.] The commissioner also may
5.1 conduct studies on individuals specified in subdivision 1,
5.2 clauses (3) and (4), when the studies are initiated by:
5.3 (1) personnel pool agencies;
5.4 (2) temporary personnel agencies;
5.5 (3) educational programs that train individuals by
5.6 providing direct contact services in licensed programs; and
5.7 (4) professional services agencies that are not licensed
5.8 and which contract with licensed programs to provide direct
5.9 contact services or individuals who provide direct contact
5.10 services.
5.11 Sec. 4. [245C.04] [WHEN BACKGROUND STUDY MUST OCCUR.]
5.12 Subdivision 1. [LICENSED PROGRAMS.] (a) The commissioner
5.13 shall conduct a background study of an individual required to be
5.14 studied under section 245C.03, subdivision 1, at least upon
5.15 application for initial license for all license types.
5.16 (b) The commissioner shall conduct a background study of an
5.17 individual required to be studied under section 245C.03,
5.18 subdivision 1, at reapplication for a license for family child
5.19 care, child foster care, and adult foster care.
5.20 (c) The commissioner is not required to conduct a study of
5.21 an individual at the time of reapplication for a license if the
5.22 individual's background study was completed by the commissioner
5.23 of human services for an adult foster care license holder that
5.24 is also:
5.25 (1) registered under chapter 144D; or
5.26 (2) licensed to provide home and community-based services
5.27 to people with disabilities at the foster care location and the
5.28 license holder does not reside in the foster care residence; and
5.29 (3) the following conditions are met:
5.30 (i) a study of the individual was conducted either at the
5.31 time of initial licensure or when the individual became
5.32 affiliated with the license holder;
5.33 (ii) the individual has been continuously affiliated with
5.34 the license holder since the last study was conducted; and
5.35 (iii) the last study of the individual was conducted on or
5.36 after October 1, 1995.
6.1 (d) Applicants for licensure, license holders, and other
6.2 entities as provided in this chapter must submit completed
6.3 background study forms to the commissioner before individuals
6.4 specified in section 245C.03, subdivision 1, begin positions
6.5 allowing direct contact in any licensed program.
6.6 (e) For purposes of this section, a physician licensed
6.7 under chapter 147 is considered to be continuously affiliated
6.8 upon the license holder's receipt from the commissioner of
6.9 health or human services of the physician's background study
6.10 results.
6.11 Subd. 2. [OTHER STATE AGENCIES.] Applicants and license
6.12 holders under the jurisdiction of other state agencies who are
6.13 required in other statutory sections to initiate background
6.14 studies under this chapter must submit completed background
6.15 study forms to the commissioner before the background study
6.16 subject begins in a position allowing direct contact in the
6.17 licensed program or, where applicable, prior to being employed.
6.18 Subd. 3. [PERSONAL CARE PROVIDER ORGANIZATIONS.] (a) The
6.19 commissioner shall conduct a background study of an individual
6.20 required to be studied under section 245C.03, subdivision 2, at
6.21 least upon application for initial enrollment under section
6.22 256B.0627.
6.23 (b) Organizations required to initiate background studies
6.24 under section 256B.0627 for individuals described in section
6.25 245C.03, subdivision 2, must submit a completed background study
6.26 form to the commissioner before those individuals begin a
6.27 position allowing direct contact with persons served by the
6.28 organization.
6.29 Subd. 4. [SUPPLEMENTAL NURSING SERVICES AGENCIES.] (a) The
6.30 commissioner shall conduct a background study of an individual
6.31 required to be studied under section 245C.03, subdivision 3, at
6.32 least upon application for registration under section 144A.71,
6.33 subdivision 1.
6.34 (b) Each supplemental nursing services agency must initiate
6.35 background studies before an individual begins a position
6.36 allowing direct contact with persons served by the agency and
7.1 annually thereafter.
7.2 Subd. 5. [PERSONNEL AGENCIES; EDUCATIONAL PROGRAMS;
7.3 PROFESSIONAL SERVICES AGENCIES.] Agencies, programs, and
7.4 individuals who initiate background studies under section
7.5 245C.03, subdivision 4, must initiate the studies annually.
7.6 Sec. 5. [245C.05] [BACKGROUND STUDY; INFORMATION AND DATA
7.7 PROVIDED TO COMMISSIONER.]
7.8 Subdivision 1. [INDIVIDUAL STUDIED.] The individual who is
7.9 the subject of the background study must provide the applicant,
7.10 license holder, or other entity under section 245C.04 with
7.11 sufficient information to ensure an accurate study, including:
7.12 (1) the individual's first, middle, and last name and all
7.13 other names by which the individual has been known;
7.14 (2) home address, city, county, and state of residence for
7.15 the past five years;
7.16 (3) zip code;
7.17 (4) sex;
7.18 (5) date of birth; and
7.19 (6) driver's license number or state identification number.
7.20 Subd. 2. [APPLICANT, LICENSE HOLDER, OR OTHER ENTITY.] The
7.21 applicant, license holder, or other entity under section 245C.04
7.22 shall provide the information collected under subdivision 1
7.23 about an individual who is the subject of the background study
7.24 on forms prescribed by the commissioner.
7.25 Subd. 3. [ADDITIONAL INFORMATION FROM INDIVIDUAL STUDIED.]
7.26 The commissioner may request additional information of the
7.27 individual, such as the individual's social security number or
7.28 race. The individual is not required to provide this
7.29 information to the commissioner.
7.30 Subd. 4. [ELECTRONIC TRANSMISSION.] For background studies
7.31 conducted by the department of human services, the commissioner
7.32 shall implement a system for the electronic transmission of:
7.33 (1) background study information to the commissioner; and
7.34 (2) background study results to the license holder.
7.35 Subd. 5. [FINGERPRINTS.] (a) When the commissioner has
7.36 reasonable cause to believe that further pertinent information
8.1 may exist on the subject of the background study, the subject
8.2 shall provide the commissioner with a set of classifiable
8.3 fingerprints obtained from an authorized law enforcement agency.
8.4 (b) For purposes of requiring fingerprints, the
8.5 commissioner has reasonable cause when, but not limited to, the:
8.6 (1) information from the bureau of criminal apprehension
8.7 indicates that the subject is a multistate offender;
8.8 (2) information from the bureau of criminal apprehension
8.9 indicates that multistate offender status is undetermined; or
8.10 (3) commissioner has received a report from the subject or
8.11 a third party indicating that the subject has a criminal history
8.12 in a jurisdiction other than Minnesota.
8.13 Subd. 6. [APPLICANT, LICENSE HOLDER, REGISTRANT, AND
8.14 AGENCIES.] (a) The applicant, license holder, registrant, bureau
8.15 of criminal apprehension, commissioner of health, and county
8.16 agencies shall help with the study by giving the commissioner
8.17 criminal conviction data and reports about the maltreatment of
8.18 adults substantiated under section 626.557 and the maltreatment
8.19 of minors in licensed programs substantiated under section
8.20 626.556.
8.21 (b) If a background study is initiated by an applicant or
8.22 license holder and the applicant or license holder receives
8.23 information about the possible criminal or maltreatment history
8.24 of an individual who is the subject of the background study, the
8.25 applicant or license holder must immediately provide the
8.26 information to the commissioner.
8.27 (c) The program or county or other agency must provide
8.28 written notice to the individual who is the subject of the
8.29 background study of the requirements under this subdivision.
8.30 Subd. 7. [PROBATION OFFICER AND CORRECTIONS AGENT.] (a) A
8.31 probation officer or corrections agent shall notify the
8.32 commissioner of an individual's conviction if the individual is:
8.33 (1) affiliated with a program or facility regulated by the
8.34 department of human services or department of health, or any
8.35 type of home care agency or provider of personal care assistance
8.36 services; and
9.1 (2) convicted of a crime constituting a disqualification
9.2 under section 245C.14.
9.3 (b) For the purpose of this subdivision, "conviction" has
9.4 the meaning given it in section 609.02, subdivision 5.
9.5 (c) The commissioner, in consultation with the commissioner
9.6 of corrections, shall develop forms and information necessary to
9.7 implement this subdivision and shall provide the forms and
9.8 information to the commissioner of corrections for distribution
9.9 to local probation officers and corrections agents.
9.10 (d) The commissioner shall inform individuals subject to a
9.11 background study that criminal convictions for disqualifying
9.12 crimes will be reported to the commissioner by the corrections
9.13 system.
9.14 (e) A probation officer, corrections agent, or corrections
9.15 agency is not civilly or criminally liable for disclosing or
9.16 failing to disclose the information required by this subdivision.
9.17 (f) Upon receipt of disqualifying information, the
9.18 commissioner shall provide the notice required under section
9.19 245C.17, as appropriate, to agencies on record as having
9.20 initiated a background study or making a request for
9.21 documentation of the background study status of the individual.
9.22 (g) This subdivision does not apply to family child care
9.23 and child foster care programs.
9.24 Sec. 6. [245C.06] [INDIVIDUAL PREVIOUSLY STUDIED.]
9.25 Subdivision 1. [FACILITY REQUEST.] At the option of the
9.26 licensed facility, rather than initiating another background
9.27 study on an individual required to be studied who has indicated
9.28 to the licensed facility that a background study by the
9.29 commissioner was previously completed, the facility may make a
9.30 request to the commissioner for documentation of the
9.31 individual's background study status, provided that:
9.32 (1) the facility makes this request using a form provided
9.33 by the commissioner;
9.34 (2) in making the request, the facility informs the
9.35 commissioner that either:
9.36 (i) the individual has been continuously affiliated with a
10.1 licensed facility since the individual's previous background
10.2 study was completed, or since October 1, 1995, whichever is
10.3 shorter; or
10.4 (ii) the individual is affiliated only with a personnel
10.5 pool agency, a temporary personnel agency, an educational
10.6 program that trains individuals by providing direct contact
10.7 services in licensed programs, or a professional services agency
10.8 that is not licensed and which contracts with licensed programs
10.9 to provide direct contact services or individuals who provide
10.10 direct contact services; and
10.11 (3) the facility provides notices to the individual as
10.12 required under section 245C.05, subdivision 6, paragraph (c),
10.13 and that the facility is requesting written notification of the
10.14 individual's background study status from the commissioner.
10.15 Subd. 2. [COMMISSIONER'S RESPONSE.] The commissioner shall
10.16 respond to each request under subdivision 1 with a written or
10.17 electronic notice to the facility and the study subject. If the
10.18 commissioner determines that a background study is necessary,
10.19 the commissioner shall complete the study without further
10.20 request from a licensed agency or notifications to the study
10.21 subject.
10.22 Sec. 7. [245C.07] [STUDY SUBJECT AFFILIATED WITH MULTIPLE
10.23 LICENSED FACILITIES.]
10.24 When a background study is being initiated by a licensed
10.25 facility or a foster care provider that is also registered under
10.26 chapter 144D, a study subject affiliated with multiple licensed
10.27 facilities may attach to the background study form a cover
10.28 letter indicating the additional facilities' names, addresses,
10.29 and background study identification numbers.
10.30 When the commissioner receives a notice, the commissioner
10.31 shall notify each facility identified by the background study
10.32 subject of the study results.
10.33 The background study notice the commissioner sends to the
10.34 subsequent agencies shall satisfy those facilities'
10.35 responsibilities for initiating a background study on that
10.36 individual.
11.1 Sec. 8. [245C.08] [BACKGROUND STUDY; INFORMATION
11.2 COMMISSIONER REVIEWS.]
11.3 Subdivision 1. [BACKGROUND STUDIES CONDUCTED BY THE
11.4 COMMISSIONER OF HUMAN SERVICES.] For a background study
11.5 conducted by the commissioner, the commissioner shall review:
11.6 (1) information related to names of substantiated
11.7 perpetrators of maltreatment of vulnerable adults that has been
11.8 received by the commissioner as required under section 626.557,
11.9 subdivision 9c, paragraph (i);
11.10 (2) the commissioner's records relating to the maltreatment
11.11 of minors in licensed programs;
11.12 (3) information from juvenile courts as required in
11.13 subdivision 4 for individuals listed in section 245C.03,
11.14 subdivision 1, clauses (2), (5), and (6); and
11.15 (4) information from the bureau of criminal apprehension.
11.16 Subd. 2. [BACKGROUND STUDIES CONDUCTED BY A COUNTY OR
11.17 PRIVATE AGENCY; FOSTER CARE AND FAMILY CHILD CARE.] For a
11.18 background study conducted by a county or private agency for
11.19 child foster care, adult foster care, and family child care
11.20 homes, the commissioner shall review:
11.21 (1) information from the county agency's record of
11.22 substantiated maltreatment of adults and the maltreatment of
11.23 minors;
11.24 (2) information from juvenile courts as required in
11.25 subdivision 4 for individuals listed in section 245C.03,
11.26 subdivision 1, clauses (2), (5), and (6); and
11.27 (3) information from the bureau of criminal apprehension.
11.28 Subd. 3. [ARREST AND INVESTIGATIVE INFORMATION.] (a) If
11.29 the commissioner has reasonable cause to believe the information
11.30 is pertinent to the disqualification of an individual listed in
11.31 section 245C.03, subdivisions 1 and 2, the commissioner also may
11.32 review arrest and investigative information from:
11.33 (1) the bureau of criminal apprehension;
11.34 (2) the commissioner of health;
11.35 (3) a county attorney;
11.36 (4) a county sheriff;
12.1 (5) a county agency;
12.2 (6) a local chief of police;
12.3 (7) other states;
12.4 (8) the courts; or
12.5 (9) the Federal Bureau of Investigation.
12.6 (b) The commissioner is not required to conduct more than
12.7 one review of a subject's records from the Federal Bureau of
12.8 Investigation if a review of the subject's criminal history with
12.9 the Federal Bureau of Investigation has already been completed
12.10 by the commissioner and there has been no break in the subject's
12.11 affiliation with the license holder who initiated the background
12.12 study.
12.13 Subd. 4. [JUVENILE COURT RECORDS.] (a) The commissioner
12.14 shall review records from the juvenile courts for an individual
12.15 studied under section 245C.03, subdivision 1, clauses (2) and
12.16 (5).
12.17 (b) For individuals studied under section 245C.03,
12.18 subdivision 1, clauses (1), (3), (4), and (6), and subdivision
12.19 2, who are ages 13 to 17, the commissioner shall review records
12.20 from the juvenile courts when the commissioner has reasonable
12.21 cause.
12.22 (c) The juvenile courts shall help with the study by giving
12.23 the commissioner existing juvenile court records on individuals
12.24 described in section 245C.03, subdivision 1, clauses (2), (5),
12.25 and (6), relating to delinquency proceedings held within either
12.26 the five years immediately preceding the background study or the
12.27 five years immediately preceding the individual's 18th birthday,
12.28 whichever time period is longer.
12.29 (d) For purposes of this chapter, a finding that a
12.30 delinquency petition is proven in juvenile court shall be
12.31 considered a conviction in state district court.
12.32 (e) The commissioner shall destroy juvenile records
12.33 obtained under this subdivision when the subject of the records
12.34 reaches age 23.
12.35 Sec. 9. [245C.09] [FAILURE OR REFUSAL TO COOPERATE WITH
12.36 BACKGROUND STUDY.]
13.1 Subdivision 1. [DISQUALIFICATION; LICENSING ACTION.] An
13.2 applicant's, license holder's, or registrant's failure or
13.3 refusal to cooperate with the commissioner is reasonable cause
13.4 to disqualify a subject, deny a license application, or
13.5 immediately suspend or revoke a license or registration.
13.6 Subd. 2. [EMPLOYMENT ACTION.] An individual's failure or
13.7 refusal to cooperate with the background study is just cause for
13.8 denying or terminating employment of the individual if the
13.9 individual's failure or refusal to cooperate could cause the
13.10 applicant's application to be denied or the license holder's
13.11 license to be immediately suspended or revoked.
13.12 Sec. 10. [245C.10] [BACKGROUND STUDY; FEES.]
13.13 Subdivision 1. [SUBJECT OF A BACKGROUND STUDY.] No
13.14 applicant, license holder, or individual who is the subject of a
13.15 background study shall pay any fees required to conduct the
13.16 study.
13.17 Subd. 2. [SUPPLEMENTAL NURSING SERVICES AGENCIES.] The
13.18 commissioner shall recover the cost of the background studies
13.19 initiated by supplemental nursing services agencies registered
13.20 under section 144A.71, subdivision 1, through a fee of no more
13.21 than $8 per study charged to the agency. The fees collected
13.22 under this subdivision are appropriated to the commissioner for
13.23 the purpose of conducting background studies.
13.24 Subd. 3. [PERSONAL CARE PROVIDER ORGANIZATIONS.] The
13.25 commissioner shall recover the cost of background studies
13.26 initiated by a personal care provider organization under section
13.27 256B.0627 through a fee of no more than $12 per study charged to
13.28 the organization responsible for submitting the background study
13.29 form. The fees collected under this subdivision are
13.30 appropriated to the commissioner for the purpose of conducting
13.31 background studies.
13.32 Sec. 11. [245C.11] [BACKGROUND STUDY; COUNTY AGENCIES.]
13.33 Subdivision 1. [FOSTER CARE; CRIMINAL CONVICTION
13.34 DATA.] For individuals who are required to have background
13.35 studies under section 245C.03, subdivisions 1 and 2, and who
13.36 have been continuously affiliated with a foster care provider
14.1 that is licensed in more than one county, criminal conviction
14.2 data may be shared among those counties in which the foster care
14.3 programs are licensed. A county agency's receipt of criminal
14.4 conviction data from another county agency shall meet the
14.5 criminal data background study requirements of this chapter.
14.6 Subd. 2. [JOINTLY LICENSED PROGRAMS.] A county agency may
14.7 accept a background study completed by the commissioner under
14.8 this chapter in place of the background study required under
14.9 section 245A.16, subdivision 3, in programs with joint licensure
14.10 as home and community-based services and adult foster care for
14.11 people with developmental disabilities when the license holder
14.12 does not reside in the foster care residence and the subject of
14.13 the study has been continuously affiliated with the license
14.14 holder since the date of the commissioner's study.
14.15 Subd. 3. [CRIMINAL HISTORY DATA.] County agencies shall
14.16 have access to the criminal history data in the same manner as
14.17 county licensing agencies under this chapter for purposes of
14.18 background studies completed by county agencies on legal
14.19 nonlicensed child care providers to determine eligibility for
14.20 child care funds under chapter 119B.
14.21 Sec. 12. [245C.12] [BACKGROUND STUDY; TRIBAL
14.22 ORGANIZATIONS.]
14.23 For the purposes of background studies completed by tribal
14.24 organizations performing licensing activities otherwise required
14.25 of the commissioner under this chapter, after obtaining consent
14.26 from the background study subject, tribal licensing agencies
14.27 shall have access to criminal history data in the same manner as
14.28 county licensing agencies and private licensing agencies under
14.29 this chapter.
14.30 Sec. 13. [245C.13] [PROCESSING THE BACKGROUND STUDY FORM.]
14.31 Subdivision 1. [TIMING.] Upon receipt of the background
14.32 study forms from an applicant, license holder, registrant,
14.33 agency, organization, program, or entity required to initiate a
14.34 background study under section 245C.04, the commissioner shall
14.35 complete the background study and provide the notice required
14.36 under section 245C.17, subdivision 1, within 15 working days.
15.1 Subd. 2. [DIRECT CONTACT PENDING COMPLETION OF BACKGROUND
15.2 STUDY.] Unless otherwise specified, the subject of a background
15.3 study may have direct contact with persons served by a program
15.4 after the background study form is mailed or submitted to the
15.5 commissioner pending notification of the study results under
15.6 section 245C.17.
15.7 Sec. 14. [245C.14] [DISQUALIFICATION.]
15.8 Subdivision 1. [DISQUALIFICATION FROM DIRECT CONTACT.] (a)
15.9 The commissioner shall disqualify an individual who is the
15.10 subject of a background study from any position allowing direct
15.11 contact with persons receiving services from the license holder
15.12 or entity identified in section 245C.03, upon receipt of
15.13 information showing, or when a background study completed under
15.14 this chapter shows any of the following:
15.15 (1) a conviction of or admission to one or more crimes
15.16 listed in section 245C.15;
15.17 (2) a preponderance of the evidence indicates the
15.18 individual has committed an act or acts that meet the definition
15.19 of any of the crimes listed in section 245C.15; or
15.20 (3) an investigation results in an administrative
15.21 determination listed under section 245C.15, subdivision 4,
15.22 paragraph (b).
15.23 (b) No individual who is disqualified following a
15.24 background study under section 245C.03, subdivisions 1 and 2,
15.25 may be retained in a position involving direct contact with
15.26 persons served by a program or entity identified in section
15.27 245C.03, unless the commissioner has provided written notice
15.28 under section 245C.17 stating that:
15.29 (1) the individual may remain in direct contact during the
15.30 period in which the individual may request reconsideration as
15.31 provided in section 245C.21, subdivision 2;
15.32 (2) the commissioner has set aside the individual's
15.33 disqualification for that program or entity identified in
15.34 section 245C.03, as provided in section 245C.22, subdivision 4;
15.35 or
15.36 (3) the license holder has been granted a variance for the
16.1 disqualified individual under section 245C.30.
16.2 Subd. 2. [DISQUALIFICATION FROM ACCESS.] (a) If an
16.3 individual who is studied under section 245C.03, subdivision 1,
16.4 clauses (2), (5), and (6), is disqualified from direct contact
16.5 under subdivision 1, the commissioner shall also disqualify the
16.6 individual from access to a person receiving services from the
16.7 license holder.
16.8 (b) No individual who is disqualified following a
16.9 background study under section 245C.03, subdivision 1, clauses
16.10 (2), (5), and (6), or as provided elsewhere in statute who is
16.11 disqualified as a result of this section, may be allowed access
16.12 to persons served by the program unless the commissioner has
16.13 provided written notice under section 245C.17 stating that:
16.14 (1) the individual may remain in direct contact during the
16.15 period in which the individual may request reconsideration as
16.16 provided in section 245C.21, subdivision 2;
16.17 (2) the commissioner has set aside the individual's
16.18 disqualification for that licensed program or entity identified
16.19 in section 245C.03 as provided in section 245C.22, subdivision
16.20 4; or
16.21 (3) the license holder has been granted a variance for the
16.22 disqualified individual under section 245C.30.
16.23 Sec. 15. [245C.15] [DISQUALIFYING CRIMES OR CONDUCT.]
16.24 Subdivision 1. [PERMANENT DISQUALIFICATION.] (a) An
16.25 individual is disqualified under section 245C.14 if: (1)
16.26 regardless of how much time has passed since the discharge of
16.27 the sentence imposed for the offense; and (2) unless otherwise
16.28 specified, regardless of the level of the conviction, the
16.29 individual is convicted of any of the following offenses:
16.30 sections 609.185 (murder in the first degree); 609.19 (murder in
16.31 the second degree); 609.195 (murder in the third degree); 609.20
16.32 (manslaughter in the first degree); 609.205 (manslaughter in the
16.33 second degree); 609.221 or 609.222 (assault in the first or
16.34 second degree); a felony offense under sections 609.2242 and
16.35 609.2243 (domestic assault), spousal abuse, child abuse or
16.36 neglect, or a crime against children; 609.228 (great bodily harm
17.1 caused by distribution of drugs); 609.245 (aggravated robbery);
17.2 609.25 (kidnapping); 609.2661 (murder of an unborn child in the
17.3 first degree); 609.2662 (murder of an unborn child in the second
17.4 degree); 609.2663 (murder of an unborn child in the third
17.5 degree); 609.322 (solicitation, inducement, and promotion of
17.6 prostitution); a felony offense under 609.324, subdivision 1
17.7 (other prohibited acts); 609.342 (criminal sexual conduct in the
17.8 first degree); 609.343 (criminal sexual conduct in the second
17.9 degree); 609.344 (criminal sexual conduct in the third degree);
17.10 609.345 (criminal sexual conduct in the fourth degree); 609.352
17.11 (solicitation of children to engage in sexual conduct); 609.365
17.12 (incest); a felony offense under 609.377 (malicious punishment
17.13 of a child); a felony offense under 609.378 (neglect or
17.14 endangerment of a child); 609.561 (arson in the first degree);
17.15 609.66, subdivision 1e (drive-by shooting); 609.749, subdivision
17.16 3, 4, or 5 (felony-level harassment; stalking); 609.855,
17.17 subdivision 5 (shooting at or in a public transit vehicle or
17.18 facility); 617.246 (use of minors in sexual performance
17.19 prohibited); or 617.247 (possession of pictorial representations
17.20 of minors). An individual also is disqualified under section
17.21 245C.14 regardless of how much time has passed since the
17.22 involuntary termination of the individual's parental rights
17.23 under section 260C.301.
17.24 (b) An individual's attempt or conspiracy to commit any of
17.25 the offenses listed in paragraph (a), as each of these offenses
17.26 is defined in Minnesota Statutes, permanently disqualifies the
17.27 individual under section 245C.14.
17.28 (c) An individual's offense in any other state or country,
17.29 where the elements of the offense are substantially similar to
17.30 any of the offenses listed in paragraph (a), permanently
17.31 disqualifies the individual under section 245C.14.
17.32 Subd. 2. [15-YEAR DISQUALIFICATION.] (a) An individual is
17.33 disqualified under section 245C.14 if: (1) less than 15 years
17.34 have passed since the discharge of the sentence imposed for the
17.35 offense; and (2) the individual has received a felony conviction
17.36 for a violation of any of the following offenses: sections
18.1 260C.301 (grounds for termination of parental rights); 609.165
18.2 (felon ineligible to possess firearm); 609.21 (criminal
18.3 vehicular homicide and injury); 609.215 (suicide); 609.223 or
18.4 609.2231 (assault in the third or fourth degree); repeat
18.5 offenses under 609.224 (assault in the fifth degree); 609.2325
18.6 (criminal abuse of a vulnerable adult); 609.2335 (financial
18.7 exploitation of a vulnerable adult); 609.235 (use of drugs to
18.8 injure or facilitate crime); 609.24 (simple robbery); 609.255
18.9 (false imprisonment); 609.2664 (manslaughter of an unborn child
18.10 in the first degree); 609.2665 (manslaughter of an unborn child
18.11 in the second degree); 609.267 (assault of an unborn child in
18.12 the first degree); 609.2671 (assault of an unborn child in the
18.13 second degree); 609.268 (injury or death of an unborn child in
18.14 the commission of a crime); 609.27 (coercion); 609.275 (attempt
18.15 to coerce); repeat offenses under 609.3451 (criminal sexual
18.16 conduct in the fifth degree); 609.498, subdivision 1 or 1b
18.17 (aggravated first degree or first degree tampering with a
18.18 witness); 609.52 (theft); 609.521 (possession of shoplifting
18.19 gear); 609.562 (arson in the second degree); 609.563 (arson in
18.20 the third degree); 609.582 (burglary); 609.625 (aggravated
18.21 forgery); 609.63 (forgery); 609.631 (check forgery; offering a
18.22 forged check); 609.635 (obtaining signature by false pretense);
18.23 609.66 (dangerous weapons); 609.67 (machine guns and
18.24 short-barreled shotguns); 609.687 (adulteration); 609.71 (riot);
18.25 609.713 (terroristic threats); repeat offenses under 617.23
18.26 (indecent exposure; penalties); repeat offenses under 617.241
18.27 (obscene materials and performances; distribution and exhibition
18.28 prohibited; penalty); chapter 152 (drugs; controlled substance);
18.29 or a felony level conviction involving alcohol or drug use.
18.30 (b) An individual is disqualified under section 245C.14 if
18.31 less than 15 years has passed since the individual's attempt or
18.32 conspiracy to commit any of the offenses listed in paragraph
18.33 (a), as each of these offenses is defined in Minnesota Statutes.
18.34 (c) An individual is disqualified under section 245C.14 if
18.35 less than 15 years has passed since the discharge of the
18.36 sentence imposed for an offense in any other state or country,
19.1 the elements of which are substantially similar to the elements
19.2 of the offenses listed in paragraph (a).
19.3 (d) If the individual studied is convicted of one of the
19.4 felonies listed in paragraph (a), but the sentence is a gross
19.5 misdemeanor or misdemeanor disposition, the lookback period for
19.6 the conviction is the period applicable to the gross misdemeanor
19.7 or misdemeanor disposition.
19.8 Subd. 3. [TEN-YEAR DISQUALIFICATION.] (a) An individual is
19.9 disqualified under section 245C.14 if: (1) less than ten years
19.10 have passed since the discharge of the sentence imposed for the
19.11 offense; and (2) the individual has received a gross misdemeanor
19.12 conviction for a violation of any of the following offenses:
19.13 sections 609.224 (assault in the fifth degree); 609.224,
19.14 subdivision 2, paragraph (c) (assault in the fifth degree by a
19.15 caregiver against a vulnerable adult); 609.2242 and 609.2243
19.16 (domestic assault); 609.23 (mistreatment of persons confined);
19.17 609.231 (mistreatment of residents or patients); 609.2325
19.18 (criminal abuse of a vulnerable adult); 609.233 (criminal
19.19 neglect of a vulnerable adult); 609.2335 (financial exploitation
19.20 of a vulnerable adult); 609.234 (failure to report maltreatment
19.21 of a vulnerable adult); 609.265 (abduction); 609.275 (attempt to
19.22 coerce); 609.324, subdivision 1a (other prohibited acts; minor
19.23 engaged in prostitution); 609.33 (disorderly house); 609.3451
19.24 (criminal sexual conduct in the fifth degree); 609.377
19.25 (malicious punishment of a child); 609.378 (neglect or
19.26 endangerment of a child); 609.52 (theft); 609.582 (burglary);
19.27 609.631 (check forgery; offering a forged check); 609.66
19.28 (dangerous weapons); 609.71 (riot); 609.72, subdivision 3
19.29 (disorderly conduct against a vulnerable adult); repeat offenses
19.30 under 609.746 (interference with privacy); 609.749, subdivision
19.31 2 (harassment; stalking); repeat offenses under 617.23 (indecent
19.32 exposure); 617.241 (obscene materials and performances); 617.243
19.33 (indecent literature, distribution); 617.293 (harmful materials;
19.34 dissemination and display to minors prohibited); or violation of
19.35 an order for protection under 518B.01, subdivision 14.
19.36 (b) An individual is disqualified under section 245C.14 if
20.1 less than ten years has passed since the individual's attempt or
20.2 conspiracy to commit any of the offenses listed in paragraph
20.3 (a), as each of these offenses is defined in Minnesota Statutes.
20.4 (c) An individual is disqualified under section 245C.14 if
20.5 less than ten years has passed since the discharge of the
20.6 sentence imposed for an offense in any other state or country,
20.7 the elements of which are substantially similar to the elements
20.8 of any of the offenses listed in paragraph (a).
20.9 (d) If the defendant is convicted of one of the gross
20.10 misdemeanors listed in paragraph (a), but the sentence is a
20.11 misdemeanor disposition, the lookback period for the conviction
20.12 is the period applicable to misdemeanors.
20.13 Subd. 4. [SEVEN-YEAR DISQUALIFICATION.] (a) An individual
20.14 is disqualified under section 245C.14 if: (1) less than seven
20.15 years have passed since the discharge of the sentence imposed
20.16 for the offense; and (2) the individual has received a
20.17 misdemeanor conviction for a violation of any of the following
20.18 offenses: sections 609.224 (assault in the fifth degree);
20.19 609.2242 (domestic assault); 609.2335 (financial exploitation of
20.20 a vulnerable adult); 609.234 (failure to report maltreatment of
20.21 a vulnerable adult); 609.2672 (assault of an unborn child in the
20.22 third degree); 609.27 (coercion); violation of an order for
20.23 protection under 609.3232 (protective order authorized;
20.24 procedures; penalties); 609.52 (theft); 609.66 (dangerous
20.25 weapons); 609.665 (spring guns); 609.746 (interference with
20.26 privacy); 609.79 (obscene or harassing phone calls); 609.795
20.27 (letter, telegram, or package; opening; harassment); 617.23
20.28 (indecent exposure; penalties); 617.293 (harmful materials;
20.29 dissemination and display to minors prohibited); or violation of
20.30 an order for protection under 518B.01 (Domestic Abuse Act).
20.31 (b) An individual is disqualified under section 245C.14 if
20.32 less than seven years has passed since a determination or
20.33 disposition of the individual's:
20.34 (1) failure to make required reports under section 626.556,
20.35 subdivision 3, or 626.557, subdivision 3, for incidents in
20.36 which: (i) the final disposition under section 626.556 or
21.1 626.557 was substantiated maltreatment, and (ii) the
21.2 maltreatment was recurring or serious; or
21.3 (2) substantiated serious or recurring maltreatment of a
21.4 minor under section 626.556 or of a vulnerable adult under
21.5 section 626.557 for which: (i) there is a preponderance of
21.6 evidence that the maltreatment occurred, and (ii) the subject
21.7 was responsible for the maltreatment.
21.8 (c) An individual is disqualified under section 245C.14 if
21.9 less than seven years has passed since the individual's attempt
21.10 or conspiracy to commit any of the offenses listed in paragraphs
21.11 (a) and (b), as each of these offenses is defined in Minnesota
21.12 Statutes.
21.13 (d) An individual is disqualified under section 245C.14 if
21.14 less than seven years has passed since the discharge of the
21.15 sentence imposed for an offense in any other state or country,
21.16 the elements of which are substantially similar to the elements
21.17 of any of the offenses listed in paragraphs (a) and (b).
21.18 Subd. 5. [MENTAL ILLNESS.] The commissioner may not
21.19 disqualify an individual subject to a background study under
21.20 this chapter because that individual has, or has had, a mental
21.21 illness as defined in section 245.462, subdivision 20.
21.22 Sec. 16. [245C.16] [DISQUALIFIED INDIVIDUAL'S RISK OF
21.23 HARM.]
21.24 Subdivision 1. [DETERMINING IMMEDIATE RISK OF HARM.] (a)
21.25 If the commissioner determines that the individual studied has a
21.26 disqualifying characteristic, the commissioner shall review the
21.27 information immediately available and make a determination as to
21.28 the subject's immediate risk of harm to persons served by the
21.29 program where the individual studied will have direct contact.
21.30 (b) The commissioner shall consider all relevant
21.31 information available, including the following factors in
21.32 determining the immediate risk of harm:
21.33 (1) the recency of the disqualifying characteristic;
21.34 (2) the recency of discharge from probation for the crimes;
21.35 (3) the number of disqualifying characteristics;
21.36 (4) the intrusiveness or violence of the disqualifying
22.1 characteristic;
22.2 (5) the vulnerability of the victim involved in the
22.3 disqualifying characteristic; and
22.4 (6) the similarity of the victim to the persons served by
22.5 the program where the individual studied will have direct
22.6 contact.
22.7 (c) This section does not apply when the subject of a
22.8 background study is regulated by a health-related licensing
22.9 board as defined in chapter 214, and the subject is determined
22.10 to be responsible for substantiated maltreatment under section
22.11 626.556 or 626.557.
22.12 Subd. 2. [FINDINGS.] (a) After evaluating the information
22.13 immediately available under subdivision 1, the commissioner may
22.14 have reason to believe one of the following:
22.15 (1) the individual poses an imminent risk of harm to
22.16 persons served by the program where the individual studied will
22.17 have direct contact;
22.18 (2) the individual poses a risk of harm requiring
22.19 continuous, direct supervision while providing direct contact
22.20 services during the period in which the subject may request a
22.21 reconsideration; or
22.22 (3) the individual does not pose an imminent risk of harm
22.23 or a risk of harm requiring continuous, direct supervision while
22.24 providing direct contact services during the period in which the
22.25 subject may request a reconsideration.
22.26 (b) After determining an individual's risk of harm under
22.27 this section, the commissioner must notify the subject of the
22.28 background study and the applicant or license holder as required
22.29 under section 245C.17.
22.30 Subd. 3. [COUNTY AGENCY.] (a) County licensing agencies
22.31 performing duties under this section may develop an alternative
22.32 system for determining the subject's immediate risk of harm to
22.33 persons served by the program, providing the notices under
22.34 subdivision 2, paragraph (b), and documenting the action taken
22.35 by the county licensing agency.
22.36 (b) Each county licensing agency's implementation of the
23.1 alternative system is subject to approval by the commissioner.
23.2 (c) Notwithstanding this alternative system, county
23.3 licensing agencies shall complete the requirements of section
23.4 245C.17.
23.5 Sec. 17. [245C.17] [NOTICE OF BACKGROUND STUDY RESULTS.]
23.6 Subdivision 1. [TIME FRAME FOR NOTICE OF STUDY
23.7 RESULTS.] (a) Within 15 working days after the commissioner's
23.8 receipt of the background study form, the commissioner shall
23.9 notify the individual who is the subject of the study in writing
23.10 or by electronic transmission of the results of the study or
23.11 that more time is needed to complete the study.
23.12 (b) Within 15 working days after the commissioner's receipt
23.13 of the background study form, the commissioner shall notify the
23.14 applicant, license holder, or registrant in writing or by
23.15 electronic transmission of the results of the study or that more
23.16 time is needed to complete the study.
23.17 Subd. 2. [DISQUALIFICATION NOTICE SENT TO SUBJECT.] (a) If
23.18 the information in the study indicates the individual is
23.19 disqualified from direct contact with, or from access to,
23.20 persons served by the program, the commissioner shall disclose
23.21 to the individual studied:
23.22 (1) the information causing disqualification;
23.23 (2) instructions on how to request a reconsideration of the
23.24 disqualification; and
23.25 (3) the commissioner's determination of the individual's
23.26 risk of harm under section 245C.16.
23.27 (b) If the commissioner determines under section 245C.16
23.28 that an individual poses an imminent risk of harm to persons
23.29 served by the program where the individual will have direct
23.30 contact, the commissioner's notice must include an explanation
23.31 of the basis of this determination.
23.32 (c) If the commissioner determines under section 245C.16
23.33 that an individual studied does not pose a risk of harm that
23.34 requires continuous, direct supervision, the commissioner shall
23.35 only notify the individual of the disqualification.
23.36 Subd. 3. [DISQUALIFICATION NOTICE SENT TO APPLICANT,
24.1 LICENSE HOLDER, OR REGISTRANT.] (a) The commissioner shall
24.2 notify an applicant, license holder, or registrant who is not
24.3 the subject of the study:
24.4 (1) that the commissioner has found information that
24.5 disqualifies the individual studied from direct contact with, or
24.6 from access to, persons served by the program; and
24.7 (2) the commissioner's determination of the individual's
24.8 risk of harm under section 245C.16.
24.9 (b) If the commissioner determines under section 245C.16
24.10 that an individual studied poses an imminent risk of harm to
24.11 persons served by the program where the individual studied will
24.12 have direct contact, the commissioner shall order the license
24.13 holder to immediately remove the individual studied from direct
24.14 contact.
24.15 (c) If the commissioner determines under section 245C.16
24.16 that an individual studied poses a risk of harm that requires
24.17 continuous, direct supervision, the commissioner shall order the
24.18 license holder to:
24.19 (1) immediately remove the individual studied from direct
24.20 contact services; or
24.21 (2) assure that the individual studied is under continuous,
24.22 direct supervision when providing direct contact services during
24.23 the period in which the individual may request a reconsideration
24.24 of the disqualification under section 245C.21.
24.25 (d) If the commissioner determines under section 245C.16
24.26 that an individual studied does not pose a risk of harm that
24.27 requires continuous, direct supervision, the commissioner shall
24.28 send the license holder a notice that more time is needed to
24.29 complete the individual's background study.
24.30 (e) The commissioner shall not notify the applicant,
24.31 license holder, or registrant of the information contained in
24.32 the subject's background study unless:
24.33 (1) the basis for the disqualification is failure to
24.34 cooperate with the background study or substantiated
24.35 maltreatment under section 626.556 or 626.557;
24.36 (2) the Data Practices Act under chapter 13 provides for
25.1 release of the information; or
25.2 (3) the individual studied authorizes the release of the
25.3 information.
25.4 Subd. 4. [DISQUALIFICATION NOTICE TO FAMILY CHILD CARE OR
25.5 FOSTER CARE PROVIDER.] For studies on individuals pertaining to
25.6 a license to provide family child care or group family child
25.7 care, foster care for children in the provider's own home, or
25.8 foster care or day care services for adults in the provider's
25.9 own home, the commissioner is not required to provide a separate
25.10 notice of the background study results to the individual who is
25.11 the subject of the study unless the study results in a
25.12 disqualification of the individual.
25.13 Sec. 18. [245C.18] [OBLIGATION TO REMOVE DISQUALIFIED
25.14 INDIVIDUAL FROM DIRECT CONTACT.]
25.15 The license holder must remove a disqualified individual
25.16 from direct contact with persons served by the licensed program
25.17 if the individual does not request reconsideration under section
25.18 245C.21 within the prescribed time, or if the individual submits
25.19 a timely request for reconsideration, and the commissioner does
25.20 not set aside the disqualification under section 245C.22,
25.21 subdivision 4.
25.22 Sec. 19. [245C.19] [TERMINATION OF AFFILIATION BASED ON
25.23 DISQUALIFICATION NOTICE.]
25.24 An applicant or license holder that terminates affiliation
25.25 with persons studied under section 245C.03, when the termination
25.26 is made in good faith reliance on a notice of disqualification
25.27 provided by the commissioner, shall not be subject to civil
25.28 liability.
25.29 Sec. 20. [245C.20] [LICENSE HOLDER RECORD KEEPING.]
25.30 When a background study is completed under this chapter, a
25.31 licensed program shall maintain a notice that the study was
25.32 undertaken and completed in the program's personnel files.
25.33 Sec. 21. [245C.21] [REQUESTING RECONSIDERATION OF
25.34 DISQUALIFICATION.]
25.35 Subdivision 1. [WHO MAY REQUEST RECONSIDERATION.] An
25.36 individual who is the subject of a disqualification may request
26.1 a reconsideration of the disqualification. The individual must
26.2 submit the request for reconsideration to the commissioner in
26.3 writing.
26.4 Subd. 2. [TIME FRAME FOR REQUESTING RECONSIDERATION OF A
26.5 DISQUALIFICATION.] (a) When the commissioner sends an individual
26.6 a notice of disqualification based on a finding under section
26.7 245C.16, subdivision 2, paragraph (a), clause (1) or (2), the
26.8 disqualified individual must submit the request for a
26.9 reconsideration within 30 calendar days of the individual's
26.10 receipt of the notice of disqualification. Upon showing that
26.11 the information under subdivision 3 cannot be obtained within 30
26.12 days, the disqualified individual may request additional time,
26.13 not to exceed 30 days, to obtain the information.
26.14 (b) When the commissioner sends an individual a notice of
26.15 disqualification based on a finding under section 245C.16,
26.16 subdivision 2, paragraph (a), clause (3), the disqualified
26.17 individual must submit the request for reconsideration within 15
26.18 calendar days of the individual's receipt of the notice of
26.19 disqualification.
26.20 (c) An individual who was determined to have maltreated a
26.21 child under section 626.556 or a vulnerable adult under section
26.22 626.557, and who is disqualified on the basis of serious or
26.23 recurring maltreatment, may request a reconsideration of both
26.24 the maltreatment and the disqualification determinations. The
26.25 request must be submitted within 30 calendar days of the
26.26 individual's receipt of the notice of disqualification.
26.27 Subd. 3. [INFORMATION THE DISQUALIFIED INDIVIDUAL MUST
26.28 PROVIDE TO THE COMMISSIONER WHEN REQUESTING
26.29 RECONSIDERATION.] The disqualified individual must submit
26.30 information showing that:
26.31 (1) the information the commissioner relied upon in
26.32 determining the underlying conduct that gave rise to the
26.33 disqualification is incorrect;
26.34 (2) for maltreatment, the information the commissioner
26.35 relied upon in determining that maltreatment was serious or
26.36 recurring is incorrect; or
27.1 (3) the subject of the study does not pose a risk of harm
27.2 to any person served by the applicant, license holder, or
27.3 registrant.
27.4 Sec. 22. [245C.22] [REVIEW AND ACTION BY THE COMMISSIONER
27.5 ON A RECONSIDERATION REQUEST.]
27.6 Subdivision 1. [COMMISSIONER'S TIME FRAME FOR RESPONDING
27.7 TO DISQUALIFICATION RECONSIDERATION REQUESTS.] (a) The
27.8 commissioner shall respond in writing or by electronic
27.9 transmission to all reconsideration requests for which the basis
27.10 for the request is that the information the commissioner relied
27.11 upon to disqualify is incorrect or inaccurate within 30 working
27.12 days of receipt of a request and all relevant information.
27.13 (b) If the basis for a disqualified individual's
27.14 reconsideration request is that the individual does not pose a
27.15 risk of harm, the commissioner shall respond to the request
27.16 within 15 working days after receiving the request for
27.17 reconsideration and all relevant information.
27.18 (c) If the disqualified individual's reconsideration
27.19 request is based on both the correctness or accuracy of the
27.20 information the commissioner relied upon to disqualify the
27.21 individual and the individual's risk of harm, the commissioner
27.22 shall respond to the request within 45 working days after
27.23 receiving the request for reconsideration and all relevant
27.24 information.
27.25 Subd. 2. [INCORRECT INFORMATION; RESCISSION.] The
27.26 commissioner shall rescind the disqualification if the
27.27 commissioner finds that the information relied upon to
27.28 disqualify the subject is incorrect.
27.29 Subd. 3. [PREEMINENT WEIGHT TO THE SAFETY OF PERSONS BEING
27.30 SERVED.] In reviewing a request for reconsideration of a
27.31 disqualification, the commissioner shall give preeminent weight
27.32 to the safety of each person served by the license holder,
27.33 applicant, or registrant over the interests of the license
27.34 holder, applicant, or registrant.
27.35 Subd. 4. [RISK OF HARM; SET ASIDE.] (a) The commissioner
27.36 may set aside the disqualification if the commissioner finds
28.1 that the individual does not pose a risk of harm to any person
28.2 served by the applicant, license holder, or registrant.
28.3 (b) In determining if the individual does not pose a risk
28.4 of harm, the commissioner shall consider:
28.5 (1) the nature, severity, and consequences of the event or
28.6 events that led to the disqualification;
28.7 (2) whether there is more than one disqualifying event;
28.8 (3) the age and vulnerability of the victim at the time of
28.9 the event;
28.10 (4) the harm suffered by the victim;
28.11 (5) the similarity between the victim and persons served by
28.12 the program;
28.13 (6) the time elapsed without a repeat of the same or
28.14 similar event;
28.15 (7) documentation of successful completion by the
28.16 individual studied of training or rehabilitation pertinent to
28.17 the event; and
28.18 (8) any other information relevant to reconsideration.
28.19 Sec. 23. [245C.23] [COMMISSIONER'S RECONSIDERATION
28.20 NOTICE.]
28.21 Subdivision 1. [COMMISSIONER'S NOTICE OF DISQUALIFICATION
28.22 THAT IS SET ASIDE.] (a) If the commissioner sets aside a
28.23 disqualification, the commissioner shall notify the applicant or
28.24 license holder in writing or by electronic transmission of the
28.25 decision. In the notice from the commissioner that a
28.26 disqualification has been set aside, the commissioner must
28.27 inform the license holder that information about the nature of
28.28 the disqualification and which factors under section 245C.22,
28.29 subdivision 4, were the basis of the decision to set aside the
28.30 disqualification are available to the license holder upon
28.31 request without the consent of the background study subject.
28.32 (b) With the written consent of the background study
28.33 subject, the commissioner may release to the license holder
28.34 copies of all information related to the background study
28.35 subject's disqualification and the commissioner's decision to
28.36 set aside the disqualification as specified in the written
29.1 consent.
29.2 (c) If the individual studied submits a timely request for
29.3 reconsideration under section 245C.21, and if the commissioner
29.4 sets aside the disqualification for that license holder under
29.5 section 245C.22, the commissioner shall send the license holder
29.6 the same notification received by license holders in cases where
29.7 the individual studied has no disqualifying characteristic.
29.8 Subd. 2. [COMMISSIONER'S NOTICE OF DISQUALIFICATION THAT
29.9 IS NOT SET ASIDE.] If the individual studied does not submit a
29.10 timely request for reconsideration under section 245C.21, or the
29.11 individual submits a timely request for reconsideration, but the
29.12 commissioner does not set aside the disqualification for that
29.13 license holder under section 245C.22, the commissioner shall
29.14 notify the license holder of the disqualification and order the
29.15 license holder to immediately remove the individual from any
29.16 position allowing direct contact with persons receiving services
29.17 from the license holder.
29.18 Sec. 24. [245C.24] [BARS TO SETTING ASIDE A
29.19 DISQUALIFICATION; FAMILY CHILD CARE AND FOSTER CARE.]
29.20 Subdivision 1. [MINIMUM DISQUALIFICATION PERIODS.] The
29.21 disqualification periods under subdivisions 3 and 4 are the
29.22 minimum applicable disqualification periods. The commissioner
29.23 may determine that an individual should continue to be
29.24 disqualified from licensure because the individual continues to
29.25 pose a risk of harm to persons served by that individual, even
29.26 after the minimum disqualification period has passed.
29.27 Subd. 2. [PERMANENT BAR TO SET ASIDE OF DISQUALIFICATION.]
29.28 The commissioner may not set aside the disqualification of an
29.29 individual in connection with a license to provide family child
29.30 care for children, foster care for children in the provider's
29.31 home, or foster care or day care services for adults in the
29.32 provider's home, regardless of how much time has passed, if the
29.33 provider was disqualified for a crime or conduct listed in
29.34 section 245C.15, subdivision 1.
29.35 Subd. 3. [TEN-YEAR BAR TO SET ASIDE OF
29.36 DISQUALIFICATION.] (a) The commissioner may not set aside the
30.1 disqualification of an individual in connection with a license
30.2 to provide family child care for children, foster care for
30.3 children in the provider's home, or foster care or day care
30.4 services for adults in the provider's home if: (1) less than
30.5 ten years have passed since the discharge of the sentence
30.6 imposed for the offense; and (2) the individual has been
30.7 convicted of a violation of any of the following offenses:
30.8 sections 609.165 (felon ineligible to possess firearm); criminal
30.9 vehicular homicide under 609.21 (criminal vehicular homicide and
30.10 injury); 609.215 (aiding suicide or aiding attempted suicide);
30.11 felony violations under 609.223 or 609.2231 (assault in the
30.12 third or fourth degree); 609.713 (terroristic threats); 609.235
30.13 (use of drugs to injure or to facilitate crime); 609.24 (simple
30.14 robbery); 609.255 (false imprisonment); 609.562 (arson in the
30.15 second degree); 609.71 (riot); 609.498, subdivision 1 or 1b
30.16 (aggravated first degree or first degree tampering with a
30.17 witness); burglary in the first or second degree under 609.582
30.18 (burglary); 609.66 (dangerous weapon); 609.665 (spring guns);
30.19 609.67 (machine guns and short-barreled shotguns); 609.749,
30.20 subdivision 2 (gross misdemeanor harassment; stalking); 152.021
30.21 or 152.022 (controlled substance crime in the first or second
30.22 degree); 152.023, subdivision 1, clause (3) or (4) or
30.23 subdivision 2, clause (4) (controlled substance crime in the
30.24 third degree); 152.024, subdivision 1, clause (2), (3), or (4)
30.25 (controlled substance crime in the fourth degree); 609.224,
30.26 subdivision 2, paragraph (c) (fifth-degree assault by a
30.27 caregiver against a vulnerable adult); 609.23 (mistreatment of
30.28 persons confined); 609.231 (mistreatment of residents or
30.29 patients); 609.2325 (criminal abuse of a vulnerable adult);
30.30 609.233 (criminal neglect of a vulnerable adult); 609.2335
30.31 (financial exploitation of a vulnerable adult); 609.234 (failure
30.32 to report); 609.265 (abduction); 609.2664 to 609.2665
30.33 (manslaughter of an unborn child in the first or second degree);
30.34 609.267 to 609.2672 (assault of an unborn child in the first,
30.35 second, or third degree); 609.268 (injury or death of an unborn
30.36 child in the commission of a crime); 617.293 (disseminating or
31.1 displaying harmful material to minors); a felony level
31.2 conviction involving alcohol or drug use, a gross misdemeanor
31.3 offense under 609.324, subdivision 1 (other prohibited acts); a
31.4 gross misdemeanor offense under 609.378 (neglect or endangerment
31.5 of a child); a gross misdemeanor offense under 609.377
31.6 (malicious punishment of a child); or 609.72, subdivision 3
31.7 (disorderly conduct against a vulnerable adult).
31.8 (b) The commissioner may not set aside the disqualification
31.9 of an individual if less than ten years have passed since the
31.10 individual's attempt or conspiracy to commit any of the offenses
31.11 listed in paragraph (a) as each of these offenses is defined in
31.12 Minnesota Statutes.
31.13 (c) The commissioner may not set aside the disqualification
31.14 of an individual if less than ten years have passed since the
31.15 discharge of the sentence imposed for an offense in any other
31.16 state or country, the elements of which are substantially
31.17 similar to the elements of any of the offenses listed in
31.18 paragraph (a).
31.19 Subd. 4. [SEVEN-YEAR BAR TO SET ASIDE
31.20 DISQUALIFICATION.] The commissioner may not set aside the
31.21 disqualification of an individual in connection with a license
31.22 to provide family child care for children, foster care for
31.23 children in the provider's home, or foster care or day care
31.24 services for adults in the provider's home if within seven years
31.25 preceding the study:
31.26 (1) the individual committed an act that constitutes
31.27 maltreatment of a child under section 626.556, subdivision 10e,
31.28 and the maltreatment resulted in substantial bodily harm as
31.29 defined in section 609.02, subdivision 7a, or substantial mental
31.30 or emotional harm as supported by competent psychological or
31.31 psychiatric evidence; or
31.32 (2) the individual was determined under section 626.557 to
31.33 be the perpetrator of a substantiated incident of maltreatment
31.34 of a vulnerable adult that resulted in substantial bodily harm
31.35 as defined in section 609.02, subdivision 7a, or substantial
31.36 mental or emotional harm as supported by competent psychological
32.1 or psychiatric evidence.
32.2 Sec. 25. [245C.25] [CONSOLIDATED RECONSIDERATION OF
32.3 MALTREATMENT DETERMINATION AND DISQUALIFICATION.]
32.4 If an individual is disqualified on the basis of a
32.5 determination of maltreatment under section 626.556 or 626.557,
32.6 which was serious or recurring, and the individual requests
32.7 reconsideration of the maltreatment determination under section
32.8 626.556, subdivision 10i, or 626.557, subdivision 9d, and also
32.9 requests reconsideration of the disqualification under section
32.10 245C.21, the commissioner shall consolidate the reconsideration
32.11 of the maltreatment determination and the disqualification into
32.12 a single reconsideration.
32.13 For maltreatment and disqualification determinations made
32.14 by county agencies, the county agency shall conduct the
32.15 consolidated reconsideration. If the county agency has
32.16 disqualified an individual on multiple bases, one of which is a
32.17 county maltreatment determination for which the individual has a
32.18 right to request reconsideration, the county shall conduct the
32.19 reconsideration of all disqualifications.
32.20 Sec. 26. [245C.26] [RECONSIDERATION OF A DISQUALIFICATION
32.21 FOR AN INDIVIDUAL LIVING IN A LICENSED HOME.]
32.22 In the case of any ground for disqualification under this
32.23 chapter, if the act was committed by an individual other than
32.24 the applicant, license holder, or registrant residing in the
32.25 applicant's, license holder's, or registrant's home, the
32.26 applicant, license holder, or registrant may seek
32.27 reconsideration when the individual who committed the act no
32.28 longer resides in the home.
32.29 Sec. 27. [245C.27] [FAIR HEARING RIGHTS.]
32.30 Subdivision 1. [FAIR HEARING WHEN DISQUALIFICATION IS NOT
32.31 SET ASIDE.] (a) If the commissioner does not set aside or
32.32 rescind a disqualification of an individual under section
32.33 245C.22 who is disqualified on the basis of a preponderance of
32.34 evidence that the individual committed an act or acts that meet
32.35 the definition of any of the crimes listed in section 245C.15;
32.36 or for failure to make required reports under section 626.556,
33.1 subdivision 3; or 626.557, subdivision 3, pursuant to section
33.2 245C.15, subdivision 4, paragraph (b), clause (1), the
33.3 individual may request a fair hearing under section 256.045.
33.4 (b) The fair hearing is the only administrative appeal of
33.5 the final agency determination. The disqualified individual
33.6 does not have the right to challenge the accuracy and
33.7 completeness of data under section 13.04.
33.8 (c) This section does not apply to a public employee's
33.9 appeal of a disqualification under section 245C.28, subdivision
33.10 3.
33.11 Subd. 2. [CONSOLIDATED FAIR HEARING FOR MALTREATMENT
33.12 DETERMINATION AND DISQUALIFICATION NOT SET ASIDE.] (a) If an
33.13 individual who is disqualified on the bases of serious or
33.14 recurring maltreatment requests a fair hearing on the
33.15 maltreatment determination under section 626.556, subdivision
33.16 10i, or 626.557, subdivision 9d, and requests a fair hearing
33.17 under this section on the disqualification, which has not been
33.18 set aside or rescinded, the scope of the fair hearing under
33.19 section 256.045 shall include the maltreatment determination and
33.20 the disqualification.
33.21 (b) A fair hearing is the only administrative appeal of the
33.22 final agency determination. The disqualified individual does
33.23 not have the right to challenge the accuracy and completeness of
33.24 data under section 13.04.
33.25 (c) This section does not apply to a public employee's
33.26 appeal of a disqualification under section 245C.28, subdivision
33.27 3.
33.28 Sec. 28. [245C.28] [CONTESTED CASE HEARING RIGHTS.]
33.29 Subdivision 1. [LICENSE HOLDER.] (a) If a maltreatment
33.30 determination or a disqualification for which reconsideration
33.31 was requested and which was not set aside or rescinded is the
33.32 basis for a denial of a license under section 245A.05 or a
33.33 licensing sanction under 245A.07, the license holder has the
33.34 right to a contested case hearing under chapter 14 and Minnesota
33.35 Rules, parts 1400.8505 to 1400.8612.
33.36 (b) The license holder must submit the appeal in accordance
34.1 with section 245A.05 or 245A.07, subdivision 3. As provided
34.2 under section 245A.08, subdivision 2a, the scope of the
34.3 consolidated contested case hearing must include the
34.4 disqualification and the licensing sanction or denial of a
34.5 license.
34.6 (c) If the disqualification was based on a determination of
34.7 substantiated serious or recurring maltreatment under section
34.8 626.556 or 626.557, the appeal must be submitted in accordance
34.9 with sections 245A.07, subdivision 3, and 626.556, subdivision
34.10 10i, or 626.557, subdivision 9d. As provided for under section
34.11 245A.08, subdivision 2a, the scope of the contested case hearing
34.12 must include the maltreatment determination, the
34.13 disqualification, and the licensing sanction or denial of a
34.14 license. In such cases, a fair hearing must not be conducted
34.15 under section 256.045.
34.16 Subd. 2. [INDIVIDUAL OTHER THAN THE LICENSE HOLDER.] If
34.17 the basis for the commissioner's denial of a license under
34.18 section 245A.05 or a licensing sanction under section 245A.07 is
34.19 a maltreatment determination or disqualification that was not
34.20 set aside or rescinded under section 245C.22, and the
34.21 disqualified subject is an individual other than the license
34.22 holder and upon whom a background study must be conducted under
34.23 section 245C.03, the hearing of all parties may be consolidated
34.24 into a single contested case hearing upon consent of all parties
34.25 and the administrative law judge.
34.26 Subd. 3. [EMPLOYEES OF PUBLIC EMPLOYER.] (a) If the
34.27 commissioner does not set aside the disqualification of an
34.28 individual who is an employee of an employer, as defined in
34.29 section 179A.03, subdivision 15, the individual may request a
34.30 contested case hearing under chapter 14.
34.31 (b) If the commissioner does not set aside or rescind a
34.32 disqualification that is based on a maltreatment determination,
34.33 the scope of the contested case hearing must include the
34.34 maltreatment determination and the disqualification. In such
34.35 cases, a fair hearing must not be conducted under section
34.36 256.045.
35.1 (c) Rules adopted under this chapter may not preclude an
35.2 employee in a contested case hearing for a disqualification from
35.3 submitting evidence concerning information gathered under this
35.4 chapter.
35.5 Subd. 4. [FINAL AGENCY ORDER.] The commissioner's final
35.6 order under section 245A.08, subdivision 5, is conclusive on the
35.7 issue of maltreatment and disqualification, including for
35.8 purposes of subsequent background studies. The contested case
35.9 hearing under this section is the only administrative appeal of
35.10 the final agency determination, specifically, including a
35.11 challenge to the accuracy and completeness of data under section
35.12 13.04.
35.13 Sec. 29. [245C.29] [CONCLUSIVE DETERMINATIONS OR
35.14 DISPOSITIONS.]
35.15 Subdivision 1. [CONCLUSIVE MALTREATMENT DETERMINATION OR
35.16 DISPOSITION.] Unless otherwise specified in statute, a
35.17 maltreatment determination or disposition under section 626.556
35.18 or 626.557 is conclusive, if:
35.19 (1) the commissioner has issued a final order in an appeal
35.20 of that determination or disposition under section 245A.08,
35.21 subdivision 5, or 256.045;
35.22 (2) the individual did not request reconsideration of the
35.23 maltreatment determination or disposition under section 626.556
35.24 or 626.557; or
35.25 (3) the individual did not request a hearing of the
35.26 maltreatment determination or disposition under section 256.045.
35.27 Subd. 2. [CONCLUSIVE DISQUALIFICATION
35.28 DETERMINATION.] Unless otherwise specified in statute, a
35.29 determination that:
35.30 (1) the information the commissioner relied upon to
35.31 disqualify an individual under section 245C.14 was correct based
35.32 on serious or recurring maltreatment;
35.33 (2) a preponderance of the evidence shows that the
35.34 individual committed an act or acts that meet the definition of
35.35 any of the crimes listed in section 245C.15; or
35.36 (3) the individual failed to make required reports under
36.1 section 626.556, subdivision 3, or 626.557, subdivision 3, is
36.2 conclusive if:
36.3 (i) the commissioner has issued a final order in an appeal
36.4 of that determination under section 245A.08, subdivision 5, or
36.5 256.045, or a court has issued a final decision;
36.6 (ii) the individual did not request reconsideration of the
36.7 disqualification under section 245C.21; or
36.8 (iii) the individual did not request a hearing on the
36.9 disqualification under section 256.045.
36.10 Sec. 30. [245C.30] [VARIANCE FOR A DISQUALIFIED
36.11 INDIVIDUAL.]
36.12 Subdivision 1. [LICENSE HOLDER VARIANCE.] (a) When the
36.13 commissioner has not set aside a background study subject's
36.14 disqualification, and there are conditions under which the
36.15 disqualified individual may provide direct contact services or
36.16 have access to people receiving services that minimize the risk
36.17 of harm to people receiving services, the commissioner may grant
36.18 a time-limited variance to a license holder.
36.19 (b) The variance shall state the reason for the
36.20 disqualification, the services that may be provided by the
36.21 disqualified individual, and the conditions with which the
36.22 license holder or applicant must comply for the variance to
36.23 remain in effect.
36.24 Subd. 2. [DISCLOSURE OF REASON FOR DISQUALIFICATION.] (a)
36.25 The commissioner may not grant a variance for a disqualified
36.26 individual unless the applicant or license holder requests the
36.27 variance and the disqualified individual provides written
36.28 consent for the commissioner to disclose to the applicant or
36.29 license holder the reason for the disqualification.
36.30 (b) This subdivision does not apply to programs licensed to
36.31 provide family child care for children, foster care for children
36.32 in the provider's own home, or foster care or day care services
36.33 for adults in the provider's own home.
36.34 Subd. 3. [CONSEQUENCES FOR FAILING TO COMPLY WITH
36.35 CONDITIONS OF VARIANCE.] When a license holder permits a
36.36 disqualified individual to provide any services for which the
37.1 subject is disqualified without complying with the conditions of
37.2 the variance, the commissioner may terminate the variance
37.3 effective immediately and subject the license holder to a
37.4 licensing action under sections 245A.06 and 245A.07.
37.5 Subd. 4. [TERMINATION OF A VARIANCE.] The commissioner may
37.6 terminate a variance for a disqualified individual at any time
37.7 for cause.
37.8 Subd. 5. [FINAL DECISION.] The commissioner's decision to
37.9 grant or deny a variance is final and not subject to appeal
37.10 under the provisions of chapter 14.
37.11 Sec. 31. [245C.31] [DISQUALIFICATION OF INDIVIDUAL
37.12 REGULATED BY A HEALTH-RELATED LICENSING BOARD WHEN
37.13 DISQUALIFICATION BASED ON SUBSTANTIATED MALTREATMENT.]
37.14 Subdivision 1. [BOARD DETERMINES DISCIPLINARY OR
37.15 CORRECTIVE ACTION.] (a) When the subject of a background study
37.16 is regulated by a health-related licensing board as defined in
37.17 chapter 214, and the commissioner determines that the regulated
37.18 individual is responsible for substantiated maltreatment under
37.19 section 626.556 or 626.557, instead of the commissioner making a
37.20 decision regarding disqualification, the board shall make a
37.21 determination whether to impose disciplinary or corrective
37.22 action under chapter 214.
37.23 (b) This section does not apply to a background study of an
37.24 individual regulated by a health-related licensing board if the
37.25 individual's study is related to child foster care, adult foster
37.26 care, or family child care licensure.
37.27 Subd. 2. [COMMISSIONER'S NOTICE TO THE BOARD.] (a) The
37.28 commissioner shall notify the health-related licensing board:
37.29 (1) upon completion of a background study that produces a
37.30 record showing that the individual was determined to have been
37.31 responsible for substantiated maltreatment;
37.32 (2) upon the commissioner's completion of an investigation
37.33 that determined the individual was responsible for substantiated
37.34 maltreatment; or
37.35 (3) upon receipt from another agency of a finding of
37.36 substantiated maltreatment for which the individual was
38.1 responsible.
38.2 (b) The commissioner's notice to the health-related
38.3 licensing board shall indicate whether the commissioner would
38.4 have disqualified the individual for the substantiated
38.5 maltreatment if the individual were not regulated by the board.
38.6 (c) The commissioner shall concurrently send the notice
38.7 under this subdivision to the individual who is the subject of
38.8 the background study.
38.9 Subd. 3. [COMMISSIONER'S OR LOCAL AGENCY'S REFERRAL TO
38.10 BOARD.] (a) When the commissioner or a local agency has reason
38.11 to believe that the direct contact services provided by an
38.12 individual may fall within the jurisdiction of a health-related
38.13 licensing board, the commissioner or local agency shall refer
38.14 the matter to the board as provided in this section.
38.15 (b) If, upon review of the information provided by the
38.16 commissioner, a health-related licensing board informs the
38.17 commissioner that the board does not have jurisdiction to take
38.18 disciplinary or corrective action, the commissioner shall make
38.19 the appropriate disqualification decision regarding the
38.20 individual as otherwise provided in this chapter.
38.21 Subd. 4. [FACILITY MONITORING.] (a) The commissioner has
38.22 the authority to monitor the facility's compliance with any
38.23 requirements that the health-related licensing board places on
38.24 regulated individuals practicing in a facility either during the
38.25 period pending a final decision on a disciplinary or corrective
38.26 action or as a result of a disciplinary or corrective action.
38.27 The commissioner has the authority to order the immediate
38.28 removal of a regulated individual from direct contact or access
38.29 when a board issues an order of temporary suspension based on a
38.30 determination that the regulated individual poses an immediate
38.31 risk of harm to persons receiving services in a licensed
38.32 facility.
38.33 (b) A facility that allows a regulated individual to
38.34 provide direct contact services while not complying with the
38.35 requirements imposed by the health-related licensing board is
38.36 subject to action by the commissioner as specified under
39.1 sections 245A.06 and 245A.07.
39.2 (c) The commissioner shall notify a health-related
39.3 licensing board immediately upon receipt of knowledge of a
39.4 facility's or individual's noncompliance with requirements the
39.5 board placed on a facility or upon an individual regulated by
39.6 the board.
39.7 Sec. 32. [245C.32] [SYSTEMS AND RECORDS.]
39.8 Subdivision 1. [ESTABLISHMENT.] The commissioner may
39.9 establish systems and records to fulfill the requirements of
39.10 this chapter.
39.11 Subd. 2. [USE.] (a) The commissioner may also use these
39.12 systems and records to obtain and provide criminal history data
39.13 from the bureau of criminal apprehension and data about
39.14 substantiated maltreatment under section 626.556 or 626.557, for
39.15 other purposes, provided that:
39.16 (1) the background study is specifically authorized in
39.17 statute; or
39.18 (2) the request is made with the informed consent of the
39.19 subject of the study as provided in section 13.05, subdivision 4.
39.20 (b) An individual making a request under paragraph (a),
39.21 clause (2), must agree in writing not to disclose the data to
39.22 any other individual without the consent of the subject of the
39.23 data.
39.24 (c) The commissioner may recover the cost of obtaining and
39.25 providing background study data by charging the individual
39.26 requesting the study a fee of no more than $12 per study. The
39.27 fees collected under this paragraph are appropriated to the
39.28 commissioner for the purpose of conducting background studies.
39.29 Subd. 3. [NATIONAL RECORDS SEARCH.] (a) When specifically
39.30 required by statute, the commissioner shall also obtain criminal
39.31 history data from the National Criminal Records Repository.
39.32 (b) To obtain criminal history data from the National
39.33 Criminal Records Repository, the commissioner shall require
39.34 classifiable fingerprints of the data subject and must submit
39.35 these fingerprint requests through the bureau of criminal
39.36 apprehension.
40.1 (c) The commissioner may require the background study
40.2 subject to submit fingerprint images electronically. The
40.3 commissioner may not require electronic fingerprint images until
40.4 the electronic recording and transfer system is available for
40.5 noncriminal justice purposes and the necessary equipment is in
40.6 use in the law enforcement agency in the background study
40.7 subject's local community.
40.8 (d) The commissioner may recover the cost of obtaining and
40.9 providing criminal history data from the National Criminal
40.10 Records Repository by charging the individual requesting the
40.11 study a fee of no more than $30 per study. The fees collected
40.12 under this subdivision are appropriated to the commissioner for
40.13 the purpose of obtaining criminal history data from the National
40.14 Criminal Records Repository.
40.15 Sec. 33. [REVISOR'S INSTRUCTION.]
40.16 (a) The revisor of statutes shall correct internal
40.17 cross-references to sections that are now in Minnesota Statutes,
40.18 chapter 245C, throughout Minnesota Statutes and Minnesota Rules.
40.19 (b) If a provision of a section of Minnesota Statutes
40.20 amended or recodified by this act is amended by the 2003 regular
40.21 legislative session or 2003 special legislative session, if any,
40.22 the revisor shall codify the amendment consistent with the
40.23 recodification of the affected section by this act,
40.24 notwithstanding any law to the contrary. In sections affected
40.25 by this instruction, the revisor may make changes necessary to
40.26 correct the punctuation, grammar, or structure of the remaining
40.27 text and preserve its meaning.
40.28 Sec. 34. [EFFECTIVE DATE.]
40.29 Sections 1 to 33 are effective the day following final
40.30 enactment.
40.31 ARTICLE 2
40.32 CONFORMING AMENDMENTS
40.33 Section 1. Minnesota Statutes 2002, section 245A.04,
40.34 subdivision 1, is amended to read:
40.35 Subdivision 1. [APPLICATION FOR LICENSURE.] (a) An
40.36 individual, corporation, partnership, voluntary association,
41.1 other organization or controlling individual that is subject to
41.2 licensure under section 245A.03 must apply for a license. The
41.3 application must be made on the forms and in the manner
41.4 prescribed by the commissioner. The commissioner shall provide
41.5 the applicant with instruction in completing the application and
41.6 provide information about the rules and requirements of other
41.7 state agencies that affect the applicant.
41.8 The commissioner shall act on the application within 90
41.9 working days after a complete application and any required
41.10 reports have been received from other state agencies or
41.11 departments, counties, municipalities, or other political
41.12 subdivisions. The commissioner shall not consider an
41.13 application to be complete until the commissioner receives all
41.14 of the information required under section 245C.05.
41.15 (b) An application for licensure must specify one or more
41.16 controlling individuals as an agent who is responsible for
41.17 dealing with the commissioner of human services on all matters
41.18 provided for in this chapter and on whom service of all notices
41.19 and orders must be made. The agent must be authorized to accept
41.20 service on behalf of all of the controlling individuals of the
41.21 program. Service on the agent is service on all of the
41.22 controlling individuals of the program. It is not a defense to
41.23 any action arising under this chapter that service was not made
41.24 on each controlling individual of the program. The designation
41.25 of one or more controlling individuals as agents under this
41.26 paragraph does not affect the legal responsibility of any other
41.27 controlling individual under this chapter.
41.28 Sec. 2. Minnesota Statutes 2002, section 245A.04,
41.29 subdivision 3, is amended to read:
41.30 Subd. 3. [BACKGROUND STUDY OF THE APPLICANT;
41.31 DEFINITIONS.] (a) Individuals and organizations that are
41.32 required in statute under section 245C.03 to have or initiate
41.33 background studies under this section shall comply with the
41.34 following requirements: in chapter 245C.
41.35 (1) Applicants for licensure, license holders, and other
41.36 entities as provided in this section must submit completed
42.1 background study forms to the commissioner before individuals
42.2 specified in paragraph (c), clauses (1) to (4), (6), and (7),
42.3 begin positions allowing direct contact in any licensed program.
42.4 (2) Applicants and license holders under the jurisdiction
42.5 of other state agencies who are required in other statutory
42.6 sections to initiate background studies under this section must
42.7 submit completed background study forms to the commissioner
42.8 prior to the background study subject beginning in a position
42.9 allowing direct contact in the licensed program, or where
42.10 applicable, prior to being employed.
42.11 (3) Organizations required to initiate background studies
42.12 under section 256B.0627 for individuals described in paragraph
42.13 (c), clause (5), must submit a completed background study form
42.14 to the commissioner before those individuals begin a position
42.15 allowing direct contact with persons served by the
42.16 organization. The commissioner shall recover the cost of these
42.17 background studies through a fee of no more than $12 per study
42.18 charged to the organization responsible for submitting the
42.19 background study form. The fees collected under this paragraph
42.20 are appropriated to the commissioner for the purpose of
42.21 conducting background studies.
42.22 Upon receipt of the background study forms from the
42.23 entities in clauses (1) to (3), the commissioner shall complete
42.24 the background study as specified under this section and provide
42.25 notices required in subdivision 3a. Unless otherwise specified,
42.26 the subject of a background study may have direct contact with
42.27 persons served by a program after the background study form is
42.28 mailed or submitted to the commissioner pending notification of
42.29 the study results under subdivision 3a. A county agency may
42.30 accept a background study completed by the commissioner under
42.31 this section in place of the background study required under
42.32 section 245A.16, subdivision 3, in programs with joint licensure
42.33 as home and community-based services and adult foster care for
42.34 people with developmental disabilities when the license holder
42.35 does not reside in the foster care residence and the subject of
42.36 the study has been continuously affiliated with the license
43.1 holder since the date of the commissioner's study.
43.2 (b) The definitions in this paragraph apply only to
43.3 subdivisions 3 to 3e.
43.4 (1) "Background study" means the review of records
43.5 conducted by the commissioner to determine whether a subject is
43.6 disqualified from direct contact with persons served by a
43.7 program, and where specifically provided in statutes, whether a
43.8 subject is disqualified from having access to persons served by
43.9 a program.
43.10 (2) "Continuous, direct supervision" means an individual is
43.11 within sight or hearing of the supervising person to the extent
43.12 that supervising person is capable at all times of intervening
43.13 to protect the health and safety of the persons served by the
43.14 program.
43.15 (3) "Contractor" means any person, regardless of employer,
43.16 who is providing program services for hire under the control of
43.17 the provider.
43.18 (4) "Direct contact" means providing face-to-face care,
43.19 training, supervision, counseling, consultation, or medication
43.20 assistance to persons served by the program.
43.21 (5) "Reasonable cause" means information or circumstances
43.22 exist which provide the commissioner with articulable suspicion
43.23 that further pertinent information may exist concerning a
43.24 subject. The commissioner has reasonable cause when, but not
43.25 limited to, the commissioner has received a report from the
43.26 subject, the license holder, or a third party indicating that
43.27 the subject has a history that would disqualify the person or
43.28 that may pose a risk to the health or safety of persons
43.29 receiving services.
43.30 (6) "Subject of a background study" means an individual on
43.31 whom a background study is required or completed.
43.32 (c) The applicant, license holder, registrant under section
43.33 144A.71, subdivision 1, bureau of criminal apprehension,
43.34 commissioner of health, and county agencies, after written
43.35 notice to the individual who is the subject of the study, shall
43.36 help with the study by giving the commissioner criminal
44.1 conviction data and reports about the maltreatment of adults
44.2 substantiated under section 626.557 and the maltreatment of
44.3 minors in licensed programs substantiated under section
44.4 626.556. If a background study is initiated by an applicant or
44.5 license holder and the applicant or license holder receives
44.6 information about the possible criminal or maltreatment history
44.7 of an individual who is the subject of the background study, the
44.8 applicant or license holder must immediately provide the
44.9 information to the commissioner. The individuals to be studied
44.10 shall include:
44.11 (1) the applicant;
44.12 (2) persons age 13 and over living in the household where
44.13 the licensed program will be provided;
44.14 (3) current employees or contractors of the applicant who
44.15 will have direct contact with persons served by the facility,
44.16 agency, or program;
44.17 (4) volunteers or student volunteers who have direct
44.18 contact with persons served by the program to provide program
44.19 services, if the contact is not under the continuous, direct
44.20 supervision by an individual listed in clause (1) or (3);
44.21 (5) any person required under section 256B.0627 to have a
44.22 background study completed under this section;
44.23 (6) persons ages 10 to 12 living in the household where the
44.24 licensed services will be provided when the commissioner has
44.25 reasonable cause; and
44.26 (7) persons who, without providing direct contact services
44.27 at a licensed program, may have unsupervised access to children
44.28 or vulnerable adults receiving services from the program
44.29 licensed to provide family child care for children, foster care
44.30 for children in the provider's own home, or foster care or day
44.31 care services for adults in the provider's own home when the
44.32 commissioner has reasonable cause.
44.33 (d) According to paragraph (c), clauses (2) and (6), the
44.34 commissioner shall review records from the juvenile courts. For
44.35 persons under paragraph (c), clauses (1), (3), (4), (5), and
44.36 (7), who are ages 13 to 17, the commissioner shall review
45.1 records from the juvenile courts when the commissioner has
45.2 reasonable cause. The juvenile courts shall help with the study
45.3 by giving the commissioner existing juvenile court records on
45.4 individuals described in paragraph (c), clauses (2), (6), and
45.5 (7), relating to delinquency proceedings held within either the
45.6 five years immediately preceding the background study or the
45.7 five years immediately preceding the individual's 18th birthday,
45.8 whichever time period is longer. The commissioner shall destroy
45.9 juvenile records obtained pursuant to this subdivision when the
45.10 subject of the records reaches age 23.
45.11 (e) Beginning August 1, 2001, the commissioner shall
45.12 conduct all background studies required under this chapter and
45.13 initiated by supplemental nursing services agencies registered
45.14 under section 144A.71, subdivision 1. Studies for the agencies
45.15 must be initiated annually by each agency. The commissioner
45.16 shall conduct the background studies according to this chapter.
45.17 The commissioner shall recover the cost of the background
45.18 studies through a fee of no more than $8 per study, charged to
45.19 the supplemental nursing services agency. The fees collected
45.20 under this paragraph are appropriated to the commissioner for
45.21 the purpose of conducting background studies.
45.22 (f) For purposes of this section, a finding that a
45.23 delinquency petition is proven in juvenile court shall be
45.24 considered a conviction in state district court.
45.25 (g) A study of an individual in paragraph (c), clauses (1)
45.26 to (7), shall be conducted at least upon application for initial
45.27 license for all license types or registration under section
45.28 144A.71, subdivision 1, and at reapplication for a license for
45.29 family child care, child foster care, and adult foster care.
45.30 The commissioner is not required to conduct a study of an
45.31 individual at the time of reapplication for a license or if the
45.32 individual has been continuously affiliated with a foster care
45.33 provider licensed by the commissioner of human services and
45.34 registered under chapter 144D, other than a family day care or
45.35 foster care license, if: (i) a study of the individual was
45.36 conducted either at the time of initial licensure or when the
46.1 individual became affiliated with the license holder; (ii) the
46.2 individual has been continuously affiliated with the license
46.3 holder since the last study was conducted; and (iii) the
46.4 procedure described in paragraph (j) has been implemented and
46.5 was in effect continuously since the last study was conducted.
46.6 For the purposes of this section, a physician licensed under
46.7 chapter 147 is considered to be continuously affiliated upon the
46.8 license holder's receipt from the commissioner of health or
46.9 human services of the physician's background study results. For
46.10 individuals who are required to have background studies under
46.11 paragraph (c) and who have been continuously affiliated with a
46.12 foster care provider that is licensed in more than one county,
46.13 criminal conviction data may be shared among those counties in
46.14 which the foster care programs are licensed. A county agency's
46.15 receipt of criminal conviction data from another county agency
46.16 shall meet the criminal data background study requirements of
46.17 this section.
46.18 (h) The commissioner may also conduct studies on
46.19 individuals specified in paragraph (c), clauses (3) and (4),
46.20 when the studies are initiated by:
46.21 (i) personnel pool agencies;
46.22 (ii) temporary personnel agencies;
46.23 (iii) educational programs that train persons by providing
46.24 direct contact services in licensed programs; and
46.25 (iv) professional services agencies that are not licensed
46.26 and which contract with licensed programs to provide direct
46.27 contact services or individuals who provide direct contact
46.28 services.
46.29 (i) Studies on individuals in paragraph (h), items (i) to
46.30 (iv), must be initiated annually by these agencies, programs,
46.31 and individuals. Except as provided in paragraph (a), clause
46.32 (3), no applicant, license holder, or individual who is the
46.33 subject of the study shall pay any fees required to conduct the
46.34 study.
46.35 (1) At the option of the licensed facility, rather than
46.36 initiating another background study on an individual required to
47.1 be studied who has indicated to the licensed facility that a
47.2 background study by the commissioner was previously completed,
47.3 the facility may make a request to the commissioner for
47.4 documentation of the individual's background study status,
47.5 provided that:
47.6 (i) the facility makes this request using a form provided
47.7 by the commissioner;
47.8 (ii) in making the request the facility informs the
47.9 commissioner that either:
47.10 (A) the individual has been continuously affiliated with a
47.11 licensed facility since the individual's previous background
47.12 study was completed, or since October 1, 1995, whichever is
47.13 shorter; or
47.14 (B) the individual is affiliated only with a personnel pool
47.15 agency, a temporary personnel agency, an educational program
47.16 that trains persons by providing direct contact services in
47.17 licensed programs, or a professional services agency that is not
47.18 licensed and which contracts with licensed programs to provide
47.19 direct contact services or individuals who provide direct
47.20 contact services; and
47.21 (iii) the facility provides notices to the individual as
47.22 required in paragraphs (a) to (j), and that the facility is
47.23 requesting written notification of the individual's background
47.24 study status from the commissioner.
47.25 (2) The commissioner shall respond to each request under
47.26 paragraph (1) with a written or electronic notice to the
47.27 facility and the study subject. If the commissioner determines
47.28 that a background study is necessary, the study shall be
47.29 completed without further request from a licensed agency or
47.30 notifications to the study subject.
47.31 (3) When a background study is being initiated by a
47.32 licensed facility or a foster care provider that is also
47.33 registered under chapter 144D, a study subject affiliated with
47.34 multiple licensed facilities may attach to the background study
47.35 form a cover letter indicating the additional facilities' names,
47.36 addresses, and background study identification numbers. When
48.1 the commissioner receives such notices, each facility identified
48.2 by the background study subject shall be notified of the study
48.3 results. The background study notice sent to the subsequent
48.4 agencies shall satisfy those facilities' responsibilities for
48.5 initiating a background study on that individual.
48.6 (j) If an individual who is affiliated with a program or
48.7 facility regulated by the department of human services or
48.8 department of health or who is affiliated with any type of home
48.9 care agency or provider of personal care assistance services, is
48.10 convicted of a crime constituting a disqualification under
48.11 subdivision 3d, the probation officer or corrections agent shall
48.12 notify the commissioner of the conviction. For the purpose of
48.13 this paragraph, "conviction" has the meaning given it in section
48.14 609.02, subdivision 5. The commissioner, in consultation with
48.15 the commissioner of corrections, shall develop forms and
48.16 information necessary to implement this paragraph and shall
48.17 provide the forms and information to the commissioner of
48.18 corrections for distribution to local probation officers and
48.19 corrections agents. The commissioner shall inform individuals
48.20 subject to a background study that criminal convictions for
48.21 disqualifying crimes will be reported to the commissioner by the
48.22 corrections system. A probation officer, corrections agent, or
48.23 corrections agency is not civilly or criminally liable for
48.24 disclosing or failing to disclose the information required by
48.25 this paragraph. Upon receipt of disqualifying information, the
48.26 commissioner shall provide the notifications required in
48.27 subdivision 3a, as appropriate to agencies on record as having
48.28 initiated a background study or making a request for
48.29 documentation of the background study status of the individual.
48.30 This paragraph does not apply to family day care and child
48.31 foster care programs.
48.32 (k) The individual who is the subject of the study must
48.33 provide the applicant or license holder with sufficient
48.34 information to ensure an accurate study including the
48.35 individual's first, middle, and last name and all other names by
48.36 which the individual has been known; home address, city, county,
49.1 and state of residence for the past five years; zip code; sex;
49.2 date of birth; and driver's license number or state
49.3 identification number. The applicant or license holder shall
49.4 provide this information about an individual in paragraph (c),
49.5 clauses (1) to (7), on forms prescribed by the commissioner. By
49.6 January 1, 2000, for background studies conducted by the
49.7 department of human services, the commissioner shall implement a
49.8 system for the electronic transmission of: (1) background study
49.9 information to the commissioner; and (2) background study
49.10 results to the license holder. The commissioner may request
49.11 additional information of the individual, which shall be
49.12 optional for the individual to provide, such as the individual's
49.13 social security number or race.
49.14 (l) For programs directly licensed by the commissioner, a
49.15 study must include information related to names of substantiated
49.16 perpetrators of maltreatment of vulnerable adults that has been
49.17 received by the commissioner as required under section 626.557,
49.18 subdivision 9c, paragraph (i), and the commissioner's records
49.19 relating to the maltreatment of minors in licensed programs,
49.20 information from juvenile courts as required in paragraph (c)
49.21 for persons listed in paragraph (c), clauses (2), (6), and (7),
49.22 and information from the bureau of criminal apprehension. For
49.23 child foster care, adult foster care, and family day care homes,
49.24 the study must include information from the county agency's
49.25 record of substantiated maltreatment of adults, and the
49.26 maltreatment of minors, information from juvenile courts as
49.27 required in paragraph (c) for persons listed in paragraph (c),
49.28 clauses (2), (6), and (7), and information from the bureau of
49.29 criminal apprehension. The commissioner may also review arrest
49.30 and investigative information from the bureau of criminal
49.31 apprehension, the commissioner of health, a county attorney,
49.32 county sheriff, county agency, local chief of police, other
49.33 states, the courts, or the Federal Bureau of Investigation if
49.34 the commissioner has reasonable cause to believe the information
49.35 is pertinent to the disqualification of an individual listed in
49.36 paragraph (c), clauses (1) to (7). The commissioner is not
50.1 required to conduct more than one review of a subject's records
50.2 from the Federal Bureau of Investigation if a review of the
50.3 subject's criminal history with the Federal Bureau of
50.4 Investigation has already been completed by the commissioner and
50.5 there has been no break in the subject's affiliation with the
50.6 license holder who initiated the background study.
50.7 (m) When the commissioner has reasonable cause to believe
50.8 that further pertinent information may exist on the subject, the
50.9 subject shall provide a set of classifiable fingerprints
50.10 obtained from an authorized law enforcement agency. For
50.11 purposes of requiring fingerprints, the commissioner shall be
50.12 considered to have reasonable cause under, but not limited to,
50.13 the following circumstances:
50.14 (1) information from the bureau of criminal apprehension
50.15 indicates that the subject is a multistate offender;
50.16 (2) information from the bureau of criminal apprehension
50.17 indicates that multistate offender status is undetermined; or
50.18 (3) the commissioner has received a report from the subject
50.19 or a third party indicating that the subject has a criminal
50.20 history in a jurisdiction other than Minnesota.
50.21 (n) The failure or refusal of an applicant, license holder,
50.22 or registrant under section 144A.71, subdivision 1, to cooperate
50.23 with the commissioner is reasonable cause to disqualify a
50.24 subject, deny a license application or immediately suspend,
50.25 suspend, or revoke a license or registration. Failure or
50.26 refusal of an individual to cooperate with the study is just
50.27 cause for denying or terminating employment of the individual if
50.28 the individual's failure or refusal to cooperate could cause the
50.29 applicant's application to be denied or the license holder's
50.30 license to be immediately suspended, suspended, or revoked.
50.31 (o) The commissioner shall not consider an application to
50.32 be complete until all of the information required to be provided
50.33 under this subdivision has been received.
50.34 (p) No person in paragraph (c), clauses (1) to (7), who is
50.35 disqualified as a result of this section may be retained by the
50.36 agency in a position involving direct contact with persons
51.1 served by the program and no person in paragraph (c), clauses
51.2 (2), (6), and (7), or as provided elsewhere in statute who is
51.3 disqualified as a result of this section may be allowed access
51.4 to persons served by the program, unless the commissioner has
51.5 provided written notice to the agency stating that:
51.6 (1) the individual may remain in direct contact during the
51.7 period in which the individual may request reconsideration as
51.8 provided in subdivision 3a, paragraph (b), clause (2) or (3);
51.9 (2) the individual's disqualification has been set aside
51.10 for that agency as provided in subdivision 3b, paragraph (b); or
51.11 (3) the license holder has been granted a variance for the
51.12 disqualified individual under subdivision 3e.
51.13 (q) Termination of affiliation with persons in paragraph
51.14 (c), clauses (1) to (7), made in good faith reliance on a notice
51.15 of disqualification provided by the commissioner shall not
51.16 subject the applicant or license holder to civil liability.
51.17 (r) The commissioner may establish records to fulfill the
51.18 requirements of this section.
51.19 (s) The commissioner may not disqualify an individual
51.20 subject to a study under this section because that person has,
51.21 or has had, a mental illness as defined in section 245.462,
51.22 subdivision 20.
51.23 (t) An individual subject to disqualification under this
51.24 subdivision has the applicable rights in subdivision 3a, 3b, or
51.25 3c.
51.26 (u) For the purposes of background studies completed by
51.27 tribal organizations performing licensing activities otherwise
51.28 required of the commissioner under this chapter, after obtaining
51.29 consent from the background study subject, tribal licensing
51.30 agencies shall have access to criminal history data in the same
51.31 manner as county licensing agencies and private licensing
51.32 agencies under this chapter.
51.33 (v) County agencies shall have access to the criminal
51.34 history data in the same manner as county licensing agencies
51.35 under this chapter for purposes of background studies completed
51.36 by county agencies on legal nonlicensed child care providers to
52.1 determine eligibility for child care funds under chapter 119B.
52.2 Sec. 3. Minnesota Statutes 2002, section 245A.04,
52.3 subdivision 3a, is amended to read:
52.4 Subd. 3a. [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF
52.5 NOTICE OF BACKGROUND STUDY RESULTS; COMMISSIONER'S DETERMINATION
52.6 OF RISK OF HARM.] (a) Within 15 working days, the commissioner
52.7 shall notify the applicant, license holder, or registrant under
52.8 section 144A.71, subdivision 1, and the individual who is the
52.9 subject of the study, in writing or by electronic transmission,
52.10 of the results of the study or that more time is needed to
52.11 complete the study. When the study is completed, a notice that
52.12 the study was undertaken and completed shall be maintained in
52.13 the personnel files of the program. For studies on individuals
52.14 pertaining to a license to provide family day care or group
52.15 family day care, foster care for children in the provider's own
52.16 home, or foster care or day care services for adults in the
52.17 provider's own home, the commissioner is not required to provide
52.18 a separate notice of the background study results to the
52.19 individual who is the subject of the study unless the study
52.20 results in a disqualification of the individual.
52.21 The commissioner shall notify the individual studied if the
52.22 information in the study indicates the individual is
52.23 disqualified from direct contact with persons served by the
52.24 program. The commissioner shall disclose the information
52.25 causing disqualification and instructions on how to request a
52.26 reconsideration of the disqualification to the individual
52.27 studied. An applicant or license holder who is not the subject
52.28 of the study shall be informed that the commissioner has found
52.29 information that disqualifies the subject from direct contact
52.30 with persons served by the program. However, only the
52.31 individual studied must be informed of the information contained
52.32 in the subject's background study unless the basis for the
52.33 disqualification is failure to cooperate, substantiated
52.34 maltreatment under section 626.556 or 626.557, the Data
52.35 Practices Act provides for release of the information, or the
52.36 individual studied authorizes the release of the information.
53.1 When a disqualification is based on the subject's failure to
53.2 cooperate with the background study or substantiated
53.3 maltreatment under section 626.556 or 626.557, the agency that
53.4 initiated the study shall be informed by the commissioner of the
53.5 reason for the disqualification.
53.6 (b) Except as provided in subdivision 3d, paragraph (b), if
53.7 the commissioner determines that the individual studied has a
53.8 disqualifying characteristic, the commissioner shall review the
53.9 information immediately available and make a determination as to
53.10 the subject's immediate risk of harm to persons served by the
53.11 program where the individual studied will have direct contact.
53.12 The commissioner shall consider all relevant information
53.13 available, including the following factors in determining the
53.14 immediate risk of harm: the recency of the disqualifying
53.15 characteristic; the recency of discharge from probation for the
53.16 crimes; the number of disqualifying characteristics; the
53.17 intrusiveness or violence of the disqualifying characteristic;
53.18 the vulnerability of the victim involved in the disqualifying
53.19 characteristic; and the similarity of the victim to the persons
53.20 served by the program where the individual studied will have
53.21 direct contact. The commissioner may determine that the
53.22 evaluation of the information immediately available gives the
53.23 commissioner reason to believe one of the following:
53.24 (1) The individual poses an imminent risk of harm to
53.25 persons served by the program where the individual studied will
53.26 have direct contact. If the commissioner determines that an
53.27 individual studied poses an imminent risk of harm to persons
53.28 served by the program where the individual studied will have
53.29 direct contact, the individual and the license holder must be
53.30 sent a notice of disqualification. The commissioner shall order
53.31 the license holder to immediately remove the individual studied
53.32 from direct contact. The notice to the individual studied must
53.33 include an explanation of the basis of this determination.
53.34 (2) The individual poses a risk of harm requiring
53.35 continuous, direct supervision while providing direct contact
53.36 services during the period in which the subject may request a
54.1 reconsideration. If the commissioner determines that an
54.2 individual studied poses a risk of harm that requires
54.3 continuous, direct supervision, the individual and the license
54.4 holder must be sent a notice of disqualification. The
54.5 commissioner shall order the license holder to immediately
54.6 remove the individual studied from direct contact services or
54.7 assure that the individual studied is under the continuous,
54.8 direct supervision of another staff person when providing direct
54.9 contact services during the period in which the individual may
54.10 request a reconsideration of the disqualification. If the
54.11 individual studied does not submit a timely request for
54.12 reconsideration, or the individual submits a timely request for
54.13 reconsideration, but the disqualification is not set aside for
54.14 that license holder, the license holder will be notified of the
54.15 disqualification and ordered to immediately remove the
54.16 individual from any position allowing direct contact with
54.17 persons receiving services from the license holder.
54.18 (3) The individual does not pose an imminent risk of harm
54.19 or a risk of harm requiring continuous, direct supervision while
54.20 providing direct contact services during the period in which the
54.21 subject may request a reconsideration. If the commissioner
54.22 determines that an individual studied does not pose a risk of
54.23 harm that requires continuous, direct supervision, only the
54.24 individual must be sent a notice of disqualification. The
54.25 license holder must be sent a notice that more time is needed to
54.26 complete the individual's background study. If the individual
54.27 studied submits a timely request for reconsideration, and if the
54.28 disqualification is set aside for that license holder, the
54.29 license holder will receive the same notification received by
54.30 license holders in cases where the individual studied has no
54.31 disqualifying characteristic. If the individual studied does
54.32 not submit a timely request for reconsideration, or the
54.33 individual submits a timely request for reconsideration, but the
54.34 disqualification is not set aside for that license holder, the
54.35 license holder will be notified of the disqualification and
54.36 ordered to immediately remove the individual from any position
55.1 allowing direct contact with persons receiving services from the
55.2 license holder.
55.3 (c) County licensing agencies performing duties under this
55.4 subdivision may develop an alternative system for determining
55.5 the subject's immediate risk of harm to persons served by the
55.6 program, providing the notices under paragraph (b), and
55.7 documenting the action taken by the county licensing agency.
55.8 Each county licensing agency's implementation of the alternative
55.9 system is subject to approval by the commissioner.
55.10 Notwithstanding this alternative system, county licensing
55.11 agencies shall complete the requirements of paragraph (a) The
55.12 notice of background study results and the commissioner's
55.13 determination of the background subject's risk of harm shall be
55.14 governed according to sections 245C.16 and 245C.17.
55.15 Sec. 4. Minnesota Statutes 2002, section 245A.04,
55.16 subdivision 3b, is amended to read:
55.17 Subd. 3b. [RECONSIDERATION OF DISQUALIFICATION.] (a) The
55.18 individual who is the subject of the disqualification may
55.19 request a reconsideration of the disqualification.
55.20 The individual must submit the request for reconsideration
55.21 to the commissioner in writing. A request for reconsideration
55.22 for an individual who has been sent a notice of disqualification
55.23 under subdivision 3a, paragraph (b), clause (1) or (2), must be
55.24 submitted within 30 calendar days of the disqualified
55.25 individual's receipt of the notice of disqualification. Upon
55.26 showing that the information in clause (1) or (2) cannot be
55.27 obtained within 30 days, the disqualified individual may request
55.28 additional time, not to exceed 30 days, to obtain that
55.29 information. A request for reconsideration for an individual
55.30 who has been sent a notice of disqualification under subdivision
55.31 3a, paragraph (b), clause (3), must be submitted within 15
55.32 calendar days of the disqualified individual's receipt of the
55.33 notice of disqualification. An individual who was determined to
55.34 have maltreated a child under section 626.556 or a vulnerable
55.35 adult under section 626.557, and who was disqualified under this
55.36 section on the basis of serious or recurring maltreatment, may
56.1 request reconsideration of both the maltreatment and the
56.2 disqualification determinations. The request for
56.3 reconsideration of the maltreatment determination and the
56.4 disqualification must be submitted within 30 calendar days of
56.5 the individual's receipt of the notice of disqualification.
56.6 Removal of a disqualified individual from direct contact shall
56.7 be ordered if the individual does not request reconsideration
56.8 within the prescribed time, and for an individual who submits a
56.9 timely request for reconsideration, if the disqualification is
56.10 not set aside. The individual must present information showing
56.11 that:
56.12 (1) the information the commissioner relied upon in
56.13 determining that the underlying conduct giving rise to the
56.14 disqualification occurred, and for maltreatment, that the
56.15 maltreatment was serious or recurring, is incorrect; or
56.16 (2) the subject of the study does not pose a risk of harm
56.17 to any person served by the applicant, license holder, or
56.18 registrant under section 144A.71, subdivision 1.
56.19 (b) The commissioner shall rescind the disqualification if
56.20 the commissioner finds that the information relied on to
56.21 disqualify the subject is incorrect. The commissioner may set
56.22 aside the disqualification under this section if the
56.23 commissioner finds that the individual does not pose a risk of
56.24 harm to any person served by the applicant, license holder, or
56.25 registrant under section 144A.71, subdivision 1. In determining
56.26 that an individual does not pose a risk of harm, the
56.27 commissioner shall consider the nature, severity, and
56.28 consequences of the event or events that lead to
56.29 disqualification, whether there is more than one disqualifying
56.30 event, the age and vulnerability of the victim at the time of
56.31 the event, the harm suffered by the victim, the similarity
56.32 between the victim and persons served by the program, the time
56.33 elapsed without a repeat of the same or similar event,
56.34 documentation of successful completion by the individual studied
56.35 of training or rehabilitation pertinent to the event, and any
56.36 other information relevant to reconsideration. In reviewing a
57.1 disqualification under this section, the commissioner shall give
57.2 preeminent weight to the safety of each person to be served by
57.3 the license holder, applicant, or registrant under section
57.4 144A.71, subdivision 1, over the interests of the license
57.5 holder, applicant, or registrant under section 144A.71,
57.6 subdivision 1.
57.7 (c) Unless the information the commissioner relied on in
57.8 disqualifying an individual is incorrect, the commissioner may
57.9 not set aside the disqualification of an individual in
57.10 connection with a license to provide family day care for
57.11 children, foster care for children in the provider's own home,
57.12 or foster care or day care services for adults in the provider's
57.13 own home if:
57.14 (1) less than ten years have passed since the discharge of
57.15 the sentence imposed for the offense; and the individual has
57.16 been convicted of a violation of any offense listed in sections
57.17 609.165 (felon ineligible to possess firearm), criminal
57.18 vehicular homicide under 609.21 (criminal vehicular homicide and
57.19 injury), 609.215 (aiding suicide or aiding attempted suicide),
57.20 felony violations under 609.223 or 609.2231 (assault in the
57.21 third or fourth degree), 609.713 (terroristic threats), 609.235
57.22 (use of drugs to injure or to facilitate crime), 609.24 (simple
57.23 robbery), 609.255 (false imprisonment), 609.562 (arson in the
57.24 second degree), 609.71 (riot), 609.498, subdivision 1 or 1a
57.25 (aggravated first degree or first degree tampering with a
57.26 witness), burglary in the first or second degree under 609.582
57.27 (burglary), 609.66 (dangerous weapon), 609.665 (spring guns),
57.28 609.67 (machine guns and short-barreled shotguns), 609.749,
57.29 subdivision 2 (gross misdemeanor harassment; stalking), 152.021
57.30 or 152.022 (controlled substance crime in the first or second
57.31 degree), 152.023, subdivision 1, clause (3) or (4), or
57.32 subdivision 2, clause (4) (controlled substance crime in the
57.33 third degree), 152.024, subdivision 1, clause (2), (3), or (4)
57.34 (controlled substance crime in the fourth degree), 609.224,
57.35 subdivision 2, paragraph (c) (fifth-degree assault by a
57.36 caregiver against a vulnerable adult), 609.23 (mistreatment of
58.1 persons confined), 609.231 (mistreatment of residents or
58.2 patients), 609.2325 (criminal abuse of a vulnerable adult),
58.3 609.233 (criminal neglect of a vulnerable adult), 609.2335
58.4 (financial exploitation of a vulnerable adult), 609.234 (failure
58.5 to report), 609.265 (abduction), 609.2664 to 609.2665
58.6 (manslaughter of an unborn child in the first or second degree),
58.7 609.267 to 609.2672 (assault of an unborn child in the first,
58.8 second, or third degree), 609.268 (injury or death of an unborn
58.9 child in the commission of a crime), 617.293 (disseminating or
58.10 displaying harmful material to minors), a felony level
58.11 conviction involving alcohol or drug use, a gross misdemeanor
58.12 offense under 609.324, subdivision 1 (other prohibited acts), a
58.13 gross misdemeanor offense under 609.378 (neglect or endangerment
58.14 of a child), a gross misdemeanor offense under 609.377
58.15 (malicious punishment of a child), 609.72, subdivision 3
58.16 (disorderly conduct against a vulnerable adult); or an attempt
58.17 or conspiracy to commit any of these offenses, as each of these
58.18 offenses is defined in Minnesota Statutes; or an offense in any
58.19 other state, the elements of which are substantially similar to
58.20 the elements of any of the foregoing offenses;
58.21 (2) regardless of how much time has passed since the
58.22 involuntary termination of parental rights under section
58.23 260C.301 or the discharge of the sentence imposed for the
58.24 offense, the individual was convicted of a violation of any
58.25 offense listed in sections 609.185 to 609.195 (murder in the
58.26 first, second, or third degree), 609.20 (manslaughter in the
58.27 first degree), 609.205 (manslaughter in the second degree),
58.28 609.245 (aggravated robbery), 609.25 (kidnapping), 609.561
58.29 (arson in the first degree), 609.749, subdivision 3, 4, or 5
58.30 (felony-level harassment; stalking), 609.228 (great bodily harm
58.31 caused by distribution of drugs), 609.221 or 609.222 (assault in
58.32 the first or second degree), 609.66, subdivision 1e (drive-by
58.33 shooting), 609.855, subdivision 5 (shooting in or at a public
58.34 transit vehicle or facility), 609.2661 to 609.2663 (murder of an
58.35 unborn child in the first, second, or third degree), a felony
58.36 offense under 609.377 (malicious punishment of a child), a
59.1 felony offense under 609.324, subdivision 1 (other prohibited
59.2 acts), a felony offense under 609.378 (neglect or endangerment
59.3 of a child), 609.322 (solicitation, inducement, and promotion of
59.4 prostitution), 609.342 to 609.345 (criminal sexual conduct in
59.5 the first, second, third, or fourth degree), 609.352
59.6 (solicitation of children to engage in sexual conduct), 617.246
59.7 (use of minors in a sexual performance), 617.247 (possession of
59.8 pictorial representations of a minor), 609.365 (incest), a
59.9 felony offense under sections 609.2242 and 609.2243 (domestic
59.10 assault), a felony offense of spousal abuse, a felony offense of
59.11 child abuse or neglect, a felony offense of a crime against
59.12 children, or an attempt or conspiracy to commit any of these
59.13 offenses as defined in Minnesota Statutes, or an offense in any
59.14 other state, the elements of which are substantially similar to
59.15 any of the foregoing offenses;
59.16 (3) within the seven years preceding the study, the
59.17 individual committed an act that constitutes maltreatment of a
59.18 child under section 626.556, subdivision 10e, and that resulted
59.19 in substantial bodily harm as defined in section 609.02,
59.20 subdivision 7a, or substantial mental or emotional harm as
59.21 supported by competent psychological or psychiatric evidence; or
59.22 (4) within the seven years preceding the study, the
59.23 individual was determined under section 626.557 to be the
59.24 perpetrator of a substantiated incident of maltreatment of a
59.25 vulnerable adult that resulted in substantial bodily harm as
59.26 defined in section 609.02, subdivision 7a, or substantial mental
59.27 or emotional harm as supported by competent psychological or
59.28 psychiatric evidence.
59.29 In the case of any ground for disqualification under
59.30 clauses (1) to (4), if the act was committed by an individual
59.31 other than the applicant, license holder, or registrant under
59.32 section 144A.71, subdivision 1, residing in the applicant's or
59.33 license holder's home, or the home of a registrant under section
59.34 144A.71, subdivision 1, the applicant, license holder, or
59.35 registrant under section 144A.71, subdivision 1, may seek
59.36 reconsideration when the individual who committed the act no
60.1 longer resides in the home.
60.2 The disqualification periods provided under clauses (1),
60.3 (3), and (4) are the minimum applicable disqualification
60.4 periods. The commissioner may determine that an individual
60.5 should continue to be disqualified from licensure or
60.6 registration under section 144A.71, subdivision 1, because the
60.7 license holder, applicant, or registrant under section 144A.71,
60.8 subdivision 1, poses a risk of harm to a person served by that
60.9 individual after the minimum disqualification period has passed.
60.10 (d) The commissioner shall respond in writing or by
60.11 electronic transmission to all reconsideration requests for
60.12 which the basis for the request is that the information relied
60.13 upon by the commissioner to disqualify is incorrect or
60.14 inaccurate within 30 working days of receipt of a request and
60.15 all relevant information. If the basis for the request is that
60.16 the individual does not pose a risk of harm, the commissioner
60.17 shall respond to the request within 15 working days after
60.18 receiving the request for reconsideration and all relevant
60.19 information. If the request is based on both the correctness or
60.20 accuracy of the information relied on to disqualify the
60.21 individual and the risk of harm, the commissioner shall respond
60.22 to the request within 45 working days after receiving the
60.23 request for reconsideration and all relevant information. If
60.24 the disqualification is set aside, the commissioner shall notify
60.25 the applicant or license holder in writing or by electronic
60.26 transmission of the decision.
60.27 (e) Except as provided in subdivision 3c, if a
60.28 disqualification for which reconsideration was requested is not
60.29 set aside or is not rescinded, an individual who was
60.30 disqualified on the basis of a preponderance of evidence that
60.31 the individual committed an act or acts that meet the definition
60.32 of any of the crimes listed in subdivision 3d, paragraph (a),
60.33 clauses (1) to (4); or for failure to make required reports
60.34 under section 626.556, subdivision 3, or 626.557, subdivision 3,
60.35 pursuant to subdivision 3d, paragraph (a), clause (4), may
60.36 request a fair hearing under section 256.045. Except as
61.1 provided under subdivision 3c, the fair hearing is the only
61.2 administrative appeal of the final agency determination,
61.3 specifically, including a challenge to the accuracy and
61.4 completeness of data under section 13.04.
61.5 (f) Except as provided under subdivision 3c, if an
61.6 individual was disqualified on the basis of a determination of
61.7 maltreatment under section 626.556 or 626.557, which was serious
61.8 or recurring, and the individual has requested reconsideration
61.9 of the maltreatment determination under section 626.556,
61.10 subdivision 10i, or 626.557, subdivision 9d, and also requested
61.11 reconsideration of the disqualification under this subdivision,
61.12 reconsideration of the maltreatment determination and
61.13 reconsideration of the disqualification shall be consolidated
61.14 into a single reconsideration. For maltreatment and
61.15 disqualification determinations made by county agencies, the
61.16 consolidated reconsideration shall be conducted by the county
61.17 agency. If the county agency has disqualified an individual on
61.18 multiple bases, one of which is a county maltreatment
61.19 determination for which the individual has a right to request
61.20 reconsideration, the county shall conduct the reconsideration of
61.21 all disqualifications. Except as provided under subdivision 3c,
61.22 if an individual who was disqualified on the basis of serious or
61.23 recurring maltreatment requests a fair hearing on the
61.24 maltreatment determination under section 626.556, subdivision
61.25 10i, or 626.557, subdivision 9d, and requests a fair hearing on
61.26 the disqualification, which has not been set aside or rescinded
61.27 under this subdivision, the scope of the fair hearing under
61.28 section 256.045 shall include the maltreatment determination and
61.29 the disqualification. Except as provided under subdivision 3c,
61.30 a fair hearing is the only administrative appeal of the final
61.31 agency determination, specifically, including a challenge to the
61.32 accuracy and completeness of data under section 13.04.
61.33 (g) In the notice from the commissioner that a
61.34 disqualification has been set aside, the license holder must be
61.35 informed that information about the nature of the
61.36 disqualification and which factors under paragraph (b) were the
62.1 bases of the decision to set aside the disqualification is
62.2 available to the license holder upon request without consent of
62.3 the background study subject. With the written consent of a
62.4 background study subject, the commissioner may release to the
62.5 license holder copies of all information related to the
62.6 background study subject's disqualification and the
62.7 commissioner's decision to set aside the disqualification as
62.8 specified in the written consent Reconsideration of a
62.9 disqualification shall be governed according to sections 245C.21
62.10 to 245C.27.
62.11 Sec. 5. Minnesota Statutes 2002, section 245A.04,
62.12 subdivision 3c, is amended to read:
62.13 Subd. 3c. [CONTESTED CASE.] (a) Notwithstanding
62.14 subdivision 3b, paragraphs (e) and (f), if a disqualification is
62.15 not set aside, a person who is an employee of an employer, as
62.16 defined in section 179A.03, subdivision 15, may request a
62.17 contested case hearing under chapter 14. If the
62.18 disqualification which was not set aside or was not rescinded
62.19 was based on a maltreatment determination, the scope of the
62.20 contested case hearing shall include the maltreatment
62.21 determination and the disqualification. In such cases, a fair
62.22 hearing shall not be conducted under section 256.045. Rules
62.23 adopted under this chapter may not preclude an employee in a
62.24 contested case hearing for disqualification from submitting
62.25 evidence concerning information gathered under subdivision 3,
62.26 paragraph (e).
62.27 (b) If a disqualification for which reconsideration was
62.28 requested and which was not set aside or was not rescinded under
62.29 subdivision 3b is the basis for a denial of a license under
62.30 section 245A.05 or a licensing sanction under section 245A.07,
62.31 the license holder has the right to a contested case hearing
62.32 under chapter 14 and Minnesota Rules, parts 1400.8510 to
62.33 1400.8612 and successor rules. The appeal must be submitted in
62.34 accordance with section 245A.05 or 245A.07, subdivision 3. As
62.35 provided for under section 245A.08, subdivision 2a, the scope of
62.36 the consolidated contested case hearing shall include the
63.1 disqualification and the licensing sanction or denial of a
63.2 license. If the disqualification was based on a determination
63.3 of substantiated serious or recurring maltreatment under section
63.4 626.556 or 626.557, the appeal must be submitted in accordance
63.5 with sections 245A.07, subdivision 3, and 626.556, subdivision
63.6 10i, or 626.557, subdivision 9d. As provided for under section
63.7 245A.08, subdivision 2a, the scope of the contested case hearing
63.8 shall include the maltreatment determination, the
63.9 disqualification, and the licensing sanction or denial of a
63.10 license. In such cases, a fair hearing shall not be conducted
63.11 under section 256.045.
63.12 (c) If a maltreatment determination or disqualification,
63.13 which was not set aside or was not rescinded under subdivision
63.14 3b, is the basis for a denial of a license under section 245A.05
63.15 or a licensing sanction under section 245A.07, and the
63.16 disqualified subject is an individual other than the license
63.17 holder and upon whom a background study must be conducted under
63.18 subdivision 3, the hearing of all parties may be consolidated
63.19 into a single contested case hearing upon consent of all parties
63.20 and the administrative law judge.
63.21 (d) The commissioner's final order under section 245A.08,
63.22 subdivision 5, is conclusive on the issue of maltreatment and
63.23 disqualification, including for purposes of subsequent
63.24 background studies. The contested case hearing under this
63.25 subdivision is the only administrative appeal of the final
63.26 agency determination, specifically, including a challenge to the
63.27 accuracy and completeness of data under section 13.04 Contested
63.28 case hearing rights related to a disqualification shall be
63.29 governed according to section 245C.28.
63.30 Sec. 6. Minnesota Statutes 2002, section 245A.04,
63.31 subdivision 3d, is amended to read:
63.32 Subd. 3d. [DISQUALIFICATION.] (a) Upon receipt of
63.33 information showing, or when a background study completed under
63.34 subdivision 3 shows any of the following: a conviction of one
63.35 or more crimes listed in clauses (1) to (4); the individual has
63.36 admitted to or a preponderance of the evidence indicates the
64.1 individual has committed an act or acts that meet the definition
64.2 of any of the crimes listed in clauses (1) to (4); or an
64.3 investigation results in an administrative determination listed
64.4 under clause (4), the individual shall be disqualified from any
64.5 position allowing direct contact with persons receiving services
64.6 from the license holder, entity identified in subdivision 3,
64.7 paragraph (a), or registrant under section 144A.71, subdivision
64.8 1, and for individuals studied under section 245A.04,
64.9 subdivision 3, paragraph (c), clauses (2), (6), and (7), the
64.10 individual shall also be disqualified from access to a person
64.11 receiving services from the license holder:
64.12 (1) regardless of how much time has passed since the
64.13 involuntary termination of parental rights under section
64.14 260C.301 or the discharge of the sentence imposed for the
64.15 offense, and unless otherwise specified, regardless of the level
64.16 of the conviction, the individual was convicted of any of the
64.17 following offenses: sections 609.185 (murder in the first
64.18 degree); 609.19 (murder in the second degree); 609.195 (murder
64.19 in the third degree); 609.2661 (murder of an unborn child in the
64.20 first degree); 609.2662 (murder of an unborn child in the second
64.21 degree); 609.2663 (murder of an unborn child in the third
64.22 degree); 609.20 (manslaughter in the first degree); 609.205
64.23 (manslaughter in the second degree); 609.221 or 609.222 (assault
64.24 in the first or second degree); 609.228 (great bodily harm
64.25 caused by distribution of drugs); 609.245 (aggravated robbery);
64.26 609.25 (kidnapping); 609.561 (arson in the first degree);
64.27 609.749, subdivision 3, 4, or 5 (felony-level harassment;
64.28 stalking); 609.66, subdivision 1e (drive-by shooting); 609.855,
64.29 subdivision 5 (shooting at or in a public transit vehicle or
64.30 facility); 609.322 (solicitation, inducement, and promotion of
64.31 prostitution); 609.342 (criminal sexual conduct in the first
64.32 degree); 609.343 (criminal sexual conduct in the second degree);
64.33 609.344 (criminal sexual conduct in the third degree); 609.345
64.34 (criminal sexual conduct in the fourth degree); 609.352
64.35 (solicitation of children to engage in sexual conduct); 609.365
64.36 (incest); felony offense under 609.377 (malicious punishment of
65.1 a child); a felony offense under 609.378 (neglect or
65.2 endangerment of a child); a felony offense under 609.324,
65.3 subdivision 1 (other prohibited acts); 617.246 (use of minors in
65.4 sexual performance prohibited); 617.247 (possession of pictorial
65.5 representations of minors); a felony offense under sections
65.6 609.2242 and 609.2243 (domestic assault), a felony offense of
65.7 spousal abuse, a felony offense of child abuse or neglect, a
65.8 felony offense of a crime against children; or attempt or
65.9 conspiracy to commit any of these offenses as defined in
65.10 Minnesota Statutes, or an offense in any other state or country,
65.11 where the elements are substantially similar to any of the
65.12 offenses listed in this clause;
65.13 (2) if less than 15 years have passed since the discharge
65.14 of the sentence imposed for the offense; and the individual has
65.15 received a felony conviction for a violation of any of these
65.16 offenses: sections 609.21 (criminal vehicular homicide and
65.17 injury); 609.165 (felon ineligible to possess firearm); 609.215
65.18 (suicide); 609.223 or 609.2231 (assault in the third or fourth
65.19 degree); repeat offenses under 609.224 (assault in the fifth
65.20 degree); repeat offenses under 609.3451 (criminal sexual conduct
65.21 in the fifth degree); 609.498, subdivision 1 or 1a (aggravated
65.22 first degree or first degree tampering with a witness); 609.713
65.23 (terroristic threats); 609.235 (use of drugs to injure or
65.24 facilitate crime); 609.24 (simple robbery); 609.255 (false
65.25 imprisonment); 609.562 (arson in the second degree); 609.563
65.26 (arson in the third degree); repeat offenses under 617.23
65.27 (indecent exposure; penalties); repeat offenses under 617.241
65.28 (obscene materials and performances; distribution and exhibition
65.29 prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons);
65.30 609.67 (machine guns and short-barreled shotguns); 609.2325
65.31 (criminal abuse of a vulnerable adult); 609.2664 (manslaughter
65.32 of an unborn child in the first degree); 609.2665 (manslaughter
65.33 of an unborn child in the second degree); 609.267 (assault of an
65.34 unborn child in the first degree); 609.2671 (assault of an
65.35 unborn child in the second degree); 609.268 (injury or death of
65.36 an unborn child in the commission of a crime); 609.52 (theft);
66.1 609.2335 (financial exploitation of a vulnerable adult); 609.521
66.2 (possession of shoplifting gear); 609.582 (burglary); 609.625
66.3 (aggravated forgery); 609.63 (forgery); 609.631 (check forgery;
66.4 offering a forged check); 609.635 (obtaining signature by false
66.5 pretense); 609.27 (coercion); 609.275 (attempt to coerce);
66.6 609.687 (adulteration); 260C.301 (grounds for termination of
66.7 parental rights); chapter 152 (drugs; controlled substance); and
66.8 a felony level conviction involving alcohol or drug use. An
66.9 attempt or conspiracy to commit any of these offenses, as each
66.10 of these offenses is defined in Minnesota Statutes; or an
66.11 offense in any other state or country, the elements of which are
66.12 substantially similar to the elements of the offenses in this
66.13 clause. If the individual studied is convicted of one of the
66.14 felonies listed in this clause, but the sentence is a gross
66.15 misdemeanor or misdemeanor disposition, the lookback period for
66.16 the conviction is the period applicable to the disposition, that
66.17 is the period for gross misdemeanors or misdemeanors;
66.18 (3) if less than ten years have passed since the discharge
66.19 of the sentence imposed for the offense; and the individual has
66.20 received a gross misdemeanor conviction for a violation of any
66.21 of the following offenses: sections 609.224 (assault in the
66.22 fifth degree); 609.2242 and 609.2243 (domestic assault);
66.23 violation of an order for protection under 518B.01, subdivision
66.24 14; 609.3451 (criminal sexual conduct in the fifth degree);
66.25 repeat offenses under 609.746 (interference with privacy);
66.26 repeat offenses under 617.23 (indecent exposure); 617.241
66.27 (obscene materials and performances); 617.243 (indecent
66.28 literature, distribution); 617.293 (harmful materials;
66.29 dissemination and display to minors prohibited); 609.71 (riot);
66.30 609.66 (dangerous weapons); 609.749, subdivision 2 (harassment;
66.31 stalking); 609.224, subdivision 2, paragraph (c) (assault in the
66.32 fifth degree by a caregiver against a vulnerable adult); 609.23
66.33 (mistreatment of persons confined); 609.231 (mistreatment of
66.34 residents or patients); 609.2325 (criminal abuse of a vulnerable
66.35 adult); 609.233 (criminal neglect of a vulnerable adult);
66.36 609.2335 (financial exploitation of a vulnerable adult); 609.234
67.1 (failure to report maltreatment of a vulnerable adult); 609.72,
67.2 subdivision 3 (disorderly conduct against a vulnerable adult);
67.3 609.265 (abduction); 609.378 (neglect or endangerment of a
67.4 child); 609.377 (malicious punishment of a child); 609.324,
67.5 subdivision 1a (other prohibited acts; minor engaged in
67.6 prostitution); 609.33 (disorderly house); 609.52 (theft);
67.7 609.582 (burglary); 609.631 (check forgery; offering a forged
67.8 check); 609.275 (attempt to coerce); or an attempt or conspiracy
67.9 to commit any of these offenses, as each of these offenses is
67.10 defined in Minnesota Statutes; or an offense in any other state
67.11 or country, the elements of which are substantially similar to
67.12 the elements of any of the offenses listed in this clause. If
67.13 the defendant is convicted of one of the gross misdemeanors
67.14 listed in this clause, but the sentence is a misdemeanor
67.15 disposition, the lookback period for the conviction is the
67.16 period applicable to misdemeanors; or
67.17 (4) if less than seven years have passed since the
67.18 discharge of the sentence imposed for the offense; and the
67.19 individual has received a misdemeanor conviction for a violation
67.20 of any of the following offenses: sections 609.224 (assault in
67.21 the fifth degree); 609.2242 (domestic assault); violation of an
67.22 order for protection under 518B.01 (Domestic Abuse Act);
67.23 violation of an order for protection under 609.3232 (protective
67.24 order authorized; procedures; penalties); 609.746 (interference
67.25 with privacy); 609.79 (obscene or harassing phone calls);
67.26 609.795 (letter, telegram, or package; opening; harassment);
67.27 617.23 (indecent exposure; penalties); 609.2672 (assault of an
67.28 unborn child in the third degree); 617.293 (harmful materials;
67.29 dissemination and display to minors prohibited); 609.66
67.30 (dangerous weapons); 609.665 (spring guns); 609.2335 (financial
67.31 exploitation of a vulnerable adult); 609.234 (failure to report
67.32 maltreatment of a vulnerable adult); 609.52 (theft); 609.27
67.33 (coercion); or an attempt or conspiracy to commit any of these
67.34 offenses, as each of these offenses is defined in Minnesota
67.35 Statutes; or an offense in any other state or country, the
67.36 elements of which are substantially similar to the elements of
68.1 any of the offenses listed in this clause; a determination or
68.2 disposition of failure to make required reports under section
68.3 626.556, subdivision 3, or 626.557, subdivision 3, for incidents
68.4 in which: (i) the final disposition under section 626.556 or
68.5 626.557 was substantiated maltreatment, and (ii) the
68.6 maltreatment was recurring or serious; or a determination or
68.7 disposition of substantiated serious or recurring maltreatment
68.8 of a minor under section 626.556 or of a vulnerable adult under
68.9 section 626.557 for which there is a preponderance of evidence
68.10 that the maltreatment occurred, and that the subject was
68.11 responsible for the maltreatment.
68.12 For the purposes of this section, "serious maltreatment"
68.13 means sexual abuse; maltreatment resulting in death; or
68.14 maltreatment resulting in serious injury which reasonably
68.15 requires the care of a physician whether or not the care of a
68.16 physician was sought; or abuse resulting in serious injury. For
68.17 purposes of this section, "abuse resulting in serious injury"
68.18 means: bruises, bites, skin laceration or tissue damage;
68.19 fractures; dislocations; evidence of internal injuries; head
68.20 injuries with loss of consciousness; extensive second-degree or
68.21 third-degree burns and other burns for which complications are
68.22 present; extensive second-degree or third-degree frostbite, and
68.23 others for which complications are present; irreversible
68.24 mobility or avulsion of teeth; injuries to the eyeball;
68.25 ingestion of foreign substances and objects that are harmful;
68.26 near drowning; and heat exhaustion or sunstroke. For purposes
68.27 of this section, "care of a physician" is treatment received or
68.28 ordered by a physician, but does not include diagnostic testing,
68.29 assessment, or observation. For the purposes of this section,
68.30 "recurring maltreatment" means more than one incident of
68.31 maltreatment for which there is a preponderance of evidence that
68.32 the maltreatment occurred, and that the subject was responsible
68.33 for the maltreatment. For purposes of this section, "access"
68.34 means physical access to an individual receiving services or the
68.35 individual's personal property without continuous, direct
68.36 supervision as defined in section 245A.04, subdivision 3.
69.1 (b) Except for background studies related to child foster
69.2 care, adult foster care, or family child care licensure, when
69.3 the subject of a background study is regulated by a
69.4 health-related licensing board as defined in chapter 214, and
69.5 the regulated person has been determined to have been
69.6 responsible for substantiated maltreatment under section 626.556
69.7 or 626.557, instead of the commissioner making a decision
69.8 regarding disqualification, the board shall make a determination
69.9 whether to impose disciplinary or corrective action under
69.10 chapter 214.
69.11 (1) The commissioner shall notify the health-related
69.12 licensing board:
69.13 (i) upon completion of a background study that produces a
69.14 record showing that the individual was determined to have been
69.15 responsible for substantiated maltreatment;
69.16 (ii) upon the commissioner's completion of an investigation
69.17 that determined the individual was responsible for substantiated
69.18 maltreatment; or
69.19 (iii) upon receipt from another agency of a finding of
69.20 substantiated maltreatment for which the individual was
69.21 responsible.
69.22 (2) The commissioner's notice shall indicate whether the
69.23 individual would have been disqualified by the commissioner for
69.24 the substantiated maltreatment if the individual were not
69.25 regulated by the board. The commissioner shall concurrently
69.26 send this notice to the individual.
69.27 (3) Notwithstanding the exclusion from this subdivision for
69.28 individuals who provide child foster care, adult foster care, or
69.29 family child care, when the commissioner or a local agency has
69.30 reason to believe that the direct contact services provided by
69.31 the individual may fall within the jurisdiction of a
69.32 health-related licensing board, a referral shall be made to the
69.33 board as provided in this section.
69.34 (4) If, upon review of the information provided by the
69.35 commissioner, a health-related licensing board informs the
69.36 commissioner that the board does not have jurisdiction to take
70.1 disciplinary or corrective action, the commissioner shall make
70.2 the appropriate disqualification decision regarding the
70.3 individual as otherwise provided in this chapter.
70.4 (5) The commissioner has the authority to monitor the
70.5 facility's compliance with any requirements that the
70.6 health-related licensing board places on regulated persons
70.7 practicing in a facility either during the period pending a
70.8 final decision on a disciplinary or corrective action or as a
70.9 result of a disciplinary or corrective action. The commissioner
70.10 has the authority to order the immediate removal of a regulated
70.11 person from direct contact or access when a board issues an
70.12 order of temporary suspension based on a determination that the
70.13 regulated person poses an immediate risk of harm to persons
70.14 receiving services in a licensed facility.
70.15 (6) A facility that allows a regulated person to provide
70.16 direct contact services while not complying with the
70.17 requirements imposed by the health-related licensing board is
70.18 subject to action by the commissioner as specified under
70.19 sections 245A.06 and 245A.07.
70.20 (7) The commissioner shall notify a health-related
70.21 licensing board immediately upon receipt of knowledge of
70.22 noncompliance with requirements placed on a facility or upon a
70.23 person regulated by the board Disqualification shall be governed
70.24 according to sections 245C.14 and 245C.15.
70.25 Sec. 7. Minnesota Statutes 2002, section 245A.04,
70.26 subdivision 3e, is amended to read:
70.27 Subd. 3e. [VARIANCE FOR A DISQUALIFIED PERSON
70.28 INDIVIDUAL.] (a) When a background study subject's
70.29 disqualification has not been set aside by the commissioner, and
70.30 there are conditions under which the disqualified individual may
70.31 provide direct contact services or have access to people
70.32 receiving services that minimize the risk of harm to people
70.33 receiving services, the commissioner may grant a time-limited
70.34 variance to a license holder that states the reason for the
70.35 disqualification, the services that may be provided by the
70.36 disqualified individual, and the conditions with which the
71.1 license holder or applicant must comply for the variance to be
71.2 effective.
71.3 (b) Except for programs licensed to provide family day care
71.4 for children, foster care for children in the provider's own
71.5 home, or foster care or day care services for adults in the
71.6 provider's own home, the commissioner may not grant a variance
71.7 for a disqualified person unless the applicant or license holder
71.8 has requested the variance and the disqualified individual has
71.9 provided written consent for the commissioner to disclose to the
71.10 applicant or license holder the reason for the disqualification.
71.11 (c) When a license holder permits a disqualified individual
71.12 to provide any services for which the subject is disqualified
71.13 without complying with the conditions of the variance,
71.14 termination of the variance is immediate and the license holder
71.15 may be subject to fines or sanctions under sections 245A.06 and
71.16 245A.07.
71.17 (d) The commissioner may terminate a variance for a
71.18 disqualified person at any time for cause.
71.19 (e) The commissioner's decision to grant or deny a variance
71.20 request is final and not subject to appeal under the provisions
71.21 of chapter 14 A variance for a disqualified individual shall be
71.22 governed according to section 245C.30.
71.23 Sec. 8. Minnesota Statutes 2002, section 245A.04,
71.24 subdivision 3f, is amended to read:
71.25 Subd. 3f. [CONCLUSIVE DETERMINATIONS OR DISPOSITIONS.]
71.26 Unless otherwise specified in statute, the following
71.27 determinations or dispositions are deemed conclusive:
71.28 (1) a maltreatment determination or disposition under
71.29 section 626.556 or 626.557, if:
71.30 (i) the commissioner has issued a final order in an appeal
71.31 of that determination or disposition under section 245A.08,
71.32 subdivision 5, or 256.045;
71.33 (ii) the individual did not request reconsideration of the
71.34 maltreatment determination or disposition under section 626.556
71.35 or 626.557; or
71.36 (iii) the individual did not request a hearing of the
72.1 maltreatment determination or disposition under section 256.045;
72.2 and
72.3 (2) a determination that the information relied upon to
72.4 disqualify an individual under subdivision 3d was correct based
72.5 on serious or recurring maltreatment; or
72.6 (3) a preponderance of evidence shows that the individual
72.7 committed an act or acts that meet the definition of any of the
72.8 crimes listed in subdivision 3d, paragraph (a), clauses (1) to
72.9 (4); or the individual's failure to make required reports under
72.10 section 626.556, subdivision 3, or 626.557, subdivision 3, if:
72.11 (i) the commissioner has issued a final order in an appeal
72.12 of that determination under section 245A.08, subdivision 5, or
72.13 256.045, or a court has issued a final decision;
72.14 (ii) the individual did not request reconsideration of the
72.15 disqualification under this section; or
72.16 (iii) the individual did not request a hearing on the
72.17 disqualification under section 256.045 Whether a
72.18 disqualification determination or maltreatment determination or
72.19 disposition is deemed conclusive shall be governed according to
72.20 section 245C.29.
72.21 Sec. 9. Minnesota Statutes 2002, section 245A.041, is
72.22 amended to read:
72.23 245A.041 [SYSTEMS AND RECORDS.]
72.24 Subdivision 1. [ESTABLISHMENT; USE.] (a) The commissioner
72.25 may establish systems and records to fulfill the requirements of
72.26 section 245A.04. The commissioner may also use these systems
72.27 and records to obtain and provide criminal history data from the
72.28 bureau of criminal apprehension and data about substantiated
72.29 maltreatment under section 626.556 or 626.557, for other
72.30 purposes, provided that:
72.31 (1) the background study is specifically authorized in
72.32 statute; or
72.33 (2) the request is made with the informed consent of the
72.34 subject of the study as provided in section 13.05, subdivision 4.
72.35 A person making a request under clause (2) must agree in
72.36 writing not to disclose the data to any other person without the
73.1 consent of the subject of the data.
73.2 (b) The commissioner may recover the cost of obtaining and
73.3 providing background study data by charging the person
73.4 requesting the study a fee of no more than $12 per study. The
73.5 fees collected under this paragraph are appropriated to the
73.6 commissioner for the purpose of conducting background
73.7 studies The commissioner's establishment and use of systems and
73.8 records to fulfill the requirements under chapter 245C shall be
73.9 governed according to section 245C.32, subdivisions 1 and 2.
73.10 Subd. 2. [NATIONAL RECORDS SEARCH.] (a) When specifically
73.11 required by statute, the commissioner shall also obtain criminal
73.12 history data from the National Criminal Records Repository. To
73.13 obtain criminal history data from the National Criminal Records
73.14 Repository, the commissioner shall require classifiable
73.15 fingerprints of the data subject and must submit these
73.16 fingerprint requests through the bureau of criminal
73.17 apprehension. The commissioner may recover the cost of
73.18 obtaining and providing criminal history data from the National
73.19 Criminal Records Repository by charging the person requesting
73.20 the study a fee of no more than $30 per study. The fees
73.21 collected under this subdivision are appropriated to the
73.22 commissioner for the purpose of obtaining criminal history data
73.23 from the National Criminal Records Repository.
73.24 (b) To obtain criminal history data from the National
73.25 Criminal Records Repository under this chapter, the commissioner
73.26 may require the background study subject to submit fingerprint
73.27 images electronically. The commissioner may not require
73.28 electronic fingerprint images until the electronic recording and
73.29 transfer system is available for non-criminal-justice purposes
73.30 and the necessary equipment is in use in the law enforcement
73.31 agency in the background study subject's local
73.32 community National records searches shall be governed according
73.33 to section 245C.32, subdivision 3.
73.34 Sec. 10. [EFFECTIVE DATE.]
73.35 Sections 1 to 9 are effective the day following final
73.36 enactment.