HF 447

2nd Engrossment - 87th Legislature (2011 - 2012) Posted on 05/06/2011 08:30am

A bill for an act
relating to vulnerable adults; modifying provisions governing investigations,
reviews, and hearings; making the crime of criminal abuse of a vulnerable
adult a registrable offense under the predatory offender registration law;
changing terminology; increasing the criminal penalty for assaulting a vulnerable
adult; providing criminal penalties; amending Minnesota Statutes 2010,
sections 144.7065, subdivision 10; 243.166, subdivision 1b; 256.021; 256.045,
subdivision 4; 518.165, subdivision 5; 524.5-118, subdivision 2; 609.2231, by
adding a subdivision; 609.224, subdivision 2; 626.557, subdivisions 9, 9a, 9c, 9d,
12b, by adding a subdivision; 626.5571, subdivision 1; 626.5572, subdivision 13.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2010, section 144.7065, subdivision 10, is amended to
read:

Subd. 10.

Relation to other law; data classification.

(a) Adverse health events
described in subdivisions 2 to 6 do not constitute "maltreatment," "neglect," or "a physical
injury that is not reasonably explained" under section 626.556 or 626.557 and are excluded
from the reporting requirements of sections 626.556 and 626.557, provided the facility
makes a determination within 24 hours of the discovery of the event that this section is
applicable and the facility files the reports required under this section in a timely fashion.

(b) A facility that has determined that an event described in subdivisions 2 to 6
has occurred must inform persons who are mandated reporters under section 626.556,
subdivision 3, or 626.5572, subdivision 16, of that determination. A mandated reporter
otherwise required to report under section 626.556, subdivision 3, or 626.557, subdivision
3, paragraph (e), is relieved of the duty to report an event that the facility determines under
paragraph (a) to be reportable under subdivisions 2 to 6.

(c) The protections and immunities applicable to voluntary reports under sections
626.556 and 626.557 are not affected by this section.

(d) Notwithstanding section 626.556, 626.557, or any other provision of Minnesota
statute or rule to the contrary, deleted text begin neither deleted text end a lead agency under section 626.556, subdivision 3c,
deleted text begin or deleted text end new text begin a lead investigative agency under section new text end 626.5572, subdivision 13, the commissioner
of health, deleted text begin nor deleted text end new text begin or new text end the director of the Office of Health Facility Complaints is new text begin not new text end required to
conduct an investigation of or obtain or create investigative data or reports regarding an
event described in subdivisions 2 to 6. If the facility satisfies the requirements described
in paragraph (a), the review or investigation shall be conducted and data or reports shall
be obtained or created only under sections 144.706 to 144.7069, except as permitted
or required under sections 144.50 to 144.564, or as necessary to carry out the state's
certification responsibility under the provisions of sections 1864 and 1867 of the Social
Security Act. If a licensed health care provider reports an event to the facility required to
be reported under subdivisions 2 to 6 in a timely manner, the provider's licensing board is
not required to conduct an investigation of or obtain or create investigative data or reports
regarding the individual reporting of the events described in subdivisions 2 to 6.

(e) Data contained in the following records are nonpublic and, to the extent they
contain data on individuals, confidential data on individuals, as defined in section 13.02:

(1) reports provided to the commissioner under sections 147.155, 147A.155,
148.267, 151.301, and 153.255;

(2) event reports, findings of root cause analyses, and corrective action plans filed by
a facility under this section; and

(3) records created or obtained by the commissioner in reviewing or investigating
the reports, findings, and plans described in clause (2).

For purposes of the nonpublic data classification contained in this paragraph, the
reporting facility shall be deemed the subject of the data.

Sec. 2.

Minnesota Statutes 2010, section 243.166, subdivision 1b, is amended to read:

Subd. 1b.

Registration required.

(a) A person shall register under this section if:

(1) the person was charged with or petitioned for a felony violation of or attempt to
violate, or aiding, abetting, or conspiracy to commit, any of the following, and convicted
of or adjudicated delinquent for that offense or another offense arising out of the same
set of circumstances:

(i) murder under section 609.185, paragraph (a), clause (2);

(ii) kidnapping under section 609.25;

(iii) criminal sexual conduct under section 609.342; 609.343; 609.344; 609.345;
609.3451, subdivision 3; or 609.3453; or

(iv) indecent exposure under section 617.23, subdivision 3;

(2) the person was charged with or petitioned for a violation of, or attempt to
violate, or aiding, abetting, or deleted text begin conspiracy deleted text end new text begin conspiring new text end to commit new text begin criminal abuse in violation
of section 609.2325, subdivision 1, paragraph (b), new text end false imprisonment in violation of
section 609.255, subdivision 2; soliciting a minor to engage in prostitution in violation of
section 609.322 or 609.324; soliciting a minor to engage in sexual conduct in violation of
section 609.352; using a minor in a sexual performance in violation of section 617.246;
or possessing pornographic work involving a minor in violation of section 617.247, and
convicted of or adjudicated delinquent for that offense or another offense arising out
of the same set of circumstances;

(3) the person was sentenced as a patterned sex offender under section 609.3455,
subdivision 3a; or

(4) the person was convicted of or adjudicated delinquent for, including pursuant
to a court martial, violating a law of the United States, including the Uniform Code of
Military Justice, similar to the offenses described in clause (1), (2), or (3).

(b) A person also shall register under this section if:

(1) the person was convicted of or adjudicated delinquent in another state for an
offense that would be a violation of a law described in paragraph (a) if committed in
this state;

(2) the person enters this state to reside, work, or attend school, or enters this state
and remains for 14 days or longer; and

(3) ten years have not elapsed since the person was released from confinement
or, if the person was not confined, since the person was convicted of or adjudicated
delinquent for the offense that triggers registration, unless the person is subject to a longer
registration period under the laws of another state in which the person has been convicted
or adjudicated, or is subject to lifetime registration.

If a person described in this paragraph is subject to a longer registration period
in another state or is subject to lifetime registration, the person shall register for that
time period regardless of when the person was released from confinement, convicted, or
adjudicated delinquent.

(c) A person also shall register under this section if the person was committed
pursuant to a court commitment order under section 253B.185 or Minnesota Statutes
1992, section 526.10, or a similar law of another state or the United States, regardless of
whether the person was convicted of any offense.

(d) A person also shall register under this section if:

(1) the person was charged with or petitioned for a felony violation or attempt to
violate any of the offenses listed in paragraph (a), clause (1), or a similar law of another
state or the United States, or the person was charged with or petitioned for a violation of
any of the offenses listed in paragraph (a), clause (2), or a similar law of another state or
the United States;

(2) the person was found not guilty by reason of mental illness or mental deficiency
after a trial for that offense, or found guilty but mentally ill after a trial for that offense, in
states with a guilty but mentally ill verdict; and

(3) the person was committed pursuant to a court commitment order under section
253B.18 or a similar law of another state or the United States.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2011, and applies to crimes
committed on or after that date.
new text end

Sec. 3.

Minnesota Statutes 2010, section 256.021, is amended to read:

256.021 VULNERABLE ADULT MALTREATMENT REVIEW PANEL.

Subdivision 1.

Creation.

(a) The commissioner of human services shall establish a
review panel for purposes of reviewing lead new text begin investigative new text end agency determinations regarding
maltreatment of a vulnerable adult in response to requests received under section 626.557,
subdivision 9d, paragraph (b). The panel shall hold quarterly meetings for purposes of
conducting reviews under this section.

(b) The review panel consists of:

(1) the commissioners of health and human services or their designees;

(2) the deleted text begin ombudsperson deleted text end new text begin ombudsman new text end for deleted text begin older Minnesotans deleted text end new text begin long-term care new text end and
deleted text begin ombudsperson deleted text end new text begin ombudsman new text end for mental health and developmental disabilities, or their
designees; deleted text begin and
deleted text end

(3) a member of the board on aging, appointed by the board deleted text begin . deleted text end new text begin ; and new text end

new text begin (4) a representative from the county human services administrators appointed by the
commissioner of human services or the administrator's designee.
new text end

Subd. 2.

Review procedure.

(a) If a vulnerable adult or an interested person acting
on behalf of the vulnerable adult requests a review under this section, the panel shall
review the request at its next quarterly meeting. If the next quarterly meeting is within
ten days of the panel's receipt of the request for review, the review may be delayed until
the next subsequent meeting. The panel shall review the request and the investigation
memorandum and may review any other data on the investigation maintained by the lead
new text begin investigative new text end agency that are pertinent and necessary to its review of the final disposition.
If more than one person requests a review under this section with respect to the same final
disposition, the review panel shall combine the requests into one review. new text begin The panel shall
submit its written request for the case file and other documentation relevant to the review
to the supervisor of the investigator conducting the investigation under review.
new text end

(b) Within 30 days of the review under this section, the panel shall notify the new text begin director
or manager of the new text end lead new text begin investigative new text end agency and the vulnerable adult or interested person
who requested the review as to whether the panel deleted text begin agrees deleted text end new text begin concurs new text end with the final disposition
or whether the lead new text begin investigative new text end agency must reconsider the final disposition. If the panel
determines that the lead new text begin investigative new text end agency must reconsider the final disposition, the
panel must make specific deleted text begin investigative deleted text end recommendations to the new text begin director or manager of
the lead investigative new text end agency. new text begin The recommendation must include an explanation of the
factors that form the basis of the recommendation to reconsider the final disposition and
must specifically identify the disputed facts, the disputed application of maltreatment
definitions, the disputed application of responsibility for maltreatment, and the disputed
weighing of evidence, whichever apply. new text end Within 30 days the lead new text begin investigative new text end agency
shall conduct a review and report back to the panel with its determination and the specific
rationale for its final disposition. new text begin At a minimum, the specific rationale must include a
detailed response to each of the factors identified by the panel that formed the basis for the
recommendations of the panel.
new text end

new text begin (c) Upon receiving the report of reconsideration from the lead investigative agency,
the panel shall communicate the decision in writing to the vulnerable adult or interested
person acting on behalf of the vulnerable adult who requested the review. The panel
shall include the specific rationale provided by the lead investigative agency as part of
the communication.
new text end

Subd. 3.

Report.

By January 15 of each year, the panel shall submit a report to the
committees of the legislature with jurisdiction over section 626.557 regarding the number
of requests for review it receives under this section, the number of cases where the panel
requires the lead new text begin investigative new text end agency to reconsider its final disposition, and the number of
cases where the final disposition is changed, and any recommendations to improve the
review or investigative process.

Subd. 4.

Data.

Data of the review panel created new text begin or received new text end as part of a review
under this section are private data on individuals as defined in section 13.02.

Sec. 4.

Minnesota Statutes 2010, section 256.045, subdivision 4, is amended to read:

Subd. 4.

Conduct of hearings.

(a) All hearings held pursuant to subdivision 3, 3a,
3b, or 4a shall be conducted according to the provisions of the federal Social Security
Act and the regulations implemented in accordance with that act to enable this state to
qualify for federal grants-in-aid, and according to the rules and written policies of the
commissioner of human services. County agencies shall install equipment necessary to
conduct telephone hearings. A state human services referee may schedule a telephone
conference hearing when the distance or time required to travel to the county agency
offices will cause a delay in the issuance of an order, or to promote efficiency, or at the
mutual request of the parties. Hearings may be conducted by telephone conferences unless
the applicant, recipient, former recipient, person, or facility contesting maltreatment
objects. The hearing shall not be held earlier than five days after filing of the required
notice with the county or state agency. The state human services referee shall notify all
interested persons of the time, date, and location of the hearing at least five days before
the date of the hearing. Interested persons may be represented by legal counsel or other
representative of their choice, including a provider of therapy services, at the hearing
and may appear personally, testify and offer evidence, and examine and cross-examine
witnesses. The applicant, recipient, former recipient, person, or facility contesting
maltreatment shall have the opportunity to examine the contents of the case file and
all documents and records to be used by the county or state agency at the hearing at a
reasonable time before the date of the hearing and during the hearing. In hearings under
subdivision 3, paragraph (a), clauses (4), (8), and (9), either party may subpoena the
private data relating to the investigation prepared by the agency under section 626.556
or 626.557 that is not otherwise accessible under section 13.04, provided the identity of
the reporter may not be disclosed.

(b) The private data obtained by subpoena in a hearing under subdivision 3,
paragraph (a), clause (4), (8), or (9), must be subject to a protective order which prohibits
its disclosure for any other purpose outside the hearing provided for in this section without
prior order of the district court. Disclosure without court order is punishable by a sentence
of not more than 90 days imprisonment or a fine of not more than $1,000, or both. These
restrictions on the use of private data do not prohibit access to the data under section 13.03,
subdivision 6. Except for appeals under subdivision 3, paragraph (a), clauses (4), (5), (8),
and (9), upon request, the county agency shall provide reimbursement for transportation,
child care, photocopying, medical assessment, witness fee, and other necessary and
reasonable costs incurred by the applicant, recipient, or former recipient in connection with
the appeal. All evidence, except that privileged by law, commonly accepted by reasonable
people in the conduct of their affairs as having probative value with respect to the issues
shall be submitted at the hearing and such hearing shall not be "a contested case" within
the meaning of section 14.02, subdivision 3. The agency must present its evidence prior to
or at the hearing, and may not submit evidence after the hearing except by agreement of
the parties at the hearing, provided the petitioner has the opportunity to respond.

(c) In hearings under subdivision 3, paragraph (a), clauses (4), (8), and (9), involving
determinations of maltreatment or disqualification made by more than one county agency,
by a county agency and a state agency, or by more than one state agency, the hearings
may be consolidated into a single fair hearing upon the consent of all parties and the state
human services referee.

new text begin (d) For hearings under subdivision 3, paragraph (a), clause (4) or (10), involving a
vulnerable adult, the human services referee shall notify the vulnerable adult who is the
subject of the maltreatment determination and, if known, a guardian of the vulnerable adult
appointed under section 524.5-310, or a health care agent designated by the vulnerable
adult in a health care directive that is currently effective under section 145C.06 and whose
authority to make health care decisions is not suspended under section 524.5-310, of the
hearing. The notice must be sent by certified mail and inform the vulnerable adult of the
right to file a signed written statement in the proceedings. A guardian or health care
agent who prepares or files a written statement for the vulnerable adult must indicate in
the statement that the person is the vulnerable adult's guardian or health care agent and
sign the statement in that capacity. The vulnerable adult, the guardian, or the health care
agent may file a written statement with the human services referee hearing the case no
later than five business days before commencement of the hearing. The human services
referee shall include the written statement in the hearing record and consider the statement
in deciding the appeal. This subdivision does not limit, prevent, or excuse the vulnerable
adult from being called as a witness testifying at the hearing or grant the vulnerable adult,
the guardian, or health care agent a right to participate in the proceedings or appeal the
human services referee's decision in the case. The lead investigative agency must consider
including the vulnerable adult victim of maltreatment as a witness in the hearing. If the
lead investigative agency determines that participation in the hearing would endanger the
well-being of the vulnerable adult or not be in the best interests of the vulnerable adult,
the lead investigative agency shall inform the human services referee of the basis for this
determination, which must be included in the final order. If the human services referee
is not reasonably able to determine the address of the vulnerable adult, the guardian, or
the health care agent, the human services referee is not required to send a hearing notice
under this subdivision.
new text end

Sec. 5.

Minnesota Statutes 2010, section 518.165, subdivision 5, is amended to read:

Subd. 5.

Procedure, criminal history, and maltreatment records background
study.

(a) When the court requests a background study under subdivision 4, paragraph
(a), the request shall be submitted to the Department of Human Services through the
department's electronic online background study system.

(b) When the court requests a search of the National Criminal Records Repository,
the court must provide a set of classifiable fingerprints of the subject of the study on a
fingerprint card provided by the commissioner of human services.

(c) The commissioner of human services shall provide the court with criminal
history data as defined in section 13.87 from the Bureau of Criminal Apprehension in
the Department of Public Safety, other criminal history data held by the commissioner
of human services, and data regarding substantiated maltreatment of a minor under
section 626.556, and substantiated maltreatment of a vulnerable adult under section
626.557, within 15 working days of receipt of a request. If the subject of the study has
been determined by the Department of Human Services or the Department of Health
to be the perpetrator of substantiated maltreatment of a minor or vulnerable adult
in a licensed facility, the response must include a copy of the public portion of the
investigation memorandum under section 626.556, subdivision 10f, or the public portion
of the investigation memorandum under section 626.557, subdivision 12b. When the
background study shows that the subject has been determined by a county adult protection
or child protection agency to have been responsible for maltreatment, the court shall be
informed of the county, the date of the finding, and the nature of the maltreatment that
was substantiated. The commissioner shall provide the court with information from the
National Criminal Records Repository within three working days of the commissioner's
receipt of the data. When the commissioner finds no criminal history or substantiated
maltreatment on a background study subject, the commissioner shall make these results
available to the court electronically through the secure online background study system.

(d) Notwithstanding section 626.556, subdivision 10f, or 626.557, subdivision 12b,
if the commissioner or county lead agency new text begin or lead investigative agency new text end has information
that a person on whom a background study was previously done under this section has
been determined to be a perpetrator of maltreatment of a minor or vulnerable adult, the
commissioner or the county may provide this information to the court that requested the
background study.

Sec. 6.

Minnesota Statutes 2010, section 524.5-118, subdivision 2, is amended to read:

Subd. 2.

Procedure; criminal history and maltreatment records background
check.

(a) The court shall request the commissioner of human services to complete a
background study under section 245C.32. The request must be accompanied by the
applicable fee and the signed consent of the subject of the study authorizing the release of
the data obtained to the court. If the court is requesting a search of the National Criminal
Records Repository, the request must be accompanied by a set of classifiable fingerprints
of the subject of the study. The fingerprints must be recorded on a fingerprint card
provided by the commissioner of human services.

(b) The commissioner of human services shall provide the court with criminal
history data as defined in section 13.87 from the Bureau of Criminal Apprehension in the
Department of Public Safety, other criminal history data held by the commissioner of
human services, and data regarding substantiated maltreatment of vulnerable adults under
section 626.557 and substantiated maltreatment of minors under section 626.556 within
15 working days of receipt of a request. If the subject of the study has been the perpetrator
of substantiated maltreatment of a vulnerable adult or minor, the response must include
a copy of the public portion of the investigation memorandum under section 626.557,
subdivision 12b, or the public portion of the investigation memorandum under section
626.556, subdivision 10f. If the court did not request a search of the National Criminal
Records Repository and information from the Bureau of Criminal Apprehension indicates
that the subject is a multistate offender or that multistate offender status is undetermined,
the response must include this information. The commissioner shall provide the court with
information from the National Criminal Records Repository within three working days
of the commissioner's receipt of the data.

(c) Notwithstanding section 626.557, subdivision 12b, or 626.556, subdivision 10f,
if the commissioner of human services or a county lead agency new text begin or lead investigative
agency new text end has information that a person on whom a background study was previously done
under this section has been determined to be a perpetrator of maltreatment of a vulnerable
adult or minor, the commissioner or the county may provide this information to the court
that requested the background study. The commissioner may also provide the court
with additional criminal history or substantiated maltreatment information that becomes
available after the background study is done.

Sec. 7.

Minnesota Statutes 2010, section 609.2231, is amended by adding a subdivision
to read:

new text begin Subd. 8. new text end

new text begin Vulnerable adults. new text end

new text begin (a) As used in this subdivision, "vulnerable adult" has
the meaning given in section 609.232, subdivision 11.
new text end

new text begin (b) Whoever assaults and inflicts demonstrable bodily harm on a vulnerable adult,
knowing or having reason to know that the person is a vulnerable adult, is guilty of a
gross misdemeanor.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2011, and applies to crimes
committed on or after that date.
new text end

Sec. 8.

Minnesota Statutes 2010, section 609.224, subdivision 2, is amended to read:

Subd. 2.

Gross misdemeanor.

(a) Whoever violates the provisions of subdivision 1
against the same victim within ten years of a previous qualified domestic violence-related
offense conviction or adjudication of delinquency is guilty of a gross misdemeanor and
may be sentenced to imprisonment for not more than one year or to payment of a fine of
not more than $3,000, or both.

(b) Whoever violates the provisions of subdivision 1 within three years of a previous
qualified domestic violence-related offense conviction or adjudication of delinquency is
guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than
one year or to payment of a fine of not more than $3,000, or both.

deleted text begin (c) A caregiver, as defined in section 609.232, who is an individual and who violates
the provisions of subdivision 1 against a vulnerable adult, as defined in section 609.232, is
guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than
one year or to payment of a fine of not more than $3,000, or both. deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2011, and applies to crimes
committed on or after that date.
new text end

Sec. 9.

Minnesota Statutes 2010, section 626.557, subdivision 9, is amended to read:

Subd. 9.

Common entry point designation.

(a) Each county board shall designate
a common entry point for reports of suspected maltreatment. Two or more county boards
may jointly designate a single common entry point. The common entry point is the unit
responsible for receiving the report of suspected maltreatment under this section.

(b) The common entry point must be available 24 hours per day to take calls from
reporters of suspected maltreatment. The common entry point shall use a standard intake
form that includes:

(1) the time and date of the report;

(2) the name, address, and telephone number of the person reporting;

(3) the time, date, and location of the incident;

(4) the names of the persons involved, including but not limited to, perpetrators,
alleged victims, and witnesses;

(5) whether there was a risk of imminent danger to the alleged victim;

(6) a description of the suspected maltreatment;

(7) the disability, if any, of the alleged victim;

(8) the relationship of the alleged perpetrator to the alleged victim;

(9) whether a facility was involved and, if so, which agency licenses the facility;

(10) any action taken by the common entry point;

(11) whether law enforcement has been notified;

(12) whether the reporter wishes to receive notification of the initial and final
reports; and

(13) if the report is from a facility with an internal reporting procedure, the name,
mailing address, and telephone number of the person who initiated the report internally.

(c) The common entry point is not required to complete each item on the form prior
to dispatching the report to the appropriate new text begin lead new text end investigative agency.

(d) The common entry point shall immediately report to a law enforcement agency
any incident in which there is reason to believe a crime has been committed.

(e) If a report is initially made to a law enforcement agency or a lead new text begin investigative
new text end agency, those agencies shall take the report on the appropriate common entry point intake
forms and immediately forward a copy to the common entry point.

(f) The common entry point staff must receive training on how to screen and
dispatch reports efficiently and in accordance with this section.

(g) When a centralized database is available, the common entry point has access to
the centralized database and must log the reports deleted text begin in on deleted text end new text begin into new text end the database.

Sec. 10.

Minnesota Statutes 2010, section 626.557, subdivision 9a, is amended to read:

Subd. 9a.

Evaluation and referral of reports made to common entry point unit.

The common entry point must screen the reports of alleged or suspected maltreatment for
immediate risk and make all necessary referrals as follows:

(1) if the common entry point determines that there is an immediate need for
adult protective services, the common entry point agency shall immediately notify the
appropriate county agency;

(2) if the report contains suspected criminal activity against a vulnerable adult, the
common entry point shall immediately notify the appropriate law enforcement agency;

(3) the common entry point shall refer all reports of alleged or suspected
maltreatment to the appropriate lead new text begin investigative new text end agency as soon as possible, but in any
event no longer than two working days; and

(4) if the report contains information about a suspicious death, the common entry
point shall immediately notify the appropriate law enforcement agencies, the local
medical examiner, and the ombudsman new text begin for mental health and developmental disabilities
new text end established under section 245.92. Law enforcement agencies shall coordinate with the
local medical examiner and the ombudsman as provided by law.

Sec. 11.

Minnesota Statutes 2010, section 626.557, subdivision 9c, is amended to read:

Subd. 9c.

Lead new text begin investigative new text end agency; notifications, dispositions, determinations.

(a) Upon request of the reporter, the lead new text begin investigative new text end agency shall notify the reporter that
it has received the report, and provide information on the initial disposition of the report
within five business days of receipt of the report, provided that the notification will not
endanger the vulnerable adult or hamper the investigation.

(b) Upon conclusion of every investigation it conducts, the lead new text begin investigative new text end agency
shall make a final disposition as defined in section 626.5572, subdivision 8.

(c) When determining whether the facility or individual is the responsible party for
substantiated maltreatment or whether both the facility and the individual are responsible
for substantiated maltreatment, the lead new text begin investigative new text end agency shall consider at least the
following mitigating factors:

(1) whether the actions of the facility or the individual caregivers were in accordance
with, and followed the terms of, an erroneous physician order, prescription, resident
care plan, or directive. This is not a mitigating factor when the facility or caregiver is
responsible for the issuance of the erroneous order, prescription, plan, or directive or
knows or should have known of the errors and took no reasonable measures to correct the
defect before administering care;

(2) the comparative responsibility between the facility, other caregivers, and
requirements placed upon the employee, including but not limited to, the facility's
compliance with related regulatory standards and factors such as the adequacy of facility
policies and procedures, the adequacy of facility training, the adequacy of an individual's
participation in the training, the adequacy of caregiver supervision, the adequacy of facility
staffing levels, and a consideration of the scope of the individual employee's authority; and

(3) whether the facility or individual followed professional standards in exercising
professional judgment.

(d) When substantiated maltreatment is determined to have been committed by
an individual who is also the facility license holder, both the individual and the facility
must be determined responsible for the maltreatment, and both the background study
disqualification standards under section 245C.15, subdivision 4, and the licensing actions
under section 245A.06 or 245A.07 apply.

(e) The lead new text begin investigative new text end agency shall complete its final disposition within 60
calendar days. If the lead new text begin investigative new text end agency is unable to complete its final disposition
within 60 calendar days, the lead new text begin investigative new text end agency shall notify the following persons
provided that the notification will not endanger the vulnerable adult or hamper the
investigation: (1) the vulnerable adult or the vulnerable adult's deleted text begin legal deleted text end guardian new text begin or health
care agent new text end , when known, if the lead new text begin investigative new text end agency knows them to be aware of
the investigation; and (2) the facility, where applicable. The notice shall contain the
reason for the delay and the projected completion date. If the lead new text begin investigative new text end agency is
unable to complete its final disposition by a subsequent projected completion date, the
lead new text begin investigative new text end agency shall again notify the vulnerable adult or the vulnerable adult's
deleted text begin legal deleted text end guardian new text begin or health care agent new text end , when known if the lead new text begin investigative new text end agency knows
them to be aware of the investigation, and the facility, where applicable, of the reason for
the delay and the revised projected completion date provided that the notification will not
endanger the vulnerable adult or hamper the investigation. new text begin The lead investigative agency
must notify the health care agent of the vulnerable adult only if the health care agent's
authority to make health care decisions for the vulnerable adult is currently effective under
section 145C.06 and not suspended under section 524.5-310 and the investigation relates
to a duty assigned to the health care agent by the principal. new text end A lead new text begin investigative new text end agency's
inability to complete the final disposition within 60 calendar days or by any projected
completion date does not invalidate the final disposition.

(f) Within ten calendar days of completing the final disposition, the lead new text begin investigative
new text end agency shall provide a copy of the public investigation memorandum under subdivision
12b, paragraph (b), clause (1), when required to be completed under this section, to the
following persons: (1) the vulnerable adult, or the vulnerable adult's deleted text begin legal deleted text end guardian new text begin
or health care agent new text end , if known new text begin , new text end unless the lead new text begin investigative new text end agency knows that the
notification would endanger the well-being of the vulnerable adult; (2) the reporter, if the
reporter requested notification when making the report, provided this notification would
not endanger the well-being of the vulnerable adult; (3) the alleged perpetrator, if known;
(4) the facility; and (5) the ombudsman for long-term care, or the ombudsman for mental
health and developmental disabilities, as appropriate.

new text begin (g) If, as a result of a reconsideration, review, or hearing, the lead investigative
agency changes the final disposition, or if a final disposition is changed on appeal, the lead
investigative agency shall notify the parties specified in paragraph (f).
new text end

deleted text begin (g) deleted text end new text begin (h) new text end The lead new text begin investigative new text end agency shall notify the vulnerable adult who is the
subject of the report or the vulnerable adult's deleted text begin legal deleted text end guardian new text begin or health care agent new text end , if known,
and any person or facility determined to have maltreated a vulnerable adult, of their appeal
or review rights under this section or section 256.021.

deleted text begin (h) deleted text end new text begin (i) new text end The lead new text begin investigative new text end agency shall routinely provide investigation memoranda
for substantiated reports to the appropriate licensing boards. These reports must include
the names of substantiated perpetrators. The lead new text begin investigative new text end agency may not provide
investigative memoranda for inconclusive or false reports to the appropriate licensing
boards unless the lead new text begin investigative new text end agency's investigation gives reason to believe that
there may have been a violation of the applicable professional practice laws. If the
investigation memorandum is provided to a licensing board, the subject of the investigation
memorandum shall be notified and receive a summary of the investigative findings.

deleted text begin (i) deleted text end new text begin (j) new text end In order to avoid duplication, licensing boards shall consider the findings of
the lead new text begin investigative new text end agency in their investigations if they choose to investigate. This
does not preclude licensing boards from considering other information.

deleted text begin (j) deleted text end new text begin (k) new text end The lead new text begin investigative new text end agency must provide to the commissioner of human
services its final dispositions, including the names of all substantiated perpetrators.
The commissioner of human services shall establish records to retain the names of
substantiated perpetrators.

Sec. 12.

Minnesota Statutes 2010, section 626.557, subdivision 9d, is amended to read:

Subd. 9d.

Administrative reconsideration; review panel.

(a) Except as provided
under paragraph (e), any individual or facility which a lead new text begin investigative new text end agency
determines has maltreated a vulnerable adult, or the vulnerable adult or an interested
person acting on behalf of the vulnerable adult, regardless of the lead new text begin investigative
new text end agency's determination, who contests the lead new text begin investigative new text end agency's final disposition of an
allegation of maltreatment, may request the lead new text begin investigative new text end agency to reconsider its
final disposition. The request for reconsideration must be submitted in writing to the lead
new text begin investigative new text end agency within 15 calendar days after receipt of notice of final disposition or,
if the request is made by an interested person who is not entitled to notice, within 15 days
after receipt of the notice by the vulnerable adult or the vulnerable adult's deleted text begin legal deleted text end guardian new text begin
or health care agent new text end . If mailed, the request for reconsideration must be postmarked
and sent to the lead new text begin investigative new text end agency within 15 calendar days of the individual's or
facility's receipt of the final disposition. If the request for reconsideration is made by
personal service, it must be received by the lead new text begin investigative new text end agency within 15 calendar
days of the individual's or facility's receipt of the final disposition. An individual who
was determined to have maltreated a vulnerable adult under this section and who was
disqualified on the basis of serious or recurring maltreatment under sections 245C.14
and 245C.15, may request reconsideration of the maltreatment determination and the
disqualification. The request for reconsideration of the maltreatment determination and the
disqualification must be submitted in writing within 30 calendar days of the individual's
receipt of the notice of disqualification under sections 245C.16 and 245C.17. If mailed,
the request for reconsideration of the maltreatment determination and the disqualification
must be postmarked and sent to the lead new text begin investigative new text end agency within 30 calendar days of
the individual's receipt of the notice of disqualification. If the request for reconsideration
is made by personal service, it must be received by the lead new text begin investigative new text end agency within 30
calendar days after the individual's receipt of the notice of disqualification.

(b) Except as provided under paragraphs (e) and (f), if the lead new text begin investigative new text end agency
denies the request or fails to act upon the request within 15 working days after receiving
the request for reconsideration, the person or facility entitled to a fair hearing under
section 256.045, may submit to the commissioner of human services a written request for
a hearing under that statute. The vulnerable adult, or an interested person acting on behalf
of the vulnerable adult, may request a review by the Vulnerable Adult Maltreatment
Review Panel under section 256.021 if the lead new text begin investigative new text end agency denies the request
or fails to act upon the request, or if the vulnerable adult or interested person contests a
reconsidered disposition. The lead new text begin investigative new text end agency shall notify persons who request
reconsideration of their rights under this paragraph. The request must be submitted
in writing to the review panel and a copy sent to the lead new text begin investigative new text end agency within
30 calendar days of receipt of notice of a denial of a request for reconsideration or of a
reconsidered disposition. The request must specifically identify the aspects of the new text begin lead
investigative new text end agency determination with which the person is dissatisfied.

(c) If, as a result of a reconsideration or review, the lead new text begin investigative new text end agency changes
the final disposition, it shall notify the parties specified in subdivision 9c, paragraph deleted text begin (d) deleted text end new text begin (f) new text end .

(d) For purposes of this subdivision, "interested person acting on behalf of the
vulnerable adult" means a person designated in writing by the vulnerable adult to act
on behalf of the vulnerable adult, or a legal guardian or conservator or other legal
representative, a proxy or health care agent appointed under chapter 145B or 145C,
or an individual who is related to the vulnerable adult, as defined in section 245A.02,
subdivision 13.

(e) If an individual was disqualified under sections 245C.14 and 245C.15, on
the basis of a determination of maltreatment, which was serious or recurring, and
the individual has requested reconsideration of the maltreatment determination under
paragraph (a) and reconsideration of the disqualification under sections 245C.21 to
245C.27, reconsideration of the maltreatment determination and requested reconsideration
of the disqualification shall be consolidated into a single reconsideration. If reconsideration
of the maltreatment determination is denied and the individual remains disqualified
following a reconsideration decision, the individual may request a fair hearing under
section 256.045. If an individual requests a fair hearing on the maltreatment determination
and the disqualification, the scope of the fair hearing shall include both the maltreatment
determination and the disqualification.

(f) If a maltreatment determination or a disqualification based on serious or recurring
maltreatment is the basis for a denial of a license under section 245A.05 or a licensing
sanction under section 245A.07, the license holder has the right to a contested case hearing
under chapter 14 and Minnesota Rules, parts 1400.8505 to 1400.8612. As provided
for under section 245A.08, the scope of the contested case hearing must include the
maltreatment determination, disqualification, and licensing sanction or denial of a license.
In such cases, a fair hearing must not be conducted under section 256.045. Except for
family child care and child foster care, reconsideration of a maltreatment determination
under this subdivision, and reconsideration of a disqualification under section 245C.22,
must not be conducted when:

(1) a denial of a license under section 245A.05, or a licensing sanction under section
245A.07, is based on a determination that the license holder is responsible for maltreatment
or the disqualification of a license holder based on serious or recurring maltreatment;

(2) the denial of a license or licensing sanction is issued at the same time as the
maltreatment determination or disqualification; and

(3) the license holder appeals the maltreatment determination or disqualification, and
denial of a license or licensing sanction.

Notwithstanding clauses (1) to (3), if the license holder appeals the maltreatment
determination or disqualification, but does not appeal the denial of a license or a licensing
sanction, reconsideration of the maltreatment determination shall be conducted under
sections 626.556, subdivision 10i, and 626.557, subdivision 9d, and reconsideration of the
disqualification shall be conducted under section 245C.22. In such cases, a fair hearing
shall also be conducted as provided under sections 245C.27, 626.556, subdivision 10i, and
626.557, subdivision 9d.

If the disqualified subject is an individual other than the license holder and upon
whom a background study must be conducted under chapter 245C, the hearings of all
parties may be consolidated into a single contested case hearing upon consent of all parties
and the administrative law judge.

(g) Until August 1, 2002, an individual or facility that was determined by the
commissioner of human services or the commissioner of health to be responsible for
neglect under section 626.5572, subdivision 17, after October 1, 1995, and before August
1, 2001, that believes that the finding of neglect does not meet an amended definition of
neglect may request a reconsideration of the determination of neglect. The commissioner
of human services or the commissioner of health shall mail a notice to the last known
address of individuals who are eligible to seek this reconsideration. The request for
reconsideration must state how the established findings no longer meet the elements of
the definition of neglect. The commissioner shall review the request for reconsideration
and make a determination within 15 calendar days. The commissioner's decision on this
reconsideration is the final agency action.

(1) For purposes of compliance with the data destruction schedule under subdivision
12b, paragraph (d), when a finding of substantiated maltreatment has been changed as
a result of a reconsideration under this paragraph, the date of the original finding of a
substantiated maltreatment must be used to calculate the destruction date.

(2) For purposes of any background studies under chapter 245C, when a
determination of substantiated maltreatment has been changed as a result of a
reconsideration under this paragraph, any prior disqualification of the individual under
chapter 245C that was based on this determination of maltreatment shall be rescinded,
and for future background studies under chapter 245C the commissioner must not use the
previous determination of substantiated maltreatment as a basis for disqualification or as a
basis for referring the individual's maltreatment history to a health-related licensing board
under section 245C.31.

Sec. 13.

Minnesota Statutes 2010, section 626.557, subdivision 12b, is amended to
read:

Subd. 12b.

Data management.

(a) In performing any of the duties of this section as
a lead new text begin investigative new text end agency, the county social service agency shall maintain appropriate
records. Data collected by the county social service agency under this section are welfare
data under section 13.46. Notwithstanding section 13.46, subdivision 1, paragraph (a),
data under this paragraph that are inactive investigative data on an individual who is a
vendor of services are private data on individuals, as defined in section 13.02. The identity
of the reporter may only be disclosed as provided in paragraph (c).

Data maintained by the common entry point are confidential data on individuals or
protected nonpublic data as defined in section 13.02. Notwithstanding section 138.163,
the common entry point shall maintain data for three calendar years after date of receipt
and then destroy the data unless otherwise directed by federal requirements.

(b) The commissioners of health and human services shall prepare an investigation
memorandum for each report alleging maltreatment investigated under this section.
County social service agencies must maintain private data on individuals but are not
required to prepare an investigation memorandum. During an investigation by the
commissioner of health or the commissioner of human services, data collected under this
section are confidential data on individuals or protected nonpublic data as defined in
section 13.02. Upon completion of the investigation, the data are classified as provided in
clauses (1) to (3) and paragraph (c).

(1) The investigation memorandum must contain the following data, which are
public:

(i) the name of the facility investigated;

(ii) a statement of the nature of the alleged maltreatment;

(iii) pertinent information obtained from medical or other records reviewed;

(iv) the identity of the investigator;

(v) a summary of the investigation's findings;

(vi) statement of whether the report was found to be substantiated, inconclusive,
false, or that no determination will be made;

(vii) a statement of any action taken by the facility;

(viii) a statement of any action taken by the lead new text begin investigative new text end agency; and

(ix) when a lead new text begin investigative new text end agency's determination has substantiated maltreatment,
a statement of whether an individual, individuals, or a facility were responsible for the
substantiated maltreatment, if known.

The investigation memorandum must be written in a manner which protects the
identity of the reporter and of the vulnerable adult and may not contain the names or, to
the extent possible, data on individuals or private data listed in clause (2).

(2) Data on individuals collected and maintained in the investigation memorandum
are private data, including:

(i) the name of the vulnerable adult;

(ii) the identity of the individual alleged to be the perpetrator;

(iii) the identity of the individual substantiated as the perpetrator; and

(iv) the identity of all individuals interviewed as part of the investigation.

(3) Other data on individuals maintained as part of an investigation under this section
are private data on individuals upon completion of the investigation.

(c) After the assessment or investigation is completed, the name of the reporter
must be confidential. The subject of the report may compel disclosure of the name of the
reporter only with the consent of the reporter or upon a written finding by a court that
the report was false and there is evidence that the report was made in bad faith. This
subdivision does not alter disclosure responsibilities or obligations under the Rules of
Criminal Procedure, except that where the identity of the reporter is relevant to a criminal
prosecution, the district court shall do an in-camera review prior to determining whether
to order disclosure of the identity of the reporter.

(d) Notwithstanding section 138.163, data maintained under this section by the
commissioners of health and human services must be maintained under the following
schedule and then destroyed unless otherwise directed by federal requirements:

(1) data from reports determined to be false, maintained for three years after the
finding was made;

(2) data from reports determined to be inconclusive, maintained for four years after
the finding was made;

(3) data from reports determined to be substantiated, maintained for seven years
after the finding was made; and

(4) data from reports which were not investigated by a lead new text begin investigative new text end agency
and for which there is no final disposition, maintained for three years from the date of
the report.

(e) The commissioners of health and human services shall each annually report to
the legislature and the governor on the number and type of reports of alleged maltreatment
involving licensed facilities reported under this section, the number of those requiring
investigation under this section, and the resolution of those investigations. The report
shall identify:

(1) whether and where backlogs of cases result in a failure to conform with statutory
time frames;

(2) where adequate coverage requires additional appropriations and staffing; and

(3) any other trends that affect the safety of vulnerable adults.

(f) Each lead new text begin investigative new text end agency must have a record retention policy.

(g) Lead new text begin investigative new text end agencies, prosecuting authorities, and law enforcement
agencies may exchange not public data, as defined in section 13.02, if the agency or
authority requesting the data determines that the data are pertinent and necessary to the
requesting agency in initiating, furthering, or completing an investigation under this
section. Data collected under this section must be made available to prosecuting authorities
and law enforcement officials, local county agencies, and licensing agencies investigating
the alleged maltreatment under this section. The lead new text begin investigative new text end agency shall exchange
not public data with the vulnerable adult maltreatment review panel established in section
256.021 if the data are pertinent and necessary for a review requested under that section.
new text begin Notwithstanding section 138.17, new text end upon completion of the review, not public data received
by the review panel must be deleted text begin returned to the lead agency deleted text end new text begin destroyed new text end .

(h) Each lead new text begin investigative new text end agency shall keep records of the length of time it takes to
complete its investigations.

(i) A lead new text begin investigative new text end agency may notify other affected parties and their authorized
representative if the new text begin lead investigative new text end agency has reason to believe maltreatment has
occurred and determines the information will safeguard the well-being of the affected
parties or dispel widespread rumor or unrest in the affected facility.

(j) Under any notification provision of this section, where federal law specifically
prohibits the disclosure of patient identifying information, a lead new text begin investigative new text end agency may
not provide any notice unless the vulnerable adult has consented to disclosure in a manner
which conforms to federal requirements.

Sec. 14.

Minnesota Statutes 2010, section 626.557, is amended by adding a subdivision
to read:

new text begin Subd. 21. new text end

new text begin Contested case hearing. new text end

new text begin When an appeal of a lead investigative
agency determination results in a contested case hearing under chapter 245A or 245C,
the administrative law judge shall notify the vulnerable adult who is the subject of the
maltreatment determination and, if known, a guardian of the vulnerable adult appointed
under section 524.5-310, or a health care agent designated by the vulnerable adult in
a health care directive that is currently effective under section 145C.06, and whose
authority to make health care decisions is not suspended under section 524.5-310, of the
hearing. The notice must be sent by certified mail and inform the vulnerable adult of the
right to file a signed written statement in the proceedings. A guardian or health care
agent who prepares or files a written statement for the vulnerable adult must indicate in
the statement that the person is the vulnerable adult's guardian or health care agent and
sign the statement in that capacity. The vulnerable adult, the guardian, or the health care
agent may file a written statement with the administrative law judge hearing the case no
later than five business days before commencement of the hearing. The administrative
law judge shall include the written statement in the hearing record and consider the
statement in deciding the appeal. This subdivision does not limit, prevent, or excuse
the vulnerable adult from being called as a witness testifying at the hearing or grant the
vulnerable adult, the guardian, or health care agent a right to participate in the proceedings
or appeal the administrative law judge's decision in the case. The lead investigative
agency must consider including the vulnerable adult victim of maltreatment as a witness
in the hearing. If the lead investigative agency determines that participation in the hearing
would endanger the well-being of the vulnerable adult or not be in the best interests of
the vulnerable adult, the lead investigative agency shall inform the administrative law
judge of the basis for this determination, which must be included in the final order. If the
administrative law judge is not reasonably able to determine the address of the vulnerable
adult, the guardian, or the health care agent, the administrative law judge is not required to
send a hearing notice under this subdivision.
new text end

Sec. 15.

Minnesota Statutes 2010, section 626.5571, subdivision 1, is amended to read:

Subdivision 1.

Establishment of team.

A county may establish a multidisciplinary
adult protection team comprised of the director of the local welfare agency or designees,
the county attorney or designees, the county sheriff or designees, and representatives of
health care. In addition, representatives of mental health or other appropriate human
service agencies new text begin , representatives from local tribal governments, new text end and adult advocate groups
may be added to the adult protection team.

Sec. 16.

Minnesota Statutes 2010, section 626.5572, subdivision 13, is amended to
read:

Subd. 13.

Lead new text begin investigative new text end agency.

"Lead new text begin investigative new text end agency" is the primary
administrative agency responsible for investigating reports made under section 626.557.

(a) The Department of Health is the lead new text begin investigative new text end agency for deleted text begin the deleted text end facilities deleted text begin which
are deleted text end new text begin or services new text end licensed or deleted text begin are deleted text end required to be licensed as hospitals, home care providers,
nursing homes, deleted text begin residential care homes, deleted text end boarding care homes, deleted text begin or deleted text end new text begin hospice providers,
new text end residential facilities that are also federally certified as intermediate care facilities that serve
people with developmental disabilities new text begin , or any other facility or service not listed in this
subdivision that is licensed or required to be licensed by the Department of Health for
the care of vulnerable adults. "Home care provider" has the meaning provided in section
144A.43, subdivision 4, and applies when care or services are delivered in the vulnerable
adult's home, whether a private home or a housing with services establishment registered
under chapter 144D, including those that offer assisted living services under chapter 144G new text end .

(b) The Department of Human Services is the lead new text begin investigative new text end agency for deleted text begin the
programs deleted text end new text begin facilities or services new text end licensed or required to be licensed as adult day care,
adult foster care, programs for people with developmental disabilities, new text begin family adult day
services, new text end mental health programs, deleted text begin or deleted text end new text begin mental health clinics, new text end chemical deleted text begin health deleted text end new text begin dependency
new text end programs new text begin , the Minnesota sex offender program, or any other facility or service not listed
in this subdivision that is licensed or required to be licensed by the Department of Human
Services new text end .

(c) The county social service agency or its designee is the lead new text begin investigative new text end agency
for all other reports, including new text begin , but not limited to, new text end reports involving vulnerable adults
receiving services from deleted text begin an unlicensed deleted text end new text begin a new text end personal care provider organization under section
256B.0659.

Sec. 17. new text begin REVISOR'S INSTRUCTION.
new text end

new text begin The revisor of statutes shall change the terms "lead agency" and "lead agency's" to
"lead investigative agency" or "lead investigative agency's" wherever they appear in
Minnesota Statutes, sections 13A.02; 256.045; 626.557; and 626.5572.
new text end