1.1                          A bill for an act 
  1.2             relating to vulnerable adults; modifying provisions 
  1.3             dealing with assessment and investigation of reports; 
  1.4             providing for enforcement authority by the attorney 
  1.5             general over certain offenses against vulnerable 
  1.6             adults; amending Minnesota Statutes 2000, sections 
  1.7             8.31, subdivision 1; 256.021, subdivision 3; 626.557, 
  1.8             subdivisions 9c, 9e, 10, 12b.  
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  Minnesota Statutes 2000, section 8.31, 
  1.11  subdivision 1, is amended to read: 
  1.12     Subdivision 1.  [INVESTIGATE OFFENSES AGAINST THE 
  1.13  PROVISIONS OF CERTAIN DESIGNATED SECTIONS; ASSIST IN 
  1.14  ENFORCEMENT.] The attorney general shall investigate violations 
  1.15  of the law of this state respecting unfair, discriminatory, and 
  1.16  other unlawful practices in business, commerce, or trade, and 
  1.17  specifically, but not exclusively, the Nonprofit Corporation Act 
  1.18  (sections 317A.001 to 317A.909), the Act Against Unfair 
  1.19  Discrimination and Competition (sections 325D.01 to 325D.07), 
  1.20  the Unlawful Trade Practices Act (sections 325D.09 to 325D.16), 
  1.21  the Antitrust Act (sections 325D.49 to 325D.66), section 325F.67 
  1.22  and other laws against false or fraudulent advertising, the 
  1.23  antidiscrimination acts contained in section 325D.67, the act 
  1.24  against monopolization of food products (section 325D.68), the 
  1.25  act regulating telephone advertising services (section 325E.39), 
  1.26  the Prevention of Consumer Fraud Act (sections 325F.68 to 
  1.27  325F.70), and chapter 53A regulating currency exchanges, and 
  2.1   crimes against vulnerable adults (sections 609.232 to 609.2336); 
  2.2   and assist in the enforcement of those laws as in this section 
  2.3   provided. 
  2.4      Sec. 2.  Minnesota Statutes 2000, section 256.021, 
  2.5   subdivision 3, is amended to read: 
  2.6      Subd. 3.  [REPORT.] By January 15 of each year, the panel 
  2.7   shall submit a report to the committees of the legislature with 
  2.8   jurisdiction over section 626.557 regarding the number of 
  2.9   requests for review it receives under this section, the number 
  2.10  of cases where the panel requires the lead agency to reconsider 
  2.11  its final disposition, and the number of cases where the final 
  2.12  disposition is changed, and any.  The report must also include 
  2.13  recommendations to improve the review or investigative process, 
  2.14  observations of the panel regarding the quality of lead agency 
  2.15  investigations, the appropriateness and effectiveness of 
  2.16  disciplinary sanctions and actions against perpetrators of 
  2.17  maltreatment, and the extent that current law and practice 
  2.18  promotes the public policy of protecting vulnerable adults.  
  2.19     Sec. 3.  Minnesota Statutes 2000, section 626.557, 
  2.20  subdivision 9c, is amended to read: 
  2.21     Subd. 9c.  [LEAD AGENCY; NOTIFICATIONS, DISPOSITIONS, AND 
  2.22  DETERMINATIONS.] (a) Upon request of the reporter, The lead 
  2.23  agency shall notify the reporter that it has received the 
  2.24  report, and provide information on the initial disposition of 
  2.25  the report within five business days of receipt of the report, 
  2.26  provided that the notification will not endanger the vulnerable 
  2.27  adult or hamper the investigation. 
  2.28     (b) Upon conclusion of every investigation it conducts, the 
  2.29  lead agency shall make a final disposition as defined in section 
  2.30  626.5572, subdivision 8. 
  2.31     (c) When determining whether the facility or individual is 
  2.32  the responsible party for substantiated maltreatment, the lead 
  2.33  agency shall consider at least the following mitigating factors: 
  2.34     (1) whether the actions of the facility or the individual 
  2.35  caregivers were in accordance with, and followed the terms of, 
  2.36  an erroneous physician order, prescription, resident care plan, 
  3.1   or directive.  This is not a mitigating factor when the facility 
  3.2   or caregiver is responsible for the issuance of the erroneous 
  3.3   order, prescription, plan, or directive or knows or should have 
  3.4   known of the errors and took no reasonable measures to correct 
  3.5   the defect before administering care; 
  3.6      (2) the comparative responsibility between the facility, 
  3.7   other caregivers, and requirements placed upon the employee, 
  3.8   including but not limited to, the facility's compliance with 
  3.9   related regulatory standards and factors such as the adequacy of 
  3.10  facility policies and procedures, the adequacy of facility 
  3.11  training, the adequacy of an individual's participation in the 
  3.12  training, the adequacy of caregiver supervision, the adequacy of 
  3.13  facility staffing levels, and a consideration of the scope of 
  3.14  the individual employee's authority; and 
  3.15     (3) whether the facility or individual followed 
  3.16  professional standards in exercising professional judgment. 
  3.17     (d) The lead agency shall complete its final disposition 
  3.18  within 60 calendar days.  If the lead agency is unable to 
  3.19  complete its final disposition within 60 calendar days, the lead 
  3.20  agency shall notify the following persons provided that the 
  3.21  notification will not endanger the vulnerable adult or hamper 
  3.22  the investigation:  (1) the vulnerable adult or the vulnerable 
  3.23  adult's legal guardian, when known, if the lead agency knows 
  3.24  them to be aware of the investigation and (2) the facility, 
  3.25  where applicable.  The notice shall contain the reason for the 
  3.26  delay and the projected completion date.  If the lead agency is 
  3.27  unable to complete its final disposition by a subsequent 
  3.28  projected completion date, the lead agency shall again notify 
  3.29  the vulnerable adult or the vulnerable adult's legal guardian, 
  3.30  when known if the lead agency knows them to be aware of the 
  3.31  investigation, and the facility, where applicable, of the reason 
  3.32  for the delay and the revised projected completion date provided 
  3.33  that the notification will not endanger the vulnerable adult or 
  3.34  hamper the investigation.  A lead agency's inability to complete 
  3.35  the final disposition within 60 calendar days or by any 
  3.36  projected completion date does not invalidate the final 
  4.1   disposition. 
  4.2      (e) Within ten calendar days of completing the final 
  4.3   disposition, the lead agency shall provide a copy of the public 
  4.4   investigation memorandum described under subdivision 12b, 
  4.5   paragraph (a), clause (1), or paragraph (b), clause (1), when 
  4.6   required to be completed under this section, to the following 
  4.7   persons:  (1) the vulnerable adult, or the vulnerable adult's 
  4.8   legal guardian, if known unless the lead agency knows that the 
  4.9   notification would endanger the well-being of the vulnerable 
  4.10  adult; (2) the reporter, if the reporter requested notification 
  4.11  when making the report, provided this notification would not 
  4.12  endanger the well-being of the vulnerable adult; (3) the alleged 
  4.13  perpetrator, if known; (4) the facility; and (5) the ombudsman 
  4.14  for older Minnesotans, or the ombudsman for mental health and 
  4.15  mental retardation, as appropriate. 
  4.16     (f) The lead agency shall notify the vulnerable adult who 
  4.17  is the subject of the report or the vulnerable adult's legal 
  4.18  guardian, if known, and any person or facility determined to 
  4.19  have maltreated a vulnerable adult, of their appeal or review 
  4.20  rights under this section or section 256.021. 
  4.21     (g) The lead agency shall routinely provide investigation 
  4.22  memoranda for substantiated reports to the appropriate licensing 
  4.23  boards.  These reports must include the names of substantiated 
  4.24  perpetrators.  The lead agency may not provide investigative 
  4.25  memoranda for inconclusive or false reports to the appropriate 
  4.26  licensing boards unless the lead agency's investigation gives 
  4.27  reason to believe that there may have been a violation of the 
  4.28  applicable professional practice laws.  If the investigation 
  4.29  memorandum is provided to a licensing board, the subject of the 
  4.30  investigation memorandum shall be notified and receive a summary 
  4.31  of the investigative findings. 
  4.32     (h) In order to avoid duplication, licensing boards shall 
  4.33  consider the findings of the lead agency in their investigations 
  4.34  if they choose to investigate.  This does not preclude licensing 
  4.35  boards from considering other information. 
  4.36     (i) The lead agency must provide to the commissioner of 
  5.1   human services its final dispositions, including the names of 
  5.2   all substantiated perpetrators.  The commissioner of human 
  5.3   services shall establish records to retain the names of 
  5.4   substantiated perpetrators. 
  5.5      Sec. 4.  Minnesota Statutes 2000, section 626.557, 
  5.6   subdivision 9e, is amended to read: 
  5.7      Subd. 9e.  [EDUCATION REQUIREMENTS; PROTOCOLS.] (a) The 
  5.8   commissioners of health, human services, and public safety shall 
  5.9   cooperate in the development of a joint program for education of 
  5.10  lead agency investigators in the appropriate techniques for 
  5.11  investigation of complaints of maltreatment.  This program must 
  5.12  be developed by July 1, 1996.  The program must include but need 
  5.13  not be limited to the following areas:  (1) information 
  5.14  collection and preservation; (2) analysis of facts; (3) levels 
  5.15  of evidence; (4) conclusions based on evidence; (5) interviewing 
  5.16  skills, including specialized training to interview people with 
  5.17  unique needs; (6) protocols developed under paragraph (f); (7)  
  5.18  report writing of reports and investigation memorandum; (7) (8) 
  5.19  coordination and referral to other necessary agencies such as 
  5.20  law enforcement and judicial agencies; (8) (9) human relations 
  5.21  and cultural diversity; (9) (10) the dynamics of adult abuse and 
  5.22  neglect within family systems and the appropriate methods for 
  5.23  interviewing relatives in the course of the assessment or 
  5.24  investigation; (10) (11) the protective social services that are 
  5.25  available to protect alleged victims from further abuse, 
  5.26  neglect, or financial exploitation; (11) (12) the methods by 
  5.27  which lead agency investigators and law enforcement workers 
  5.28  cooperate in conducting assessments and investigations in order 
  5.29  to avoid duplication of efforts; and (12) (13) data practices 
  5.30  laws and procedures, including provisions for sharing data. 
  5.31     (b) The commissioners of health, human services, and public 
  5.32  safety shall offer at least annual education to others on the 
  5.33  requirements of this section, on how this section is 
  5.34  implemented, and investigation techniques. 
  5.35     (c) The commissioner of human services, in coordination 
  5.36  with the commissioner of public safety shall provide training 
  6.1   for the common entry point staff as required in this subdivision 
  6.2   and the program courses described in this subdivision, at least 
  6.3   four times per year.  At a minimum, the training shall be held 
  6.4   twice annually in the seven-county metropolitan area and twice 
  6.5   annually outside the seven-county metropolitan area.  The 
  6.6   commissioners shall give priority in the program areas cited in 
  6.7   paragraph (a) to persons currently performing assessments and 
  6.8   investigations pursuant to this section. 
  6.9      (d) The commissioner of public safety shall notify in 
  6.10  writing law enforcement personnel of any new requirements under 
  6.11  this section.  The commissioner of public safety shall conduct 
  6.12  regional training for law enforcement personnel regarding their 
  6.13  responsibility under this section. 
  6.14     (e) Each lead agency investigator must complete the 
  6.15  education program specified by this subdivision within the first 
  6.16  12 months of work as a lead agency investigator. 
  6.17     A lead agency investigator employed when these requirements 
  6.18  take effect must complete the program within the first year 
  6.19  after training is available or as soon as training is available. 
  6.20     All lead agency investigators having responsibility for 
  6.21  investigation duties under this section must receive a minimum 
  6.22  of eight hours of continuing education or in-service training 
  6.23  each year specific to their duties under this section. 
  6.24     (f) The commissioner of human services shall develop 
  6.25  protocols to be used by county social service agencies in 
  6.26  responding to, assessing, and investigating reports under this 
  6.27  section.  The protocols must include standards for instigation 
  6.28  of protective services, criteria and procedures for the 
  6.29  collection of available and relevant information, and interview 
  6.30  guidelines and requirements. 
  6.31     Sec. 5.  Minnesota Statutes 2000, section 626.557, 
  6.32  subdivision 10, is amended to read: 
  6.33     Subd. 10.  [DUTIES OF COUNTY SOCIAL SERVICE AGENCY.] (a) 
  6.34  The county social service agency shall comply with the protocols 
  6.35  developed by the commissioner of human services in responding 
  6.36  to, assessing, and investigating reports under this section.  
  7.1   Upon receipt of a report from the common entry point staff, the 
  7.2   county social service agency shall immediately assess and offer 
  7.3   emergency and continuing protective social services for purposes 
  7.4   of preventing further maltreatment and for safeguarding the 
  7.5   welfare of the maltreated vulnerable adult.  In cases of 
  7.6   suspected sexual abuse, the county social service agency shall 
  7.7   immediately arrange for and make available to the vulnerable 
  7.8   adult appropriate medical examination and treatment.  When 
  7.9   necessary in order to protect the vulnerable adult from further 
  7.10  harm, the county social service agency shall seek authority to 
  7.11  remove the vulnerable adult from the situation in which the 
  7.12  maltreatment occurred and shall seek any other appropriate 
  7.13  protective order reasonably necessary to prevent further 
  7.14  maltreatment.  The county social service agency may also 
  7.15  investigate to determine whether the conditions which resulted 
  7.16  in the reported maltreatment place other vulnerable adults in 
  7.17  jeopardy of being maltreated and offer protective social 
  7.18  services that are called for by its determination.  
  7.19     (b) County social service agencies may enter facilities and 
  7.20  inspect and copy records as part of an investigation.  The 
  7.21  county social service agency has access to not public data, as 
  7.22  defined in section 13.02, and medical records under section 
  7.23  144.335, that are maintained by facilities to the extent 
  7.24  necessary to conduct its investigation.  The inquiry is not 
  7.25  limited to the written records of the facility, but may include 
  7.26  every other available source of information.  
  7.27     (c) When necessary in order to protect a vulnerable adult 
  7.28  from serious harm, the county social service agency shall 
  7.29  immediately intervene on behalf of that adult to help the 
  7.30  family, vulnerable adult, or other interested person by seeking 
  7.31  any of the following:  
  7.32     (1) a restraining order or a court order for removal of the 
  7.33  perpetrator from the residence of the vulnerable adult pursuant 
  7.34  to section 518B.01; 
  7.35     (2) the appointment of a guardian or conservator pursuant 
  7.36  to sections 525.539 to 525.6198, or guardianship or 
  8.1   conservatorship pursuant to chapter 252A; 
  8.2      (3) replacement of a guardian or conservator suspected of 
  8.3   maltreatment and appointment of a suitable person as guardian or 
  8.4   conservator, pursuant to sections 525.539 to 525.6198; or 
  8.5      (4) a referral to the prosecuting attorney for possible 
  8.6   criminal prosecution of the perpetrator under chapter 609.  
  8.7      The expenses of legal intervention must be paid by the 
  8.8   county in the case of indigent persons, under section 525.703 
  8.9   and chapter 563.  
  8.10     In proceedings under sections 525.539 to 525.6198, if a 
  8.11  suitable relative or other person is not available to petition 
  8.12  for guardianship or conservatorship, a county employee shall 
  8.13  present the petition with representation by the county 
  8.14  attorney.  The county shall contract with or arrange for a 
  8.15  suitable person or organization to provide ongoing guardianship 
  8.16  services.  If the county presents evidence to the court 
  8.17  exercising probate jurisdiction that it has made a diligent 
  8.18  effort and no other suitable person can be found, a county 
  8.19  employee may serve as guardian or conservator.  The county shall 
  8.20  not retaliate against the employee for any action taken on 
  8.21  behalf of the ward or conservatee even if the action is adverse 
  8.22  to the county's interest.  Any person retaliated against in 
  8.23  violation of this subdivision shall have a cause of action 
  8.24  against the county and shall be entitled to reasonable attorney 
  8.25  fees and costs of the action if the action is upheld by the 
  8.26  court. 
  8.27     Sec. 6.  Minnesota Statutes 2000, section 626.557, 
  8.28  subdivision 12b, is amended to read: 
  8.29     Subd. 12b.  [DATA MANAGEMENT.] (a)(1) [COUNTY DATA.] In 
  8.30  performing any of the duties of this section as a lead agency, 
  8.31  the county social service agency shall maintain appropriate 
  8.32  records.  Data collected by the county social service agency 
  8.33  under this section are welfare data under section 13.46.  
  8.34  Notwithstanding section 13.46, subdivision 1, paragraph (a), 
  8.35  data under this paragraph that are inactive investigative data 
  8.36  on an individual who is a vendor of services are private data on 
  9.1   individuals, as defined in section 13.02.  The identity of the 
  9.2   reporter may only be disclosed as provided in paragraph 
  9.3   (c).  The county social service agency shall prepare an 
  9.4   investigation memorandum for each report alleging maltreatment 
  9.5   investigated under this section.  The investigation memorandum 
  9.6   must contain the following data, which are public:  
  9.7      (i) a statement of the nature of the alleged maltreatment; 
  9.8      (ii) pertinent information obtained from medical or other 
  9.9   records reviewed; 
  9.10     (iii) the identity of the investigator; 
  9.11     (iv) a summary of the investigation's findings; 
  9.12     (v) a statement of whether the report was found to be 
  9.13  substantiated, inconclusive, false, or that no determination 
  9.14  will be made; and 
  9.15     (vi) a statement of any action taken by the county social 
  9.16  service agency.  
  9.17     (2) Data maintained by the common entry point are 
  9.18  confidential data on individuals or protected nonpublic data as 
  9.19  defined in section 13.02.  Notwithstanding section 138.163, the 
  9.20  common entry point shall destroy data three calendar years after 
  9.21  date of receipt. 
  9.22     (b)  [LEAD AGENCY DATA.] The commissioners of health and 
  9.23  human services shall prepare an investigation memorandum for 
  9.24  each report alleging maltreatment investigated under this 
  9.25  section.  During an investigation by the commissioner of health 
  9.26  or the commissioner of human services, data collected under this 
  9.27  section are confidential data on individuals or protected 
  9.28  nonpublic data as defined in section 13.02.  Upon completion of 
  9.29  the investigation, the data are classified as provided in 
  9.30  clauses (1) to (3) and paragraph (c). 
  9.31     (1) The investigation memorandum must contain the following 
  9.32  data, which are public: 
  9.33     (i) the name of the facility investigated; 
  9.34     (ii) a statement of the nature of the alleged maltreatment; 
  9.35     (iii) pertinent information obtained from medical or other 
  9.36  records reviewed; 
 10.1      (iv) the identity of the investigator; 
 10.2      (v) a summary of the investigation's findings; 
 10.3      (vi) statement of whether the report was found to be 
 10.4   substantiated, inconclusive, false, or that no determination 
 10.5   will be made; 
 10.6      (vii) a statement of any action taken by the facility; 
 10.7      (viii) a statement of any action taken by the lead agency; 
 10.8   and 
 10.9      (ix) when a lead agency's determination has substantiated 
 10.10  maltreatment, a statement of whether an individual, individuals, 
 10.11  or a facility were responsible for the substantiated 
 10.12  maltreatment, if known. 
 10.13     The investigation memorandum must be written in a manner 
 10.14  which protects the identity of the reporter and of the 
 10.15  vulnerable adult and may not contain the names or, to the extent 
 10.16  possible, data on individuals or private data listed in clause 
 10.17  (2). 
 10.18     (2) Data on individuals collected and maintained in the 
 10.19  investigation memorandum are private data, including: 
 10.20     (i) the name of the vulnerable adult; 
 10.21     (ii) the identity of the individual alleged to be the 
 10.22  perpetrator; 
 10.23     (iii) the identity of the individual substantiated as the 
 10.24  perpetrator; and 
 10.25     (iv) the identity of all individuals interviewed as part of 
 10.26  the investigation. 
 10.27     (3) Other data on individuals maintained as part of an 
 10.28  investigation under this section are private data on individuals 
 10.29  upon completion of the investigation. 
 10.30     (c)  [IDENTITY OF REPORTER.] The subject of the report may 
 10.31  compel disclosure of the name of the reporter only with the 
 10.32  consent of the reporter or upon a written finding by a court 
 10.33  that the report was false and there is evidence that the report 
 10.34  was made in bad faith.  This subdivision does not alter 
 10.35  disclosure responsibilities or obligations under the rules of 
 10.36  criminal procedure, except that where the identity of the 
 11.1   reporter is relevant to a criminal prosecution, the district 
 11.2   court shall do an in-camera review prior to determining whether 
 11.3   to order disclosure of the identity of the reporter. 
 11.4      (d)  [DESTRUCTION OF DATA.] Notwithstanding section 
 11.5   138.163, data maintained under this section by the commissioners 
 11.6   of health and human services must be destroyed under the 
 11.7   following schedule: 
 11.8      (1) data from reports determined to be false, two years 
 11.9   after the finding was made; 
 11.10     (2) data from reports determined to be inconclusive, four 
 11.11  years after the finding was made; 
 11.12     (3) data from reports determined to be substantiated, seven 
 11.13  years after the finding was made; and 
 11.14     (4) data from reports which were not investigated by a lead 
 11.15  agency and for which there is no final disposition, two years 
 11.16  from the date of the report. 
 11.17     (e)  [SUMMARY OF REPORTS.] The commissioners of health and 
 11.18  human services shall each annually prepare a summary of the 
 11.19  number and type of reports of alleged maltreatment involving 
 11.20  licensed facilities reported under this section. 
 11.21     (f)  [RECORD RETENTION POLICY.] Each lead agency must have 
 11.22  a record retention policy. 
 11.23     (g)  [EXCHANGE OF INFORMATION.] Lead agencies, prosecuting 
 11.24  authorities, and law enforcement agencies may exchange not 
 11.25  public data, as defined in section 13.02, if the agency or 
 11.26  authority requesting the data determines that the data are 
 11.27  pertinent and necessary to the requesting agency in initiating, 
 11.28  furthering, or completing an investigation under this section.  
 11.29  Data collected under this section must be made available to 
 11.30  prosecuting authorities and law enforcement officials, local 
 11.31  county agencies, and licensing agencies investigating the 
 11.32  alleged maltreatment under this section.  The lead agency shall 
 11.33  exchange not public data with the vulnerable adult maltreatment 
 11.34  review panel established in section 256.021 if the data are 
 11.35  pertinent and necessary for a review requested under that 
 11.36  section.  Upon completion of the review, not public data 
 12.1   received by the review panel must be returned to the lead agency.
 12.2      (h)  [COMPLETION TIME.] Each lead agency shall keep records 
 12.3   of the length of time it takes to complete its investigations. 
 12.4      (i)  [NOTIFICATION OF OTHER AFFECTED PARTIES.] A lead 
 12.5   agency may notify other affected parties and their authorized 
 12.6   representative if the agency has reason to believe maltreatment 
 12.7   has occurred and determines the information will safeguard the 
 12.8   well-being of the affected parties or dispel widespread rumor or 
 12.9   unrest in the affected facility. 
 12.10     (j)  [FEDERAL REQUIREMENTS.] Under any notification 
 12.11  provision of this section, where federal law specifically 
 12.12  prohibits the disclosure of patient identifying information, a 
 12.13  lead agency may not provide any notice unless the vulnerable 
 12.14  adult has consented to disclosure in a manner which conforms to 
 12.15  federal requirements.