4th Engrossment - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to human services; licensing; administrative 1.3 hearings; vulnerable adults reporting act; imposing 1.4 criminal penalties; increasing licensing fees for 1.5 certain facilities; requiring reports of convictions 1.6 to the commissioner in certain instances; requiring a 1.7 report to the legislature; appropriating money; 1.8 amending Minnesota Statutes 1994, sections 13.46, 1.9 subdivision 4; 13.82, subdivision 10, and by adding 1.10 subdivisions; 13.88; 13.99, subdivision 113; 144.4172, 1.11 subdivision 8; 144.651, subdivisions 14 and 21; 1.12 144A.103, subdivision 1; 144A.612; 144B.13; 148B.68, 1.13 subdivision 1; 214.10, subdivision 2a; 245A.04, 1.14 subdivisions 3 and 3b; 253B.02, subdivision 4a; 1.15 256.045, subdivisions 1, 3, 4, 5, 6, 7, 8, 9, and by 1.16 adding a subdivision; 256E.03, subdivision 2; 1.17 256E.081, subdivision 4; 268.09, subdivision 1; 1.18 325F.692, subdivision 2; 525.703, subdivision 3; 1.19 609.224, subdivision 2; 609.268, subdivisions 1 and 2; 1.20 609.72, by adding a subdivision; 609.7495, subdivision 1.21 1; 626.556, subdivision 12; 626.557, subdivisions 1, 1.22 3, 3a, 4, 5, 6, 7, 8, 9, 10, 14, 16, 17, 18, and by 1.23 adding subdivisions; and 631.40, by adding a 1.24 subdivision; proposing coding for new law in Minnesota 1.25 Statutes, chapters 144; 609; and 626; repealing 1.26 Minnesota Statutes 1994, sections 609.23; 609.231; and 1.27 626.557, subdivisions 2, 10a, 11, 11a, 12, 13, 15, and 1.28 19. 1.29 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.30 ARTICLE 1 1.31 VULNERABLE ADULTS ACT AMENDMENTS 1.32 Section 1. Minnesota Statutes 1994, section 626.557, 1.33 subdivision 1, is amended to read: 1.34 Subdivision 1. [PUBLIC POLICY.] The legislature declares 1.35 that the public policy of this state is to protect adults who, 1.36 because of physical or mental disability or dependency on 1.37 institutional services, are particularly vulnerable toabuse or2.1neglectmaltreatment; to assist in providing safe environments 2.2 for vulnerable adults; and to provide safe institutional or 2.3 residential services, community-based services, or living 2.4 environments for vulnerable adults who have beenabused or2.5neglected; and to assist persons charged with the care of2.6vulnerable adults to provide safe environmentsmaltreated. 2.7 In addition, it is the policy of this state to require the 2.8 reporting of suspectedabuse or neglectmaltreatment of 2.9 vulnerable adults, to provide for the voluntary reporting 2.10 ofabuse or neglectmaltreatment of vulnerable adults, to 2.11 require the investigation of the reports, and to provide 2.12 protective and counseling services in appropriate cases. 2.13 Sec. 2. Minnesota Statutes 1994, section 626.557, 2.14 subdivision 3, is amended to read: 2.15 Subd. 3. [PERSONS MANDATED TOTIMING OF REPORT.]A2.16professional or the professional's delegate who is engaged in2.17the care of vulnerable adults, education, social services, law2.18enforcement, or any of the regulated occupations referenced in2.19subdivision 2, clause (g)(3) and (4), or an employee of a2.20rehabilitation facility certified by the commissioner of2.21economic security for vocational rehabilitation, or an employee2.22of or person providing services in a facility who has knowledge2.23of the abuse or neglect of a vulnerable adult, has reasonable2.24cause to believe(a) A mandated reporter who has reason to 2.25 believe that a vulnerable adult is being or has beenabused or2.26neglectedmaltreated, or who has knowledge that a vulnerable 2.27 adult has sustained a physical injury which is not reasonably 2.28 explainedby the history of injuries provided by the caretaker2.29or caretakers of the vulnerable adultshall immediately report 2.30 the information to thelocal police department, county sheriff,2.31local welfare agency, or appropriate licensing or certifying2.32agencycommon entry point. If an individual is a vulnerable 2.33 adult solely because the individual is admitted to a facility, a 2.34 mandated reporter is not required to report suspected 2.35 maltreatment of the individual that occurred prior to admission, 2.36 unless: 3.1 (1) the individual was admitted to the facility from 3.2 another facility and the reporter has reason to believe the 3.3 vulnerable adult was maltreated in the previous facility; or 3.4 (2) the reporter knows or has reason to believe that the 3.5 individual is a vulnerable adult as defined in section 626.5572, 3.6 subdivision 21, clause (4).The police department or the county3.7sheriff, upon receiving a report, shall immediately notify the3.8local welfare agency. The local welfare agency, upon receiving3.9a report, shall immediately notify the local police department3.10or the county sheriff and the appropriate licensing agency or3.11agencies.3.12 (b) A person not required to report under the provisions of 3.13 thissubdivisionsection may voluntarily report as described 3.14 above.Medical examiners or coroners shall notify the police3.15department or county sheriff and the local welfare department in3.16instances in which they believe that a vulnerable adult has died3.17as a result of abuse or neglect.3.18 (c) Nothing in thissubdivision shall be construed to3.19require the reporting or transmittal of information regarding an3.20incident of abuse or neglect or suspected abuse or neglect if3.21the incident has been reported or transmitted to the appropriate3.22person or entitysection requires a report of known or suspected 3.23 maltreatment, if the reporter knows or has reason to believe 3.24 that a report has been made to the common entry point. 3.25 (d) Nothing in this section shall preclude a reporter from 3.26 also reporting to a law enforcement agency. 3.27 Sec. 3. Minnesota Statutes 1994, section 626.557, 3.28 subdivision 3a, is amended to read: 3.29 Subd. 3a. [REPORT NOT REQUIRED.] The following events are 3.30 not required to be reported under this section: 3.31 (a) A circumstance where federal law specifically prohibits 3.32 a person from disclosing patient identifying information in 3.33 connection with a report of suspectedabuse or neglect under3.34Laws 1983, chapter 273, section 3maltreatment,that person need3.35not make a required reportunless the vulnerable adult, or the 3.36 vulnerable adult's guardian, conservator, or legal 4.1 representative, has consented to disclosure in a manner which 4.2 conforms to federal requirements. Facilities whose patients or 4.3 residents are covered by such a federal law shall seek consent 4.4 to the disclosure of suspectedabuse or neglectmaltreatment 4.5 from each patient or resident, or a guardian, conservator, or 4.6 legal representative, upon the patient's or resident's admission 4.7 to the facility. Persons who are prohibited by federal law from 4.8 reporting an incident of suspectedabuse or neglectmaltreatment 4.9 shallpromptlyimmediately seek consent to make a report. 4.10 (b)Except as defined in subdivision 2, paragraph (d),4.11clause (1),Verbal or physical aggression occurring between 4.12 patients, residents, or clients of a facility, or self-abusive 4.13 behaviorofby these persons does not constitute"abuse" for the4.14purposes of subdivision 3abuse unlessitthe behavior causes 4.15 serious harm. The operator of the facility or a designee shall 4.16 record incidents of aggression and self-abusive behaviorin a4.17manner that facilitates periodicto facilitate review by 4.18 licensing agencies and county and local welfare agencies. 4.19 (c) Accidents as defined in section 626.5572, subdivision 3. 4.20 (d) Events occurring in a facility that result from an 4.21 individual's single mistake, as defined in section 626.5572, 4.22 subdivision 17, paragraph (c), clause (3). 4.23 (e)Nothing in this section shall be construed to require a4.24report of abuseFinancial exploitation, as defined in section 4.25 626.5572, subdivision29,paragraph (d), clause (4),solely on 4.26 the basis of the transfer of money or property by gift or as 4.27 compensation for services rendered. 4.28 Sec. 4. Minnesota Statutes 1994, section 626.557, 4.29 subdivision 4, is amended to read: 4.30 Subd. 4. [REPORTREPORTING.] Aperson required to report4.31under subdivision 3mandated reporter shall immediately make an 4.32 oral reportimmediately by telephone or otherwise. A person4.33required to report under subdivision 3 shall also make a report4.34as soon as possible in writing to the appropriate police4.35department, the county sheriff, local welfare agency, or4.36appropriate licensing agency. The written report shallto the 5.1 common entry point. Use of a telecommunications device for the 5.2 deaf or other similar device shall be considered an oral 5.3 report. The common entry point may not require written 5.4 reports. To the extent possible, the report must be of 5.5 sufficient content to identify the vulnerable adult, 5.6 thecaretakercaregiver, the nature and extent of the 5.7 suspectedabuse or neglectmaltreatment, any evidence of 5.8 previousabuse or neglectmaltreatment, the name and address of 5.9 the reporter, the time, date, and location of the incident, and 5.10 any other information that the reporter believes might be 5.11 helpful in investigating the suspectedabuse or neglect5.12 maltreatment.Written reports received by a police department5.13or a county sheriff shall be forwarded immediately to the local5.14welfare agency. The police department or the county sheriff may5.15keep copies of reports received by them. Copies of written5.16reports received by a local welfare department shall be5.17forwarded immediately to the local police department or the5.18county sheriff and the appropriate licensing agency or5.19agencies.A mandated reporter may disclose not public data, as 5.20 defined in section 13.02, and medical records under section 5.21 144.335, to the extent necessary to comply with this subdivision. 5.22 Sec. 5. Minnesota Statutes 1994, section 626.557, is 5.23 amended by adding a subdivision to read: 5.24 Subd. 4a. [INTERNAL REPORTING OF MALTREATMENT.] (a) Each 5.25 facility shall establish and enforce an ongoing written 5.26 procedure in compliance with applicable licensing rules to 5.27 ensure that all cases of suspected maltreatment are reported. 5.28 If a facility has an internal reporting procedure, a mandated 5.29 reporter may meet the reporting requirements of this section by 5.30 reporting internally. However, the facility remains responsible 5.31 for complying with the immediate reporting requirements of this 5.32 section. 5.33 (b) A facility with an internal reporting procedure that 5.34 receives an internal report by a mandated reporter shall give 5.35 the mandated reporter a written notice stating whether the 5.36 facility has reported the incident to the common entry point. 6.1 The written notice must be provided within two working days and 6.2 in a manner that protects the confidentiality of the reporter. 6.3 (c) The written response to the mandated reporter shall 6.4 note that if the mandated reporter is not satisfied with the 6.5 action taken by the facility on whether to report the incident 6.6 to the common entry point, then the mandated reporter may report 6.7 externally. 6.8 (d) A facility may not prohibit a mandated reporter from 6.9 reporting externally, and a facility is prohibited from 6.10 retaliating against a mandated reporter who reports an incident 6.11 to the common entry point in good faith. The written notice by 6.12 the facility must inform the mandated reporter of this 6.13 protection from retaliatory measures by the facility against the 6.14 mandated reporter for reporting externally. 6.15 Sec. 6. Minnesota Statutes 1994, section 626.557, 6.16 subdivision 5, is amended to read: 6.17 Subd. 5. [IMMUNITY;FROM LIABILITYPROTECTION FOR 6.18 REPORTERS.] (a) A personmaking a voluntary or mandated report6.19under subdivision 3 or participating in an investigation under6.20this section is immune from any civil or criminal liability that6.21otherwise might result from the person's actions, if the person6.22is acting in good faithwho makes a good faith report is immune 6.23 from any civil or criminal liability that might otherwise result 6.24 from making the report, or from participating in the 6.25 investigation, or for violating section 609.234 or 626.557, 6.26 subdivision 7. 6.27 (b) A person employed by alocal welfarelead agency or a 6.28 state licensing agency who is conducting or supervising an 6.29 investigation or enforcing the law in compliance with 6.30subdivision 10, 11, or 12this section or any related rule or 6.31 provision of law is immune from any civil or criminal liability 6.32 that might otherwise result from the person's actions, if the 6.33 person is acting in good faith and exercising due care. 6.34 (c) A person who knows or has reason to know a report has 6.35 been made to a common entry point and who in good faith 6.36 participates in an investigation of alleged maltreatment is 7.1 immune from civil or criminal liability that otherwise might 7.2 result from making the report, or for failure to comply with the 7.3 reporting obligation. 7.4 (d) The identity of any reporter may not be disclosed, 7.5 except as provided in subdivision 12b. 7.6 Sec. 7. Minnesota Statutes 1994, section 626.557, 7.7 subdivision 6, is amended to read: 7.8 Subd. 6. [FALSIFIED REPORTS.] A person or facility who 7.9 intentionally makes a false report under the provisions of this 7.10 section shall be liable in a civil suit for any actual damages 7.11 suffered by the reported facility, person or personsso reported7.12 and foranypunitive damagesset by the court or juryup to 7.13 $10,000 and attorney's fees. 7.14 Sec. 8. Minnesota Statutes 1994, section 626.557, 7.15 subdivision 7, is amended to read: 7.16 Subd. 7. [FAILURE TO REPORT.](a) A person required to7.17report by this section who intentionally fails to report is7.18guilty of a misdemeanor.7.19(b) A person required by this section to reportA mandated 7.20 reporter who negligently or intentionally fails to report is 7.21 liable for damages caused by the failure. Nothing in this 7.22 subdivision imposes vicarious liability for the acts or 7.23 omissions of others. 7.24 Sec. 9. Minnesota Statutes 1994, section 626.557, 7.25 subdivision 8, is amended to read: 7.26 Subd. 8. [EVIDENCE NOT PRIVILEGED.] No evidence regarding 7.27 theabuse or neglectmaltreatment of the vulnerable adult shall 7.28 be excluded in any proceeding arising out of the allegedabuse7.29or neglectmaltreatment on the grounds of lack of competency 7.30 under section 595.02. 7.31 Sec. 10. Minnesota Statutes 1994, section 626.557, 7.32 subdivision 9, is amended to read: 7.33 Subd. 9. [MANDATORY REPORTING TO A MEDICAL EXAMINER OR7.34CORONERTHE COMMON ENTRY POINT.]A person required to report7.35under the provisions of subdivision 3 who has reasonable cause7.36to believe that a vulnerable adult has died as a direct or8.1indirect result of abuse or neglect shall report that8.2information to the appropriate medical examiner or coroner in8.3addition to the local welfare agency, police department, or8.4county sheriff or appropriate licensing agency or agencies. The8.5medical examiner or coroner shall complete an investigation as8.6soon as feasible and report the findings to the police8.7department or county sheriff, the local welfare agency, and, if8.8applicable, each licensing agency. A person or agency that8.9receives a report under this subdivision concerning a vulnerable8.10adult who was receiving services or treatment for mental8.11illness, mental retardation or a related condition, chemical8.12dependency, or emotional disturbance from an agency, facility,8.13or program as defined in section 245.91, shall also report the8.14information and findings to the ombudsman established under8.15sections 245.91 to 245.97.8.16 (a) Each county board shall designate a common entry point 8.17 for reports of suspected maltreatment. Two or more county 8.18 boards may jointly designate a single common entry point. 8.19 The common entry point is the unit responsible for 8.20 receiving the report of suspected maltreatment under this 8.21 section. 8.22 (b) The common entry point must be available 24 hours per 8.23 day to take calls from reporters of suspected maltreatment. 8.24 The common entry point shall use a standard intake form 8.25 that includes: 8.26 (1) the time and date of the report; 8.27 (2) the name, address, and telephone number of the person 8.28 reporting; 8.29 (3) the time, date, and location of the incident; 8.30 (4) the names of the persons involved, including but not 8.31 limited to, perpetrators, alleged victims, and witnesses; 8.32 (5) whether there was a risk of imminent danger to the 8.33 alleged victim; 8.34 (6) a description of the suspected maltreatment; 8.35 (7) the disability, if any, of the alleged victim; 8.36 (8) the relationship of the alleged perpetrator to the 9.1 alleged victim; 9.2 (9) whether a facility was involved and, if so, which 9.3 agency licenses the facility; 9.4 (10) any action taken by the common entry point; 9.5 (11) whether law enforcement has been notified; 9.6 (12) whether the reporter wishes to receive notification of 9.7 the initial and final reports; and 9.8 (13) if the report is from a facility with an internal 9.9 reporting procedure, the name, mailing address, and telephone 9.10 number of the person who initiated the report internally. 9.11 (c) The common entry point is not required to complete each 9.12 item on the form prior to dispatching the report to the 9.13 appropriate investigative agency. 9.14 (d) The common entry point shall immediately report to a 9.15 law enforcement agency any incident in which there is reason to 9.16 believe a crime has been committed. 9.17 (e) If a report is initially made to a law enforcement 9.18 agency or a lead agency, those agencies shall take the report on 9.19 the appropriate common entry point intake forms and immediately 9.20 forward a copy to the common entry point. 9.21 (f) The common entry point staff must receive training on 9.22 how to screen and dispatch reports efficiently and in accordance 9.23 with this section. 9.24 (g) When a centralized database is available, the common 9.25 entry point has access to the centralized database and must log 9.26 the reports in on the database. 9.27 Sec. 11. Minnesota Statutes 1994, section 626.557, is 9.28 amended by adding a subdivision to read: 9.29 Subd. 9a. [EVALUATION AND REFERRAL OF REPORTS MADE TO THE 9.30 COMMON ENTRY POINT.] The common entry point must screen the 9.31 reports of alleged or suspected maltreatment for immediate risk 9.32 and make all necessary referrals as follows: 9.33 (1) if the common entry point determines that there is an 9.34 immediate need for adult protective services, the common entry 9.35 point agency shall immediately notify the appropriate county 9.36 agency; 10.1 (2) if the report contains suspected criminal activity 10.2 against a vulnerable adult, the common entry point shall 10.3 immediately notify the appropriate law enforcement agency; 10.4 (3) if the report references alleged or suspected 10.5 maltreatment and there is no immediate need for adult protective 10.6 services, the common entry point shall notify the appropriate 10.7 lead agency as soon as possible, but in any event no longer than 10.8 two working days; 10.9 (4) if the report does not reference alleged or suspected 10.10 maltreatment, the common entry point may determine whether the 10.11 information will be referred; and 10.12 (5) if the report contains information about a suspicious 10.13 death, the common entry point shall immediately notify the 10.14 appropriate law enforcement agencies and the ombudsman 10.15 established under section 245.92. Law enforcement agencies 10.16 shall coordinate with the local medical examiner and the 10.17 ombudsman as provided by law. 10.18 Sec. 12. Minnesota Statutes 1994, section 626.557, is 10.19 amended by adding a subdivision to read: 10.20 Subd. 9b. [RESPONSE TO REPORTS.] Law enforcement is the 10.21 primary agency to conduct investigations of any incident in 10.22 which there is reason to believe a crime has been committed. 10.23 Law enforcement shall initiate a response immediately. If the 10.24 common entry point notified a county agency for adult protective 10.25 services, law enforcement shall cooperate with that county 10.26 agency when both agencies are involved and shall exchange data 10.27 to the extent authorized in subdivision 12b, paragraph (g). 10.28 County adult protection shall initiate a response immediately. 10.29 Each lead agency shall complete the investigative process for 10.30 reports within its jurisdiction. Any other lead agency, county, 10.31 adult protective agency, licensed facility, or law enforcement 10.32 agency shall cooperate and may assist another agency upon 10.33 request within the limits of its resources and expertise and 10.34 shall exchange data to the extent authorized in subdivision 12b, 10.35 paragraph (g). The lead agency shall obtain the results of any 10.36 investigation conducted by law enforcement officials. The lead 11.1 agency has the right to enter facilities and inspect and copy 11.2 records as part of investigations. The lead agency has access 11.3 to not public data, as defined in section 13.02, and medical 11.4 records under section 144.335, that are maintained by facilities 11.5 to the extent necessary to conduct its investigation. Each lead 11.6 agency shall develop guidelines for prioritizing reports for 11.7 investigation. 11.8 Sec. 13. Minnesota Statutes 1994, section 626.557, is 11.9 amended by adding a subdivision to read: 11.10 Subd. 9c. [LEAD AGENCY; NOTIFICATIONS, DISPOSITIONS, AND 11.11 DETERMINATIONS.] (a) Upon request of the reporter, the lead 11.12 agency shall notify the reporter that it has received the 11.13 report, and provide information on the initial disposition of 11.14 the report within five business days of receipt of the report, 11.15 provided that the notification will not endanger the vulnerable 11.16 adult or hamper the investigation. 11.17 (b) Upon conclusion of every investigation it conducts, the 11.18 lead agency shall make a final disposition as defined in section 11.19 626.5572, subdivision 8. 11.20 (c) When determining whether the facility or individual is 11.21 the responsible party for substantiated maltreatment, the lead 11.22 agency shall consider at least the following mitigating factors: 11.23 (1) whether the actions of the facility or the individual 11.24 caregivers were in accordance with, and followed the terms of, 11.25 an erroneous physician order, prescription, resident care plan, 11.26 or directive. This is not a mitigating factor when the facility 11.27 or caregiver is responsible for the issuance of the erroneous 11.28 order, prescription, plan, or directive or knows or should have 11.29 known of the errors and took no reasonable measures to correct 11.30 the defect before administering care; 11.31 (2) the comparative responsibility between the facility, 11.32 other caregivers, and requirements placed upon the employee, 11.33 including but not limited to, the facility's compliance with 11.34 related regulatory standards and factors such as the adequacy of 11.35 facility policies and procedures, the adequacy of facility 11.36 training, the adequacy of an individual's participation in the 12.1 training, the adequacy of caregiver supervision, the adequacy of 12.2 facility staffing levels, and a consideration of the scope of 12.3 the individual employee's authority; and 12.4 (3) whether the facility or individual followed 12.5 professional standards in exercising professional judgment. 12.6 (d) The lead agency shall complete its final disposition 12.7 within 60 calendar days. If the lead agency is unable to 12.8 complete its final disposition within 60 calendar days, the lead 12.9 agency shall notify the following persons: (1) the vulnerable 12.10 adult or the vulnerable adult's legal guardian, when known, if 12.11 the lead agency knows them to be aware of the investigation and 12.12 (2) the facility, where applicable. The notice shall contain 12.13 the reason for the delay and the projected completion date, 12.14 provided that the notification will not hamper the 12.15 investigation. If the lead agency is unable to complete its 12.16 final disposition by a subsequent projected completion date, the 12.17 lead agency shall again notify the vulnerable adult or the 12.18 vulnerable adult's legal guardian, when known if the lead agency 12.19 knows them to be aware of the investigation, and the facility, 12.20 where applicable, of the reason for the delay and the revised 12.21 projected completion date provided that the notification will 12.22 not endanger the vulnerable adult or hamper the investigation. 12.23 A lead agency's inability to complete the final disposition 12.24 within 60 calendar days or by any projected completion date does 12.25 not invalidate the final disposition. 12.26 (e) Within ten calendar days of completing the final 12.27 disposition, the lead agency shall provide a copy of the public 12.28 investigation memorandum under subdivision 12b, paragraph (b), 12.29 clause (1), when required to be completed under this section, to 12.30 the following persons: (1) the vulnerable adult, or the 12.31 vulnerable adult's legal guardian, if known unless the lead 12.32 agency knows that the notification would endanger the well-being 12.33 of the vulnerable adult; (2) the reporter, if the reporter 12.34 requested notification when making the report, provided this 12.35 notification would not endanger the well-being of the vulnerable 12.36 adult; (3) the alleged perpetrator, if known; (4) the facility; 13.1 and (5) the ombudsman for long-term care, or the ombudsman for 13.2 mental health and mental retardation, as appropriate. 13.3 (f) The lead agency shall notify the vulnerable adult who 13.4 is the subject of the report or the vulnerable adult's legal 13.5 guardian, if known, and any person or facility determined to 13.6 have maltreated a vulnerable adult, of their appeal rights under 13.7 this section. 13.8 (g) The lead agency shall routinely provide investigation 13.9 memoranda for substantiated reports to the appropriate licensing 13.10 boards. These reports must include the names of substantiated 13.11 perpetrators. The lead agency may not provide investigative 13.12 memoranda for inconclusive or false reports to the appropriate 13.13 licensing boards unless the lead agency's investigation gives 13.14 reason to believe that there may have been a violation of the 13.15 applicable professional practice laws. If the investigation 13.16 memorandum is provided to a licensing board, the subject of the 13.17 investigation memorandum shall be notified and receive a summary 13.18 of the investigative findings. 13.19 (h) In order to avoid duplication, licensing boards shall 13.20 consider the findings of the lead agency in their investigations 13.21 if they choose to investigate. This does not preclude licensing 13.22 boards from considering other information. 13.23 (i) The lead agency must provide to the commissioner of 13.24 human services its final dispositions, including the names of 13.25 all substantiated perpetrators. The commissioner of human 13.26 services shall establish records to retain the names of 13.27 substantiated perpetrators. 13.28 Sec. 14. Minnesota Statutes 1994, section 626.557, is 13.29 amended by adding a subdivision to read: 13.30 Subd. 9d. [ADMINISTRATIVE RECONSIDERATION OF THE FINAL 13.31 DISPOSITION.] Any individual or facility which a lead agency 13.32 determines has maltreated a vulnerable adult, or the vulnerable 13.33 adult or vulnerable adult's designee, regardless of the lead 13.34 agency's determination, who contests the lead agency's final 13.35 disposition of an allegation of maltreatment, may request the 13.36 lead agency to reconsider its final disposition. The request 14.1 for reconsideration must be submitted in writing to the lead 14.2 agency within 15 calendar days after receipt of notice of final 14.3 disposition. 14.4 If the lead agency denies the request or fails to act upon 14.5 the request within 15 calendar days after receiving the request 14.6 for reconsideration, the person or facility entitled to a fair 14.7 hearing under section 256.045, may submit to the commissioner of 14.8 human services a written request for a hearing under that 14.9 statute. 14.10 If, as a result of the reconsideration, the lead agency 14.11 changes the final disposition, it shall notify the parties 14.12 specified in subdivision 9c, paragraph (d). 14.13 Sec. 15. Minnesota Statutes 1994, section 626.557, is 14.14 amended by adding a subdivision to read: 14.15 Subd. 9e. [EDUCATION REQUIREMENTS.] (a) The commissioners 14.16 of health, human services, and public safety shall cooperate in 14.17 the development of a joint program for education of lead agency 14.18 investigators in the appropriate techniques for investigation of 14.19 complaints of maltreatment. This program must be developed by 14.20 July 1, 1996. The program must include but need not be limited 14.21 to the following areas: (1) information collection and 14.22 preservation; (2) analysis of facts; (3) levels of evidence; (4) 14.23 conclusions based on evidence; (5) interviewing skills, 14.24 including specialized training to interview people with unique 14.25 needs; (6) report writing; (7) coordination and referral to 14.26 other necessary agencies such as law enforcement and judicial 14.27 agencies; (8) human relations and cultural diversity; (9) the 14.28 dynamics of adult abuse and neglect within family systems and 14.29 the appropriate methods for interviewing relatives in the course 14.30 of the assessment or investigation; (10) the protective social 14.31 services that are available to protect alleged victims from 14.32 further abuse, neglect, or financial exploitation; (11) the 14.33 methods by which lead agency investigators and law enforcement 14.34 workers cooperate in conducting assessments and investigations 14.35 in order to avoid duplication of efforts; and (12) data 14.36 practices laws and procedures, including provisions for sharing 15.1 data. 15.2 (b) The commissioners of health, human services, and public 15.3 safety shall offer at least annual education to others on the 15.4 requirements of this section, on how this section is 15.5 implemented, and investigation techniques. 15.6 (c) The commissioner of human services, in coordination 15.7 with the commissioner of public safety shall provide training 15.8 for the common entry point staff as required in this subdivision 15.9 and the program courses described in this subdivision, at least 15.10 four times per year. At a minimum, the training shall be held 15.11 twice annually in the seven-county metropolitan area and twice 15.12 annually outside the seven-county metropolitan area. The 15.13 commissioners shall give priority in the program areas cited in 15.14 paragraph (a) to persons currently performing assessments and 15.15 investigations pursuant to this section. 15.16 (d) The commissioner of public safety shall notify in 15.17 writing law enforcement personnel of any new requirements under 15.18 this section. The commissioner of public safety shall conduct 15.19 regional training for law enforcement personnel regarding their 15.20 responsibility under this section. 15.21 (e) Each lead agency investigator must complete the 15.22 education program specified by this subdivision within the first 15.23 12 months of work as a lead agency investigator. 15.24 A lead agency investigator employed when these requirements 15.25 take effect must complete the program within the first year 15.26 after training is available or as soon as training is available. 15.27 All lead agency investigators having responsibility for 15.28 investigation duties under this section must receive a minimum 15.29 of eight hours of continuing education or in-service training 15.30 each year specific to their duties under this section. 15.31 Sec. 16. Minnesota Statutes 1994, section 626.557, 15.32 subdivision 10, is amended to read: 15.33 Subd. 10. [DUTIES OFLOCAL WELFARETHE COUNTY SOCIAL 15.34 SERVICE AGENCYUPON A RECEIPT OF A REPORT.] (a)The local15.35welfareUpon receipt of a report from the common entry point 15.36 staff, the county social service agency shall immediately 16.1investigateassess and offer emergency and continuing protective 16.2 social services for purposes of preventing furtherabuse or16.3neglectmaltreatment and for safeguardingand enhancingthe 16.4 welfare of theabused or neglectedmaltreated vulnerable adult. 16.5Local welfare agencies may enter facilities and inspect and copy16.6records as part of investigations.In cases of suspected sexual 16.7 abuse, thelocal welfarecounty social service agency shall 16.8 immediately arrange for and make available to thevictim16.9 vulnerable adult appropriate medical examination and treatment. 16.10The investigation shall not be limited to the written records of16.11the facility, but shall include every other available source of16.12information.When necessary in order to protect the vulnerable 16.13 adult from further harm, thelocal welfarecounty social service 16.14 agency shall seek authority to remove the vulnerable adult from 16.15 the situation in which theneglect or abusemaltreatment 16.16 occurred. Thelocal welfarecounty social service agencyshall16.17 may also investigate to determine whether the conditions which 16.18 resulted in the reportedabuse or neglectmaltreatment place 16.19 other vulnerable adults in jeopardy of beingabused or neglected16.20 maltreated and offer protective social services that are called 16.21 for by its determination.In performing any of these duties,16.22the local welfare agency shall maintain appropriate records.16.23 (b)If the report indicates, or if the local welfare agency16.24finds that the suspected abuse or neglect occurred at a16.25facility, or while the vulnerable adult was or should have been16.26under the care of or receiving services from a facility, or that16.27the suspected abuse or neglect involved a person licensed by a16.28licensing agency to provide care or services, the local welfare16.29agency shall immediately notify each appropriate licensing16.30agency, and provide each licensing agency with a copy of the16.31report and of its investigative findings.County social service 16.32 agencies may enter facilities and inspect and copy records as 16.33 part of an investigation. The county social service agency has 16.34 access to not public data, as defined in section 13.02, and 16.35 medical records under section 144.335, that are maintained by 16.36 facilities to the extent necessary to conduct its 17.1 investigation. The inquiry is not limited to the written 17.2 records of the facility, but may include every other available 17.3 source of information. 17.4 (c) When necessary in order to protect a vulnerable adult 17.5 from serious harm, thelocalcounty social service agency shall 17.6 immediately intervene on behalf of that adult to help the 17.7 family,victimvulnerable adult, or other interested person by 17.8 seeking any of the following: 17.9 (1) a restraining order or a court order for removal of the 17.10 perpetrator from the residence of the vulnerable adult pursuant 17.11 to section 518B.01; 17.12 (2) the appointment of a guardian or conservator pursuant 17.13 to sections 525.539 to 525.6198, or guardianship or 17.14 conservatorship pursuant to chapter 252A; 17.15 (3) replacement ofan abusive or neglectfula guardian or 17.16 conservator suspected of maltreatment and appointment of a 17.17 suitable person as guardian or conservator, pursuant to sections 17.18 525.539 to 525.6198; or 17.19 (4) a referral to the prosecuting attorney for possible 17.20 criminal prosecution of the perpetrator under chapter 609. 17.21 The expenses of legal intervention must be paid by the 17.22 county in the case of indigent persons, under section 525.703 17.23 and chapter 563. 17.24 In proceedings under sections 525.539 to 525.6198, if a 17.25 suitable relative or other person is not available to petition 17.26 for guardianship or conservatorship, a county employee shall 17.27 present the petition with representation by the county 17.28 attorney. The county shall contract with or arrange for a 17.29 suitable person ornonprofitorganization to provide ongoing 17.30 guardianship services. If the county presents evidence to the 17.31 probate court that it has made a diligent effort and no other 17.32 suitable person can be found, a county employee may serve as 17.33 guardian or conservator. The county shall not retaliate against 17.34 the employee for any action taken on behalf of the ward or 17.35 conservatee even if the action is adverse to the county's 17.36 interest. Any person retaliated against in violation of this 18.1 subdivision shall have a cause of action against the county and 18.2 shall be entitled to reasonable attorney fees and costs of the 18.3 action if the action is upheld by the court. 18.4 Sec. 17. Minnesota Statutes 1994, section 626.557, is 18.5 amended by adding a subdivision to read: 18.6 Subd. 12b. [DATA MANAGEMENT.] (a) [COUNTY DATA.] In 18.7 performing any of the duties of this section as a lead agency, 18.8 the county social service agency shall maintain appropriate 18.9 records. Data collected by the county social service agency 18.10 under this section are welfare data under section 13.46. 18.11 Notwithstanding section 13.46, subdivision 1, paragraph (a), 18.12 data under this paragraph that are inactive investigative data 18.13 on an individual who is a vendor of services are private data on 18.14 individuals, as defined in section 13.02. The identity of the 18.15 reporter may only be disclosed as provided in paragraph (c). 18.16 Data maintained by the common entry point are confidential 18.17 data on individuals or protected nonpublic data as defined in 18.18 section 13.02. Notwithstanding section 138.163, the common 18.19 entry point shall destroy data three calendar years after date 18.20 of receipt. 18.21 (b) [LEAD AGENCY DATA.] The commissioner of health and the 18.22 commissioner of human services shall prepare an investigation 18.23 memorandum for each report alleging maltreatment investigated 18.24 under this section. During an investigation by the commissioner 18.25 of health or the commissioner of human services, data collected 18.26 under this section are confidential data on individuals or 18.27 protected nonpublic data as defined in section 13.02. Upon 18.28 completion of the investigation, the data are classified as 18.29 provided in clauses (1) to (3) and paragraph (c). 18.30 (1) The investigation memorandum must contain the following 18.31 data, which are public: 18.32 (i) the name of the facility investigated; 18.33 (ii) a statement of the nature of the alleged maltreatment; 18.34 (iii) pertinent information obtained from medical or other 18.35 records reviewed; 18.36 (iv) the identity of the investigator; 19.1 (v) a summary of the investigation's findings; 19.2 (vi) statement of whether the report was found to be 19.3 substantiated, inconclusive, false, or that no determination 19.4 will be made; 19.5 (vii) a statement of any action taken by the facility; 19.6 (viii) a statement of any action taken by the lead agency; 19.7 and 19.8 (ix) when a lead agency's determination has substantiated 19.9 maltreatment, a statement of whether an individual, individuals, 19.10 or a facility were responsible for the substantiated 19.11 maltreatment, if known. 19.12 The investigation memorandum must be written in a manner 19.13 which protects the identity of the reporter and of the 19.14 vulnerable adult and may not contain the names or, to the extent 19.15 possible, data on individuals or private data listed in clause 19.16 (2). 19.17 (2) Data on individuals collected and maintained in the 19.18 investigation memorandum are private data, including: 19.19 (i) the name of the vulnerable adult; 19.20 (ii) the identity of the individual alleged to be the 19.21 perpetrator; 19.22 (iii) the identity of the individual substantiated as the 19.23 perpetrator; and 19.24 (iv) the identity of all individuals interviewed as part of 19.25 the investigation. 19.26 (3) Other data on individuals maintained as part of an 19.27 investigation under this section are private data on individuals 19.28 upon completion of the investigation. 19.29 (c) [IDENTITY OF REPORTER.] The subject of the report may 19.30 compel disclosure of the name of the reporter only with the 19.31 consent of the reporter or upon a written finding by a court 19.32 that the report was false and there is evidence that the report 19.33 was made in bad faith. This subdivision does not alter 19.34 disclosure responsibilities or obligations under the rules of 19.35 criminal procedure, except that where the identity of the 19.36 reporter is relevant to a criminal prosecution, the district 20.1 court shall do an in-camera review prior to determining whether 20.2 to order disclosure of the identity of the reporter. 20.3 (d) [DESTRUCTION OF DATA.] Notwithstanding section 138.163, 20.4 data maintained under this section by the commissioners of 20.5 health and human services must be destroyed under the following 20.6 schedule: 20.7 (1) data from reports determined to be false, two years 20.8 after the finding was made; 20.9 (2) data from reports determined to be inconclusive, four 20.10 years after the finding was made; 20.11 (3) data from reports determined to be substantiated, seven 20.12 years after the finding was made; and 20.13 (4) data from reports which were not investigated by a lead 20.14 agency and for which there is no final disposition, two years 20.15 from the date of the report. 20.16 (e) [SUMMARY OF REPORTS.] The commissioners of health and 20.17 human services shall each annually prepare a summary of the 20.18 number and type of reports of alleged maltreatment involving 20.19 licensed facilities reported under this section. 20.20 (f) [RECORD RETENTION POLICY.] Each lead agency must have a 20.21 record retention policy. 20.22 (g) [EXCHANGE OF INFORMATION.] Lead agencies, prosecuting 20.23 authorities, and law enforcement agencies may exchange not 20.24 public data, as defined in section 13.02, if the agency or 20.25 authority requesting the data determines that the data are 20.26 pertinent and necessary to the requesting agency in initiating, 20.27 furthering, or completing an investigation under this section. 20.28 Data collected under this section must be made available to 20.29 prosecuting authorities and law enforcement officials, local 20.30 county agencies, and licensing agencies investigating the 20.31 alleged maltreatment under this section. 20.32 (h) [COMPLETION TIME.] Each lead agency shall keep records 20.33 of the length of time it takes to complete its investigations. 20.34 (i) [NOTIFICATION OF OTHER AFFECTED PARTIES.] A lead agency 20.35 may notify other affected parties if the agency has reason to 20.36 believe maltreatment has occurred and determines the information 21.1 will safeguard the well-being of the affected parties or dispel 21.2 widespread rumor or unrest in the affected facility. 21.3 (j) [FEDERAL REQUIREMENTS.] Under any notification 21.4 provision of this section, where federal law specifically 21.5 prohibits the disclosure of patient identifying information, a 21.6 lead agency may not provide any notice unless the vulnerable 21.7 adult has consented to disclosure in a manner which conforms to 21.8 federal requirements. 21.9 Sec. 18. Minnesota Statutes 1994, section 626.557, 21.10 subdivision 14, is amended to read: 21.11 Subd. 14. [ABUSE PREVENTION PLANS.] (a) Each facility, 21.12 except home health agencies and personal care attendant services 21.13 providers, shall establish and enforce an ongoing written abuse 21.14 prevention plan. The plan shall contain an assessment of the 21.15 physical plant, its environment, and its population identifying 21.16 factors which may encourage or permit abuse, and a statement of 21.17 specific measures to be taken to minimize the risk of abuse. 21.18 The plan shall comply with any rules governing the plan 21.19 promulgated by the licensing agency. 21.20 (b) Each facility, including a home health care agency and 21.21 personal care attendant services providers, shall develop an 21.22 individual abuse prevention plan for each vulnerable adult 21.23 residing there or receiving services from them.Facilities21.24designated in subdivision 2, clause (b)(2) or clause (b)(3)21.25shall develop plans for any vulnerable adults receiving services21.26from them.The plan shall contain an individualized assessment 21.27 of the person's susceptibility to abuse, and a statement of the 21.28 specific measures to be taken to minimize the risk of abuse to 21.29 that person. For the purposes of this clause, the term "abuse" 21.30 includes self-abuse. 21.31 Sec. 19. Minnesota Statutes 1994, section 626.557, 21.32 subdivision 16, is amended to read: 21.33 Subd. 16. [ENFORCEMENTIMPLEMENTATION AUTHORITY.] (a)A21.34facility that has not complied with this section within 60 days21.35of the effective date of passage of emergency rules is21.36ineligible for renewal of its license. A person required by22.1subdivision 3 to report and who is licensed or credentialed to22.2practice an occupation by a licensing agency who willfully fails22.3to comply with this section shall be disciplined after a hearing22.4by the appropriate licensing agency.By September 1, 1995, the 22.5 attorney general and the commissioners of health and human 22.6 services, in coordination with representatives of other entities 22.7 that receive or investigate maltreatment reports, shall develop 22.8 the common report form described in subdivision 9. The form may 22.9 be used by mandated reporters, county social service agencies, 22.10 law enforcement entities, licensing agencies, or ombudsman 22.11 offices. 22.12 (b)Licensing agenciesThe commissioners of health and 22.13 human services shall as soon as possible promulgate rules 22.14 necessary to implement the requirements ofsubdivisions 11, 12,22.1513, 14, 15, and 16, clause (a)this section.AgenciesThe 22.16 commissioners of health may promulgate emergency rules pursuant 22.17 to sections 14.29 to 14.36. 22.18(c) The commissioner of human services shall promulgate22.19rules as necessary to implement the requirements of subdivision22.2010.22.21 (c) By December 31, 1995, the commissioners of health, 22.22 human services, and public safety shall develop criteria for the 22.23 design of a statewide database utilizing data collected on the 22.24 common intake form of the common entry point. The statewide 22.25 database must be accessible to all entities required to conduct 22.26 investigations under this section, and must be accessible to 22.27 ombudsman and advocacy programs. 22.28 (d) By September 1, 1995, each lead agency shall develop 22.29 the guidelines required in subdivision 9b. 22.30 Sec. 20. Minnesota Statutes 1994, section 626.557, 22.31 subdivision 17, is amended to read: 22.32 Subd. 17. [RETALIATION PROHIBITED.] (a) A facility or 22.33 person shall not retaliate against any person who reports in 22.34 good faith suspectedabuse or neglectmaltreatment pursuant to 22.35 this section, or against a vulnerable adult with respect to whom 22.36 a report is made, because of the report. 23.1 (b) In addition to any remedies allowed under sections 23.2 181.931 to 181.935, any facility or person which retaliates 23.3 against any person because of a report of suspectedabuse or23.4neglectmaltreatment is liable to that person for actual damages 23.5and, in addition, a penalty, punitive damages up to $10,000, and 23.6 attorney's fees. 23.7 (c) There shall be a rebuttable presumption that any 23.8 adverse action, as defined below, within 90 days of a report, is 23.9 retaliatory. For purposes of this clause, the term "adverse 23.10 action" refers to action taken by a facility or person involved 23.11 in a report against the person making the report or the person 23.12 with respect to whom the report was made because of the report, 23.13 and includes, but is not limited to: 23.14 (1) Discharge or transfer from the facility; 23.15 (2) Discharge from or termination of employment; 23.16 (3) Demotion or reduction in remuneration for services; 23.17 (4) Restriction or prohibition of access to the facility or 23.18 its residents; or 23.19 (5) Any restriction of rights set forth in section 144.651. 23.20 Sec. 21. Minnesota Statutes 1994, section 626.557, 23.21 subdivision 18, is amended to read: 23.22 Subd. 18. [OUTREACH.] The commissioner of human services 23.23 shallestablishmaintain an aggressive program to educate those 23.24 required to report, as well as the general public, about the 23.25 requirements of this section using a variety of media. The 23.26 commissioner of human services shall print and make available 23.27 the form developed under subdivision 9. 23.28 Sec. 22. [626.5572] [DEFINITIONS.] 23.29 Subdivision 1. [SCOPE.] For the purpose of section 23.30 626.557, the following terms have the meanings given them, 23.31 unless otherwise specified. 23.32 Subd. 2. [ABUSE.] "Abuse" means: 23.33 (a) An act against a vulnerable adult that constitutes a 23.34 violation of, an attempt to violate, or aiding and abetting a 23.35 violation of: 23.36 (1) assault in the first through fifth degrees as defined 24.1 in sections 609.221 to 609.224; 24.2 (2) the use of drugs to injure or facilitate crime as 24.3 defined in section 609.235; 24.4 (3) the solicitation, inducement, and promotion of 24.5 prostitution as defined in section 609.322; and 24.6 (4) criminal sexual conduct in the first through fifth 24.7 degrees as defined in sections 609.342 to 609.3451. 24.8 A violation includes any action that meets the elements of 24.9 the crime, regardless of whether there is a criminal proceeding 24.10 or conviction. 24.11 (b) Conduct which is not an accident or therapeutic conduct 24.12 as defined in this section, which produces or could reasonably 24.13 be expected to produce physical pain or injury or emotional 24.14 distress including, but not limited to, the following: 24.15 (1) hitting, slapping, kicking, pinching, biting, or 24.16 corporal punishment of a vulnerable adult; 24.17 (2) use of repeated or malicious oral, written, or gestured 24.18 language toward a vulnerable adult or the treatment of a 24.19 vulnerable adult which would be considered by a reasonable 24.20 person to be disparaging, derogatory, humiliating, harassing, or 24.21 threatening; 24.22 (3) use of any aversive or deprivation procedure, 24.23 unreasonable confinement, or involuntary seclusion, including 24.24 the forced separation of the vulnerable adult from other persons 24.25 against the will of the vulnerable adult or the legal 24.26 representative of the vulnerable adult; and 24.27 (4) use of any aversive or deprivation procedures for 24.28 persons with developmental disabilities or related conditions 24.29 not authorized under section 245.825. 24.30 (c) Any sexual contact or penetration as defined in section 24.31 609.341, between a facility staff person or a person providing 24.32 services in the facility and a resident, patient, or client of 24.33 that facility. 24.34 (d) The act of forcing, compelling, coercing, or enticing a 24.35 vulnerable adult against the vulnerable adult's will to perform 24.36 services for the advantage of another. 25.1 (e) For purposes of this section, a vulnerable adult is not 25.2 abused for the sole reason that the vulnerable adult or a person 25.3 with authority to make health care decisions for the vulnerable 25.4 adult under sections 144.651, 144A.44, chapter 145B, 145C or 25.5 252A, or section 253B.03 or 525.539 to 525.6199, refuses consent 25.6 or withdraws consent, consistent with that authority and within 25.7 the boundary of reasonable medical practice, to any therapeutic 25.8 conduct, including any care, service, or procedure to diagnose, 25.9 maintain, or treat the physical or mental condition of the 25.10 vulnerable adult or to provide nutrition and hydration 25.11 parenterally or through intubation. This paragraph does not 25.12 enlarge or diminish rights otherwise held under law by: 25.13 (1) a vulnerable adult or a person acting on behalf of a 25.14 vulnerable adult, including an involved family member, to 25.15 consent to or refuse consent for therapeutic conduct; or 25.16 (2) a caregiver to offer or provide or refuse to offer or 25.17 provide therapeutic conduct. 25.18 (f) For purposes of this section, a vulnerable adult is not 25.19 abused for the sole reason that the vulnerable adult, a person 25.20 with authority to make health care decisions for the vulnerable 25.21 adult, or a caregiver in good faith selects and depends upon 25.22 spiritual means or prayer for treatment or care of disease or 25.23 remedial care of the vulnerable adult in lieu of medical care, 25.24 provided that this is consistent with the prior practice or 25.25 belief of the vulnerable adult or with the expressed intentions 25.26 of the vulnerable adult. 25.27 Nothing in this section is intended to prohibit sexual 25.28 contact between a vulnerable adult and the vulnerable adult's 25.29 spouse or domestic partner. 25.30 Subd. 3. [ACCIDENT.] "Accident" means a sudden, 25.31 unforeseen, and unexpected occurrence or event which: 25.32 (1) is not likely to occur and which could not have been 25.33 prevented by exercise of due care; and 25.34 (2) if occurring while a vulnerable adult is receiving 25.35 services from a facility, happens when the facility and the 25.36 employee or person providing services in the facility are in 26.1 compliance with the laws and rules relevant to the occurrence or 26.2 event. 26.3 Subd. 4. [CAREGIVER.] "Caregiver" means an individual or 26.4 facility who has responsibility for the care of a vulnerable 26.5 adult as a result of a family relationship, or who has assumed 26.6 responsibility for all or a portion of the care of a vulnerable 26.7 adult voluntarily, by contract, or by agreement. 26.8 Subd. 5. [COMMON ENTRY POINT.] "Common entry point" means 26.9 the entity designated by each county responsible for receiving 26.10 reports under section 626.557. 26.11 Subd. 6. [FACILITY.] (a) "Facility" means a hospital or 26.12 other entity required to be licensed under sections 144.50 to 26.13 144.58; a nursing home required to be licensed to serve adults 26.14 under section 144A.02; a residential or nonresidential facility 26.15 required to be licensed to serve adults under sections 245A.01 26.16 to 245A.16; a home care provider licensed or required to be 26.17 licensed under section 144A.46; or a person or organization that 26.18 exclusively offers, provides, or arranges for personal care 26.19 assistant services under the medical assistance program as 26.20 authorized under sections 256B.04, subdivision 16, 256B.0625, 26.21 subdivision 19a, and 256B.0627. 26.22 (b) For home care providers and personal care attendants, 26.23 the term "facility" refers to the provider or person or 26.24 organization that exclusively offers, provides, or arranges for 26.25 personal care services, and does not refer to the client's home 26.26 or other location at which services are rendered. 26.27 Subd. 7. [FALSE.] "False" means a preponderance of the 26.28 evidence shows that an act that meets the definition of 26.29 maltreatment did not occur. 26.30 Subd. 8. [FINAL DISPOSITION.] "Final disposition" is the 26.31 determination of an investigation by a lead agency that a report 26.32 of maltreatment under this act is substantiated, inconclusive, 26.33 false, or that no determination will be made. When a lead 26.34 agency determination has substantiated maltreatment, the final 26.35 disposition also identifies, if known, which individual or 26.36 individuals were responsible for the substantiated maltreatment, 27.1 and whether a facility was responsible for the substantiated 27.2 maltreatment. 27.3 Subd. 9. [FINANCIAL EXPLOITATION.] "Financial exploitation" 27.4 means: 27.5 (a) In breach of a fiduciary obligation recognized 27.6 elsewhere in law, including pertinent regulations, contractual 27.7 obligations, documented consent by a competent person, or the 27.8 obligations of a responsible party under section 144.6501 a 27.9 person: 27.10 (1) engages in unauthorized expenditure of funds entrusted 27.11 to the actor by the vulnerable adult which results or is likely 27.12 to result in detriment to the vulnerable adult; or 27.13 (2) fails to use the financial resources of the vulnerable 27.14 adult to provide food, clothing, shelter, health care, 27.15 therapeutic conduct or supervision for the vulnerable adult, and 27.16 the failure results or is likely to result in detriment to the 27.17 vulnerable adult. 27.18 (b) In the absence of legal authority a person: 27.19 (1) willfully uses, withholds, or disposes of funds or 27.20 property of a vulnerable adult; 27.21 (2) obtains for the actor or another the performance of 27.22 services by a third person for the wrongful profit or advantage 27.23 of the actor or another to the detriment of the vulnerable 27.24 adult; 27.25 (3) acquires possession or control of, or an interest in, 27.26 funds or property of a vulnerable adult through the use of undue 27.27 influence, harassment, duress, deception, or fraud; or 27.28 (4) forces, compels, coerces, or entices a vulnerable adult 27.29 against the vulnerable adult's will to perform services for the 27.30 profit or advantage of another. 27.31 (c) Nothing in this definition requires a facility or 27.32 caregiver to provide financial management or supervise financial 27.33 management for a vulnerable adult except as otherwise required 27.34 by law. 27.35 Subd. 10. [IMMEDIATELY.] "Immediately" means as soon as 27.36 possible, but no longer than 24 hours from the time initial 28.1 knowledge that the incident occurred has been received. 28.2 Subd. 11. [INCONCLUSIVE.] "Inconclusive" means there is 28.3 less than a preponderance of evidence to show that maltreatment 28.4 did or did not occur. 28.5 Subd. 12. [INITIAL DISPOSITION.] "Initial disposition" is 28.6 the lead agency's determination of whether the report will be 28.7 assigned for further investigation. 28.8 Subd. 13. [LEAD AGENCY.] "Lead agency" is the primary 28.9 administrative agency responsible for investigating reports made 28.10 under section 626.557. 28.11 (a) The department of health is the lead agency for the 28.12 facilities which are licensed or are required to be licensed as 28.13 hospitals, home care providers, nursing homes, residential care 28.14 homes, or boarding care homes. 28.15 (b) The department of human services is the lead agency for 28.16 the programs licensed or required to be licensed as adult day 28.17 care, adult foster care, programs for people with developmental 28.18 disabilities, mental health programs, chemical health programs, 28.19 or personal care provider organizations. 28.20 (c) The county social service agency or its designee is the 28.21 lead agency for all other reports. 28.22 Subd. 14. [LEGAL AUTHORITY.] "Legal authority" includes, 28.23 but is not limited to: (1) a fiduciary obligation recognized 28.24 elsewhere in law, including pertinent regulations; (2) a 28.25 contractual obligation; or (3) documented consent by a competent 28.26 person. 28.27 Subd. 15. [MALTREATMENT.] "Maltreatment" means abuse as 28.28 defined in subdivision 2, neglect as defined in subdivision 17, 28.29 or financial exploitation as defined in subdivision 9. 28.30 Subd. 16. [MANDATED REPORTER.] "Mandated reporter" means a 28.31 professional or professional's delegate while engaged in: (1) 28.32 social services; (2) law enforcement; (3) education; (4) the 28.33 care of vulnerable adults; (5) any of the occupations referred 28.34 to in section 214.01, subdivision 2; (6) an employee of a 28.35 rehabilitation facility certified by the commissioner of jobs 28.36 and training for vocational rehabilitation; (7) an employee or 29.1 person providing services in a facility as defined in 29.2 subdivision 6; or (8) a person that performs the duties of the 29.3 medical examiner or coroner. 29.4 Subd. 17. [NEGLECT.] "Neglect" means: 29.5 (a) The failure or omission by a caregiver to supply a 29.6 vulnerable adult with care or services, including but not 29.7 limited to, food, clothing, shelter, health care, or supervision 29.8 which is: 29.9 (1) reasonable and necessary to obtain or maintain the 29.10 vulnerable adult's physical or mental health or safety, 29.11 considering the physical and mental capacity or dysfunction of 29.12 the vulnerable adult; and 29.13 (2) which is not the result of an accident or therapeutic 29.14 conduct. 29.15 (b) The absence or likelihood of absence of care or 29.16 services, including but not limited to, food, clothing, shelter, 29.17 health care, or supervision necessary to maintain the physical 29.18 and mental health of the vulnerable adult which a reasonable 29.19 person would deem essential to obtain or maintain the vulnerable 29.20 adult's health, safety, or comfort considering the physical or 29.21 mental capacity or dysfunction of the vulnerable adult. 29.22 (c) For purposes of this section, a vulnerable adult is not 29.23 neglected for the sole reason that: 29.24 (1) the vulnerable adult or a person with authority to make 29.25 health care decisions for the vulnerable adult under sections 29.26 144.651, 144A.44, chapter 145B, 145C, or 252A, or section 29.27 253B.03, or 525.539 to 525.6199, refuses consent or withdraws 29.28 consent, consistent with that authority and within the boundary 29.29 of reasonable medical practice, to any therapeutic conduct, 29.30 including any care, service, or procedure to diagnose, maintain, 29.31 or treat the physical or mental condition of the vulnerable 29.32 adult, or to provide nutrition and hydration parenterally or 29.33 through intubation; this paragraph does not enlarge or diminish 29.34 rights otherwise held under law by: 29.35 (i) a vulnerable adult or a person acting on behalf of a 29.36 vulnerable adult, including an involved family member, to 30.1 consent to or refuse consent for therapeutic conduct; or 30.2 (ii) a caregiver to offer or provide or refuse to offer or 30.3 provide therapeutic conduct; or 30.4 (2) the vulnerable adult, a person with authority to make 30.5 health care decisions for the vulnerable adult, or a caregiver 30.6 in good faith selects and depends upon spiritual means or prayer 30.7 for treatment or care of disease or remedial care of the 30.8 vulnerable adult in lieu of medical care, provided that this is 30.9 consistent with the prior practice or belief of the vulnerable 30.10 adult or with the expressed intentions of the vulnerable adult; 30.11 or 30.12 (3) an individual makes a single mistake in the provision 30.13 of therapeutic conduct to a vulnerable adult which: (i) does 30.14 not result in injury or harm which reasonably requires the care 30.15 of a physician or mental health professional, whether or not the 30.16 care was sought; (ii) is immediately reported internally by the 30.17 employee or person providing services in the facility; and (iii) 30.18 is sufficiently documented for review and evaluation by the 30.19 facility and any applicable licensing and certification agency. 30.20 (d) Nothing in this definition requires a caregiver, if 30.21 regulated, to provide services in excess of those required by 30.22 the caregiver's license, certification, registration, or other 30.23 regulation. 30.24 (e) Nothing in this definition is intended to prohibit 30.25 sexual contact between a vulnerable adult and the vulnerable 30.26 adult's spouse or domestic partner. 30.27 Subd. 18. [REPORT.] "Report" means a statement concerning 30.28 all the circumstances surrounding the alleged or suspected 30.29 maltreatment, as defined in this section, of a vulnerable adult 30.30 which are known to the reporter at the time the statement is 30.31 made. 30.32 Subd. 19. [SUBSTANTIATED.] "Substantiated" means a 30.33 preponderance of the evidence shows that an act that meets the 30.34 definition of maltreatment occurred. 30.35 Subd. 20. [THERAPEUTIC CONDUCT.] "Therapeutic conduct" 30.36 means the provision of program services, health care, or other 31.1 personal care services done in good faith in the interests of 31.2 the vulnerable adult by: (1) an individual, facility, or 31.3 employee or person providing services in a facility under the 31.4 rights, privileges and responsibilities conferred by state 31.5 license, certification, or registration; or (2) a caregiver. 31.6 Subd. 21. [VULNERABLE ADULT.] "Vulnerable adult" means any 31.7 person 18 years of age or older who: 31.8 (1) is a resident or inpatient of a facility; 31.9 (2) receives services at or from a facility required to be 31.10 licensed to serve adults under sections 245A.01 to 245A.15, 31.11 except that a person receiving outpatient services for treatment 31.12 of chemical dependency or mental illness, or one who is 31.13 committed as a sexual psychopathic personality or as a sexually 31.14 dangerous person under chapter 253B, is not considered a 31.15 vulnerable adult unless the person meets the requirements of 31.16 clause (4); 31.17 (3) receives services from a home care provider required to 31.18 be licensed under section 144A.46; or from a person or 31.19 organization that exclusively offers, provides, or arranges for 31.20 personal care assistant services under the medical assistance 31.21 program as authorized under sections 256B.04, subdivision 16, 31.22 256B.0625, subdivision 19a, and 256B.0627; or 31.23 (4) regardless of residence or whether any type of service 31.24 is received, possesses a physical or mental infirmity or other 31.25 physical, mental, or emotional dysfunction: 31.26 (i) that impairs the individual's ability to provide 31.27 adequately for the individual's own care without assistance, 31.28 including the provision of food, shelter, clothing, health care, 31.29 or supervision; and 31.30 (ii) because of the dysfunction or infirmity and the need 31.31 for assistance, the individual has an impaired ability to 31.32 protect the individual from maltreatment. 31.33 Sec. 23. [626.5573] [NEGLIGENCE ACTIONS.] 31.34 A violation of sections 626.557 to 626.5572 shall be 31.35 admissible as evidence of negligence, but shall not be 31.36 considered negligence per se. 32.1 Sec. 24. [REPEALER.] 32.2 Minnesota Statutes 1994, section 626.557, subdivisions 2, 32.3 10a, 11, 11a, 12, 13, 15, and 19, are repealed. 32.4 Sec. 25. [EFFECTIVE DATE.] 32.5 Sections 15 and 19 are effective July 1, 1995. Sections 1 32.6 to 14, 16 to 18, and 20 to 24 are effective October 1, 1995. 32.7 ARTICLE 2 32.8 CRIMINAL PENALTIES 32.9 Section 1. Minnesota Statutes 1994, section 609.224, 32.10 subdivision 2, is amended to read: 32.11 Subd. 2. [GROSS MISDEMEANOR.] (a) Whoever violates the 32.12 provisions of subdivision 1 against the same victim during the 32.13 time period between a previous conviction under this section, 32.14 sections 609.221 to 609.2231, 609.342 to 609.345, or 609.713, or 32.15 any similar law of another state, and the end of the five years 32.16 following discharge from sentence for that conviction, is guilty 32.17 of a gross misdemeanor and may be sentenced to imprisonment for 32.18 not more than one year or to payment of a fine of not more than 32.19 $3,000, or both. Whoever violates the provisions of subdivision 32.20 1 against a family or household member as defined in section 32.21 518B.01, subdivision 2, during the time period between a 32.22 previous conviction under this section or sections 609.221 to 32.23 609.2231, 609.342 to 609.345, or 609.713 against a family or 32.24 household member, and the end of the five years following 32.25 discharge from sentence for that conviction is guilty of a gross 32.26 misdemeanor and may be sentenced to imprisonment for not more 32.27 than one year or to payment of a fine of not more than $3,000, 32.28 or both. 32.29 (b) Whoever violates the provisions of subdivision 1 within 32.30 two years of a previous conviction under this section or 32.31 sections 609.221 to 609.2231 or 609.713 is guilty of a gross 32.32 misdemeanor and may be sentenced to imprisonment for not more 32.33 than one year or to payment of a fine of not more than $3,000, 32.34 or both. 32.35 (c) A caregiver, as defined in section 609.232, who 32.36 violates the provisions of subdivision 1 against a vulnerable 33.1 adult, as defined in section 609.232, is guilty of a gross 33.2 misdemeanor and may be sentenced to imprisonment for not more 33.3 than one year or to payment of a fine of not more than $3,000, 33.4 or both. 33.5 Sec. 2. [609.232] [CRIMES AGAINST VULNERABLE ADULTS; 33.6 DEFINITIONS.] 33.7 Subdivision 1. [SCOPE.] As used in sections 609.2325, 33.8 609.233, 609.2335, and 609.234, the terms defined in this 33.9 section have the meanings given. 33.10 Subd. 2. [CAREGIVER.] "Caregiver" means an individual or 33.11 facility who has responsibility for the care of a vulnerable 33.12 adult as a result of a family relationship, or who has assumed 33.13 responsibility for all or a portion of the care of a vulnerable 33.14 adult voluntarily, by contract, or by agreement. 33.15 Subd. 3. [FACILITY.] (a) "Facility" means a hospital or 33.16 other entity required to be licensed under sections 144.50 to 33.17 144.58; a nursing home required to be licensed to serve adults 33.18 under section 144A.02; a home care provider licensed or required 33.19 to be licensed under section 144A.46; a residential or 33.20 nonresidential facility required to be licensed to serve adults 33.21 under sections 245A.01 to 245A.16; or a person or organization 33.22 that exclusively offers, provides, or arranges for personal care 33.23 assistant services under the medical assistance program as 33.24 authorized under sections 256B.04, subdivision 16, 256B.0625, 33.25 subdivision 19a, and 256B.0627. 33.26 (b) For home care providers and personal care attendants, 33.27 the term "facility" refers to the provider or person or 33.28 organization that exclusively offers, provides, or arranges for 33.29 personal care services, and does not refer to the client's home 33.30 or other location at which services are rendered. 33.31 Subd. 4. [IMMEDIATELY.] "Immediately" means as soon as 33.32 possible, but no longer than 24 hours from the time of initial 33.33 knowledge that the incident occurred has been received. 33.34 Subd. 5. [LEGAL AUTHORITY.] "Legal authority" includes, 33.35 but is not limited to: 33.36 (1) a fiduciary obligation recognized elsewhere in law, 34.1 including pertinent regulations; 34.2 (2) a contractual obligation; or 34.3 (3) documented consent by a competent person. 34.4 Subd. 6. [MALTREATMENT.] "Maltreatment" means any of the 34.5 following: 34.6 (1) abuse under section 609.2325; 34.7 (2) neglect under section 609.233; or 34.8 (3) financial exploitation under section 609.2335. 34.9 Subd. 7. [OPERATOR.] "Operator" means any person whose 34.10 duties and responsibilities evidence actual control of 34.11 administrative activities or authority for the decision making 34.12 of or by a facility. 34.13 Subd. 8. [PERSON.] "Person" means any individual, 34.14 corporation, firm, partnership, incorporated and unincorporated 34.15 association, or any other legal, professional, or commercial 34.16 entity. 34.17 Subd. 9. [REPORT.] "Report" means a statement concerning 34.18 all the circumstances surrounding the alleged or suspected 34.19 maltreatment, as defined in this section, of a vulnerable adult 34.20 which are known to the reporter at the time the statement is 34.21 made. 34.22 Subd. 10. [THERAPEUTIC CONDUCT.] "Therapeutic conduct" 34.23 means the provision of program services, health care, or other 34.24 personal care services done in good faith in the interests of 34.25 the vulnerable adult by: (1) an individual, facility or 34.26 employee, or person providing services in a facility under the 34.27 rights, privileges, and responsibilities conferred by state 34.28 license, certification, or registration; or (2) a caregiver. 34.29 Subd. 11. [VULNERABLE ADULT.] "Vulnerable adult" means any 34.30 person 18 years of age or older who: 34.31 (1) is a resident inpatient of a facility; 34.32 (2) receives services at or from a facility required to be 34.33 licensed to serve adults under sections 245A.01 to 245A.15, 34.34 except that a person receiving outpatient services for treatment 34.35 of chemical dependency or mental illness, or one who is 34.36 committed as a sexual psychopathic personality or as a sexually 35.1 dangerous person under chapter 253B, is not considered a 35.2 vulnerable adult unless the person meets the requirements of 35.3 clause (4); 35.4 (3) receives services from a home care provider required to 35.5 be licensed under section 144A.46; or from a person or 35.6 organization that exclusively offers, provides, or arranges for 35.7 personal care assistant services under the medical assistance 35.8 program as authorized under sections 256B.04, subdivision 16, 35.9 256B.0625, subdivision 19a, and 256B.0627; or 35.10 (4) regardless of residence or whether any type of service 35.11 is received, possesses a physical or mental infirmity or other 35.12 physical, mental, or emotional dysfunction: 35.13 (i) that impairs the individual's ability to provide 35.14 adequately for the individual's own care without assistance, 35.15 including the provision of food, shelter, clothing, health care, 35.16 or supervision; and 35.17 (ii) because of the dysfunction or infirmity and the need 35.18 for assistance, the individual has an impaired ability to 35.19 protect the individual from maltreatment. 35.20 Sec. 3. [609.2325] [CRIMINAL ABUSE.] 35.21 Subdivision 1. [CRIMES.] (a) A caregiver who, with intent 35.22 to produce physical or mental pain or injury to a vulnerable 35.23 adult, subjects a vulnerable adult to any aversive or 35.24 deprivation procedure, unreasonable confinement, or involuntary 35.25 seclusion, is guilty of criminal abuse and may be sentenced as 35.26 provided in subdivision 3. 35.27 This paragraph does not apply to therapeutic conduct. 35.28 (b) A caregiver, facility staff person, or person providing 35.29 services in a facility who engages in sexual contact or 35.30 penetration, as defined in section 609.341, under circumstances 35.31 other than those described in sections 609.342 to 609.345, with 35.32 a resident, patient, or client of the facility is guilty of 35.33 criminal abuse and may be sentenced as provided in subdivision 3. 35.34 Subd. 2. [EXEMPTIONS.] For the purposes of this section, a 35.35 vulnerable adult is not abused for the sole reason that: 35.36 (1) the vulnerable adult or a person with authority to make 36.1 health care decisions for the vulnerable adult under sections 36.2 144.651, 144A.44, chapter 145B, 145C, or 252A, or section 36.3 253B.03, or 525.539 to 525.6199, refuses consent or withdraws 36.4 consent, consistent with that authority and within the boundary 36.5 of reasonable medical practice, to any therapeutic conduct, 36.6 including any care, service, or procedure to diagnose, maintain, 36.7 or treat the physical or mental condition of the vulnerable 36.8 adult or to provide nutrition and hydration parenterally or 36.9 through intubation; this paragraph does not enlarge or diminish 36.10 rights otherwise held under law by: 36.11 (i) a vulnerable adult or a person acting on behalf of a 36.12 vulnerable adult, including an involved family member, to 36.13 consent to or refuse consent for therapeutic conduct; or 36.14 (ii) a caregiver to offer or provide or refuse to offer or 36.15 provide therapeutic conduct; or 36.16 (2) the vulnerable adult, a person with authority to make 36.17 health care decisions for the vulnerable adult, or a caregiver 36.18 in good faith selects and depends upon spiritual means or prayer 36.19 for treatment or care of disease or remedial care of the 36.20 vulnerable adult in lieu of medical care, provided that this is 36.21 consistent with the prior practice or belief of the vulnerable 36.22 adult or with the expressed intentions of the vulnerable adult. 36.23 Nothing in this section is intended to prohibit sexual 36.24 contact between a vulnerable adult and the vulnerable adult's 36.25 spouse or domestic partner. 36.26 Subd. 3. [PENALTIES.] (a) A person who violates 36.27 subdivision 1, paragraph (a), clause (1), may be sentenced as 36.28 follows: 36.29 (1) if the act results in the death of a vulnerable adult, 36.30 imprisonment for not more than 15 years or payment of a fine of 36.31 not more than $30,000, or both; 36.32 (2) if the act results in great bodily harm, imprisonment 36.33 for not more than ten years or payment of a fine of not more 36.34 than $20,000, or both; 36.35 (3) if the act results in substantial bodily harm or the 36.36 risk of death, imprisonment for not more than five years or 37.1 payment of a fine of not more than $10,000, or both; or 37.2 (4) in other cases, imprisonment for not more than one year 37.3 or payment of a fine of not more than $3,000, or both. 37.4 (b) A person who violates subdivision 1, paragraph (a), 37.5 clause (2), or paragraph (b), may be sentenced to imprisonment 37.6 for not more than one year or to payment of a fine of not more 37.7 than $3,000, or both. 37.8 Sec. 4. [609.233] [CRIMINAL NEGLECT.] 37.9 Subdivision 1. [CRIME.] (a) A caregiver or operator who 37.10 commits any of the acts or omissions listed in paragraph (b) is 37.11 guilty of criminal neglect and may be sentenced as provided in 37.12 subdivision 3, if the act or omission constitutes a conscious 37.13 disregard for danger to human life and reckless indifference to 37.14 the risk of harm and does not constitute therapeutic conduct. 37.15 This mental state is greater than that required in ordinary or 37.16 gross negligence. 37.17 (b) This subdivision applies to the following acts or 37.18 omissions: 37.19 (1) the failure or omission to supply a vulnerable adult 37.20 with care or services, including but not limited to food, 37.21 clothing, shelter, health care, or supervision when the care or 37.22 services are reasonable and necessary to obtain or maintain the 37.23 vulnerable adult's physical or mental health or safety, 37.24 considering the physical or mental capacity or dysfunction of 37.25 the vulnerable adult; or 37.26 (2) knowingly permitting conditions to exist by failing to 37.27 take corrective action within the scope of that person's 37.28 authority, resulting in the abuse, as defined in section 37.29 626.5572, subdivision 2, or neglect, as defined in section 37.30 626.5572, subdivision 17, of a vulnerable adult. 37.31 Subd. 2. [EXEMPTIONS.] A vulnerable adult is not neglected 37.32 for the sole reason that: 37.33 (1) the vulnerable adult or a person with authority to make 37.34 health care decisions for the vulnerable adult under sections 37.35 144.651, 144A.44, chapter 145B, 145C, or 252A, or section 37.36 253B.03, or 525.539 to 525.6199, refuses consent or withdraws 38.1 consent, consistent with that authority and within the boundary 38.2 of reasonable medical practice, to any therapeutic conduct, 38.3 including any care, service, or procedure to diagnose, maintain, 38.4 or treat the physical or mental condition of the vulnerable 38.5 adult or to provide nutrition and hydration parenterally or 38.6 through intubation; this paragraph does not enlarge or diminish 38.7 rights otherwise held under law by: 38.8 (i) a vulnerable adult or a person acting on behalf of a 38.9 vulnerable adult, including an involved family member, to 38.10 consent to or refuse consent for therapeutic conduct; or 38.11 (ii) a caregiver to offer or provide or refuse to offer or 38.12 provide therapeutic conduct; or 38.13 (2) the vulnerable adult, a person with authority to make 38.14 health care decisions for the vulnerable adult, or a caregiver 38.15 in good faith selects and depends upon spiritual means or prayer 38.16 for treatment or care of disease or remedial care of the 38.17 vulnerable adult in lieu of medical care, provided that this is 38.18 consistent with the prior practice or belief of the vulnerable 38.19 adult or with the expressed intentions of the vulnerable adult. 38.20 Nothing in this section is intended to prohibit sexual 38.21 contact between a vulnerable adult and the vulnerable adult's 38.22 spouse or domestic partner. 38.23 Subd. 3. [CRIMINAL PENALTIES.] A person who violates this 38.24 section may be sentenced as follows: 38.25 (1) if the act results in great bodily harm, to 38.26 imprisonment for not more than ten years or to payment of a fine 38.27 of not more than $20,000, or both; 38.28 (2) if the act results in substantial bodily harm or the 38.29 risk of death, to imprisonment for not more than five years or 38.30 payment of a fine of not more than $10,000, or both; or 38.31 (3) if the act results in less than substantial bodily 38.32 harm, to imprisonment for not more than one year or payment of a 38.33 fine of not more than $3,000, or both. 38.34 Subd. 4. [DEFENSES.] Nothing in this section requires a 38.35 caregiver, if regulated, to provide services in excess of those 38.36 required by the caregiver's license, certification, 39.1 registration, or other regulation. 39.2 Sec. 5. [609.2335] [FINANCIAL EXPLOITATION OF A VULNERABLE 39.3 ADULT.] 39.4 Subdivision 1. [CRIME.] Whoever does any of the following 39.5 acts commits the crime of financial exploitation: 39.6 (1) in breach of a fiduciary obligation recognized 39.7 elsewhere in law, including pertinent regulations, contractual 39.8 obligations, documented consent by a competent person, or the 39.9 obligations of a responsible party under section 144.6501 39.10 intentionally fails to use the financial resources of the 39.11 vulnerable adult to provide food, clothing, shelter, health 39.12 care, therapeutic conduct, or supervision for the vulnerable 39.13 adult; or 39.14 (2) in the absence of legal authority: 39.15 (i) acquires possession or control of an interest in funds 39.16 or property of a vulnerable adult through the use of undue 39.17 influence, harassment, or duress; or 39.18 (ii) forces, compels, coerces, or entices a vulnerable 39.19 adult against the vulnerable adult's will to perform services 39.20 for the profit or advantage of another. 39.21 Subd. 2. [DEFENSES.] Nothing in this section requires a 39.22 facility or caregiver to provide financial management or 39.23 supervise financial management for a vulnerable adult except as 39.24 otherwise required by law. 39.25 Subd. 3. [CRIMINAL PENALTIES.] A person who violates 39.26 subdivision 1, clause (1) or (2), item (i), may be sentenced as 39.27 provided in section 609.52, subdivision 3. A person who 39.28 violates subdivision 1, clause (2), item (ii), may be sentenced 39.29 to imprisonment for not more than one year or to payment of a 39.30 fine of not more than $3,000, or both. 39.31 Sec. 6. [609.234] [FAILURE TO REPORT.] 39.32 Subdivision 1. [CRIME.] Any mandated reporter who is 39.33 required to report under section 626.557, who knows or has 39.34 reason to believe that a vulnerable adult is being or has been 39.35 maltreated, as defined in section 626.5572, subdivision 15, and 39.36 who does any of the following is guilty of a misdemeanor: 40.1 (1) intentionally fails to make a report; 40.2 (2) knowingly provides information which is false, 40.3 deceptive, or misleading; or 40.4 (3) intentionally fails to provide all of the material 40.5 circumstances surrounding the incident which are known to the 40.6 reporter when the report is made. 40.7 Subd. 2. [INCREASED PENALTY.] It is a gross misdemeanor 40.8 for a person who is mandated to report under section 626.557, 40.9 who knows or has reason to believe that a vulnerable adult is 40.10 being or has been maltreated, as defined in section 626.5572, 40.11 subdivision 15, to intentionally fail to make a report if: 40.12 (1) the person knows the maltreatment caused or contributed 40.13 to the death or great bodily harm of a vulnerable adult; and 40.14 (2) the failure to report causes or contributes to the 40.15 death or great bodily harm of a vulnerable adult or protects the 40.16 mandated reporter's interests. 40.17 Sec. 7. Minnesota Statutes 1994, section 609.72, is 40.18 amended by adding a subdivision to read: 40.19 Subd. 3. [CAREGIVER; PENALTY FOR DISORDERLY CONDUCT.] A 40.20 caregiver, as defined in section 609.232, who violates the 40.21 provisions of subdivision 1 against a vulnerable adult, as 40.22 defined in section 609.232, may be sentenced to imprisonment for 40.23 not more than one year or to payment of a fine of not more than 40.24 $3,000, or both. 40.25 Sec. 8. [REPEALER.] 40.26 Minnesota Statutes 1994, sections 609.23 and 609.231, are 40.27 repealed. 40.28 Sec. 9. [EFFECTIVE DATE.] 40.29 Sections 1 to 8 are effective October 1, 1995, and apply to 40.30 crimes committed on or after that date. 40.31 ARTICLE 3 40.32 OTHER LAWS AFFECTING VULNERABLE ADULTS 40.33 Section 1. Minnesota Statutes 1994, section 13.82, is 40.34 amended by adding a subdivision to read: 40.35 Subd. 5c. [VULNERABLE ADULT IDENTITY DATA.] Active or 40.36 inactive investigative data that identify a victim of vulnerable 41.1 adult maltreatment under section 626.557 are private data on 41.2 individuals. Active or inactive investigative data that 41.3 identify a reporter of vulnerable adult maltreatment under 41.4 section 626.557 are private data on individuals. 41.5 Sec. 2. Minnesota Statutes 1994, section 13.82, is amended 41.6 by adding a subdivision to read: 41.7 Subd. 5d. [INACTIVE VULNERABLE ADULT MALTREATMENT 41.8 DATA.] Investigative data that becomes inactive under 41.9 subdivision 5, paragraph (a) or (b), and that relate to the 41.10 alleged maltreatment of a vulnerable adult by a caregiver or 41.11 facility are private data on individuals. 41.12 Sec. 3. Minnesota Statutes 1994, section 13.82, 41.13 subdivision 10, is amended to read: 41.14 Subd. 10. [PROTECTION OF IDENTITIES.] A law enforcement 41.15 agency or a law enforcement dispatching agency working under 41.16 direction of a law enforcement agency may withhold public access 41.17 to data on individuals to protect the identity of individuals in 41.18 the following circumstances: 41.19 (a) when access to the data would reveal the identity of an 41.20 undercover law enforcement officer; 41.21 (b) when access to the data would reveal the identity of a 41.22 victim of criminal sexual conduct or of a violation of section 41.23 617.246, subdivision 2; 41.24 (c) when access to the data would reveal the identity of a 41.25 paid or unpaid informant being used by the agency if the agency 41.26 reasonably determines that revealing the identity of the 41.27 informant would threaten the personal safety of the informant; 41.28 (d) when access to the data would reveal the identity of a 41.29 victim of or witness to a crime if the victim or witness 41.30 specifically requests not to be identified publicly, and the 41.31 agency reasonably determines that revealing the identity of the 41.32 victim or witness would threaten the personal safety or property 41.33 of the individual; 41.34 (e) when access to the data would reveal the identity of a 41.35 deceased person whose body was unlawfully removed from a 41.36 cemetery in which it was interred; 42.1 (f) when access to the data would reveal the identity of a 42.2 person who placed a call to a 911 system or the identity or 42.3 telephone number of a service subscriber whose phone is used to 42.4 place a call to the 911 system and: (1) the agency determines 42.5 that revealing the identity may threaten the personal safety or 42.6 property of any person; or (2) the object of the call is to 42.7 receive help in a mental health emergency. For the purposes of 42.8 this paragraph, a voice recording of a call placed to the 911 42.9 system is deemed to reveal the identity of the caller;or42.10 (g) when access to the data would reveal the identity of a 42.11 juvenile witness and the agency reasonably determines that the 42.12 subject matter of the investigation justifies protecting the 42.13 identity of the witness; or 42.14 (h) when access to the data would reveal the identity of a 42.15 mandated reporter under sections 626.556 and 626.557. 42.16 Data concerning individuals whose identities are protected 42.17 by this subdivision are private data about those individuals. 42.18 Law enforcement agencies shall establish procedures to acquire 42.19 the data and make the decisions necessary to protect the 42.20 identity of individuals described in clauses (d) and (g). 42.21 Sec. 4. [144.057] [BACKGROUND STUDIES ON LICENSEES.] 42.22 Subdivision 1. [BACKGROUND STUDIES REQUIRED.] The 42.23 commissioner of health shall contract with the commissioner of 42.24 human services to conduct background studies of individuals 42.25 providing services which have direct contact with patients and 42.26 residents in hospitals, boarding care homes, outpatient surgical 42.27 centers licensed under sections 144.50 to 144.58; nursing homes 42.28 and home care agencies licensed under chapter 144A; residential 42.29 care homes licensed under chapter 144B, and board and lodging 42.30 establishments that are registered to provide supportive or 42.31 health supervision services under section 157.031. If a 42.32 facility or program is licensed by the department of human 42.33 services and subject to the background study provisions of 42.34 chapter 245A and is also licensed by the department of health, 42.35 the department of human services is solely responsible for the 42.36 background studies of individuals in the jointly licensed 43.1 programs. 43.2 Subd. 2. [RESPONSIBILITIES OF THE DEPARTMENT OF HUMAN 43.3 SERVICES.] The department of human services shall conduct the 43.4 background studies required by subdivision 1 in compliance with 43.5 the provisions of chapter 245A and Minnesota Rules, parts 43.6 9543.3000 to 9543.3090. For the purpose of this section, the 43.7 term "residential program" shall include all facilities 43.8 described in subdivision 1. The department of human services 43.9 shall provide necessary forms and instructions, shall conduct 43.10 the necessary background studies of individuals, and shall 43.11 provide notification of the results of the studies to the 43.12 facilities and individuals. Individuals shall be disqualified 43.13 under the provisions of chapter 245A and Minnesota Rules, parts 43.14 9543.3000 to 9543.3090. If an individual is disqualified, the 43.15 department of human services shall notify the facility and the 43.16 individual and shall inform the individual of the right to 43.17 request a reconsideration of the disqualification by submitting 43.18 the request to the department of health. 43.19 Subd. 3. [RECONSIDERATIONS.] The commissioner of health 43.20 shall review and decide reconsideration requests in accordance 43.21 with the procedures and criteria contained in chapter 245A and 43.22 Minnesota Rules, parts 9543.3000 to 9543.3090. The 43.23 commissioner's decision shall be provided to the individual and 43.24 to the department of human services. The commissioner's 43.25 decision to grant or deny a reconsideration of disqualification 43.26 is the final administrative agency action. 43.27 Subd. 4. [RESPONSIBILITIES OF FACILITIES.] Facilities 43.28 described in subdivision 1 shall be responsible for cooperating 43.29 with the departments in implementing the provisions of this 43.30 section. The responsibilities imposed on applicants and 43.31 licensees under chapter 245A and Minnesota Rules, parts 43.32 9543.3000 to 9543.3090 shall apply to these facilities. The 43.33 provision of section 245A.04, subdivision 3, paragraph (d) shall 43.34 apply to applicants, licensees, or an individual's refusal to 43.35 cooperate with the completion of the background studies. 43.36 Sec. 5. Minnesota Statutes 1994, section 245A.04, 44.1 subdivision 3, is amended to read: 44.2 Subd. 3. [STUDY OF THE APPLICANT.] (a) Before the 44.3 commissioner issues a license, the commissioner shall conduct a 44.4 study of the individuals specified in clauses (1) to(4)(5) 44.5 according to rules of the commissioner. The applicant, license 44.6 holder, the bureau of criminal apprehension, the commissioner of 44.7 health and county agencies, after written notice to the 44.8 individual who is the subject of the study, shall help with the 44.9 study by giving the commissioner criminal conviction data and 44.10 reports about abuse or neglect of adults in licensed programs 44.11 substantiated under section 626.557 and the maltreatment of 44.12 minors in licensed programs substantiated under section 44.13 626.556. The individuals to be studied shall include: 44.14 (1) the applicant; 44.15 (2) persons over the age of 13 living in the household 44.16 where the licensed program will be provided; 44.17 (3) current employees or contractors of the applicant who 44.18 will have direct contact with persons served by the program;and44.19 (4) volunteers who have direct contact with persons served 44.20 by the program to provide program services, if the contact is 44.21 not directly supervised by the individuals listed in clause (1) 44.22 or (3); and 44.23 (5) any person who, as an individual or as a member of an 44.24 organization, exclusively offers, provides, or arranges for 44.25 personal care assistant services under the medical assistance 44.26 program as authorized under sections 256B.04, subdivision 16, 44.27 and 256B.0625, subdivision 19. 44.28 The juvenile courts shall also help with the study by 44.29 giving the commissioner existing juvenile court records on 44.30 individuals described in clause (2) relating to delinquency 44.31 proceedings held within either the five years immediately 44.32 preceding the application or the five years immediately 44.33 preceding the individual's 18th birthday, whichever time period 44.34 is longer. The commissioner shall destroy juvenile records 44.35 obtained pursuant to this subdivision when the subject of the 44.36 records reaches age 23. 45.1 For purposes of this subdivision, "direct contact" means 45.2 providing face-to-face care, training, supervision, counseling, 45.3 consultation, or medication assistance to persons served by a 45.4 program. For purposes of this subdivision, "directly supervised" 45.5 means an individual listed in clause (1)or, (3), or (5) is 45.6 within sight or hearing of a volunteer to the extent that the 45.7 individual listed in clause (1)or, (3), or (5) is capable at 45.8 all times of intervening to protect the health and safety of the 45.9 persons served by the program who have direct contact with the 45.10 volunteer. 45.11 A study of an individual in clauses (1) to(4)(5) shall be 45.12 conducted at least upon application for initial license and 45.13 reapplication for a license. The commissioner is not required 45.14 to conduct a study of an individual at the time of reapplication 45.15 for a license, other than a family day care or foster care 45.16 license, if (i) a study of the individual was conducted either 45.17 at the time of initial licensure or when the individual became 45.18 affiliated with the license holder; (ii) the individual has been 45.19 continuously affiliated with the license holder since the last 45.20 study was conducted; and (iii) the procedure described in 45.21 paragraph (b) has been implemented and was in effect 45.22 continuously since the last study was conducted. No applicant, 45.23 license holder, or individual who is the subject of the study 45.24 shall pay any fees required to conduct the study. 45.25 (b) If an individual who is affiliated with a department of 45.26 human services or department of health program is convicted of a 45.27 crime constituting a disqualification under Minnesota Rules, 45.28 parts 9543.3000 to 9543.3090, the probation officer or 45.29 corrections agent shall notify the commissioner of the 45.30 conviction. The commissioner, in consultation with the 45.31 commissioner of corrections, shall develop forms and information 45.32 necessary to implement this paragraph and shall provide the 45.33 forms and information to the commissioner of corrections for 45.34 distribution to local probation officers and corrections 45.35 agents. The commissioner shall inform individuals subject to a 45.36 background study that criminal convictions for disqualifying 46.1 crimes will be reported to the commissioner by the corrections 46.2 system. A probation officer, corrections agent, or corrections 46.3 agency is not civilly or criminally liable for disclosing or 46.4 failing to disclose the information required by this paragraph. 46.5 This paragraph does not apply to family day care and foster care 46.6 programs. 46.7(b)(c) The individual who is the subject of the study must 46.8 provide the applicant or license holder with sufficient 46.9 information to ensure an accurate study including the 46.10 individual's first, middle, and last name; home address, city, 46.11 county, and state of residence; zip code; sex; date of birth; 46.12 and driver's license number. The applicant or license holder 46.13 shall provide this information about an individual in paragraph 46.14 (a), clauses (1) to(4)(5), on forms prescribed by the 46.15 commissioner. The commissioner may request additional 46.16 information of the individual, which shall be optional for the 46.17 individual to provide, such as the individual's social security 46.18 number or race. 46.19(c)(d) Except for child foster care, adult foster care, 46.20 and family day care homes, a study must include information from 46.21 the county agency's record of substantiated abuse or neglect of 46.22 adults in licensed programs, and the maltreatment of minors in 46.23 licensed programs, information from juvenile courts as required 46.24 in paragraph (a) for persons listed in paragraph (a), clause 46.25 (2), and information from the bureau of criminal apprehension. 46.26 For child foster care, adult foster care, and family day care 46.27 homes, the study must include information from the county 46.28 agency's record of substantiated abuse or neglect of adults, and 46.29 the maltreatment of minors, information from juvenile courts as 46.30 required in paragraph (a) for persons listed in paragraph (a), 46.31 clause (2), and information from the bureau of criminal 46.32 apprehension. The commissioner may also review arrest and 46.33 investigative information from the bureau of criminal 46.34 apprehension, the commissioner of health, a county attorney, 46.35 county sheriff, county agency, local chief of police, other 46.36 states, the courts, or a national criminal record repository if 47.1 the commissioner has reasonable cause to believe the information 47.2 is pertinent to the disqualification of an individual listed in 47.3 paragraph (a), clauses (1) to(4)(5). 47.4(d)(e) An applicant's or license holder's failure or 47.5 refusal to cooperate with the commissioner is reasonable cause 47.6 to deny an application or immediately suspend, suspend, or 47.7 revoke a license. Failure or refusal of an individual to 47.8 cooperate with the study is just cause for denying or 47.9 terminating employment of the individual if the individual's 47.10 failure or refusal to cooperate could cause the applicant's 47.11 application to be denied or the license holder's license to be 47.12 immediately suspended, suspended, or revoked. 47.13(e)(f) The commissioner shall not consider an application 47.14 to be complete until all of the information required to be 47.15 provided under this subdivision has been received. 47.16(f)(g) No person in paragraph (a), clause (1), (2), (3), 47.17or(4), or (5) who is disqualified as a result of this section 47.18 may be retained by the agency in a position involving direct 47.19 contact with persons served by the program. 47.20(g)(h) Termination of persons in paragraph (a), clause 47.21 (1), (2), (3),or(4), or (5) made in good faith reliance on a 47.22 notice of disqualification provided by the commissioner shall 47.23 not subject the applicant or license holder to civil liability. 47.24(h)(i) The commissioner may establish records to fulfill 47.25 the requirements of this section. 47.26(i)(j) The commissioner may not disqualify an individual 47.27 subject to a study under this section because that person has, 47.28 or has had, a mental illness as defined in section 245.462, 47.29 subdivision 20. 47.30(j)(k) An individual who is subject to an applicant 47.31 background study under this section and whose disqualification 47.32 in connection with a license would be subject to the limitations 47.33 on reconsideration set forth in subdivision 3b, paragraph (c), 47.34 shall be disqualified for conviction of the crimes specified in 47.35 the manner specified in subdivision 3b, paragraph (c). The 47.36 commissioner of human services shall amend Minnesota Rules, part 48.1 9543.3070, to conform to this section. 48.2 (l) An individual must be disqualified if it has been 48.3 determined that the individual failed to make required reports 48.4 under sections 626.556, subdivision 3, or 626.557, subdivision 48.5 3, for incidents in which: (1) the final disposition under 48.6 section 626.556 or 626.557 was substantiated maltreatment, and 48.7 (2) the maltreatment was recurring or serious as defined in 48.8 Minnesota Rules, part 9543.3020, subpart 10. 48.9 (m) An individual subject to disqualification under this 48.10 subdivision has the applicable rights in subdivision 3a, 3b, or 48.11 3c. 48.12 Sec. 6. Minnesota Statutes 1994, section 256.045, 48.13 subdivision 1, is amended to read: 48.14 Subdivision 1. [POWERS OF THE STATE AGENCY.] The 48.15 commissioner of human services may appoint one or more state 48.16 human services referees to conduct hearings and recommend orders 48.17 in accordance with subdivisions 3, 3a, 3b, 4a, and 5. Human 48.18 services referees designated pursuant to this section may 48.19 administer oaths and shall be under the control and supervision 48.20 of the commissioner of human services and shall not be a part of 48.21 the office of administrative hearings established pursuant to 48.22 sections 14.48 to 14.56. 48.23 Sec. 7. Minnesota Statutes 1994, section 256.045, 48.24 subdivision 3, is amended to read: 48.25 Subd. 3. [STATE AGENCY HEARINGS.] State agency hearings 48.26 are available for the following: (1) any person applying for, 48.27 receiving or having received public assistance or a program of 48.28 social services granted by the state agency or a county agency 48.29 under sections 252.32, 256.031 to 256.036, and 256.72 to 48.30 256.879, chapters 256B, 256D, 256E, 261, or the federal Food 48.31 Stamp Act whose application for assistance is denied, not acted 48.32 upon with reasonable promptness, or whose assistance is 48.33 suspended, reduced, terminated, or claimed to have been 48.34 incorrectly paid, or; (2) any patient or relative aggrieved by 48.35 an order of the commissioner under section 252.27, or; (3) a 48.36 party aggrieved by a ruling of a prepaid health plan,; or (4) 49.1 any individual or facility determined by a lead agency to have 49.2 maltreated a vulnerable adult under section 626.557 after they 49.3 have exercised their right to administrative reconsideration 49.4 under section 626.557. Individuals and organizations specified 49.5 in this section may contestthatthe specified actionor, 49.6 decision, or final disposition before the state agency by 49.7 submitting a written request for a hearing to the state agency 49.8 within 30 days after receiving written notice of the actionor, 49.9 decision, or final disposition, or within 90 days of such 49.10 written notice if the applicant, recipient, patient, or relative 49.11 shows good cause why the request was not submitted within the 49.12 30-day time limit. 49.13 The hearing for an individual or facility under clause (4) 49.14 is the only administrative appeal to the final lead agency 49.15 disposition specifically, including a challenge to the accuracy 49.16 and completeness of data under section 13.04. 49.17 For purposes of this section, bargaining unit grievance 49.18 procedures are not an administrative appeal. 49.19 Except for a prepaid health plan, a vendor of medical care 49.20 as defined in section 256B.02, subdivision 7, or a vendor under 49.21 contract with a county agency to provide social services under 49.22 section 256E.08, subdivision 4, is not a party and may not 49.23 request a hearing under this section. 49.24 An applicant or recipient is not entitled to receive social 49.25 services beyond the services included in the amended community 49.26 social services plan developed under section 256E.081, 49.27 subdivision 3, if the county agency has met the requirements in 49.28 section 256E.081. 49.29 Sec. 8. Minnesota Statutes 1994, section 256.045, is 49.30 amended by adding a subdivision to read: 49.31 Subd. 3b. [STANDARD OF EVIDENCE FOR MALTREATMENT 49.32 HEARINGS.] The state human services referee shall determine that 49.33 maltreatment has occurred if a preponderance of evidence exists 49.34 to support the final disposition under section 626.557. 49.35 The state human services referee shall recommend an order 49.36 to the commissioner of health or human services, as applicable, 50.1 who shall issue a final order. The commissioner shall affirm, 50.2 reverse, or modify the final disposition. Any order of the 50.3 commissioner issued in accordance with this subdivision is 50.4 conclusive upon the parties unless appeal is taken in the manner 50.5 provided in subdivision 7. In any licensing appeal under 50.6 chapter 245A and sections 144.50 to 144.58 and 144A.02 to 50.7 144A.46, the commissioner's findings as to whether maltreatment 50.8 occurred is conclusive. 50.9 Sec. 9. Minnesota Statutes 1994, section 256.045, 50.10 subdivision 4, is amended to read: 50.11 Subd. 4. [CONDUCT OF HEARINGS.] (a) All hearings held 50.12 pursuant to subdivision 3, 3a, 3b, or 4a shall be conducted 50.13 according to the provisions of the federal Social Security Act 50.14 and the regulations implemented in accordance with that act to 50.15 enable this state to qualify for federal grants-in-aid, and 50.16 according to the rules and written policies of the commissioner 50.17 of human services. County agencies shall install equipment 50.18 necessary to conduct telephone hearings. A state human services 50.19 referee may schedule a telephone conference hearing when the 50.20 distance or time required to travel to the county agency offices 50.21 will cause a delay in the issuance of an order, or to promote 50.22 efficiency, or at the mutual request of the parties. Hearings 50.23 may be conducted by telephone conferences unless the applicant, 50.24 recipient,orformer recipient, person, or facility contesting 50.25 maltreatment objects. The hearing shall not be held earlier 50.26 than five days after filing of the required notice with the 50.27 county or state agency. The state human services referee shall 50.28 notify all interested persons of the time, date, and location of 50.29 the hearing at least five days before the date of the hearing. 50.30 Interested persons may be represented by legal counsel or other 50.31 representative of their choice at the hearing and may appear 50.32 personally, testify and offer evidence, and examine and 50.33 cross-examine witnesses. The applicant, recipient,orformer 50.34 recipient, person, or facility contesting maltreatment shall 50.35 have the opportunity to examine the contents of the case file 50.36 and all documents and records to be used by the county agency at 51.1 the hearing at a reasonable time before the date of the hearing 51.2 and during the hearing. In cases alleging discharge for 51.3 maltreatment, either party may subpoena the private data 51.4 relating to the investigation memorandum prepared by the lead 51.5 agency under section 626.557, provided the name of the reporter 51.6 may not be disclosed. 51.7 (b) The private data must be subject to a protective order 51.8 which prohibits its disclosure for any other purpose outside the 51.9 hearing provided for in this section without prior order of the 51.10 district court. Disclosure without court order is punishable by 51.11 a sentence of not more than 90 days imprisonment or a fine of 51.12 not more than $700, or both. These restrictions on the use of 51.13 private data do not prohibit access to the data under section 51.14 13.03, subdivision 6. Upon request, the county agency shall 51.15 provide reimbursement for transportation, child care, 51.16 photocopying, medical assessment, witness fee, and other 51.17 necessary and reasonable costs incurred by the applicant, 51.18 recipient, or former recipient in connection with the appeal, 51.19 except in appeals brought under subdivision 3b. All evidence, 51.20 except that privileged by law, commonly accepted by reasonable 51.21 people in the conduct of their affairs as having probative value 51.22 with respect to the issues shall be submitted at the hearing and 51.23 such hearing shall not be "a contested case" within the meaning 51.24 of section 14.02, subdivision 3. 51.25 Sec. 10. Minnesota Statutes 1994, section 256.045, 51.26 subdivision 5, is amended to read: 51.27 Subd. 5. [ORDERS OF THE COMMISSIONER OF HUMAN SERVICES.] 51.28 This subdivision does not apply to appeals under subdivision 51.29 3b. A state human services referee shall conduct a hearing on 51.30 the appeal and shall recommend an order to the commissioner of 51.31 human services. The recommended order must be based on all 51.32 relevant evidence and must not be limited to a review of the 51.33 propriety of the state or county agency's action. A referee may 51.34 take official notice of adjudicative facts. The commissioner of 51.35 human services may accept the recommended order of a state human 51.36 services referee and issue the order to the county agency and 52.1 the applicant, recipient, former recipient, or prepaid health 52.2 plan. The commissioner on refusing to accept the recommended 52.3 order of the state human services referee, shall notify the 52.4 county agency and the applicant, recipient, former recipient, or 52.5 prepaid health plan of that fact and shall state reasons 52.6 therefor and shall allow each party ten days' time to submit 52.7 additional written argument on the matter. After the expiration 52.8 of the ten-day period, the commissioner shall issue an order on 52.9 the matter to the county agency and the applicant, recipient, 52.10 former recipient, or prepaid health plan. 52.11 A party aggrieved by an order of the commissioner may 52.12 appeal under subdivision 7, or request reconsideration by the 52.13 commissioner within 30 days after the date the commissioner 52.14 issues the order. The commissioner may reconsider an order upon 52.15 request of any party or on the commissioner's own motion. A 52.16 request for reconsideration does not stay implementation of the 52.17 commissioner's order. Upon reconsideration, the commissioner 52.18 may issue an amended order or an order affirming the original 52.19 order. 52.20 Any order of the commissioner issued under this subdivision 52.21 shall be conclusive upon the parties unless appeal is taken in 52.22 the manner provided by subdivision 7. Any order of the 52.23 commissioner is binding on the parties and must be implemented 52.24 by the state agency or a county agency until the order is 52.25 reversed by the district court, or unless the commissioner or a 52.26 district court orders monthly assistance or aid or services paid 52.27 or provided under subdivision 10. 52.28 Except for a prepaid health plan, a vendor of medical care 52.29 as defined in section 256B.02, subdivision 7, or a vendor under 52.30 contract with a county agency to provide social services under 52.31 section 256E.08, subdivision 4, is not a party and may not 52.32 request a hearing or seek judicial review of an order issued 52.33 under this section. 52.34 Sec. 11. Minnesota Statutes 1994, section 256.045, 52.35 subdivision 6, is amended to read: 52.36 Subd. 6. [ADDITIONAL POWERS OF THE COMMISSIONER; 53.1 SUBPOENAS.] (a) The commissioner of human services, or the 53.2 commissioner of health for matters within the commissioner's 53.3 jurisdiction under subdivision 3b, may initiate a review of any 53.4 action or decision of a county agency and direct that the matter 53.5 be presented to a state human services referee for a hearing 53.6 held under subdivision 3, 3a, 3b, or 4a. In all matters dealing 53.7 with human services committed by law to the discretion of the 53.8 county agency, the commissioner's judgment may be substituted 53.9 for that of the county agency. The commissioner may order an 53.10 independent examination when appropriate. 53.11 (b) Any party to a hearing held pursuant to subdivision 3, 53.12 3a, 3b, or 4a may request that the commissioner issue a subpoena 53.13 to compel the attendance of witnesses at the hearing. The 53.14 issuance, service, and enforcement of subpoenas under this 53.15 subdivision is governed by section 357.22 and the Minnesota 53.16 Rules of Civil Procedure. 53.17 (c) The commissioner may issue a temporary order staying a 53.18 proposed demission by a residential facility licensed under 53.19 chapter 245A while an appeal by a recipient under subdivision 3 53.20 is pending or for the period of time necessary for the county 53.21 agency to implement the commissioner's order. 53.22 Sec. 12. Minnesota Statutes 1994, section 256.045, 53.23 subdivision 7, is amended to read: 53.24 Subd. 7. [JUDICIAL REVIEW.] Any party who is aggrieved by 53.25 an order of the commissioner of human services, or the 53.26 commissioner of health in appeals within the commissioner's 53.27 jurisdiction under subdivision 3b, may appeal the order to the 53.28 district court of the county responsible for furnishing 53.29 assistance, or, in appeals under subdivision 3b, the county 53.30 where the maltreatment occurred, by serving a written copy of a 53.31 notice of appeal upon the commissioner and any adverse party of 53.32 record within 30 days after the date the commissioner issued the 53.33 order, the amended order, or order affirming the original order, 53.34 and by filing the original notice and proof of service with the 53.35 court administrator of the district court. Service may be made 53.36 personally or by mail; service by mail is complete upon mailing; 54.1 no filing fee shall be required by the court administrator in 54.2 appeals taken pursuant to this subdivision, with the exception 54.3 of appeals taken under subdivision 3b. The commissioner may 54.4 elect to become a party to the proceedings in the district 54.5 court. Except for appeals under subdivision 3b, any party may 54.6 demand that the commissioner furnish all parties to the 54.7 proceedings with a copy of the decision, and a transcript of any 54.8 testimony, evidence, or other supporting papers from the hearing 54.9 held before the human services referee, by serving a written 54.10 demand upon the commissioner within 30 days after service of the 54.11 notice of appeal. Any party aggrieved by the failure of an 54.12 adverse party to obey an order issued by the commissioner under 54.13 subdivision 5 may compel performance according to the order in 54.14 the manner prescribed in sections 586.01 to 586.12. 54.15 Sec. 13. Minnesota Statutes 1994, section 256.045, 54.16 subdivision 8, is amended to read: 54.17 Subd. 8. [HEARING.] Any party may obtain a hearing at a 54.18 special term of the district court by serving a written notice 54.19 of the time and place of the hearing at least ten days prior to 54.20 the date of the hearing. Except for appeals under subdivision 54.21 3b, the court may consider the matter in or out of chambers, and 54.22 shall take no new or additional evidence unless it determines 54.23 that such evidence is necessary for a more equitable disposition 54.24 of the appeal. 54.25 Sec. 14. Minnesota Statutes 1994, section 256.045, 54.26 subdivision 9, is amended to read: 54.27 Subd. 9. [APPEAL.] Any party aggrieved by the order of the 54.28 district court may appeal the order as in other civil 54.29 cases. Except for appeals under subdivision 3b, no costs or 54.30 disbursements shall be taxed against any party nor shall any 54.31 filing fee or bond be required of any party. 54.32 Sec. 15. Minnesota Statutes 1994, section 268.09, 54.33 subdivision 1, is amended to read: 54.34 Subdivision 1. [DISQUALIFYING CONDITIONS.] An individual 54.35 separated from any employment under paragraph (a), (b), or (d) 54.36 shall be disqualified for waiting week credit and benefits. For 55.1 separations under paragraphs (a) and (b), the disqualification 55.2 shall continue until four calendar weeks have elapsed following 55.3 the individual's separation and the individual has earned eight 55.4 times the individual's weekly benefit amount in insured work. 55.5 (a) [VOLUNTARY LEAVE.] The individual voluntarily and 55.6 without good cause attributable to the employer discontinued 55.7 employment with such employer. For the purpose of this 55.8 paragraph, a separation from employment by reason of its 55.9 temporary nature or for inability to pass a test or for 55.10 inability to meet performance standards necessary for 55.11 continuation of employment shall not be deemed voluntary. 55.12 A separation shall be for good cause attributable to the 55.13 employer if it occurs as a consequence of sexual harassment. 55.14 Sexual harassment means unwelcome sexual advances, requests for 55.15 sexual favors, sexually motivated physical contact or other 55.16 conduct or communication of a sexual nature when: (1) the 55.17 employee's submission to such conduct or communication is made a 55.18 term or condition of the employment, (2) the employee's 55.19 submission to or rejection of such conduct or communication is 55.20 the basis for decisions affecting employment, or (3) such 55.21 conduct or communication has the purpose or effect of 55.22 substantially interfering with an individual's work performance 55.23 or creating an intimidating, hostile, or offensive working 55.24 environment and the employer knows or should know of the 55.25 existence of the harassment and fails to take timely and 55.26 appropriate action. 55.27 (b) [DISCHARGE FOR MISCONDUCT.] The individual was 55.28 discharged for misconduct, not amounting to gross misconduct 55.29 connected with work or for misconduct which interferes with and 55.30 adversely affects employment. 55.31 (c) [EXCEPTIONS TO DISQUALIFICATION.] An individual shall 55.32 not be disqualified under paragraphs (a) and (b) under any of 55.33 the following conditions: 55.34 (1) the individual voluntarily discontinued employment to 55.35 accept employment offering substantially better conditions or 55.36 substantially higher wages or both; 56.1 (2) the individual is separated from employment due to 56.2 personal, serious illness provided that such individual has made 56.3 reasonable efforts to retain employment. 56.4 An individual who is separated from employment due to the 56.5 individual's illness of chemical dependency which has been 56.6 professionally diagnosed or for which the individual has 56.7 voluntarily submitted to treatment and who fails to make 56.8 consistent efforts to maintain the treatment the individual 56.9 knows or has been professionally advised is necessary to control 56.10 that illness has not made reasonable efforts to retain 56.11 employment. 56.12 (3) the individual accepts work from a base period employer 56.13 which involves a change in location of work so that said work 56.14 would not have been deemed to be suitable work under the 56.15 provisions of subdivision 2 and within a period of 13 weeks from 56.16 the commencement of said work voluntarily discontinues 56.17 employment due to reasons which would have caused the work to be 56.18 unsuitable under the provision of said subdivision 2; 56.19 (4) the individual left employment because of reaching 56.20 mandatory retirement age and was 65 years of age or older; 56.21 (5) the individual is terminated by the employer because 56.22 the individual gave notice of intention to terminate employment 56.23 within 30 days. This exception shall be effective only through 56.24 the calendar week which includes the date of intended 56.25 termination, provided that this exception shall not result in 56.26 the payment of benefits for any week for which the individual 56.27 receives the individual's normal wage or salary which is equal 56.28 to or greater than the weekly benefit amount; 56.29 (6) the individual is separated from employment due to the 56.30 completion of an apprenticeship program, or segment thereof, 56.31 approved pursuant to chapter 178; 56.32 (7) the individual voluntarily leaves part-time employment 56.33 with a base period employer while continuing full-time 56.34 employment if the individual attempted to return to part-time 56.35 employment after being separated from the full-time employment, 56.36 and if substantially the same part-time employment with the base 57.1 period employer was not available for the individual; 57.2 (8) the individual is separated from employment based 57.3 solely on a provision in a collective bargaining agreement by 57.4 which an individual has vested discretionary authority in 57.5 another to act on behalf of the individual; 57.6 (9) except as provided in paragraph (d), separations from 57.7 part-time employment will not be disqualifying when the claim is 57.8 based on sufficient full-time employment to establish a valid 57.9 claim from which the claimant has been separated for 57.10 nondisqualifying reasons; or 57.11 (10) the individual accepts employment which represents a 57.12 substantial departure from the individual's customary occupation 57.13 and experience and would not be deemed suitable work as defined 57.14 under subdivision 2, paragraphs (a) and (b), and within a period 57.15 of 30 days from the commencement of that work voluntarily 57.16 discontinues the employment due to reasons which would have 57.17 caused the work to be unsuitable under the provisions of 57.18 subdivision 2 or, if in commission sales, because of a failure 57.19 to earn gross commissions averaging an amount equal to or in 57.20 excess of the individual's weekly benefit amount. Other 57.21 provisions notwithstanding, applying this provision precludes 57.22 the use of these wage credits to clear a disqualification. 57.23 (d) [DISCHARGE FOR GROSS MISCONDUCT.] The individual was 57.24 discharged for gross misconduct connected with work or gross 57.25 misconduct which interferes with and adversely affects the 57.26 individual's employment. For a separation under this clause, 57.27 the commissioner shall impose a total disqualification for the 57.28 benefit year and cancel all of the wage credits from the last 57.29 employer from whom the individual was discharged for gross 57.30 misconduct connected with work. 57.31 For the purpose of this paragraph "gross misconduct" is 57.32 defined as misconduct involving assault and battery or the 57.33 malicious destruction of property or arson or sabotage or 57.34 embezzlement or any other act, including theft, the commission 57.35 of which amounts to a felony or gross misdemeanor. For an 57.36 employee of ahealth carefacility, as defined in section 58.1 626.5572, gross misconduct also includes misconduct involving an 58.2 act of patient or resident abuse, financial exploitation, or 58.3 recurring or serious neglect, as defined in section626.557,58.4subdivision 2, clause (d)626.5572 and applicable rules. 58.5 If an individual is convicted of a felony or gross 58.6 misdemeanor for the same act or acts of misconduct for which the 58.7 individual was discharged, the misconduct is conclusively 58.8 presumed to be gross misconduct if it was connected with the 58.9 individual's work. 58.10 (e) [LIMITED OR NO CHARGE OF BENEFITS.] Benefits paid 58.11 subsequent to an individual's separation under any of the 58.12 foregoing paragraphs, excepting paragraphs (c)(3), (c)(5), and 58.13 (c)(8), shall not be used as a factor in determining the future 58.14 contribution rate of the employer from whose employment such 58.15 individual separated. 58.16 Benefits paid subsequent to an individual's failure to 58.17 accept an offer of suitable reemployment or to accept 58.18 reemployment which offered substantially the same or better 58.19 hourly wages and conditions of work as were previously provided 58.20 by that employer, but was deemed unsuitable under subdivision 2, 58.21 shall not be used as a factor in determining the future 58.22 contribution rate of the employer whose offer of reemployment 58.23 was not accepted or whose offer of reemployment was refused 58.24 solely due to the distance of the available work from the 58.25 individual's residence, the individual's own serious illness, 58.26 the individual's other employment at the time of the offer, or 58.27 if the individual is in training with the approval of the 58.28 commissioner. 58.29 Benefits paid by another state as a result of Minnesota 58.30 transferring wage credits under the federally required combined 58.31 wage agreement shall not be directly charged to either the 58.32 taxpaying or reimbursing employer. 58.33 (f) [ACTS OR OMISSIONS.] An individual who was employed by 58.34 an employer shall not be disqualified for benefits under this 58.35 subdivision for any acts or omissions occurring after separation 58.36 from employment with the employer. 59.1 (g) [DISCIPLINARY SUSPENSIONS.] An individual shall be 59.2 disqualified for waiting week credit and benefits for the 59.3 duration of any disciplinary suspension of 30 days or less 59.4 resulting from the individual's own misconduct. Disciplinary 59.5 suspensions of more than 30 days shall constitute a discharge 59.6 from employment. 59.7 Sec. 16. Minnesota Statutes 1994, section 631.40, is 59.8 amended by adding a subdivision to read: 59.9 Subd. 3. [DEPARTMENT OF HUMAN SERVICES AND HEALTH 59.10 LICENSEES.] When a person who is affiliated with a department of 59.11 human services or department of health program is convicted of a 59.12 disqualifying crime, the probation officer or corrections agent 59.13 shall notify the commissioner of the conviction, as provided in 59.14 section 245A.04, subdivision 3, paragraph (b). 59.15 Sec. 17. [REPORT.] 59.16 By January 15, 1997, the commissioner of human services 59.17 shall report to the legislature on the implementation of the 59.18 process for reporting convictions under Minnesota Statutes, 59.19 section 245A.04, subdivision 3, paragraph (b). The report must 59.20 include an analysis of any reduction in the cost of performing 59.21 background studies resulting from implementing the process and 59.22 any recommendations for modification of the fee increases in 59.23 article 4, section 22, based on a reduction in costs. 59.24 Sec. 18. [APPLICATION.] 59.25 The provision of section 7 that eliminates certain 59.26 challenges to the accuracy and completeness of data under 59.27 Minnesota Statutes, section 13.04, does not apply if the 59.28 individual initiated a challenge under Minnesota Statutes, 59.29 section 13.04, before the effective date of section 7. 59.30 Sec. 19. [EFFECTIVE DATE.] 59.31 Sections 1 to 18 are effective October 1, 1995. 59.32 ARTICLE 4 59.33 CONFORMING AMENDMENTS 59.34 Section 1. Minnesota Statutes 1994, section 13.46, 59.35 subdivision 4, is amended to read: 59.36 Subd. 4. [LICENSING DATA.] (a) As used in this subdivision: 60.1 (1) "licensing data" means all data collected, maintained, 60.2 used, or disseminated by the welfare system pertaining to 60.3 persons licensed or registered or who apply for licensure or 60.4 registration or who formerly were licensed or registered under 60.5 the authority of the commissioner of human services; 60.6 (2) "client" means a person who is receiving services from 60.7 a licensee or from an applicant for licensure; and 60.8 (3) "personal and personal financial data" means social 60.9 security numbers, identity of and letters of reference, 60.10 insurance information, reports from the bureau of criminal 60.11 apprehension, health examination reports, and social/home 60.12 studies. 60.13 (b) Except as provided in paragraph (c), the following data 60.14 on current and former licensees are public: name, address, 60.15 telephone number of licensees, licensed capacity, type of client 60.16 preferred, variances granted, type of dwelling, name and 60.17 relationship of other family members, previous license history, 60.18 class of license, and the existence and status of complaints. 60.19 When disciplinary action has been taken against a licensee or 60.20 the complaint is resolved, the following data are public: the 60.21 substance of the complaint, the findings of the investigation of 60.22 the complaint, the record of informal resolution of a licensing 60.23 violation, orders of hearing, findings of fact, conclusions of 60.24 law, and specifications of the final disciplinary action 60.25 contained in the record of disciplinary action. 60.26 The following data on persons subject to disqualification 60.27 under section 245A.04 in connection with a license to provide 60.28 family day care for children, child care center services, foster 60.29 care for children in the provider's home, or foster care or day 60.30 care services for adults in the provider's home, are public: 60.31 the nature of any disqualification set aside under section 60.32 245A.04, subdivision 3b, and the reasons for setting aside the 60.33 disqualification; and the reasons for granting any variance 60.34 under section 245A.04, subdivision 9. 60.35 (c) The following are private data on individuals under 60.36 section 13.02, subdivision 12, or nonpublic data under section 61.1 13.02, subdivision 9: personal and personal financial data on 61.2 family day care program and family foster care program 61.3 applicants and licensees and their family members who provide 61.4 services under the license. 61.5 (d) The following are private data on individuals: the 61.6 identity of persons who have made reports concerning licensees 61.7 or applicants that appear in inactive investigative data, and 61.8 the records of clients or employees of the licensee or applicant 61.9 for licensure whose records are received by the licensing agency 61.10 for purposes of review or in anticipation of a contested 61.11 matter. The names of reporters under sections 626.556 and 61.12 626.557 may be disclosed only as provided in section 626.556, 61.13 subdivision 11, or 626.557, subdivision1212b. 61.14 (e) Data classified as private, confidential, nonpublic, or 61.15 protected nonpublic under this subdivision become public data if 61.16 submitted to a court or administrative law judge as part of a 61.17 disciplinary proceeding in which there is a public hearing 61.18 concerning the disciplinary action. 61.19 (f) Data generated in the course of licensing 61.20 investigations that relate to an alleged violation of law are 61.21 investigative data under subdivision 3. 61.22 (g) Data that are not public data collected, maintained, 61.23 used, or disseminated under this subdivision that relate to or 61.24 are derived from a report as defined in section 626.556, 61.25 subdivision 2, are subject to the destruction provisions of 61.26 section 626.556, subdivision 11. 61.27 Sec. 2. Minnesota Statutes 1994, section 13.88, is amended 61.28 to read: 61.29 13.88 [COMMUNITY DISPUTE RESOLUTION CENTER DATA.] 61.30 The guidelines shall provide that all files relating to a 61.31 case in a community dispute resolution program are to be 61.32 classified as private data on individuals, pursuant to section 61.33 13.02, subdivision 12, with the following exceptions: 61.34 (1) When a party to the case has been formally charged with 61.35 a criminal offense, the data are to be classified as public data 61.36 on individuals, pursuant to section 13.02, subdivision 15. 62.1 (2) Data relating to suspected neglect or physical or 62.2 sexual abuse of children or maltreatment of vulnerable adults 62.3 are to be subject to the reporting requirements of sections 62.4 626.556 and 626.557. 62.5 Sec. 3. Minnesota Statutes 1994, section 13.99, 62.6 subdivision 113, is amended to read: 62.7 Subd. 113. [VULNERABLE ADULT REPORT RECORDS.] Data 62.8 contained in vulnerable adult report records are classified 62.9 under section 626.557, subdivision1212b. 62.10 Sec. 4. Minnesota Statutes 1994, section 144.4172, 62.11 subdivision 8, is amended to read: 62.12 Subd. 8. [HEALTH THREAT TO OTHERS.] "Health threat to 62.13 others" means that a carrier demonstrates an inability or 62.14 unwillingness to act in such a manner as to not place others at 62.15 risk of exposure to infection that causes serious illness, 62.16 serious disability, or death. It includes one or more of the 62.17 following: 62.18 (1) with respect to an indirectly transmitted communicable 62.19 disease: 62.20 (a) behavior by a carrier which has been demonstrated 62.21 epidemiologically to transmit or which evidences a careless 62.22 disregard for the transmission of the disease to others; or 62.23 (b) a substantial likelihood that a carrier will transmit a 62.24 communicable disease to others as is evidenced by a carrier's 62.25 past behavior, or by statements of a carrier that are credible 62.26 indicators of a carrier's intention. 62.27 (2) With respect to a directly transmitted communicable 62.28 disease: 62.29 (a) repeated behavior by a carrier which has been 62.30 demonstrated epidemiologically to transmit or which evidences a 62.31 careless disregard for the transmission of the disease to 62.32 others; 62.33 (b) a substantial likelihood that a carrier will repeatedly 62.34 transmit a communicable disease to others as is evidenced by a 62.35 carrier's past behavior, or by statements of a carrier that are 62.36 credible indicators of a carrier's intention; 63.1 (c) affirmative misrepresentation by a carrier of the 63.2 carrier's status prior to engaging in any behavior which has 63.3 been demonstrated epidemiologically to transmit the disease; or 63.4 (d) the activities referenced in clause (1) if the person 63.5 whom the carrier places at risk is: (i) a minor, (ii) of 63.6 diminished capacity by reason of mood altering chemicals, 63.7 including alcohol, (iii) has been diagnosed as having 63.8 significantly subaverage intellectual functioning, (iv) has an 63.9 organic disorder of the brain or a psychiatric disorder of 63.10 thought, mood, perception, orientation, or memory which 63.11 substantially impairs judgment, behavior, reasoning, or 63.12 understanding; (v) adjudicated as an incompetent; or (vi) a 63.13 vulnerable adult as defined in section626.557626.5572. 63.14 (3) Violation by a carrier of any part of a court order 63.15 issued pursuant to this chapter. 63.16 Sec. 5. Minnesota Statutes 1994, section 144.651, 63.17 subdivision 14, is amended to read: 63.18 Subd. 14. [FREEDOM FROMABUSEMALTREATMENT.] Patients and 63.19 residents shall be free frommental and physical abuse63.20 maltreatment as defined in the Vulnerable Adults Protection 63.21 Act."Abuse" means any act which constitutes assault, sexual63.22exploitation, or criminal sexual"Maltreatment" means conductas63.23 described in section626.557, subdivision 2d626.5572, 63.24 subdivision 15, or the intentional and nontherapeutic infliction 63.25 of physical pain or injury, or any persistent course of conduct 63.26 intended to produce mental or emotional distress. Every patient 63.27 and resident shall also be free from nontherapeutic chemical and 63.28 physical restraints, except in fully documented emergencies, or 63.29 as authorized in writing after examination by a patient's or 63.30 resident's physician for a specified and limited period of time, 63.31 and only when necessary to protect the resident from self-injury 63.32 or injury to others. 63.33 Sec. 6. Minnesota Statutes 1994, section 144.651, 63.34 subdivision 21, is amended to read: 63.35 Subd. 21. [COMMUNICATION PRIVACY.] Patients and residents 63.36 may associate and communicate privately with persons of their 64.1 choice and enter and, except as provided by the Minnesota 64.2 Commitment Act, leave the facility as they choose. Patients and 64.3 residents shall have access, at their expense, to writing 64.4 instruments, stationery, and postage. Personal mail shall be 64.5 sent without interference and received unopened unless medically 64.6 or programmatically contraindicated and documented by the 64.7 physician in the medical record. There shall be access to a 64.8 telephone where patients and residents can make and receive 64.9 calls as well as speak privately. Facilities which are unable 64.10 to provide a private area shall make reasonable arrangements to 64.11 accommodate the privacy of patients' or residents' calls. Upon 64.12 admission to a facility, a patient or resident, or the patient's 64.13 or resident's legal guardian or conservator, shall be given the 64.14 opportunity to authorize disclosure of the patient's or 64.15 resident's presence in the facility, to callers or visitors who 64.16 may seek to communicate with the patient or resident. This 64.17 disclosure option must be made available in all cases where 64.18 federal law prohibits unauthorized disclosure of patient or 64.19 resident identifying information to callers and visitors. To 64.20 the extent possible, the legal guardian or conservator of a 64.21 patient or resident shall consider the opinions of the patient 64.22 or resident regarding the disclosure of the patient's or 64.23 resident's presence in the facility. This right is limited 64.24 where medically inadvisable, as documented by the attending 64.25 physician in a patient's or resident's care record. Where 64.26 programmatically limited by a facility abuse prevention plan 64.27 pursuant to section 626.557, subdivision 14,clause 2paragraph 64.28 (b), this right shall also be limited accordingly. 64.29 Sec. 7. Minnesota Statutes 1994, section 144A.103, 64.30 subdivision 1, is amended to read: 64.31 Subdivision 1. [DEFINITIONS.] For purposes of this 64.32 section, "abuse" and "neglect" have the meanings given in 64.33 section626.557, subdivision 2, paragraphs (d) and (e)626.5572, 64.34 subdivisions 2 and 17. 64.35 Sec. 8. Minnesota Statutes 1994, section 144A.612, is 64.36 amended to read: 65.1 144A.612 [APPEALS FROM FINDINGS OF ABUSE, NEGLECT, OR 65.2 MISAPPROPRIATION OF PROPERTY.] 65.3 (a) Until federal regulations are adopted under sections 65.4 1819(g)(1)(C) and 1919(g)(1)(C) of the Social Security Act that 65.5 govern appeals from the state's findings of abuse, neglect, or 65.6 misappropriation of property by nursing assistants employed by 65.7 or working in a nursing home or boarding care home, the 65.8 commissioner of health shall provide hearings under sections 65.9 14.57 to 14.62 and the rules adopted by the office of 65.10 administrative hearings governing contested cases. 65.11 (b) The commissioner of health shall notify the nursing 65.12 assistant of findings by sending written notice, by certified 65.13 mail, to the last known address available from the facility or 65.14 employer. The notice must contain a statement of the nature of 65.15 the allegation and the time and date of the occurrence; the 65.16 individual's right to a hearing; and the commissioner's intent 65.17 to report the findings to the nurse aide registry, pending the 65.18 individual's appeal. 65.19 (c) To contest the finding, the nursing assistant must 65.20 request a hearing in writing no later than 30 days after 65.21 receiving written notice of the finding, unless federal 65.22 regulations provide otherwise. 65.23 (d) The hearing must be held within 60 days from the date 65.24 of receipt of the request for a hearing. The individual must be 65.25 served written notice by certified mail of the time, place, and 65.26 date of the hearing at least 15 days in advance. The hearing 65.27 must be held in a place and time that is convenient for the 65.28 individual to attend. 65.29 (e) The hearing must provide an opportunity for the 65.30 individual to present evidence, either in person, in writing, or 65.31 through witnesses, and to refute the allegations. The 65.32 individual is entitled to have an attorney or other 65.33 representative present at the hearing. The commissioner must 65.34 issue a decision within 30 days after the hearing record is 65.35 complete and the parties have had an opportunity to file 65.36 exceptions under section 14.61. A copy of the decision shall be 66.1 mailed to the individual. 66.2 (f) If a hearing is requested and held, and if the 66.3 department's findings of abuse, neglect, or misappropriation of 66.4 property are upheld by a preponderance of the evidence, the 66.5 commissioner's decision and findings will be sent to the 66.6 registry established under section 144A.61, subdivision 1. If a 66.7 hearing is not requested or if the notice to the nursing 66.8 assistant is returned to the department, the commissioner has no 66.9 jurisdiction to hear an appeal at a later date, and the 66.10 department's findings shall be sent to the registry at the end 66.11 of the 30-day period with a notation that a hearing was not 66.12 requested or held. The registry must include any brief 66.13 statement by the individual disputing the findings. 66.14 (g) If it is determined that the individual did not 66.15 neglect, abuse, or misappropriate resident property, all records 66.16 and investigative reports shall be classified as private data 66.17 under section 13.39. 66.18 (h) The identity of the nursing assistant and the findings 66.19 of abuse, neglect, or misappropriation of property are public 66.20 when sent to the registry, notwithstanding the provisions of 66.21 section 626.557, subdivision1212b. The identity of the 66.22 reporter, the vulnerable adult, and persons interviewed are 66.23 governed by section 626.557, subdivision1212b. 66.24 Sec. 9. Minnesota Statutes 1994, section 144B.13, is 66.25 amended to read: 66.26 144B.13 [FREEDOM FROMABUSE AND NEGLECTMALTREATMENT.] 66.27 Residents shall be free fromabuse and neglectmaltreatment 66.28 as defined in section626.557, subdivision 2626.5572, 66.29 subdivision 15. The commissioner shall by rule develop 66.30 procedures for the reporting of alleged incidents ofabuse or66.31neglectmaltreatment in residential care homes. The office of 66.32 health facility complaints shall investigate reports of alleged 66.33abuse or neglectmaltreatment according to sections 144A.51 to 66.34 144A.54. 66.35 Sec. 10. Minnesota Statutes 1994, section 148B.68, 66.36 subdivision 1, is amended to read: 67.1 Subdivision 1. [PROHIBITED CONDUCT.] The commissioner may 67.2 impose disciplinary action as described in section 148B.69 67.3 against any unlicensed mental health practitioner. The 67.4 following conduct is prohibited and is grounds for disciplinary 67.5 action: 67.6 (a) Conviction of a crime, including a finding or verdict 67.7 of guilt, an admission of guilt, or a no contest plea, in any 67.8 court in Minnesota or any other jurisdiction in the United 67.9 States, reasonably related to the provision of mental health 67.10 services. Conviction, as used in this subdivision, includes a 67.11 conviction of an offense which, if committed in this state, 67.12 would be deemed a felony or gross misdemeanor without regard to 67.13 its designation elsewhere, or a criminal proceeding where a 67.14 finding or verdict of guilty is made or returned but the 67.15 adjudication of guilt is either withheld or not entered. 67.16 (b) Conviction of crimes against persons. For purposes of 67.17 this chapter, a crime against a person means violations of the 67.18 following: sections 609.185; 609.19; 609.195; 609.20; 609.205; 67.19 609.21; 609.215; 609.221; 609.222; 609.223; 609.224;609.23;67.20609.231609.2325; 609.233; 609.2335; 609.235; 609.24; 609.245; 67.21 609.25; 609.255; 609.26, subdivision 1, clause (1) or (2); 67.22 609.265; 609.342; 609.343; 609.344; 609.345; 609.365; 609.498, 67.23 subdivision 1; 609.50, clause (1); 609.561; 609.562;and609.595 67.24 ; and 609.72, subdivision 3. 67.25 (c) Failure to comply with the self-reporting requirements 67.26 of section 148B.63, subdivision 6. 67.27 (d) Engaging in sexual contact with a client or former 67.28 client as defined in section 148A.01, or engaging in contact 67.29 that may be reasonably interpreted by a client as sexual, or 67.30 engaging in any verbal behavior that is seductive or sexually 67.31 demeaning to the patient, or engaging in sexual exploitation of 67.32 a client or former client. 67.33 (e) Advertising that is false, fraudulent, deceptive, or 67.34 misleading. 67.35 (f) Conduct likely to deceive, defraud, or harm the public; 67.36 or demonstrating a willful or careless disregard for the health, 68.1 welfare, or safety of a client; or any other practice that may 68.2 create unnecessary danger to any client's life, health, or 68.3 safety, in any of which cases, proof of actual injury need not 68.4 be established. 68.5 (g) Adjudication as mentally incompetent, or as a person 68.6 who is dangerous to self, or adjudication pursuant to chapter 68.7 253B, as chemically dependent, mentally ill, mentally retarded, 68.8 mentally ill and dangerous to the public, or as a sexual 68.9 psychopathic personality or sexually dangerous person. 68.10 (h) Inability to provide mental health services with 68.11 reasonable safety to clients. 68.12 (i) The habitual overindulgence in the use of or the 68.13 dependence on intoxicating liquors. 68.14 (j) Improper or unauthorized personal or other use of any 68.15 legend drugs as defined in chapter 151, any chemicals as defined 68.16 in chapter 151, or any controlled substance as defined in 68.17 chapter 152. 68.18 (k) Revealing a communication from, or relating to, a 68.19 client except when otherwise required or permitted by law. 68.20 (l) Failure to comply with a client's request made under 68.21 section 144.335, or to furnish a client record or report 68.22 required by law. 68.23 (m) Splitting fees or promising to pay a portion of a fee 68.24 to any other professional other than for services rendered by 68.25 the other professional to the client. 68.26 (n) Engaging in abusive or fraudulent billing practices, 68.27 including violations of the federal Medicare and Medicaid laws 68.28 or state medical assistance laws. 68.29 (o) Failure to make reports as required by section 148B.63, 68.30 or cooperate with an investigation of the office. 68.31 (p) Obtaining money, property, or services from a client, 68.32 other than reasonable fees for services provided to the client, 68.33 through the use of undue influence, harassment, duress, 68.34 deception, or fraud. 68.35 (q) Undertaking or continuing a professional relationship 68.36 with a client in which the objectivity of the professional would 69.1 be impaired. 69.2 (r) Failure to provide the client with a copy of the client 69.3 bill of rights or violation of any provision of the client bill 69.4 of rights. 69.5 (s) Violating any order issued by the commissioner. 69.6 (t) Failure to comply with sections 148B.60 to 148B.71, and 69.7 the rules adopted under those sections. 69.8 (u) Failure to comply with any additional disciplinary 69.9 grounds established by the commissioner by rule. 69.10 Sec. 11. Minnesota Statutes 1994, section 214.10, 69.11 subdivision 2a, is amended to read: 69.12 Subd. 2a. [PROCEEDINGS.] A board shall initiate 69.13 proceedings to suspend or revoke a license or shall refuse to 69.14 renew a license of a person licensed by the board who is 69.15 convicted in a court of competent jurisdiction of violating 69.16sections 609.23, 609.231section 609.224, subdivision 2, 69.17 paragraph (c), 609.2325, 609.233, 609.2335, 609.234, 609.465, 69.18 609.466, 609.52, or626.557609.72, subdivision 3. 69.19 Sec. 12. Minnesota Statutes 1994, section 245A.04, 69.20 subdivision 3b, is amended to read: 69.21 Subd. 3b. [RECONSIDERATION OF DISQUALIFICATION.] (a) 69.22 Within 30 days after receiving notice of disqualification under 69.23 subdivision 3a, the individual who is the subject of the study 69.24 may request reconsideration of the notice of disqualification. 69.25 The individual must submit the request for reconsideration to 69.26 the commissioner in writing. The individual must present 69.27 information to show that: 69.28 (1) the information the commissioner relied upon is 69.29 incorrect; or 69.30 (2) the subject of the study does not pose a risk of harm 69.31 to any person served by the applicant or license holder. 69.32 (b) The commissioner may set aside the disqualification if 69.33 the commissioner finds that the information the commissioner 69.34 relied upon is incorrect or the individual does not pose a risk 69.35 of harm to any person served by the applicant or license 69.36 holder. The commissioner shall review the consequences of the 70.1 event or events that could lead to disqualification, whether 70.2 there is more than one disqualifying event, the vulnerability of 70.3 the victim at the time of the event, the time elapsed without a 70.4 repeat of the same or similar event, and documentation of 70.5 successful completion by the individual studied of training or 70.6 rehabilitation pertinent to the event. In reviewing a 70.7 disqualification, the commissioner shall give preeminent weight 70.8 to the safety of each person to be served by the license holder 70.9 or applicant over the interests of the license holder or 70.10 applicant. 70.11 (c) Unless the information the commissioner relied on in 70.12 disqualifying an individual is incorrect, the commissioner may 70.13 not set aside the disqualification of an individual in 70.14 connection with a license to provide family day care for 70.15 children, foster care for children in the provider's own home, 70.16 or foster care or day care services for adults in the provider's 70.17 own home if: 70.18 (1) less than ten years have passed since the discharge of 70.19 the sentence imposed for the offense; and the individual has 70.20 been convicted of a violation of any offense listed in section 70.21 609.20 (manslaughter in the first degree), 609.205 (manslaughter 70.22 in the second degree), 609.21 (criminal vehicular homicide), 70.23 609.215 (aiding suicide or aiding attempted suicide), 609.221 to 70.24 609.2231 (felony violations of assault in the first, second, 70.25 third, or fourth degree), 609.713 (terroristic threats), 609.235 70.26 (use of drugs to injure or to facilitate crime), 609.24 (simple 70.27 robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 70.28 609.255 (false imprisonment), 609.561 or 609.562 (arson in the 70.29 first or second degree), 609.71 (riot), 609.582 (burglary in the 70.30 first or second degree), 609.66 (reckless use of a gun or 70.31 dangerous weapon or intentionally pointing a gun at or towards a 70.32 human being), 609.665 (setting a spring gun), 609.67 (unlawfully 70.33 owning, possessing, or operating a machine gun), 152.021 or 70.34 152.022 (controlled substance crime in the first or second 70.35 degree), 152.023, subdivision 1, clause (3) or (4), or 70.36 subdivision 2, clause (4) (controlled substance crime in the 71.1 third degree), 152.024, subdivision 1, clause (2), (3), or (4) 71.2 (controlled substance crime in the fourth degree), 609.224, 71.3 subdivision 2, paragraph (c) (fifth-degree assault by a 71.4 caregiver against a vulnerable adult), 609.228 (great bodily 71.5 harm caused by distribution of drugs),609.23 (mistreatment of71.6persons confined), 609.231 (mistreatment of residents or71.7patients)609.2325 (criminal abuse of a vulnerable adult), 71.8 609.233 (criminal neglect of a vulnerable adult), 609.2335 71.9 (financial exploitation of a vulnerable adult), 609.265 71.10 (abduction), 609.2664 to 609.2665 (manslaughter of an unborn 71.11 child in the first or second degree), 609.267 to 609.2672 71.12 (assault of an unborn child in the first, second, or third 71.13 degree), 609.268 (injury or death of an unborn child in the 71.14 commission of a crime), 617.293 (disseminating or displaying 71.15 harmful material to minors), 609.378 (neglect or endangerment of 71.16 a child), 609.377 (a gross misdemeanor offense of malicious 71.17 punishment of a child), 609.72, subdivision 3 (disorderly 71.18 conduct against a vulnerable adult); or an attempt or conspiracy 71.19 to commit any of these offenses, as each of these offenses is 71.20 defined in Minnesota Statutes; or an offense in any other state, 71.21 the elements of which are substantially similar to the elements 71.22 of any of the foregoing offenses; 71.23 (2) regardless of how much time has passed since the 71.24 discharge of the sentence imposed for the offense, the 71.25 individual was convicted of a violation of any offense listed in 71.26 sections 609.185 to 609.195 (murder in the first, second, or 71.27 third degree), 609.2661 to 609.2663 (murder of an unborn child 71.28 in the first, second, or third degree), 609.377 (a felony 71.29 offense of malicious punishment of a child), 609.322 71.30 (soliciting, inducement, or promotion of prostitution), 609.323 71.31 (receiving profit derived from prostitution), 609.342 to 609.345 71.32 (criminal sexual conduct in the first, second, third, or fourth 71.33 degree), 609.352 (solicitation of children to engage in sexual 71.34 conduct), 617.246 (use of minors in a sexual performance), 71.35 617.247 (possession of pictorial representations of a minor), 71.36 609.365 (incest), or an offense in any other state, the elements 72.1 of which are substantially similar to any of the foregoing 72.2 offenses; 72.3 (3) within the seven years preceding the study, the 72.4 individual committed an act that constitutes maltreatment of a 72.5 child under section 626.556, subdivision 10e, and that resulted 72.6 in substantial bodily harm as defined in section 609.02, 72.7 subdivision 7a, or substantial mental or emotional harm as 72.8 supported by competent psychological or psychiatric evidence; or 72.9 (4) within the seven years preceding the study, the 72.10 individual was determined under section 626.557 to be the 72.11 perpetrator of a substantiated incident of abuse of a vulnerable 72.12 adult that resulted in substantial bodily harm as defined in 72.13 section 609.02, subdivision 7a, or substantial mental or 72.14 emotional harm as supported by competent psychological or 72.15 psychiatric evidence. 72.16 In the case of any ground for disqualification under 72.17 clauses (1) to (4), if the act was committed by an individual 72.18 other than the applicant or license holder residing in the 72.19 applicant's or license holder's home, the applicant or license 72.20 holder may seek reconsideration when the individual who 72.21 committed the act no longer resides in the home. 72.22 The disqualification periods provided under clauses (1), 72.23 (3), and (4) are the minimum applicable disqualification 72.24 periods. The commissioner may determine that an individual 72.25 should continue to be disqualified from licensure because the 72.26 license holder or applicant poses a risk of harm to a person 72.27 served by that individual after the minimum disqualification 72.28 period has passed. 72.29 (d) The commissioner shall respond in writing to all 72.30 reconsideration requests within 15 working days after receiving 72.31 the request for reconsideration. If the disqualification is set 72.32 aside, the commissioner shall notify the applicant or license 72.33 holder in writing of the decision. 72.34 (e) Except as provided in subdivision 3c, the 72.35 commissioner's decision to grant or deny a reconsideration of 72.36 disqualification under this subdivision, or to set aside or 73.1 uphold the results of the study under subdivision 3, is the 73.2 final administrative agency action. 73.3 Sec. 13. Minnesota Statutes 1994, section 253B.02, 73.4 subdivision 4a, is amended to read: 73.5 Subd. 4a. [CRIME AGAINST THE PERSON.] "Crime against the 73.6 person" means a violation of or attempt to violate any of the 73.7 following provisions: sections 609.185; 609.19; 609.195; 73.8 609.20; 609.205; 609.21; 609.215; 609.221; 609.222; 609.223; 73.9 609.224;609.23; 609.231609.2325; 609.233; 609.2335; 609.235; 73.10 609.24; 609.245; 609.25; 609.255; 609.265; 609.27, subdivision 73.11 1, clause (1) or (2); 609.28 if violence or threats of violence 73.12 were used; 609.322, subdivision 1, clause (2); 609.342; 609.343; 73.13 609.344; 609.345; 609.365; 609.498, subdivision 1; 609.50, 73.14 clause (1); 609.561; 609.562;and609.595; and 609.72, 73.15 subdivision 3. 73.16 Sec. 14. Minnesota Statutes 1994, section 256E.03, 73.17 subdivision 2, is amended to read: 73.18 Subd. 2. (a) "Community social services" means services 73.19 provided or arranged for by county boards to fulfill the 73.20 responsibilities prescribed in section 256E.08, subdivision 1, 73.21 to the following groups of persons: 73.22 (1) families with children under age 18, who are 73.23 experiencing child dependency, neglect or abuse, and also 73.24 pregnant adolescents, adolescent parents under the age of 18, 73.25 and their children; 73.26 (2) persons who are under the guardianship of the 73.27 commissioner of human services as dependent and neglected wards; 73.28 (3) adults who are in need of protection and vulnerable as 73.29 defined in section626.557626.5572; 73.30 (4) persons age 60 and over who are experiencing difficulty 73.31 living independently and are unable to provide for their own 73.32 needs; 73.33 (5) emotionally disturbed children and adolescents, 73.34 chronically and acutely mentally ill persons who are unable to 73.35 provide for their own needs or to independently engage in 73.36 ordinary community activities; 74.1 (6) persons with mental retardation as defined in section 74.2 252A.02, subdivision 2, or with related conditions as defined in 74.3 section 252.27, subdivision 1a, who are unable to provide for 74.4 their own needs or to independently engage in ordinary community 74.5 activities; 74.6 (7) drug dependent and intoxicated persons as defined in 74.7 section 254A.02, subdivisions 5 and 7, and persons at risk of 74.8 harm to self or others due to the ingestion of alcohol or other 74.9 drugs; 74.10 (8) parents whose income is at or below 70 percent of the 74.11 state median income and who are in need of child care services 74.12 in order to secure or retain employment or to obtain the 74.13 training or education necessary to secure employment; and 74.14 (9) other groups of persons who, in the judgment of the 74.15 county board, are in need of social services. 74.16 (b) Except as provided in section 256E.08, subdivision 5, 74.17 community social services do not include public assistance 74.18 programs known as aid to families with dependent children, 74.19 Minnesota supplemental aid, medical assistance, general 74.20 assistance, general assistance medical care, or community health 74.21 services authorized by sections 145A.09 to 145A.13. 74.22 Sec. 15. Minnesota Statutes 1994, section 256E.081, 74.23 subdivision 4, is amended to read: 74.24 Subd. 4. [DENIAL, REDUCTION, OR TERMINATION OF SERVICES.] 74.25 (a) Before a county denies, reduces, or terminates services to 74.26 an individual due to fiscal limitations, the county must meet 74.27 the requirements in subdivisions 2 and 3, and document in the 74.28 person's individual service plan: 74.29 (1) the person's service needs; 74.30 (2) the alternatives considered for meeting the person's 74.31 service needs; and 74.32 (3) the actions that will be taken to prevent abuse or 74.33 neglect as defined in sections 626.556, subdivision 2, 74.34 paragraphs (a), (c), (d), and (k); and626.557, subdivision 2,74.35paragraphs (d) and (e)maltreatment as defined in section 74.36 626.5572, subdivision 15. 75.1 (b) The county must notify the individual and the 75.2 individual's guardian in writing of the reason for the denial, 75.3 reduction, or termination of services and of the individual's 75.4 right to an appeal under section 256.045. 75.5 (c) The county must inform the individual and the 75.6 individual's guardian in writing that the county will, upon 75.7 request, meet to discuss alternatives and amend the individual 75.8 service plan before services are terminated or reduced. 75.9 Sec. 16. Minnesota Statutes 1994, section 325F.692, 75.10 subdivision 2, is amended to read: 75.11 Subd. 2. [UNAUTHORIZED INFORMATION SERVICE CHARGES; 75.12 LIABILITY.] A telephone service subscriber is not responsible 75.13 for information service charges for calls made by minors or 75.14othervulnerable adults as defined in section626.557,75.15subdivision 2, paragraph (b)626.5572, subdivision 2, unless 75.16 expressly authorized by the subscriber or spouse. 75.17 Sec. 17. Minnesota Statutes 1994, section 525.703, 75.18 subdivision 3, is amended to read: 75.19 Subd. 3. [GUARDIAN OR CONSERVATOR.] (a) When the court 75.20 determines that a guardian or conservator of the person or the 75.21 estate has rendered necessary services or has incurred necessary 75.22 expenses for the benefit of the ward or conservatee, the court 75.23 may order reimbursement or reasonable compensation to be paid 75.24 from the estate of the ward or conservatee or from the county 75.25 having jurisdiction over the guardianship or conservatorship if 75.26 the ward or conservatee is indigent. The court may not deny an 75.27 award of fees solely because the ward or conservatee is a 75.28 recipient of medical assistance. In determining reasonable 75.29 compensation for a guardian or conservator of an indigent 75.30 person, the court shall consider a fee schedule recommended by 75.31 the board of county commissioners. The fee schedule may also 75.32 include a maximum compensation based on the living arrangements 75.33 of the ward or conservatee. If these services are provided by a 75.34 public or private agency, the county may contract on a fee for 75.35 service basis with that agency. 75.36 (b) The court shall order reimbursement or reasonable 76.1 compensation if the guardian or conservator requests payment and 76.2 the guardian or conservator was nominated by the court or by the 76.3 county adult protection unit because no suitable relative or 76.4 other person was available to provide guardianship or 76.5 conservatorship services necessary to preventabuse or neglect76.6 maltreatment of a vulnerable adult, as defined in 76.7 section626.557626.5572, subdivision 15. In determining 76.8 reasonable compensation for a guardian or conservator of an 76.9 indigent person, the court shall consider a fee schedule 76.10 recommended by the board of county commissioners. The fee 76.11 schedule may also include a maximum compensation based on the 76.12 living arrangements of the ward or conservatee. If these 76.13 services are provided by a public or private agency, the county 76.14 may contract on a fee for service basis with that agency. 76.15 (c) When a county employee serves as a guardian or 76.16 conservator as part of employment duties, the court shall order 76.17 reasonable compensation if the guardian or conservator performs 76.18 necessary services that are not compensated by the county. The 76.19 court may order reimbursement to the county from the ward's or 76.20 conservatee's estate for reasonable compensation paid by the 76.21 county for services rendered by a guardian or conservator who is 76.22 a county employee but only if the county shows that after a 76.23 diligent effort it was unable to arrange for an independent 76.24 guardian or conservator. 76.25 Sec. 18. Minnesota Statutes 1994, section 609.268, 76.26 subdivision 1, is amended to read: 76.27 Subdivision 1. [DEATH OF AN UNBORN CHILD.] Whoever, in the 76.28 commission of a felony or in a violation of section 609.224, 76.29609.23, or 609.231609.2325, or 609.233, causes the death of an 76.30 unborn child is guilty of a felony and may be sentenced to 76.31 imprisonment for not more than 15 years or to payment of a fine 76.32 not more than $30,000, or both. As used in this subdivision, 76.33 "felony" does not include a violation of sections 609.185 to 76.34 609.21, 609.221 to 609.2231, or 609.2661 to 609.2665. 76.35 Sec. 19. Minnesota Statutes 1994, section 609.268, 76.36 subdivision 2, is amended to read: 77.1 Subd. 2. [INJURY TO AN UNBORN CHILD.] Whoever, in the 77.2 commission of a felony or in a violation of section609.23 or77.3609.231609.2325 or 609.233, causes great or substantial bodily 77.4 harm to an unborn child who is subsequently born alive, is 77.5 guilty of a felony and may be sentenced to imprisonment for not 77.6 more than ten years or to payment of a fine of not more than 77.7 $20,000, or both. As used in this subdivision, "felony" does 77.8 not include a violation of sections 609.21, 609.221 to 609.2231, 77.9 or 609.267 to 609.2672. 77.10 Sec. 20. Minnesota Statutes 1994, section 609.7495, 77.11 subdivision 1, is amended to read: 77.12 Subdivision 1. [DEFINITIONS.] For the purposes of this 77.13 section, the following terms have the meanings given them. 77.14 (a) "Facility" means any of the following: 77.15 (1) a hospital or other health institution licensed under 77.16 sections 144.50 to 144.56; 77.17 (2) a medical facility as defined in section 144.561; 77.18 (3) an agency, clinic, or office operated under the 77.19 direction of or under contract with the commissioner of health 77.20 or a community health board, as defined in section 145A.02; 77.21 (4) a facility providing counseling regarding options for 77.22 medical services or recovery from an addiction; 77.23 (5) a facility providing emergency shelter services for 77.24 battered women, as defined in section 611A.31, subdivision 3, or 77.25 a facility providing transitional housing for battered women and 77.26 their children; 77.27 (6) a residential care home or home as defined in section 77.28 144B.01, subdivision 5; 77.29 (7) a facility as defined in section 626.556, subdivision 77.30 2, paragraph (f); 77.31 (8) a facility as defined in section626.557, subdivision77.322, paragraph (a)626.5572, subdivision 6, where the services 77.33 described in that paragraph are provided; 77.34 (9) a place to or from which ambulance service, as defined 77.35 in section 144.801, is provided or sought to be provided; and 77.36 (10) a hospice program licensed under section 144A.48. 78.1 (b) "Aggrieved party" means a person whose access to or 78.2 egress from a facility is obstructed in violation of subdivision 78.3 2, or the facility. 78.4 Sec. 21. Minnesota Statutes 1994, section 626.556, 78.5 subdivision 12, is amended to read: 78.6 Subd. 12. [DUTIES OF FACILITY OPERATORS.] Any operator, 78.7 employee, or volunteer worker at any facility who intentionally 78.8 neglects, physically abuses, or sexually abuses any child in the 78.9 care of that facility may be charged with a violation of section 78.10 609.255, 609.377, or 609.378. Any operator of a facility who 78.11 knowingly permits conditions to exist which result in neglect, 78.12 physical abuse, or sexual abuse of a child in the care of that 78.13 facility may be charged with a violation of section609.23 or78.14 609.378. 78.15 Sec. 22. [FEE INCREASE.] 78.16 To implement the requirements of the vulnerable adults act 78.17 under Minnesota Statutes, sections 144.057 and 626.557, the 78.18 following adjustments shall be made: (1) licensing fees shall 78.19 be increased $20 per bed for (i) nursing homes licensed under 78.20 Minnesota Statutes, chapter 144A; (ii) boarding care homes 78.21 licensed under Minnesota Statutes, sections 144.50 to 144.58; 78.22 (iii) residential care homes licensed under Minnesota Statutes, 78.23 chapter 148B; and (iv) board and lodging establishments that are 78.24 registered to provide supportive or health supervision services 78.25 under Minnesota Statutes, section 157.031; (2) licensing fees 78.26 shall be increased by 25 percent for home care agencies licensed 78.27 under Minnesota Statutes, chapter 144A and outpatient surgical 78.28 centers licensed under Minnesota Statutes, chapter 144; and (3) 78.29 licensing fees for hospitals licensed under Minnesota Statutes, 78.30 sections 144.50 to 144.58 shall remain at the levels charged in 78.31 1994. 78.32 Sec. 23. [EFFECTIVE DATE.] 78.33 Sections 1 to 21 are effective October 1, 1995. 78.34 ARTICLE 5 78.35 APPROPRIATIONS 78.36 Section 1. [APPROPRIATIONS; COMMISSIONER OF HEALTH.] 79.1 $3,060,855 is appropriated from the state government 79.2 special revenue fund to the commissioner of health for the 79.3 purposes of implementing articles 1 and 3 and is available for 79.4 the biennium ending June 30, 1997.