1.1                          A bill for an act 
  1.2             relating to health and human services; establishing 
  1.3             the right to seek licensure for excluded adult foster 
  1.4             care providers; changing requirements to background 
  1.5             studies for licensed programs; establishing tribal 
  1.6             licensing agency access to criminal history data; 
  1.7             clarifying tort liability licensing exception for 
  1.8             county agencies; amending Minnesota Statutes 1998, 
  1.9             sections 245A.03, subdivision 2, and by adding a 
  1.10            subdivision; 245A.04, subdivisions 3 and 3b; and 
  1.11            466.03, subdivision 6d; Minnesota Statutes 1999 
  1.12            Supplement, section 245A.04, subdivision 3d. 
  1.13  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.14     Section 1.  Minnesota Statutes 1998, section 245A.03, 
  1.15  subdivision 2, is amended to read: 
  1.16     Subd. 2.  [EXCLUSION FROM LICENSURE.] ~~Sections 245A.01 to~~ 
  1.17  ~~245A.16 do~~ This chapter does not apply to: 
  1.18     (1) residential or nonresidential programs that are 
  1.19  provided to a person by an individual who is related unless the 
  1.20  residential program is a child foster care placement made by a 
  1.21  local social services agency or a licensed child-placing agency, 
  1.22  except as provided in subdivision 2a; 
  1.23     (2) nonresidential programs that are provided by an 
  1.24  unrelated individual to persons from a single related family; 
  1.25     (3) residential or nonresidential programs that are 
  1.26  provided to adults who do not abuse chemicals or who do not have 
  1.27  a chemical dependency, a mental illness, mental retardation or a 
  1.28  related condition, a functional impairment, or a physical 
  1.29  handicap; 
  2.1      (4) sheltered workshops or work activity programs that are 
  2.2   certified by the commissioner of economic security; 
  2.3      (5) programs for children enrolled in kindergarten to the 
  2.4   12th grade and prekindergarten special education in a school as 
  2.5   defined in section 120A.22, subdivision 4, and programs serving 
  2.6   children in combined special education and regular 
  2.7   prekindergarten programs that are operated or assisted by the 
  2.8   commissioner of children, families, and learning; 
  2.9      (6) nonresidential programs primarily for children that 
  2.10  provide care or supervision, without charge for ten or fewer 
  2.11  days a year, and for periods of less than three hours a day 
  2.12  while the child's parent or legal guardian is in the same 
  2.13  building as the nonresidential program or present within another 
  2.14  building that is directly contiguous to the building in which 
  2.15  the nonresidential program is located; 
  2.16     (7) nursing homes or hospitals licensed by the commissioner 
  2.17  of health except as specified under section 245A.02; 
  2.18     (8) board and lodge facilities licensed by the commissioner 
  2.19  of health that provide services for five or more persons whose 
  2.20  primary diagnosis is mental illness who have refused an 
  2.21  appropriate residential program offered by a county agency.  
  2.22  This exclusion expires on July 1, 1990; 
  2.23     (9) homes providing programs for persons placed there by a 
  2.24  licensed agency for legal adoption, unless the adoption is not 
  2.25  completed within two years; 
  2.26     (10) programs licensed by the commissioner of corrections; 
  2.27     (11) recreation programs for children or adults that 
  2.28  operate for fewer than 40 calendar days in a calendar year or 
  2.29  programs operated by a park and recreation board of a city of 
  2.30  the first class whose primary purpose is to provide social and 
  2.31  recreational activities to school age children, provided the 
  2.32  program is approved by the park and recreation board; 
  2.33     (12) programs operated by a school as defined in section 
  2.34  120A.22, subdivision 4, whose primary purpose is to provide 
  2.35  child care to school-age children, provided the program is 
  2.36  approved by the district's school board; 
  3.1      (13) Head Start nonresidential programs which operate for 
  3.2   less than 31 days in each calendar year; 
  3.3      (14) noncertified boarding care homes unless they provide 
  3.4   services for five or more persons whose primary diagnosis is 
  3.5   mental illness or mental retardation; 
  3.6      (15) nonresidential programs for nonhandicapped children 
  3.7   provided for a cumulative total of less than 30 days in any 
  3.8   12-month period; 
  3.9      (16) residential programs for persons with mental illness, 
  3.10  that are located in hospitals, until the commissioner adopts 
  3.11  appropriate rules; 
  3.12     (17) the religious instruction of school-age children; 
  3.13  Sabbath or Sunday schools; or the congregate care of children by 
  3.14  a church, congregation, or religious society during the period 
  3.15  used by the church, congregation, or religious society for its 
  3.16  regular worship; 
  3.17     (18) camps licensed by the commissioner of health under 
  3.18  Minnesota Rules, chapter 4630; 
  3.19     (19) mental health outpatient services for adults with 
  3.20  mental illness or children with emotional disturbance; 
  3.21     (20) residential programs serving school-age children whose 
  3.22  sole purpose is cultural or educational exchange, until the 
  3.23  commissioner adopts appropriate rules; 
  3.24     (21) unrelated individuals who provide out-of-home respite 
  3.25  care services to persons with mental retardation or related 
  3.26  conditions from a single related family for no more than 90 days 
  3.27  in a 12-month period and the respite care services are for the 
  3.28  temporary relief of the person's family or legal representative; 
  3.29     (22) respite care services provided as a home and 
  3.30  community-based service to a person with mental retardation or a 
  3.31  related condition, in the person's primary residence; 
  3.32     (23) community support services programs as defined in 
  3.33  section 245.462, subdivision 6, and family community support 
  3.34  services as defined in section 245.4871, subdivision 17; 
  3.35     (24) the placement of a child by a birth parent or legal 
  3.36  guardian in a preadoptive home for purposes of adoption as 
  4.1   authorized by section 259.47; or 
  4.2      (25) settings registered under chapter 144D which provide 
  4.3   home care services licensed by the commissioner of health to 
  4.4   fewer than seven adults. 
  4.5      For purposes of clause (6), a building is directly 
  4.6   contiguous to a building in which a nonresidential program is 
  4.7   located if it shares a common wall with the building in which 
  4.8   the nonresidential program is located or is attached to that 
  4.9   building by skyway, tunnel, atrium, or common roof. 
  4.10     Sec. 2.  Minnesota Statutes 1998, section 245A.03, is 
  4.11  amended by adding a subdivision to read: 
  4.12     Subd. 5.  [EXCLUDED HOUSING WITH SERVICES PROGRAMS; RIGHT 
  4.13  TO SEEK LICENSURE.] Nothing in this section shall prohibit a 
  4.14  housing with services program that is excluded from licensure 
  4.15  under subdivision 2, clause (25), from seeking a license under 
  4.16  this chapter.  The commissioner shall ensure that any 
  4.17  application received from such an excluded provider is processed 
  4.18  in the same manner as all other applications for licensed adult 
  4.19  foster care. 
  4.20     Sec. 3.  Minnesota Statutes 1998, section 245A.04, 
  4.21  subdivision 3, is amended to read: 
  4.22     Subd. 3.  [BACKGROUND STUDY OF THE APPLICANT; DEFINITIONS.] 
  4.23  (a) Before the commissioner issues a license, the commissioner 
  4.24  shall conduct a study of the individuals specified in paragraph 
  4.25  (c), clauses (1) to (5), according to rules of the commissioner. 
  4.26     Beginning January 1, 1997, the commissioner shall also 
  4.27  conduct a study of employees providing direct contact services 
  4.28  for nonlicensed personal care provider organizations described 
  4.29  in paragraph (c), clause (5). 
  4.30     The commissioner shall recover the cost of these background 
  4.31  studies through a fee of no more than $12 per study charged to 
  4.32  the personal care provider organization.  
  4.33     Beginning August 1, 1997, the commissioner shall conduct 
  4.34  all background studies required under this chapter for adult 
  4.35  foster care providers who are licensed by the commissioner of 
  4.36  human services and registered under chapter 144D.  The 
  5.1   commissioner shall conduct these background studies in 
  5.2   accordance with this chapter.  The commissioner shall initiate a 
  5.3   pilot project to conduct up to 5,000 background studies under 
  5.4   this chapter in programs with joint licensure as home and 
  5.5   community-based services and adult foster care for people with 
  5.6   developmental disabilities when the license holder does not 
  5.7   reside in the foster care residence. 
  5.8      (b) Beginning July 1, 1998, the commissioner shall conduct 
  5.9   a background study on individuals specified in paragraph (c), 
  5.10  clauses (1) to (5), who perform direct contact services in a 
  5.11  nursing home or a home care agency licensed under chapter 144A 
  5.12  or a boarding care home licensed under sections 144.50 to 
  5.13  144.58, when the subject of the study resides outside Minnesota; 
  5.14  the study must be at least as comprehensive as that of a 
  5.15  Minnesota resident and include a search of information from the 
  5.16  criminal justice data communications network in the state where 
  5.17  the subject of the study resides. 
  5.18     (c) The applicant, license holder, the bureau of criminal 
  5.19  apprehension, the commissioner of health and county agencies, 
  5.20  after written notice to the individual who is the subject of the 
  5.21  study, shall help with the study by giving the commissioner 
  5.22  criminal conviction data and reports about the maltreatment of 
  5.23  adults substantiated under section 626.557 and the maltreatment 
  5.24  of minors in licensed programs substantiated under section 
  5.25  626.556.  The individuals to be studied shall include: 
  5.26     (1) the applicant; 
  5.27     (2) persons over the age of 13 living in the household 
  5.28  where the licensed program will be provided; 
  5.29     (3) current employees or contractors of the applicant who 
  5.30  will have direct contact with persons served by the facility, 
  5.31  agency, or program; 
  5.32     (4) volunteers or student volunteers who have direct 
  5.33  contact with persons served by the program to provide program 
  5.34  services, if the contact is not directly supervised by the 
  5.35  individuals listed in clause (1) or (3); and 
  5.36     (5) any person who, as an individual or as a member of an 
  6.1   organization, exclusively offers, provides, or arranges for 
  6.2   personal care assistant services under the medical assistance 
  6.3   program as authorized under sections 256B.04, subdivision 16, 
  6.4   and 256B.0625, subdivision 19. 
  6.5      The juvenile courts shall also help with the study by 
  6.6   giving the commissioner existing juvenile court records on 
  6.7   individuals described in clause (2) relating to delinquency 
  6.8   proceedings held within either the five years immediately 
  6.9   preceding the application or the five years immediately 
  6.10  preceding the individual's 18th birthday, whichever time period 
  6.11  is longer.  The commissioner shall destroy juvenile records 
  6.12  obtained pursuant to this subdivision when the subject of the 
  6.13  records reaches age 23.  
  6.14     For purposes of this section and Minnesota Rules, part 
  6.15  9543.3070, a finding that a delinquency petition is proven in 
  6.16  juvenile court shall be considered a conviction in state 
  6.17  district court. 
  6.18     For purposes of this subdivision, "direct contact" means 
  6.19  providing face-to-face care, training, supervision, counseling, 
  6.20  consultation, or medication assistance to persons served by a 
  6.21  program.  For purposes of this subdivision, "directly supervised"
  6.22  means an individual listed in clause (1), (3), or (5) is within 
  6.23  sight or hearing of a volunteer to the extent that the 
  6.24  individual listed in clause (1), (3), or (5) is capable at all 
  6.25  times of intervening to protect the health and safety of the 
  6.26  persons served by the program who have direct contact with the 
  6.27  volunteer. 
  6.28     A study of an individual in clauses (1) to (5) shall be 
  6.29  conducted at least upon application for initial license and 
  6.30  reapplication for a license.  The commissioner is not required 
  6.31  to conduct a study of an individual at the time of reapplication 
  6.32  for a license or if the individual has been continuously 
  6.33  affiliated with a foster care provider licensed by the 
  6.34  commissioner of human services and registered under chapter 
  6.35  144D, other than a family day care or foster care license, if:  
  6.36  (i) a study of the individual was conducted either at the time 
  7.1   of initial licensure or when the individual became affiliated 
  7.2   with the license holder; (ii) the individual has been 
  7.3   continuously affiliated with the license holder since the last 
  7.4   study was conducted; and (iii) the procedure described in 
  7.5   paragraph (d) has been implemented and was in effect 
  7.6   continuously since the last study was conducted.  For the 
  7.7   purposes of this section, a physician licensed under chapter 147 
  7.8   is considered to be continuously affiliated upon the license 
  7.9   holder's receipt from the commissioner of health or human 
  7.10  services of the physician's background study results.  For 
  7.11  individuals who are required to have background studies under 
  7.12  clauses (1) to (5) and who have been continuously affiliated 
  7.13  with a foster care provider that is licensed in more than one 
  7.14  county, criminal conviction data may be shared among those 
  7.15  counties in which the foster care programs are licensed.  A 
  7.16  county agency's receipt of criminal conviction data from another 
  7.17  county agency shall meet the criminal data background study 
  7.18  requirements of this section. 
  7.19     The commissioner may also conduct studies on individuals 
  7.20  specified in clauses (3) and (4) when the studies are initiated 
  7.21  by: 
  7.22     (i) personnel pool agencies; 
  7.23     (ii) temporary personnel agencies; 
  7.24     (iii) educational programs that train persons by providing 
  7.25  direct contact services in licensed programs; and 
  7.26     (iv) professional services agencies that are not licensed 
  7.27  and which contract with licensed programs to provide direct 
  7.28  contact services or individuals who provide direct contact 
  7.29  services. 
  7.30     Studies on individuals in items (i) to (iv) must be 
  7.31  initiated annually by these agencies, programs, and 
  7.32  individuals.  Except for personal care provider organizations, 
  7.33  no applicant, license holder, or individual who is the subject 
  7.34  of the study shall pay any fees required to conduct the study. 
  7.35     (1) At the option of the licensed facility, rather than 
  7.36  initiating another background study on an individual required to 
  8.1   be studied who has indicated to the licensed facility that a 
  8.2   background study by the commissioner was previously completed, 
  8.3   the facility may make a request to the commissioner for 
  8.4   documentation of the individual's background study status, 
  8.5   provided that: 
  8.6      (i) the facility makes this request using a form provided 
  8.7   by the commissioner; 
  8.8      (ii) in making the request the facility informs the 
  8.9   commissioner that either: 
  8.10     (A) the individual has been continuously affiliated with a 
  8.11  licensed facility since the individual's previous background 
  8.12  study was completed, or since October 1, 1995, whichever is 
  8.13  shorter; or 
  8.14     (B) the individual is affiliated only with a personnel pool 
  8.15  agency, a temporary personnel agency, an educational program 
  8.16  that trains persons by providing direct contact services in 
  8.17  licensed programs, or a professional services agency that is not 
  8.18  licensed and which contracts with licensed programs to provide 
  8.19  direct contact services or individuals who provide direct 
  8.20  contact services; and 
  8.21     (iii) the facility provides notices to the individual as 
  8.22  required in paragraphs (a) to (d), and that the facility is 
  8.23  requesting written notification of the individual's background 
  8.24  study status from the commissioner.  
  8.25     (2) The commissioner shall respond to each request under 
  8.26  paragraph (1) with a written or electronic notice to the 
  8.27  facility and the study subject.  If the commissioner determines 
  8.28  that a background study is necessary, the study shall be 
  8.29  completed without further request from a licensed agency or 
  8.30  notifications to the study subject.  
  8.31     (3) When a background study is being initiated by a 
  8.32  licensed facility or a foster care provider that is also 
  8.33  registered under chapter 144D, a study subject affiliated with 
  8.34  multiple licensed facilities may attach to the background study 
  8.35  form a cover letter indicating the additional facilities' names, 
  8.36  addresses, and background study identification numbers.  When 
  9.1   the commissioner receives such notices, each facility identified 
  9.2   by the background study subject shall be notified of the study 
  9.3   results.  The background study notice sent to the subsequent 
  9.4   agencies shall satisfy those facilities' responsibilities for 
  9.5   initiating a background study on that individual. 
  9.6      (d) If an individual who is affiliated with a program or 
  9.7   facility regulated by the department of human services or 
  9.8   department of health or who is affiliated with a nonlicensed 
  9.9   personal care provider organization, is convicted of a crime 
  9.10  constituting a disqualification under subdivision 3d, the 
  9.11  probation officer or corrections agent shall notify the 
  9.12  commissioner of the conviction.  The commissioner, in 
  9.13  consultation with the commissioner of corrections, shall develop 
  9.14  forms and information necessary to implement this paragraph and 
  9.15  shall provide the forms and information to the commissioner of 
  9.16  corrections for distribution to local probation officers and 
  9.17  corrections agents.  The commissioner shall inform individuals 
  9.18  subject to a background study that criminal convictions for 
  9.19  disqualifying crimes will be reported to the commissioner by the 
  9.20  corrections system.  A probation officer, corrections agent, or 
  9.21  corrections agency is not civilly or criminally liable for 
  9.22  disclosing or failing to disclose the information required by 
  9.23  this paragraph.  Upon receipt of disqualifying information, the 
  9.24  commissioner shall provide the notifications required in 
  9.25  subdivision 3a, as appropriate to agencies on record as having 
  9.26  initiated a background study or making a request for 
  9.27  documentation of the background study status of the individual.  
  9.28  This paragraph does not apply to family day care and child 
  9.29  foster care programs. 
  9.30     (e) The individual who is the subject of the study must 
  9.31  provide the applicant or license holder with sufficient 
  9.32  information to ensure an accurate study including the 
  9.33  individual's first, middle, and last name; home address, city, 
  9.34  county, and state of residence for the past five years; zip 
  9.35  code; sex; date of birth; and driver's license number.  The 
  9.36  applicant or license holder shall provide this information about 
 10.1   an individual in paragraph (c), clauses (1) to (5), on forms 
 10.2   prescribed by the commissioner.  By January 1, 2000, for 
 10.3   background studies conducted by the department of human 
 10.4   services, the commissioner shall implement a system for the 
 10.5   electronic transmission of:  (1) background study information to 
 10.6   the commissioner; and (2) background study results to the 
 10.7   license holder.  The commissioner may request additional 
 10.8   information of the individual, which shall be optional for the 
 10.9   individual to provide, such as the individual's social security 
 10.10  number or race. 
 10.11     (f) Except for child foster care, adult foster care, and 
 10.12  family day care homes, a study must include information related 
 10.13  to names of substantiated perpetrators of maltreatment of 
 10.14  vulnerable adults that has been received by the commissioner as 
 10.15  required under section 626.557, subdivision 9c, paragraph (i), 
 10.16  and the commissioner's records relating to the maltreatment of 
 10.17  minors in licensed programs, information from juvenile courts as 
 10.18  required in paragraph (c) for persons listed in paragraph (c), 
 10.19  clause (2), and information from the bureau of criminal 
 10.20  apprehension.  For child foster care, adult foster care, and 
 10.21  family day care homes, the study must include information from 
 10.22  the county agency's record of substantiated maltreatment of 
 10.23  adults, and the maltreatment of minors, information from 
 10.24  juvenile courts as required in paragraph (c) for persons listed 
 10.25  in paragraph (c), clause (2), and information from the bureau of 
 10.26  criminal apprehension.  The commissioner may also review arrest 
 10.27  and investigative information from the bureau of criminal 
 10.28  apprehension, the commissioner of health, a county attorney, 
 10.29  county sheriff, county agency, local chief of police, other 
 10.30  states, the courts, or the Federal Bureau of Investigation if 
 10.31  the commissioner has reasonable cause to believe the information 
 10.32  is pertinent to the disqualification of an individual listed in 
 10.33  paragraph (c), clauses (1) to (5).  The commissioner is not 
 10.34  required to conduct more than one review of a subject's records 
 10.35  from the Federal Bureau of Investigation if a review of the 
 10.36  subject's criminal history with the Federal Bureau of 
 11.1   Investigation has already been completed by the commissioner and 
 11.2   there has been no break in the subject's affiliation with the 
 11.3   license holder who initiated the background studies. 
 11.4      When the commissioner has reasonable cause to believe that 
 11.5   further pertinent information may exist on the subject, the 
 11.6   subject shall provide a set of classifiable fingerprints 
 11.7   obtained from an authorized law enforcement agency.  For 
 11.8   purposes of requiring fingerprints, the commissioner shall be 
 11.9   considered to have reasonable cause under, but not limited to, 
 11.10  the following circumstances: 
 11.11     (1) information from the bureau of criminal apprehension 
 11.12  indicates that the subject is a multistate offender; 
 11.13     (2) information from the bureau of criminal apprehension 
 11.14  indicates that multistate offender status is undetermined; or 
 11.15     (3) the commissioner has received a report from the subject 
 11.16  or a third party indicating that the subject has a criminal 
 11.17  history in a jurisdiction other than Minnesota. 
 11.18     (g) An applicant's or license holder's failure or refusal 
 11.19  to cooperate with the commissioner is reasonable cause to 
 11.20  disqualify a subject, deny a license application or immediately 
 11.21  suspend, suspend, or revoke a license.  Failure or refusal of an 
 11.22  individual to cooperate with the study is just cause for denying 
 11.23  or terminating employment of the individual if the individual's 
 11.24  failure or refusal to cooperate could cause the applicant's 
 11.25  application to be denied or the license holder's license to be 
 11.26  immediately suspended, suspended, or revoked. 
 11.27     (h) The commissioner shall not consider an application to 
 11.28  be complete until all of the information required to be provided 
 11.29  under this subdivision has been received.  
 11.30     (i) No person in paragraph (c), clause (1), (2), (3), (4), 
 11.31  or (5) who is disqualified as a result of this section may be 
 11.32  retained by the agency in a position involving direct contact 
 11.33  with persons served by the program. 
 11.34     (j) Termination of persons in paragraph (c), clause (1), 
 11.35  (2), (3), (4), or (5), made in good faith reliance on a notice 
 11.36  of disqualification provided by the commissioner shall not 
 12.1   subject the applicant or license holder to civil liability. 
 12.2      (k) The commissioner may establish records to fulfill the 
 12.3   requirements of this section. 
 12.4      (l) The commissioner may not disqualify an individual 
 12.5   subject to a study under this section because that person has, 
 12.6   or has had, a mental illness as defined in section 245.462, 
 12.7   subdivision 20. 
 12.8      (m) An individual subject to disqualification under this 
 12.9   subdivision has the applicable rights in subdivision 3a, 3b, or 
 12.10  3c. 
 12.11     (n) For the purposes of background studies completed by 
 12.12  tribal organizations performing licensing activities otherwise 
 12.13  required of the commissioner under this chapter, tribal 
 12.14  licensing agencies shall have the same access to criminal 
 12.15  history data as county licensing agencies and private licensing 
 12.16  agencies under this chapter. 
 12.17     Sec. 4.  Minnesota Statutes 1998, section 245A.04, 
 12.18  subdivision 3b, is amended to read: 
 12.19     Subd. 3b.  [RECONSIDERATION OF DISQUALIFICATION.] (a) The 
 12.20  individual who is the subject of the disqualification may 
 12.21  request a reconsideration of the disqualification.  
 12.22     The individual must submit the request for reconsideration 
 12.23  to the commissioner in writing.  A request for reconsideration 
 12.24  for an individual who has been sent a notice of disqualification 
 12.25  under subdivision 3a, paragraph (b), clause (1) or (2), must be 
 12.26  submitted within 30 calendar days of the disqualified 
 12.27  individual's receipt of the notice of disqualification.  A 
 12.28  request for reconsideration for an individual who has been sent 
 12.29  a notice of disqualification under subdivision 3a, paragraph 
 12.30  (b), clause (3), must be submitted within 15 calendar days of 
 12.31  the disqualified individual's receipt of the notice of 
 12.32  disqualification.  Removal of a disqualified individual from 
 12.33  direct contact shall be ordered if the individual does not 
 12.34  request reconsideration within the prescribed time, and for an 
 12.35  individual who submits a timely request for reconsideration, if 
 12.36  the disqualification is not set aside.  The individual must 
 13.1   present information showing that: 
 13.2      (1) the information the commissioner relied upon is 
 13.3   incorrect or inaccurate.  If the basis of a reconsideration 
 13.4   request is that a maltreatment determination or disposition 
 13.5   under section 626.556 or 626.557 is incorrect, and the 
 13.6   commissioner has issued a final order in an appeal of that 
 13.7   determination or disposition under section 256.045, the 
 13.8   commissioner's order is conclusive on the issue of maltreatment; 
 13.9   or 
 13.10     (2) the subject of the study does not pose a risk of harm 
 13.11  to any person served by the applicant or license holder. 
 13.12     (b) The commissioner may set aside the disqualification 
 13.13  under this section if the commissioner finds that the 
 13.14  information the commissioner relied upon is incorrect or the 
 13.15  individual does not pose a risk of harm to any person served by 
 13.16  the applicant or license holder.  In determining that an 
 13.17  individual does not pose a risk of harm, the commissioner shall 
 13.18  consider the consequences of the event or events that lead to 
 13.19  disqualification, whether there is more than one disqualifying 
 13.20  event, the vulnerability of the victim at the time of the event, 
 13.21  the time elapsed without a repeat of the same or similar event, 
 13.22  documentation of successful completion by the individual studied 
 13.23  of training or rehabilitation pertinent to the event, and any 
 13.24  other information relevant to reconsideration.  In reviewing a 
 13.25  disqualification under this section, the commissioner shall give 
 13.26  preeminent weight to the safety of each person to be served by 
 13.27  the license holder or applicant over the interests of the 
 13.28  license holder or applicant. 
 13.29     (c) Unless the information the commissioner relied on in 
 13.30  disqualifying an individual is incorrect, the commissioner may 
 13.31  not set aside the disqualification of an individual in 
 13.32  connection with a license to provide family day care for 
 13.33  children, foster care for children in the provider's own home, 
 13.34  or foster care or day care services for adults in the provider's 
 13.35  own home if: 
 13.36     (1) less than ten years have passed since the discharge of 
 14.1   the sentence imposed for the offense; and the individual has 
 14.2   been convicted of a violation of any offense listed in sections 
 14.3   609.20 (manslaughter in the first degree), 609.205 (manslaughter 
 14.4   in the second degree), criminal vehicular homicide under 609.21 
 14.5   (criminal vehicular homicide and injury), 609.215 (aiding 
 14.6   suicide or aiding attempted suicide), felony violations under 
 14.7   609.221 to 609.2231 (assault in the first, second, third, or 
 14.8   fourth degree), 609.713 (terroristic threats), 609.235 (use of 
 14.9   drugs to injure or to facilitate crime), 609.24 (simple 
 14.10  robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 
 14.11  609.255 (false imprisonment), 609.561 or 609.562 (arson in the 
 14.12  first or second degree), 609.71 (riot), burglary in the first or 
 14.13  second degree under 609.582 (burglary), 609.66 (dangerous 
 14.14  weapon), 609.665 (spring guns), 609.67 (machine guns and 
 14.15  short-barreled shotguns), 609.749 (harassment; stalking), 
 14.16  152.021 or 152.022 (controlled substance crime in the first or 
 14.17  second degree), 152.023, subdivision 1, clause (3) or (4), or 
 14.18  subdivision 2, clause (4) (controlled substance crime in the 
 14.19  third degree), 152.024, subdivision 1, clause (2), (3), or (4) 
 14.20  (controlled substance crime in the fourth degree), 609.224, 
 14.21  subdivision 2, paragraph (c) (fifth-degree assault by a 
 14.22  caregiver against a vulnerable adult), 609.228 (great bodily 
 14.23  harm caused by distribution of drugs), 609.23 (mistreatment of 
 14.24  persons confined), 609.231 (mistreatment of residents or 
 14.25  patients), 609.2325 (criminal abuse of a vulnerable adult), 
 14.26  609.233 (criminal neglect of a vulnerable adult), 609.2335 
 14.27  (financial exploitation of a vulnerable adult), 609.234 (failure 
 14.28  to report), 609.265 (abduction), 609.2664 to 609.2665 
 14.29  (manslaughter of an unborn child in the first or second degree), 
 14.30  609.267 to 609.2672 (assault of an unborn child in the first, 
 14.31  second, or third degree), 609.268 (injury or death of an unborn 
 14.32  child in the commission of a crime), 617.293 (disseminating or 
 14.33  displaying harmful material to minors), a gross misdemeanor 
 14.34  offense under 609.324, subdivision 1 (other prohibited acts), a 
 14.35  gross misdemeanor offense under 609.378 (neglect or endangerment 
 14.36  of a child), a gross misdemeanor offense under 609.377 
 15.1   (malicious punishment of a child), 609.72, subdivision 3 
 15.2   (disorderly conduct against a vulnerable adult); or an attempt 
 15.3   or conspiracy to commit any of these offenses, as each of these 
 15.4   offenses is defined in Minnesota Statutes; or an offense in any 
 15.5   other state, the elements of which are substantially similar to 
 15.6   the elements of any of the foregoing offenses; 
 15.7      (2) regardless of how much time has passed since the 
 15.8   discharge of the sentence imposed for the offense, the 
 15.9   individual was convicted of a violation of any offense listed in 
 15.10  sections 609.185 to 609.195 (murder in the first, second, or 
 15.11  third degree), 609.2661 to 609.2663 (murder of an unborn child 
 15.12  in the first, second, or third degree), a felony offense under 
 15.13  609.377 (malicious punishment of a child), 609.322 
 15.14  (solicitation, inducement, and promotion of prostitution), 
 15.15  609.342 to 609.345 (criminal sexual conduct in the first, 
 15.16  second, third, or fourth degree), 609.352 (solicitation of 
 15.17  children to engage in sexual conduct), 617.246 (use of minors in 
 15.18  a sexual performance), 617.247 (possession of pictorial 
 15.19  representations of a minor), 609.365 (incest), a felony offense 
 15.20  under sections 609.2242 and 609.2243 (domestic assault), a 
 15.21  felony offense of spousal abuse, a felony offense of child abuse 
 15.22  or neglect, a felony offense of a crime against children, or an 
 15.23  attempt or conspiracy to commit any of these offenses as defined 
 15.24  in Minnesota Statutes, or an offense in any other state, the 
 15.25  elements of which are substantially similar to any of the 
 15.26  foregoing offenses; 
 15.27     (3) within the seven years preceding the study, the 
 15.28  individual committed an act that constitutes maltreatment of a 
 15.29  child under section 626.556, subdivision 10e, and that resulted 
 15.30  in substantial bodily harm as defined in section 609.02, 
 15.31  subdivision 7a, or substantial mental or emotional harm as 
 15.32  supported by competent psychological or psychiatric evidence; or 
 15.33     (4) within the seven years preceding the study, the 
 15.34  individual was determined under section 626.557 to be the 
 15.35  perpetrator of a substantiated incident of maltreatment of a 
 15.36  vulnerable adult that resulted in substantial bodily harm as 
 16.1   defined in section 609.02, subdivision 7a, or substantial mental 
 16.2   or emotional harm as supported by competent psychological or 
 16.3   psychiatric evidence. 
 16.4      In the case of any ground for disqualification under 
 16.5   clauses (1) to (4), if the act was committed by an individual 
 16.6   other than the applicant or license holder residing in the 
 16.7   applicant's or license holder's home, the applicant or license 
 16.8   holder may seek reconsideration when the individual who 
 16.9   committed the act no longer resides in the home.  
 16.10     The disqualification periods provided under clauses (1), 
 16.11  (3), and (4) are the minimum applicable disqualification 
 16.12  periods.  The commissioner may determine that an individual 
 16.13  should continue to be disqualified from licensure because the 
 16.14  license holder or applicant poses a risk of harm to a person 
 16.15  served by that individual after the minimum disqualification 
 16.16  period has passed. 
 16.17     (d) The commissioner shall respond in writing or by 
 16.18  electronic transmission to all reconsideration requests for 
 16.19  which the basis for the request is that the information relied 
 16.20  upon by the commissioner to disqualify is incorrect or 
 16.21  inaccurate within 30 working days of receipt of a request and 
 16.22  all relevant information.  If the basis for the request is that 
 16.23  the individual does not pose a risk of harm, the commissioner 
 16.24  shall respond to the request within 15 working days after 
 16.25  receiving the request for reconsideration and all relevant 
 16.26  information.  If the disqualification is set aside, the 
 16.27  commissioner shall notify the applicant or license holder in 
 16.28  writing or by electronic transmission of the decision. 
 16.29     (e) Except as provided in subdivision 3c, the 
 16.30  commissioner's decision to disqualify an individual, including 
 16.31  the decision to grant or deny a rescission or set aside a 
 16.32  disqualification under this section, is the final administrative 
 16.33  agency action and shall not be subject to further review in a 
 16.34  contested case under chapter 14 involving a negative licensing 
 16.35  appeal taken in response to the disqualification or involving an 
 16.36  accuracy and completeness appeal under section 13.04. 
 17.1      Sec. 5.  Minnesota Statutes 1999 Supplement, section 
 17.2   245A.04, subdivision 3d, is amended to read: 
 17.3      Subd. 3d.  [DISQUALIFICATION.] When a background study 
 17.4   completed under subdivision 3 shows any of the following:  a 
 17.5   conviction of one or more crimes listed in clauses (1) to (4); 
 17.6   the individual has admitted to or a preponderance of the 
 17.7   evidence indicates the individual has committed an act or acts 
 17.8   that meet the definition of any of the crimes listed in clauses 
 17.9   (1) to (4); or an administrative determination listed under 
 17.10  clause (4), the individual shall be disqualified from any 
 17.11  position allowing direct contact with persons receiving services 
 17.12  from the license holder: 
 17.13     (1) regardless of how much time has passed since the 
 17.14  discharge of the sentence imposed for the offense, and unless 
 17.15  otherwise specified, regardless of the level of the conviction, 
 17.16  the individual was convicted of any of the following offenses:  
 17.17  sections 609.185 (murder in the first degree); 609.19 (murder in 
 17.18  the second degree); 609.195 (murder in the third degree); 
 17.19  609.2661 (murder of an unborn child in the first degree); 
 17.20  609.2662 (murder of an unborn child in the second degree); 
 17.21  609.2663 (murder of an unborn child in the third degree); 
 17.22  609.322 (solicitation, inducement, and promotion of 
 17.23  prostitution); 609.342 (criminal sexual conduct in the first 
 17.24  degree); 609.343 (criminal sexual conduct in the second degree); 
 17.25  609.344 (criminal sexual conduct in the third degree); 609.345 
 17.26  (criminal sexual conduct in the fourth degree); 609.352 
 17.27  (solicitation of children to engage in sexual conduct); 609.365 
 17.28  (incest); felony offense under 609.377 (malicious punishment of 
 17.29  a child); a felony offense under 609.378 (neglect or 
 17.30  endangerment of a child); a felony offense under 609.324, 
 17.31  subdivision 1 (other prohibited acts); 617.246 (use of minors in 
 17.32  sexual performance prohibited); 617.247 (possession of pictorial 
 17.33  representations of minors); a felony offense under sections 
 17.34  609.2242 and 609.2243 (domestic assault), a felony offense of 
 17.35  spousal abuse, a felony offense of child abuse or neglect, a 
 17.36  felony offense of a crime against children; or attempt or 
 18.1   conspiracy to commit any of these offenses as defined in 
 18.2   Minnesota Statutes, or an offense in any other state or country, 
 18.3   where the elements are substantially similar to any of the 
 18.4   offenses listed in this clause; 
 18.5      (2) if less than 15 years have passed since the discharge 
 18.6   of the sentence imposed for the offense; and the individual has 
 18.7   received a felony conviction for a violation of any of these 
 18.8   offenses:  sections 609.20 (manslaughter in the first degree); 
 18.9   609.205 (manslaughter in the second degree); 609.21 (criminal 
 18.10  vehicular homicide and injury); 609.215 (suicide); 609.221 to 
 18.11  609.2231 (assault in the first, second, third, or fourth 
 18.12  degree); repeat offenses under 609.224 (assault in the fifth 
 18.13  degree); repeat offenses under 609.3451 (criminal sexual conduct 
 18.14  in the fifth degree); 609.713 (terroristic threats); 609.235 
 18.15  (use of drugs to injure or facilitate crime); 609.24 (simple 
 18.16  robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 
 18.17  609.255 (false imprisonment); 609.561 (arson in the first 
 18.18  degree); 609.562 (arson in the second degree); 609.563 (arson in 
 18.19  the third degree); repeat offenses under 617.23 (indecent 
 18.20  exposure; penalties); repeat offenses under 617.241 (obscene 
 18.21  materials and performances; distribution and exhibition 
 18.22  prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 
 18.23  609.67 (machine guns and short-barreled shotguns); 609.749 
 18.24  (harassment; stalking; penalties); 609.228 (great bodily harm 
 18.25  caused by distribution of drugs); 609.2325 (criminal abuse of a 
 18.26  vulnerable adult); 609.2664 (manslaughter of an unborn child in 
 18.27  the first degree); 609.2665 (manslaughter of an unborn child in 
 18.28  the second degree); 609.267 (assault of an unborn child in the 
 18.29  first degree); 609.2671 (assault of an unborn child in the 
 18.30  second degree); 609.268 (injury or death of an unborn child in 
 18.31  the commission of a crime); ~~609.378 (neglect or endangerment of~~ 
 18.32  ~~a child); 609.324, subdivision 1 (other prohibited acts);~~ 609.52 
 18.33  (theft); 609.2335 (financial exploitation of a vulnerable 
 18.34  adult); 609.521 (possession of shoplifting gear); 609.582 
 18.35  (burglary); 609.625 (aggravated forgery); 609.63 (forgery); 
 18.36  609.631 (check forgery; offering a forged check); 609.635 
 19.1   (obtaining signature by false pretense); 609.27 (coercion); 
 19.2   609.275 (attempt to coerce); 609.687 (adulteration); 260C.301 
 19.3   (grounds for termination of parental rights); and chapter 152 
 19.4   (drugs; controlled substance).  An attempt or conspiracy to 
 19.5   commit any of these offenses, as each of these offenses is 
 19.6   defined in Minnesota Statutes; or an offense in any other state 
 19.7   or country, the elements of which are substantially similar to 
 19.8   the elements of the offenses in this clause.  If the individual 
 19.9   studied is convicted of one of the felonies listed in this 
 19.10  clause, but the sentence is a gross misdemeanor or misdemeanor 
 19.11  disposition, the lookback period for the conviction is the 
 19.12  period applicable to the disposition, that is the period for 
 19.13  gross misdemeanors or misdemeanors; 
 19.14     (3) if less than ten years have passed since the discharge 
 19.15  of the sentence imposed for the offense; and the individual has 
 19.16  received a gross misdemeanor conviction for a violation of any 
 19.17  of the following offenses:  sections 609.224 (assault in the 
 19.18  fifth degree); 609.2242 and 609.2243 (domestic assault); 
 19.19  violation of an order for protection under 518B.01, subdivision 
 19.20  14; 609.3451 (criminal sexual conduct in the fifth degree); 
 19.21  repeat offenses under 609.746 (interference with privacy); 
 19.22  repeat offenses under 617.23 (indecent exposure); 617.241 
 19.23  (obscene materials and performances); 617.243 (indecent 
 19.24  literature, distribution); 617.293 (harmful materials; 
 19.25  dissemination and display to minors prohibited); 609.71 (riot); 
 19.26  609.66 (dangerous weapons); 609.749 (harassment; stalking; 
 19.27  penalties); 609.224, subdivision 2, paragraph (c) (assault in 
 19.28  the fifth degree by a caregiver against a vulnerable adult); 
 19.29  609.23 (mistreatment of persons confined); 609.231 (mistreatment 
 19.30  of residents or patients); 609.2325 (criminal abuse of a 
 19.31  vulnerable adult); 609.233 (criminal neglect of a vulnerable 
 19.32  adult); 609.2335 (financial exploitation of a vulnerable adult); 
 19.33  609.234 (failure to report maltreatment of a vulnerable adult); 
 19.34  609.72, subdivision 3 (disorderly conduct against a vulnerable 
 19.35  adult); 609.265 (abduction); 609.378 (neglect or endangerment of 
 19.36  a child); 609.377 (malicious punishment of a child); 609.324, 
 20.1   subdivision 1a (other prohibited acts; minor engaged in 
 20.2   prostitution); 609.33 (disorderly house); 609.52 (theft); 
 20.3   609.582 (burglary); 609.631 (check forgery; offering a forged 
 20.4   check); 609.275 (attempt to coerce); or an attempt or conspiracy 
 20.5   to commit any of these offenses, as each of these offenses is 
 20.6   defined in Minnesota Statutes; or an offense in any other state 
 20.7   or country, the elements of which are substantially similar to 
 20.8   the elements of any of the offenses listed in this clause.  If 
 20.9   the defendant is convicted of one of the gross misdemeanors 
 20.10  listed in this clause, but the sentence is a misdemeanor 
 20.11  disposition, the lookback period for the conviction is the 
 20.12  period applicable to misdemeanors; or 
 20.13     (4) if less than seven years have passed since the 
 20.14  discharge of the sentence imposed for the offense; and the 
 20.15  individual has received a misdemeanor conviction for a violation 
 20.16  of any of the following offenses:  sections 609.224 (assault in 
 20.17  the fifth degree); 609.2242 (domestic assault); violation of an 
 20.18  order for protection under 518B.01 (Domestic Abuse Act); 
 20.19  violation of an order for protection under 609.3232 (protective 
 20.20  order authorized; procedures; penalties); 609.746 (interference 
 20.21  with privacy); 609.79 (obscene or harassing phone calls); 
 20.22  609.795 (letter, telegram, or package; opening; harassment); 
 20.23  617.23 (indecent exposure; penalties); 609.2672 (assault of an 
 20.24  unborn child in the third degree); 617.293 (harmful materials; 
 20.25  dissemination and display to minors prohibited); 609.66 
 20.26  (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
 20.27  exploitation of a vulnerable adult); 609.234 (failure to report 
 20.28  maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
 20.29  (coercion); or an attempt or conspiracy to commit any of these 
 20.30  offenses, as each of these offenses is defined in Minnesota 
 20.31  Statutes; or an offense in any other state or country, the 
 20.32  elements of which are substantially similar to the elements of 
 20.33  any of the offenses listed in this clause; failure to make 
 20.34  required reports under section 626.556, subdivision 3, or 
 20.35  626.557, subdivision 3, for incidents in which:  (i) the final 
 20.36  disposition under section 626.556 or 626.557 was substantiated 
 21.1   maltreatment, and (ii) the maltreatment was recurring or 
 21.2   serious; or substantiated serious or recurring maltreatment of a 
 21.3   minor under section 626.556 or of a vulnerable adult under 
 21.4   section 626.557 for which there is a preponderance of evidence 
 21.5   that the maltreatment occurred, and that the subject was 
 21.6   responsible for the maltreatment.  For the purposes of this 
 21.7   section, serious maltreatment means sexual abuse; maltreatment 
 21.8   resulting in death; or maltreatment resulting in serious injury 
 21.9   or harm which reasonably requires the care of a physician 
 21.10  whether or not the care of a physician was sought; or abuse 
 21.11  resulting in serious injury.  For purposes of this section, 
 21.12  abuse resulting in serious injury means:  bruises, bites, skin 
 21.13  laceration or tissue damage; fractures; dislocations; evidence 
 21.14  of internal injuries; head injuries with loss of consciousness; 
 21.15  extensive second-degree or third-degree burns and other burns 
 21.16  for which complications are present; extensive second-degree or 
 21.17  third-degree frostbite, and others for which complications are 
 21.18  present; irreversible mobility or avulsion of teeth; injuries to 
 21.19  the eyeball; ingestion of foreign substances and objects that 
 21.20  are harmful; near drowning; and heat exhaustion or sunstroke.  
 21.21  For purposes of this section, "care of a physician" is treatment 
 21.22  received or ordered by a physician, but does not include 
 21.23  diagnostic testing, assessment, or observation.  For the 
 21.24  purposes of this section, recurring maltreatment means more than 
 21.25  one incident of maltreatment for which there is a preponderance 
 21.26  of evidence that the maltreatment occurred, and that the subject 
 21.27  was responsible for the maltreatment. 
 21.28     Sec. 6.  Minnesota Statutes 1998, section 466.03, 
 21.29  subdivision 6d, is amended to read: 
 21.30     Subd. 6d.  [LICENSING OF PROVIDERS.] ~~A~~ Any claim against a 
 21.31  municipality based on ~~the failure of a provider to meet the~~ 
 21.32  ~~standards needed for a license to operate a day care facility~~ 
 21.33  ~~under chapter 245A for children, unless the municipality had~~ 
 21.34  ~~actual knowledge of a failure to meet licensing standards that~~ 
 21.35  ~~resulted in a dangerous condition that foreseeably threatened~~ 
 21.36  ~~the plaintiff~~ licensing activities that have been delegated to 
 22.1   the municipality under chapter 245A shall be subject to the 
 22.2   exclusion contained in section 3.736, subdivision 3. 
 22.3      Sec. 7.  [INSTRUCTION TO REVISOR.] 
 22.4      In the next edition of Minnesota Statutes, the revisor of 
 22.5   statutes shall replace any references to "sections 245A.01 to 
 22.6   245A.16" in chapter 245A with "this chapter."