HF 1272

as introduced - 89th Legislature (2015 - 2016) Posted on 02/26/2015 01:21pm

A bill for an act
relating to human services; modifying human services licensing actions;
amending Minnesota Statutes 2014, sections 245A.06, by adding a subdivision;
245A.07, by adding a subdivision; 245A.08, subdivision 3, by adding a
subdivision; 626.557, subdivision 12b; 626.5572, subdivision 17.

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

Section 1.

Minnesota Statutes 2014, section 245A.06, is amended by adding a
subdivision to read:

new text begin Subd. 1a. new text end

new text begin Correction orders and conditional licenses for programs licensed
to provide home and community-based services. new text end

new text begin (a) This subdivision applies to
programs licensed to provide home and community-based services and governed by
section 245A.042.
new text end

new text begin (b) If a license holder operates more than one site under a single license issued by
the commissioner, the conditions imposed under this section shall be specific to the site
or sites at which the violations of applicable law or rules occurred and shall not apply to
other sites operated by the same license holder.
new text end

new text begin (c) If the commissioner has issued more than one license to a license holder, the
conditions imposed under this section shall be specific to the license for the program
at which the violations of applicable law or rules occurred and shall not apply to other
licenses held by the same license holder if the programs are being operated in substantial
compliance with applicable law and rules.
new text end

new text begin (d) The commissioner shall issue a conditional license only when the nature,
chronicity, or severity of the violations of applicable law or rules are not isolated, and:
new text end

new text begin (1) constitute a pattern of noncompliance or widespread noncompliance which, if
uncorrected, would pose a risk to the health, safety, and rights of the persons served; or
new text end

new text begin (2) constitute a pattern of serious maltreatment of a minor under section 626.556,
or a vulnerable adult under section 626.557. For purposes of this paragraph, "serious
maltreatment" has the meaning given in section 245C.02, subdivision 18.
new text end

new text begin (e) Before issuing an order of conditional license, the commissioner shall:
new text end

new text begin (1) notify the license holder in writing of the specific violations of applicable law
or rules;
new text end

new text begin (2) provide the license holder with ten days to submit a correction plan identifying a
date certain by which the license holder expects to correct the violations cited in the
commissioner's notice;
new text end

new text begin (3) within ten days of receipt of the correction plan, approve the plan as submitted
or require modifications of the plan; and
new text end

new text begin (4) conduct an inspection no later than 30 days after the approved correction plan's
date certain to establish whether the license holder has made the required corrections or
remains in noncompliance.
new text end

new text begin (f) The commissioner shall not issue a conditional license if the inspection
establishes that the license holder has corrected the violations of law or rules.
new text end

new text begin (g) Prior to issuing final sanctions, the commissioner shall offer the license holder
the opportunity for a settlement hearing.
new text end

Sec. 2.

Minnesota Statutes 2014, section 245A.07, is amended by adding a subdivision
to read:

new text begin Subd. 4a. new text end

new text begin Revocation and suspension of licenses for home and community-based
services programs; authority to stay revocation. new text end

new text begin (a) This subdivision applies to
programs licensed to provide home and community-based services and governed by
section 245A.042.
new text end

new text begin (b) Except for license holders subject to an order for temporary immediate
suspension under subdivision 2, or suspension under subdivision 3, the commissioner
shall not revoke a license unless a conditional license has been issued to the license holder
as provided in section 245A.06, subdivision 1a.
new text end

new text begin (c) Notwithstanding the provisions of section 245A.04, subdivision 7, paragraph (e),
if the commissioner issues a revocation, suspension, or nonrenewal of a license held by an
organization or controlling individual who also provides services at other sites under the
same or other licenses issued by the commissioner, the commissioner may issue an order
to stay the revocation, suspension, or nonrenewal of the license for other sites operated
by the organization or controlling individual. The decision to issue an order for a stay
must be made within 90 days of the commissioner's determination under section 245A.04,
subdivision 7, paragraph (e), that the additional licenses or sites are subject to revocation,
suspension, or nonrenewal. In deciding whether to issue a stay and impose conditions and
restrictions, the commissioner shall consider:
new text end

new text begin (1) the ability of the controlling individual or organization to operate the other
licensed programs in substantial compliance with applicable law or rules; and
new text end

new text begin (2) the compliance history of each site operated by the license holder.
new text end

Sec. 3.

Minnesota Statutes 2014, section 245A.08, subdivision 3, is amended to read:

Subd. 3.

Burden of proof.

(a) At a hearing regarding a licensing sanction under
section 245A.07, including consolidated hearings under subdivision 2a, the commissioner
deleted text begin may deleted text end new text begin has the burden of proof to new text end demonstrate reasonable cause for new text begin the new text end action taken by
submitting deleted text begin statements, reports, or deleted text end new text begin sworn new text end affidavits new text begin or testimony new text end to substantiate the
allegations that the license holder failed to new text begin substantially new text end comply deleted text begin fully deleted text end with applicable law
or rule. new text begin The commissioner may not rely solely on unsworn statements or reports to place
material facts in controversy or to meet the initial burden of proof. new text end If the commissioner
demonstrates that reasonable cause deleted text begin existed deleted text end new text begin exists new text end , the burden of proof shifts to the license
holder to demonstrate by a preponderance of the evidence that the license holder deleted text begin was in
full deleted text end new text begin is currently in substantial new text end compliance with those laws or rules that the commissioner
alleges the license holder violated deleted text begin , at the time that the commissioner alleges the violations
of law or rules occurred deleted text end .

(b) At a hearing on denial of an application, the applicant bears the burden of proof
to demonstrate by a preponderance of the evidence that the appellant has complied fully
with this chapter and other applicable law or rule and that the application should be
approved and a license granted.

Sec. 4.

Minnesota Statutes 2014, section 245A.08, is amended by adding a subdivision
to read:

new text begin Subd. 6. new text end

new text begin Judicial review. new text end

new text begin Upon timely appeal of a final agency decision, the
reviewing court shall not defer to the commissioner's choice of sanction under this section
and shall consider de novo whether the commissioner's choice of sanction is supported
by the record of evidence taken as a whole and commensurate with the seriousness of
the violation.
new text end

Sec. 5.

Minnesota Statutes 2014, section 626.557, subdivision 12b, is amended to read:

Subd. 12b.

Data management.

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

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

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

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

(i) the name of the facility investigated;

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

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

(iv) the identity of the investigator;

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

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

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

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

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

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

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

(i) the name of the vulnerable adult;

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

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

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

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

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

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

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

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

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

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

(e) The commissioners of health and human services shall annually publish on their
Web sites the number and type of reports of alleged maltreatment involving licensed
facilities reported under this section, the number of those requiring investigation under this
section, and the resolution of those investigations. On a biennial basis, the commissioners
of health and human services shall jointly report the following information to the
legislature and the governor:

(1) the number and type of reports of alleged maltreatment involving licensed
facilities reported under this section, the number of those requiring investigations under
this section, the resolution of those investigations, and which of the two lead agencies
was responsible;

(2) trends about types of substantiated maltreatment found in the reporting period;

(3) if there are upward trends for types of maltreatment substantiated,
recommendations for addressing and responding to them;

(4) efforts undertaken or recommended to improve the protection of vulnerable adults;

(5) whether and where backlogs of cases result in a failure to conform with statutory
time frames and recommendations for reducing backlogs if applicable;

(6) recommended changes to statutes affecting the protection of vulnerable adults; and

(7) any other information that is relevant to the report trends and findings.

(f) Each lead investigative agency must have a record retention policy.

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

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

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

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

new text begin (k) A public report finding substantiated maltreatment may not disclose an injury
or death unless the lead investigative agency demonstrates that the substantiated
maltreatment is the proximate cause of the injury or death.
new text end

Sec. 6.

Minnesota Statutes 2014, section 626.5572, subdivision 17, is amended to read:

Subd. 17.

Neglect.

"Neglect" means:

(a) The failure or omission by a caregiver to supply a vulnerable adult with care or
services, including but not limited to, food, clothing, shelter, health care, or supervision
which is:

(1) reasonable and necessary to obtain or maintain the vulnerable adult's physical or
mental health or safety, considering the physical and mental capacity or dysfunction of
the vulnerable adult; and

(2) which is not the result of an accident or therapeutic conduct.

(b) The absence or likelihood of absence of care or services, including but not
limited to, food, clothing, shelter, health care, or supervision necessary to maintain the
physical and mental health of the vulnerable adult which a reasonable person would deem
essential to obtain or maintain the vulnerable adult's health, safety, or comfort considering
the physical or mental capacity or dysfunction of the vulnerable adult.

(c) For purposes of this section, a vulnerable adult is not neglected for the sole
reason that:

(1) the vulnerable adult or a person with authority to make health care decisions for
the vulnerable adult under sections 144.651, 144A.44, chapter 145B, 145C, or 252A,
or sections 253B.03 or 524.5-101 to 524.5-502, refuses consent or withdraws consent,
consistent with that authority and within the boundary of reasonable medical practice, to
any therapeutic conduct, including any care, service, or procedure to diagnose, maintain,
or treat the physical or mental condition of the vulnerable adult, or, where permitted under
law, to provide nutrition and hydration parenterally or through intubation; this paragraph
does not enlarge or diminish rights otherwise held under law by:

(i) a vulnerable adult or a person acting on behalf of a vulnerable adult, including an
involved family member, to consent to or refuse consent for therapeutic conduct; or

(ii) a caregiver to offer or provide or refuse to offer or provide therapeutic conduct; or

(2) the vulnerable adult, a person with authority to make health care decisions for the
vulnerable adult, or a caregiver in good faith selects and depends upon spiritual means
or prayer for treatment or care of disease or remedial care of the vulnerable adult in lieu
of medical care, provided that this is consistent with the prior practice or belief of the
vulnerable adult or with the expressed intentions of the vulnerable adult;

(3) the vulnerable adult, who is not impaired in judgment or capacity by mental or
emotional dysfunction or undue influence, engages in consensual sexual contact with:

(i) a person including a facility staff person when a consensual sexual personal
relationship existed prior to the caregiving relationship; or

(ii) a personal care attendant, regardless of whether the consensual sexual personal
relationship existed prior to the caregiving relationship; or

(4) an individual new text begin or facility new text end makes an error in the provision of therapeutic conduct
to a vulnerable adult which does not result in injury or harm which reasonably requires
medical or mental health care; or

(5) an individual new text begin or facility new text end makes an error in the provision of therapeutic conduct
to a vulnerable adult that results in injury or harm, which reasonably requires the care
of a physician, and:

(i) the necessary care is provided in a timely fashion as dictated by the condition
of the vulnerable adult;

(ii) if after receiving care, the health status of the vulnerable adult can be reasonably
expected, as determined by the attending physician, to be restored to the vulnerable adult's
preexisting condition;

(iii) the error is not part of a pattern of errors by the individual new text begin or facility new text end ;

(iv) if in a facility, the error is immediately reported as required under section
626.557, and recorded internally in the facility;

(v) if in a facility, the facility identifies and takes corrective action and implements
measures designed to reduce the risk of further occurrence of this error and similar
errors; and

(vi) if in a facility, the actions required under items (iv) and (v) are sufficiently
documented for review and evaluation by the facility and any applicable licensing,
certification, and ombudsman agency.

(d) Nothing in this definition requires a caregiver, if regulated, to provide services
in excess of those required by the caregiver's license, certification, registration, or other
regulation. new text begin A lead investigative agency may not substantiate neglect against a facility
that is in compliance with the laws and rules relevant to the occurrence or event under
investigation.
new text end

(e) If the findings of an investigation by a lead investigative agency result in a
determination of substantiated maltreatment for the sole reason that the actions required
of a facility under paragraph (c), clause (5), item (iv), (v), or (vi), were not taken, then
the facility is subject to a correction order. An individual will not be found to have
neglected or maltreated the vulnerable adult based solely on the facility's not having
taken the actions required under paragraph (c), clause (5), item (iv), (v), or (vi). This
must not alter the lead investigative agency's determination of mitigating factors under
section 626.557, subdivision 9c, paragraph (c).