1st Engrossment - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to human services; modifying licensing and 1.3 reporting requirements; amending Minnesota Statutes 1.4 1998, sections 245A.04, subdivision 3a; 245A.08, 1.5 subdivision 5; 256E.08, by adding a subdivision; and 1.6 626.556, subdivisions 10i, and 11c. 1.7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.8 Section 1. Minnesota Statutes 1998, section 245A.04, 1.9 subdivision 3a, is amended to read: 1.10 Subd. 3a. [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF 1.11 STUDY RESULTS; DETERMINATION OF RISK OF HARM.] (a) The 1.12 commissioner shall notify the applicant or license holder and 1.13 the individual who is the subject of the study, in writing or by 1.14 electronic transmission, of the results of the study. When the 1.15 study is completed, a notice that the study was undertaken and 1.16 completed shall be maintained in the personnel files of the 1.17 program. For studies on individuals pertaining to a license to 1.18 provide family day care or group family day care, foster care 1.19 for children in the provider's own home, or foster care or day 1.20 care services for adults in the provider's own home, the 1.21 commissioner is not required to provide a separate notice of the 1.22 background study results to the individual who is the subject of 1.23 the study unless the study results in a disqualification of the 1.24 individual. 1.25 The commissioner shall notify the individual studied if the 1.26 information in the study indicates the individual is 2.1 disqualified from direct contact with persons served by the 2.2 program. The commissioner shall disclose the information 2.3 causing disqualification and instructions on how to request a 2.4 reconsideration of the disqualification to the individual 2.5 studied. An applicant or license holder who is not the subject 2.6 of the study shall be informed that the commissioner has found 2.7 information that disqualifies the subject from direct contact 2.8 with persons served by the program. However, only the 2.9 individual studied must be informed of the information contained 2.10 in the subject's background study unless the only basis for the 2.11 disqualification is failure to cooperate, the Data Practices Act 2.12 provides for release of the information, or the individual 2.13 studied authorizes the release of the information. 2.14 (b) If the commissioner determines that the individual 2.15 studied has a disqualifying characteristic, the commissioner 2.16 shall review the information immediately available and make a 2.17 determination as to the subject's immediate risk of harm to 2.18 persons served by the program where the individual studied will 2.19 have direct contact. The commissioner shall consider all 2.20 relevant information available, including the following factors 2.21 in determining the immediate risk of harm: the recency of the 2.22 disqualifying characteristic; the recency of discharge from 2.23 probation for the crimes; the number of disqualifying 2.24 characteristics; the intrusiveness or violence of the 2.25 disqualifying characteristic; the vulnerability of the victim 2.26 involved in the disqualifying characteristic; and the similarity 2.27 of the victim to the persons served by the program where the 2.28 individual studied will have direct contact. The commissioner 2.29 may determine that the evaluation of the information immediately 2.30 available gives the commissioner reason to believe one of the 2.31 following: 2.32 (1) The individual poses an imminent risk of harm to 2.33 persons served by the program where the individual studied will 2.34 have direct contact. If the commissioner determines that an 2.35 individual studied poses an imminent risk of harm to persons 2.36 served by the program where the individual studied will have 3.1 direct contact, the individual and the license holder must be 3.2 sent a notice of disqualification. The commissioner shall order 3.3 the license holder to immediately remove the individual studied 3.4 from direct contact. The notice to the individual studied must 3.5 include an explanation of the basis of this determination. 3.6 (2) The individual poses a risk of harm requiring 3.7 continuous supervision while providing direct contact services 3.8 during the period in which the subject may request a 3.9 reconsideration. If the commissioner determines that an 3.10 individual studied poses a risk of harm that requires continuous 3.11 supervision, the individual and the license holder must be sent 3.12 a notice of disqualification. The commissioner shall order the 3.13 license holder to immediately remove the individual studied from 3.14 direct contact services or assure that the individual studied is 3.15 within sight or hearing of another staff person when providing 3.16 direct contact services during the period in which the 3.17 individual may request a reconsideration of the 3.18 disqualification. If the individual studied does not submit a 3.19 timely request for reconsideration, or the individual submits a 3.20 timely request for reconsideration, but the disqualification is 3.21 not set aside for that license holder, the license holder will 3.22 be notified of the disqualification and ordered to immediately 3.23 remove the individual from any position allowing direct contact 3.24 with persons receiving services from the license holder. 3.25 (3) The individual does not pose an imminent risk of harm 3.26 or a risk of harm requiring continuous supervision while 3.27 providing direct contact services during the period in which the 3.28 subject may request a reconsideration. If the commissioner 3.29 determines that an individual studied does not pose a risk of 3.30 harm that requires continuous supervision, only the individual 3.31 must be sent a notice of disqualification. The license holder 3.32 must be sent a notice that more time is needed to complete the 3.33 individual's background study. If the individual studied 3.34 submits a timely request for reconsideration, and if the 3.35 disqualification is set aside for that license holder, the 3.36 license holder will receive the same notification received by 4.1 license holders in cases where the individual studied has no 4.2 disqualifying characteristic. If the individual studied does 4.3 not submit a timely request for reconsideration, or the 4.4 individual submits a timely request for reconsideration, but the 4.5 disqualification is not set aside for that license holder, the 4.6 license holder will be notified of the disqualification and 4.7 ordered to immediately remove the individual from any position 4.8 allowing direct contact with persons receiving services from the 4.9 license holder. 4.10 Sec. 2. Minnesota Statutes 1998, section 245A.08, 4.11 subdivision 5, is amended to read: 4.12 Subd. 5. [NOTICE OF THE COMMISSIONER'S FINAL ORDER.] After 4.13 considering the findings of fact, conclusions, and 4.14 recommendations of the administrative law judge, the 4.15 commissioner shall issue a final order. The commissioner shall 4.16 consider, but shall not be bound by, the recommendations of the 4.17 administrative law judge. The appellant must be notified of the 4.18 commissioner's final order as required by chapter 14. The 4.19 notice must also contain information about the appellant's 4.20 rights under chapter 14. The institution of proceedings for 4.21 judicial review of the commissioner's final order shall not stay 4.22 the enforcement of the final order except as provided in section 4.23 14.65. A license holder and each controlling individual of a 4.24 license holder whose license has been revoked because of 4.25 noncompliance with applicable law or rule must not be granted a 4.26 license for five years following the revocation. An applicant 4.27 whose application was denied must not be granted a license for 4.28 two years following a denial, unless the applicant's subsequent 4.29 application contains new information which constitutes a 4.30 substantial change in the conditions that caused the previous 4.31 denial. 4.32 Sec. 3. Minnesota Statutes 1998, section 256E.08, is 4.33 amended by adding a subdivision to read: 4.34 Subd. 4a. [EXEMPTION FROM LIABILITY.] The state of 4.35 Minnesota, the county boards participating in the community 4.36 social services plan, or the agencies acting on behalf of the 5.1 county boards in the implementation and administration of the 5.2 community social services plan shall not be liable for damages, 5.3 injuries, or liabilities sustained through the purchase of 5.4 services by the individual, the individual's family, or the 5.5 authorized representative under this section with funds received 5.6 through the community social services plan. Liabilities 5.7 include, but are not limited to, workers' compensation 5.8 liability, the Federal Insurance Contributions Act (FICA), or 5.9 the Federal Unemployment Tax Act (FUTA). 5.10 Sec. 4. Minnesota Statutes 1998, section 626.556, 5.11 subdivision 10i, is amended to read: 5.12 Subd. 10i. [ADMINISTRATIVE RECONSIDERATION OF FINAL 5.13 DETERMINATION OF MALTREATMENT.] (a) An individual or facility 5.14 that the commissioner or a local social service agency 5.15 determines has maltreated a child, or the child's designee, 5.16 regardless of the determination, who contests the investigating 5.17 agency's final determination regarding maltreatment, may request 5.18 the investigating agency to reconsider its final determination 5.19 regarding maltreatment. The request for reconsideration must be 5.20 submitted in writing to the investigating agency within 15 5.21 calendar days after receipt of notice of the final determination 5.22 regarding maltreatment. 5.23 (b) If the investigating agency denies the request or fails 5.24 to act upon the request within 15 calendar days after receiving 5.25 the request for reconsideration, the person or facility entitled 5.26 to a fair hearing under section 256.045 may submit to the 5.27 commissioner of human services a written request for a hearing 5.28 under that section. 5.29 (c) If, as a result of the reconsideration, the 5.30 investigating agency changes the final determination of 5.31 maltreatment, that agency shall notify the parties specified in 5.32 subdivisions 10b, 10d, and 10f. 5.33 (d) If an individual or facility contests the investigating 5.34 agency's final determination regarding maltreatment, the hearing 5.35 conducted under section 256.045 must be scheduled within six 5.36 weeks from the date of the request for a hearing. A decision 6.1 must be made within six weeks after a hearing is held. 6.2 Sec. 5. Minnesota Statutes 1998, section 626.556, 6.3 subdivision 11c, is amended to read: 6.4 Subd. 11c. [WELFARE, COURT SERVICES AGENCY, AND SCHOOL 6.5 RECORDS MAINTAINED.] Notwithstanding sections 138.163 and 6.6 138.17, records maintained or records derived from reports of 6.7 abuse by local welfare agencies, court services agencies, or 6.8 schools under this section shall be destroyed as provided in 6.9 paragraphs (a) to (d) by the responsible authority. 6.10 (a) If upon assessment or investigation there is no 6.11 determination of maltreatment or the need for child protective 6.12 services, the records must be maintained for a period of
four6.13 five years. Records under this paragraph may not be used for 6.14 employment, background checks, or purposes other than to assist 6.15 in future risk and safety assessments. 6.16 (b) All records relating to reports which, upon assessment 6.17 or investigation, indicate either maltreatment or a need for 6.18 child protective services shall be maintained for at least ten 6.19 years after the date of the final entry in the case record. 6.20 (c) All records regarding a report of maltreatment, 6.21 including any notification of intent to interview which was 6.22 received by a school under subdivision 10, paragraph (d), shall 6.23 be destroyed by the school when ordered to do so by the agency 6.24 conducting the assessment or investigation. The agency shall 6.25 order the destruction of the notification when other records 6.26 relating to the report under investigation or assessment are 6.27 destroyed under this subdivision. 6.28 (d) Private or confidential data released to a court 6.29 services agency under subdivision 10h must be destroyed by the 6.30 court services agency when ordered to do so by the local welfare 6.31 agency that released the data. The local welfare agency shall 6.32 order destruction of the data when other records relating to the 6.33 assessment or investigation are destroyed under this subdivision.