HF 3215

as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to human services; amending data and 
  1.3             licensing definitions; clarifying exclusions from 
  1.4             licensure, background study requirements, due process, 
  1.5             training, and license delegations; amending fair 
  1.6             hearing requirements; and clarifying a provision 
  1.7             related to errors in the provision of therapeutic 
  1.8             conduct to vulnerable adults; amending Minnesota 
  1.9             Statutes 2000, sections 13.41, subdivision 1; 245A.02, 
  1.10            by adding subdivisions; 626.557, subdivision 3a; 
  1.11            Minnesota Statutes 2001 Supplement, sections 13.46, 
  1.12            subdivisions 1, 4; 245A.03, subdivision 2; 245A.04, 
  1.13            subdivisions 3, 3a, 3b, 3c; 245A.07, subdivisions 2a, 
  1.14            3; 245A.144; 245A.16, subdivision 1; 256.045, 
  1.15            subdivisions 3b, 4; proposing coding for new law in 
  1.16            Minnesota Statutes, chapter 245A. 
  1.17  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.18     Section 1.  Minnesota Statutes 2000, section 13.41, 
  1.19  subdivision 1, is amended to read: 
  1.20     Subdivision 1.  [DEFINITION.] As used in this section 
  1.21  "licensing agency" means any board, department or agency of this 
  1.22  state which is given the statutory authority to issue 
  1.23  professional or other types of licenses, except the various 
  1.24  agencies primarily administered by the commissioner of human 
  1.25  services.  Data pertaining to persons or agencies licensed or 
  1.26  registered under authority of the commissioner of human services 
  1.27  shall be administered pursuant to section 13.46, subdivision 4. 
  1.28     Sec. 2.  Minnesota Statutes 2001 Supplement, section 13.46, 
  1.29  subdivision 1, is amended to read: 
  1.30     Subdivision 1.  [DEFINITIONS.] As used in this section: 
  1.31     (a) "Individual" means an individual according to section 
  2.1   13.02, subdivision 8, but does not include a vendor of services. 
  2.2      (b) "Program" includes all programs for which authority is 
  2.3   vested in a component of the welfare system according to statute 
  2.4   or federal law, including, but not limited to, the aid to 
  2.5   families with dependent children program formerly codified in 
  2.6   sections 256.72 to 256.87, Minnesota Family Investment Program, 
  2.7   medical assistance, general assistance, general assistance 
  2.8   medical care, and child support collections.  
  2.9      (c) "Welfare system" includes the department of human 
  2.10  services, local social services agencies, county welfare 
  2.11  agencies, private licensing agencies, the public authority 
  2.12  responsible for child support enforcement, human services 
  2.13  boards, community mental health center boards, state hospitals, 
  2.14  state nursing homes, the ombudsman for mental health and mental 
  2.15  retardation, and persons, agencies, institutions, organizations, 
  2.16  and other entities under contract to any of the above agencies 
  2.17  to the extent specified in the contract. 
  2.18     (d) "Mental health data" means data on individual clients 
  2.19  and patients of community mental health centers, established 
  2.20  under section 245.62, mental health divisions of counties and 
  2.21  other providers under contract to deliver mental health 
  2.22  services, or the ombudsman for mental health and mental 
  2.23  retardation. 
  2.24     (e) "Fugitive felon" means a person who has been convicted 
  2.25  of a felony and who has escaped from confinement or violated the 
  2.26  terms of probation or parole for that offense. 
  2.27     Sec. 3.  Minnesota Statutes 2001 Supplement, section 13.46, 
  2.28  subdivision 4, is amended to read: 
  2.29     Subd. 4.  [LICENSING DATA.] (a) As used in this subdivision:
  2.30     (1) "licensing data" means all data collected, maintained, 
  2.31  used, or disseminated by the welfare system pertaining to 
  2.32  persons licensed or registered or who apply for licensure or 
  2.33  registration or who formerly were licensed or registered under 
  2.34  the authority of the commissioner of human services; 
  2.35     (2) "client" means a person who is receiving services from 
  2.36  a licensee or from an applicant for licensure; and 
  3.1      (3) "personal and personal financial data" means social 
  3.2   security numbers, identity of and letters of reference, 
  3.3   insurance information, reports from the bureau of criminal 
  3.4   apprehension, health examination reports, and social/home 
  3.5   studies. 
  3.6      (b)(1) Except as provided in paragraph (c), the following 
  3.7   data on current and former licensees are public:  name, address, 
  3.8   telephone number of licensees, date of receipt of a completed 
  3.9   application, dates of licensure, licensed capacity, type of 
  3.10  client preferred, variances granted, type of dwelling, name and 
  3.11  relationship of other family members, previous license history, 
  3.12  class of license, and the existence and status of complaints.  
  3.13  When a correction order or fine has been issued, a license is 
  3.14  suspended, immediately suspended, revoked, denied, or made 
  3.15  conditional, or a complaint is resolved, the following data on 
  3.16  current and former licensees are public:  the substance and 
  3.17  investigative findings of the complaint, licensing violation, or 
  3.18  substantiated maltreatment; the record of informal resolution of 
  3.19  a licensing violation; orders of hearing; findings of fact; 
  3.20  conclusions of law; specifications of the final correction 
  3.21  order, fine, suspension, immediate suspension, revocation, 
  3.22  denial, or conditional license contained in the record of 
  3.23  licensing action; and the status of any appeal of these 
  3.24  actions.  When an individual licensee is a substantiated 
  3.25  perpetrator of maltreatment, and the substantiated maltreatment 
  3.26  is a reason for the licensing action, the identity of the 
  3.27  licensee as a perpetrator is public data.  For purposes of this 
  3.28  clause, a person is a substantiated perpetrator if the 
  3.29  maltreatment determination has been upheld under section 
  3.30  626.556, subdivision 10i, 626.557, subdivision 9d, or 256.045, 
  3.31  or an individual or facility has not timely exercised appeal 
  3.32  rights under these sections. 
  3.33     (2) For applicants who withdraw their application prior to 
  3.34  licensure or denial of a license, the following data are 
  3.35  public:  the name of the applicant, the city and county in which 
  3.36  the applicant was seeking licensure, the dates of the 
  4.1   commissioner's receipt of the initial application and completed 
  4.2   application, the type of license sought, and the date of 
  4.3   withdrawal of the application. 
  4.4      (3) For applicants who are denied a license, the following 
  4.5   data are public:  the name of the applicant, the city and county 
  4.6   in which the applicant was seeking licensure, the dates of the 
  4.7   commissioner's receipt of the initial application and completed 
  4.8   application, the type of license sought, the date of denial of 
  4.9   the application, the nature of the basis for the denial, and the 
  4.10  status of any appeal of the denial. 
  4.11     (4) The following data on persons subject to 
  4.12  disqualification under section 245A.04 in connection with a 
  4.13  license to provide family day care for children, child care 
  4.14  center services, foster care for children in the provider's 
  4.15  home, or foster care or day care services for adults in the 
  4.16  provider's home, are public:  the nature of any disqualification 
  4.17  set aside under section 245A.04, subdivision 3b, and the reasons 
  4.18  for setting aside the disqualification; and the reasons for 
  4.19  granting any variance under section 245A.04, subdivision 9. 
  4.20     (5) When maltreatment is substantiated under section 
  4.21  626.556 or 626.557 and the victim and the substantiated 
  4.22  perpetrator are affiliated with a program licensed under chapter 
  4.23  245A, the commissioner of human services, local social services 
  4.24  agency, or county welfare agency may inform the license holder 
  4.25  where the maltreatment occurred of the identity of the 
  4.26  substantiated perpetrator and the victim. 
  4.27     (c) The following are private data on individuals under 
  4.28  section 13.02, subdivision 12, or nonpublic data under section 
  4.29  13.02, subdivision 9:  personal and personal financial data on 
  4.30  family day care program and family foster care program 
  4.31  applicants and licensees and their family members who provide 
  4.32  services under the license. 
  4.33     (d) The following are private data on individuals:  the 
  4.34  identity of persons who have made reports concerning licensees 
  4.35  or applicants that appear in inactive investigative data, and 
  4.36  the records of clients or employees of the licensee or applicant 
  5.1   for licensure whose records are received by the licensing agency 
  5.2   for purposes of review or in anticipation of a contested 
  5.3   matter.  The names of reporters under sections 626.556 and 
  5.4   626.557 may be disclosed only as provided in section 626.556, 
  5.5   subdivision 11, or 626.557, subdivision 12b. 
  5.6      (e) Data classified as private, confidential, nonpublic, or 
  5.7   protected nonpublic under this subdivision become public data if 
  5.8   submitted to a court or administrative law judge as part of a 
  5.9   disciplinary proceeding in which there is a public hearing 
  5.10  concerning a license which has been suspended, immediately 
  5.11  suspended, revoked, or denied. 
  5.12     (f) Data generated in the course of licensing 
  5.13  investigations that relate to an alleged violation of law are 
  5.14  investigative data under subdivision 3. 
  5.15     (g) Data that are not public data collected, maintained, 
  5.16  used, or disseminated under this subdivision that relate to or 
  5.17  are derived from a report as defined in section 626.556, 
  5.18  subdivision 2, or 626.5572, subdivision 18, are subject to the 
  5.19  destruction provisions of sections 626.556, subdivision 11c, and 
  5.20  626.557, subdivision 12b.  
  5.21     (h) Upon request, not public data collected, maintained, 
  5.22  used, or disseminated under this subdivision that relate to or 
  5.23  are derived from a report of substantiated maltreatment as 
  5.24  defined in section 626.556 or 626.557 may be exchanged with the 
  5.25  department of health for purposes of completing background 
  5.26  studies pursuant to section 144.057 and with the department of 
  5.27  corrections for purposes of completing background studies 
  5.28  pursuant to section 241.021. 
  5.29     (i) Data on individuals collected according to licensing 
  5.30  activities under chapter 245A, and data on individuals collected 
  5.31  by the commissioner of human services according to maltreatment 
  5.32  investigations under sections 626.556 and 626.557, may be shared 
  5.33  with the department of human rights, the department of health, 
  5.34  the department of corrections, the ombudsman for mental health 
  5.35  and retardation, and the individual's professional regulatory 
  5.36  board when there is reason to believe that laws or standards 
  6.1   under the jurisdiction of those agencies may have been violated. 
  6.2      (j) In addition to the notice of determinations required 
  6.3   under section 626.556, subdivision 10f, if the commissioner or 
  6.4   the local social services agency has determined that an 
  6.5   individual is a substantiated perpetrator of maltreatment of a 
  6.6   child based on sexual abuse, as defined in section 626.556, 
  6.7   subdivision 2, and the commissioner or local social services 
  6.8   agency knows that the individual is a person responsible for a 
  6.9   child's care in another facility, the commissioner or local 
  6.10  social services agency shall notify the head of that facility of 
  6.11  this determination.  The notification must include an 
  6.12  explanation of the individual's available appeal rights and the 
  6.13  status of any appeal.  If a notice is given under this 
  6.14  paragraph, the government entity making the notification shall 
  6.15  provide a copy of the notice to the individual who is the 
  6.16  subject of the notice. 
  6.17     Sec. 4.  Minnesota Statutes 2000, section 245A.02, is 
  6.18  amended by adding a subdivision to read: 
  6.19     Subd. 2a.  [ADULT DAY CARE.] "Adult day care" means a 
  6.20  program operating less than 24 hours per day that provides 
  6.21  functionally impaired adults with an individualized and 
  6.22  coordinated set of services including health services, social 
  6.23  services, and nutritional services that are directed at 
  6.24  maintaining or improving the participants' capabilities for 
  6.25  self-care.  Adult day care does not include programs where 
  6.26  adults gather or congregate primarily for purposes of 
  6.27  socialization, education, supervision, caregiver respite, 
  6.28  religious expression, exercise, or nutritious meals. 
  6.29     Sec. 5.  Minnesota Statutes 2000, section 245A.02, is 
  6.30  amended by adding a subdivision to read: 
  6.31     Subd. 2b.  [ANNUAL OR ANNUALLY.] "Annual" or "annually" 
  6.32  means prior to or within the same month of the subsequent 
  6.33  calendar year. 
  6.34     Sec. 6.  Minnesota Statutes 2001 Supplement, section 
  6.35  245A.03, subdivision 2, is amended to read: 
  6.36     Subd. 2.  [EXCLUSION FROM LICENSURE.] This chapter does not 
  7.1   apply to: 
  7.2      (1) residential or nonresidential programs that are 
  7.3   provided to a person by an individual who is related unless the 
  7.4   residential program is a child foster care placement made by a 
  7.5   local social services agency or a licensed child-placing agency, 
  7.6   except as provided in subdivision 2a; 
  7.7      (2) nonresidential programs that are provided by an 
  7.8   unrelated individual to persons from a single related family; 
  7.9      (3) residential or nonresidential programs that are 
  7.10  provided to adults who do not abuse chemicals or who do not have 
  7.11  a chemical dependency, a mental illness, mental retardation or a 
  7.12  related condition, a functional impairment, or a physical 
  7.13  handicap; 
  7.14     (4) sheltered workshops or work activity programs that are 
  7.15  certified by the commissioner of economic security; 
  7.16     (5) programs for children enrolled in kindergarten to the 
  7.17  12th grade and prekindergarten special education in a school as 
  7.18  defined in section 120A.22, subdivision 4, and programs serving 
  7.19  children in combined special education and regular 
  7.20  prekindergarten programs that are operated or assisted by the 
  7.21  commissioner of children, families, and learning; 
  7.22     (6) nonresidential programs primarily for children that 
  7.23  provide care or supervision, without charge for ten or fewer 
  7.24  days a year, and for periods of less than three hours a day 
  7.25  while the child's parent or legal guardian is in the same 
  7.26  building as the nonresidential program or present within another 
  7.27  building that is directly contiguous to the building in which 
  7.28  the nonresidential program is located; 
  7.29     (7) nursing homes or hospitals licensed by the commissioner 
  7.30  of health except as specified under section 245A.02; 
  7.31     (8) board and lodge facilities licensed by the commissioner 
  7.32  of health that provide services for five or more persons whose 
  7.33  primary diagnosis is mental illness who have refused an 
  7.34  appropriate residential program offered by a county agency.  
  7.35  This exclusion expires on July 1, 1990; 
  7.36     (9) homes providing programs for persons placed there by a 
  8.1   licensed agency for legal adoption, unless the adoption is not 
  8.2   completed within two years; 
  8.3      (10) programs licensed by the commissioner of corrections; 
  8.4      (11) recreation programs for children or adults that 
  8.5   operate for fewer than 40 calendar days in a calendar year or 
  8.6   programs operated by a park and recreation board of a city of 
  8.7   the first class whose primary purpose is to provide social and 
  8.8   recreational activities to school age children, provided the 
  8.9   program is approved by the park and recreation board; 
  8.10     (12) programs operated by a school as defined in section 
  8.11  120A.22, subdivision 4, whose primary purpose is to provide 
  8.12  child care to school-age children, provided the program is 
  8.13  approved by the district's school board; 
  8.14     (13) Head Start nonresidential programs which operate for 
  8.15  less than 31 days in each calendar year; 
  8.16     (14) noncertified boarding care homes unless they provide 
  8.17  services for five or more persons whose primary diagnosis is 
  8.18  mental illness or mental retardation; 
  8.19     (15) nonresidential programs for nonhandicapped children 
  8.20  provided for a cumulative total of less than 30 days in any 
  8.21  12-month period; 
  8.22     (16) residential programs for persons with mental illness, 
  8.23  that are located in hospitals, until the commissioner adopts 
  8.24  appropriate rules; 
  8.25     (17) the religious instruction of school-age children; 
  8.26  Sabbath or Sunday schools; or the congregate care of children by 
  8.27  a church, congregation, or religious society during the period 
  8.28  used by the church, congregation, or religious society for its 
  8.29  regular worship; 
  8.30     (18) camps licensed by the commissioner of health under 
  8.31  Minnesota Rules, chapter 4630; 
  8.32     (19) mental health outpatient services for adults with 
  8.33  mental illness or children with emotional disturbance; 
  8.34     (20) residential programs serving school-age children whose 
  8.35  sole purpose is cultural or educational exchange, until the 
  8.36  commissioner adopts appropriate rules; 
  9.1      (21) unrelated individuals who provide out-of-home respite 
  9.2   care services to persons with mental retardation or related 
  9.3   conditions from a single related family for no more than 90 days 
  9.4   in a 12-month period and the respite care services are for the 
  9.5   temporary relief of the person's family or legal representative; 
  9.6      (22) respite care services provided as a home and 
  9.7   community-based service to a person with mental retardation or a 
  9.8   related condition, in the person's primary residence; 
  9.9      (23) community support services programs as defined in 
  9.10  section 245.462, subdivision 6, and family community support 
  9.11  services as defined in section 245.4871, subdivision 17; 
  9.12     (24) the placement of a child by a birth parent or legal 
  9.13  guardian in a preadoptive home for purposes of adoption as 
  9.14  authorized by section 259.47; 
  9.15     (25) settings registered under chapter 144D which provide 
  9.16  home care services licensed by the commissioner of health to 
  9.17  fewer than seven adults; or 
  9.18     (26) consumer-directed community support service funded 
  9.19  under the Medicaid waiver for persons with mental retardation 
  9.20  and related conditions when the individual who provided the 
  9.21  service is:  
  9.22     (i) the same individual who is the direct payee of these 
  9.23  specific waiver funds or paid by a fiscal agent, fiscal 
  9.24  intermediary, or employer of record; and 
  9.25     (ii) not otherwise under the control of a residential or 
  9.26  nonresidential program that is required to be licensed under 
  9.27  this chapter when providing the service. 
  9.28     For purposes of clause (6), a building is directly 
  9.29  contiguous to a building in which a nonresidential program is 
  9.30  located if it shares a common wall with the building in which 
  9.31  the nonresidential program is located or is attached to that 
  9.32  building by skyway, tunnel, atrium, or common roof. 
  9.33     (27) Nothing in this chapter shall be construed to require 
  9.34  licensure for any services provided and funded according to an 
  9.35  approved federal waiver plan where licensure is specifically 
  9.36  identified as not being a condition for the services and funding.
 10.1      Sec. 7.  Minnesota Statutes 2001 Supplement, section 
 10.2   245A.04, subdivision 3, is amended to read: 
 10.3      Subd. 3.  [BACKGROUND STUDY OF THE APPLICANT; DEFINITIONS.] 
 10.4   (a) Individuals and organizations that are required in statute 
 10.5   to initiate background studies under this section shall comply 
 10.6   with the following requirements: 
 10.7      (1) Applicants for licensure, license holders, and other 
 10.8   entities as provided in this section must submit completed 
 10.9   background study forms to the commissioner before individuals 
 10.10  specified in paragraph (c), clauses (1) to (4), (6), and (7), 
 10.11  begin positions allowing direct contact in any licensed program. 
 10.12     (2) Applicants and license holders under the jurisdiction 
 10.13  of other state agencies who are required in other statutory 
 10.14  sections to initiate background studies under this section must 
 10.15  submit completed background study forms to the commissioner 
 10.16  prior to the background study subject beginning in a position 
 10.17  allowing direct contact in the licensed program, or where 
 10.18  applicable, prior to being employed. 
 10.19     (3) Organizations required to initiate background studies 
 10.20  under section 256B.0627 for individuals described in paragraph 
 10.21  (c), clause (5), must submit a completed background study form 
 10.22  to the commissioner before those individuals begin a position 
 10.23  allowing direct contact with persons served by the 
 10.24  organization.  The commissioner shall recover the cost of these 
 10.25  background studies through a fee of no more than $12 per study 
 10.26  charged to the organization responsible for submitting the 
 10.27  background study form.  The fees collected under this paragraph 
 10.28  are appropriated to the commissioner for the purpose of 
 10.29  conducting background studies.  
 10.30     Upon receipt of the background study forms from the 
 10.31  entities in clauses (1) to (3), the commissioner shall complete 
 10.32  the background study as specified under this section and provide 
 10.33  notices required in subdivision 3a.  Unless otherwise specified, 
 10.34  the subject of a background study may have direct contact with 
 10.35  persons served by a program after the background study form is 
 10.36  mailed or submitted to the commissioner pending notification of 
 11.1   the study results under subdivision 3a.  A county agency may 
 11.2   accept a background study completed by the commissioner under 
 11.3   this section in place of the background study required under 
 11.4   section 245A.16, subdivision 3, in programs with joint licensure 
 11.5   as home and community-based services and adult foster care for 
 11.6   people with developmental disabilities when the license holder 
 11.7   does not reside in the foster care residence and the subject of 
 11.8   the study has been continuously affiliated with the license 
 11.9   holder since the date of the commissioner's study. 
 11.10     (b) The definitions in this paragraph apply only to 
 11.11  subdivisions 3 to 3e. 
 11.12     (1) "Background study" means the review of records 
 11.13  conducted by the commissioner to determine whether a subject is 
 11.14  disqualified from direct contact with persons served by a 
 11.15  program, and where specifically provided in statutes, whether a 
 11.16  subject is disqualified from having access to persons served by 
 11.17  a program. 
 11.18     (2) "Continuous, direct supervision" means an individual is 
 11.19  within sight or hearing of the supervising person to the extent 
 11.20  that supervising person is capable at all times of intervening 
 11.21  to protect the health and safety of the persons served by the 
 11.22  program. 
 11.23     (3) "Contractor" means any person, regardless of employer, 
 11.24  who is providing program services for hire under the control of 
 11.25  the provider. 
 11.26     (4) "Direct contact" means providing face-to-face care, 
 11.27  training, supervision, counseling, consultation, or medication 
 11.28  assistance to persons served by the program. 
 11.29     (5) "Reasonable cause" means information or circumstances 
 11.30  exist which provide the commissioner with articulable suspicion 
 11.31  that further pertinent information may exist concerning a 
 11.32  subject.  The commissioner has reasonable cause when, but not 
 11.33  limited to, the commissioner has received a report from the 
 11.34  subject, the license holder, or a third party indicating that 
 11.35  the subject has a history that would disqualify the person or 
 11.36  that may pose a risk to the health or safety of persons 
 12.1   receiving services. 
 12.2      (6) "Subject of a background study" means an individual on 
 12.3   whom a background study is required or completed. 
 12.4      (c) The applicant, license holder, registrant under section 
 12.5   144A.71, subdivision 1, bureau of criminal apprehension, 
 12.6   commissioner of health, and county agencies, after written 
 12.7   notice to the individual who is the subject of the study, shall 
 12.8   help with the study by giving the commissioner criminal 
 12.9   conviction data and reports about the maltreatment of adults 
 12.10  substantiated under section 626.557 and the maltreatment of 
 12.11  minors in licensed programs substantiated under section 
 12.12  626.556.  The individuals to be studied shall include: 
 12.13     (1) the applicant; 
 12.14     (2) persons age 13 and over living in the household where 
 12.15  the licensed program will be provided; 
 12.16     (3) current employees or contractors of the applicant who 
 12.17  will have direct contact with persons served by the facility, 
 12.18  agency, or program; 
 12.19     (4) volunteers or student volunteers who have direct 
 12.20  contact with persons served by the program to provide program 
 12.21  services, if the contact is not directly supervised by the 
 12.22  individuals under the continuous, direct supervision by an 
 12.23  individual listed in clause (1) or (3); 
 12.24     (5) any person required under section 256B.0627 to have a 
 12.25  background study completed under this section; 
 12.26     (6) persons ages 10 to 12 living in the household where the 
 12.27  licensed services will be provided when the commissioner has 
 12.28  reasonable cause; and 
 12.29     (7) persons who, without providing direct contact services 
 12.30  at a licensed program, may have unsupervised access to children 
 12.31  or vulnerable adults receiving services from the program 
 12.32  licensed to provide family child care for children, foster care 
 12.33  for children in the provider's own home, or foster care or day 
 12.34  care services for adults in the provider's own home when the 
 12.35  commissioner has reasonable cause. 
 12.36     (d) According to paragraph (c), clauses (2) and (6), the 
 13.1   commissioner shall review records from the juvenile courts.  For 
 13.2   persons under paragraph (c), clauses (1), (3), (4), (5), and 
 13.3   (7), who are ages 13 to 17, the commissioner shall review 
 13.4   records from the juvenile courts when the commissioner has 
 13.5   reasonable cause.  The juvenile courts shall help with the study 
 13.6   by giving the commissioner existing juvenile court records on 
 13.7   individuals described in paragraph (c), clauses (2), (6), and 
 13.8   (7), relating to delinquency proceedings held within either the 
 13.9   five years immediately preceding the background study or the 
 13.10  five years immediately preceding the individual's 18th birthday, 
 13.11  whichever time period is longer.  The commissioner shall destroy 
 13.12  juvenile records obtained pursuant to this subdivision when the 
 13.13  subject of the records reaches age 23. 
 13.14     (e) Beginning August 1, 2001, the commissioner shall 
 13.15  conduct all background studies required under this chapter and 
 13.16  initiated by supplemental nursing services agencies registered 
 13.17  under section 144A.71, subdivision 1.  Studies for the agencies 
 13.18  must be initiated annually by each agency.  The commissioner 
 13.19  shall conduct the background studies according to this chapter.  
 13.20  The commissioner shall recover the cost of the background 
 13.21  studies through a fee of no more than $8 per study, charged to 
 13.22  the supplemental nursing services agency.  The fees collected 
 13.23  under this paragraph are appropriated to the commissioner for 
 13.24  the purpose of conducting background studies. 
 13.25     (f) For purposes of this section, a finding that a 
 13.26  delinquency petition is proven in juvenile court shall be 
 13.27  considered a conviction in state district court. 
 13.28     (g) A study of an individual in paragraph (c), clauses (1) 
 13.29  to (7), shall be conducted at least upon application for initial 
 13.30  license for all license types or registration under section 
 13.31  144A.71, subdivision 1, and at reapplication for a license or 
 13.32  registration for family child care, child foster care, and adult 
 13.33  foster care.  The commissioner is not required to conduct a 
 13.34  study of an individual at the time of reapplication for a 
 13.35  license or if the individual has been continuously affiliated 
 13.36  with a foster care provider licensed by the commissioner of 
 14.1   human services and registered under chapter 144D, other than a 
 14.2   family day care or foster care license, if:  (i) a study of the 
 14.3   individual was conducted either at the time of initial licensure 
 14.4   or when the individual became affiliated with the license 
 14.5   holder; (ii) the individual has been continuously affiliated 
 14.6   with the license holder since the last study was conducted; and 
 14.7   (iii) the procedure described in paragraph (j) has been 
 14.8   implemented and was in effect continuously since the last study 
 14.9   was conducted.  For the purposes of this section, a physician 
 14.10  licensed under chapter 147 is considered to be continuously 
 14.11  affiliated upon the license holder's receipt from the 
 14.12  commissioner of health or human services of the physician's 
 14.13  background study results.  For individuals who are required to 
 14.14  have background studies under paragraph (c) and who have been 
 14.15  continuously affiliated with a foster care provider that is 
 14.16  licensed in more than one county, criminal conviction data may 
 14.17  be shared among those counties in which the foster care programs 
 14.18  are licensed.  A county agency's receipt of criminal conviction 
 14.19  data from another county agency shall meet the criminal data 
 14.20  background study requirements of this section. 
 14.21     (h) The commissioner may also conduct studies on 
 14.22  individuals specified in paragraph (c), clauses (3) and (4), 
 14.23  when the studies are initiated by: 
 14.24     (i) personnel pool agencies; 
 14.25     (ii) temporary personnel agencies; 
 14.26     (iii) educational programs that train persons by providing 
 14.27  direct contact services in licensed programs; and 
 14.28     (iv) professional services agencies that are not licensed 
 14.29  and which contract with licensed programs to provide direct 
 14.30  contact services or individuals who provide direct contact 
 14.31  services. 
 14.32     (i) Studies on individuals in paragraph (h), items (i) to 
 14.33  (iv), must be initiated annually by these agencies, programs, 
 14.34  and individuals.  Except as provided in paragraph (a), clause 
 14.35  (3), no applicant, license holder, or individual who is the 
 14.36  subject of the study shall pay any fees required to conduct the 
 15.1   study. 
 15.2      (1) At the option of the licensed facility, rather than 
 15.3   initiating another background study on an individual required to 
 15.4   be studied who has indicated to the licensed facility that a 
 15.5   background study by the commissioner was previously completed, 
 15.6   the facility may make a request to the commissioner for 
 15.7   documentation of the individual's background study status, 
 15.8   provided that: 
 15.9      (i) the facility makes this request using a form provided 
 15.10  by the commissioner; 
 15.11     (ii) in making the request the facility informs the 
 15.12  commissioner that either: 
 15.13     (A) the individual has been continuously affiliated with a 
 15.14  licensed facility since the individual's previous background 
 15.15  study was completed, or since October 1, 1995, whichever is 
 15.16  shorter; or 
 15.17     (B) the individual is affiliated only with a personnel pool 
 15.18  agency, a temporary personnel agency, an educational program 
 15.19  that trains persons by providing direct contact services in 
 15.20  licensed programs, or a professional services agency that is not 
 15.21  licensed and which contracts with licensed programs to provide 
 15.22  direct contact services or individuals who provide direct 
 15.23  contact services; and 
 15.24     (iii) the facility provides notices to the individual as 
 15.25  required in paragraphs (a) to (j), and that the facility is 
 15.26  requesting written notification of the individual's background 
 15.27  study status from the commissioner.  
 15.28     (2) The commissioner shall respond to each request under 
 15.29  paragraph (1) with a written or electronic notice to the 
 15.30  facility and the study subject.  If the commissioner determines 
 15.31  that a background study is necessary, the study shall be 
 15.32  completed without further request from a licensed agency or 
 15.33  notifications to the study subject.  
 15.34     (3) When a background study is being initiated by a 
 15.35  licensed facility or a foster care provider that is also 
 15.36  registered under chapter 144D, a study subject affiliated with 
 16.1   multiple licensed facilities may attach to the background study 
 16.2   form a cover letter indicating the additional facilities' names, 
 16.3   addresses, and background study identification numbers.  When 
 16.4   the commissioner receives such notices, each facility identified 
 16.5   by the background study subject shall be notified of the study 
 16.6   results.  The background study notice sent to the subsequent 
 16.7   agencies shall satisfy those facilities' responsibilities for 
 16.8   initiating a background study on that individual. 
 16.9      (j) If an individual who is affiliated with a program or 
 16.10  facility regulated by the department of human services or 
 16.11  department of health or who is affiliated with any type of home 
 16.12  care agency or provider of personal care assistance services, is 
 16.13  convicted of a crime constituting a disqualification under 
 16.14  subdivision 3d, the probation officer or corrections agent shall 
 16.15  notify the commissioner of the conviction.  For the purpose of 
 16.16  this paragraph, "conviction" has the meaning given it in section 
 16.17  609.02, subdivision 5.  The commissioner, in consultation with 
 16.18  the commissioner of corrections, shall develop forms and 
 16.19  information necessary to implement this paragraph and shall 
 16.20  provide the forms and information to the commissioner of 
 16.21  corrections for distribution to local probation officers and 
 16.22  corrections agents.  The commissioner shall inform individuals 
 16.23  subject to a background study that criminal convictions for 
 16.24  disqualifying crimes will be reported to the commissioner by the 
 16.25  corrections system.  A probation officer, corrections agent, or 
 16.26  corrections agency is not civilly or criminally liable for 
 16.27  disclosing or failing to disclose the information required by 
 16.28  this paragraph.  Upon receipt of disqualifying information, the 
 16.29  commissioner shall provide the notifications required in 
 16.30  subdivision 3a, as appropriate to agencies on record as having 
 16.31  initiated a background study or making a request for 
 16.32  documentation of the background study status of the individual.  
 16.33  This paragraph does not apply to family day care and child 
 16.34  foster care programs. 
 16.35     (k) The individual who is the subject of the study must 
 16.36  provide the applicant or license holder with sufficient 
 17.1   information to ensure an accurate study including the 
 17.2   individual's first, middle, and last name and all other names by 
 17.3   which the individual has been known; home address, city, county, 
 17.4   and state of residence for the past five years; zip code; sex; 
 17.5   date of birth; and driver's license number or state 
 17.6   identification number.  The applicant or license holder shall 
 17.7   provide this information about an individual in paragraph (c), 
 17.8   clauses (1) to (7), on forms prescribed by the commissioner.  By 
 17.9   January 1, 2000, for background studies conducted by the 
 17.10  department of human services, the commissioner shall implement a 
 17.11  system for the electronic transmission of:  (1) background study 
 17.12  information to the commissioner; and (2) background study 
 17.13  results to the license holder.  The commissioner may request 
 17.14  additional information of the individual, which shall be 
 17.15  optional for the individual to provide, such as the individual's 
 17.16  social security number or race. 
 17.17     (l) For programs directly licensed by the commissioner, a 
 17.18  study must include information related to names of substantiated 
 17.19  perpetrators of maltreatment of vulnerable adults that has been 
 17.20  received by the commissioner as required under section 626.557, 
 17.21  subdivision 9c, paragraph (i), and the commissioner's records 
 17.22  relating to the maltreatment of minors in licensed programs, 
 17.23  information from juvenile courts as required in paragraph (c) 
 17.24  for persons listed in paragraph (c), clauses (2), (6), and (7), 
 17.25  and information from the bureau of criminal apprehension.  For 
 17.26  child foster care, adult foster care, and family day care homes, 
 17.27  the study must include information from the county agency's 
 17.28  record of substantiated maltreatment of adults, and the 
 17.29  maltreatment of minors, information from juvenile courts as 
 17.30  required in paragraph (c) for persons listed in paragraph (c), 
 17.31  clauses (2), (6), and (7), and information from the bureau of 
 17.32  criminal apprehension.  The commissioner may also review arrest 
 17.33  and investigative information from the bureau of criminal 
 17.34  apprehension, the commissioner of health, a county attorney, 
 17.35  county sheriff, county agency, local chief of police, other 
 17.36  states, the courts, or the Federal Bureau of Investigation if 
 18.1   the commissioner has reasonable cause to believe the information 
 18.2   is pertinent to the disqualification of an individual listed in 
 18.3   paragraph (c), clauses (1) to (7).  The commissioner is not 
 18.4   required to conduct more than one review of a subject's records 
 18.5   from the Federal Bureau of Investigation if a review of the 
 18.6   subject's criminal history with the Federal Bureau of 
 18.7   Investigation has already been completed by the commissioner and 
 18.8   there has been no break in the subject's affiliation with the 
 18.9   license holder who initiated the background study. 
 18.10     (m) When the commissioner has reasonable cause to believe 
 18.11  that further pertinent information may exist on the subject, the 
 18.12  subject shall provide a set of classifiable fingerprints 
 18.13  obtained from an authorized law enforcement agency.  For 
 18.14  purposes of requiring fingerprints, the commissioner shall be 
 18.15  considered to have reasonable cause under, but not limited to, 
 18.16  the following circumstances: 
 18.17     (1) information from the bureau of criminal apprehension 
 18.18  indicates that the subject is a multistate offender; 
 18.19     (2) information from the bureau of criminal apprehension 
 18.20  indicates that multistate offender status is undetermined; or 
 18.21     (3) the commissioner has received a report from the subject 
 18.22  or a third party indicating that the subject has a criminal 
 18.23  history in a jurisdiction other than Minnesota. 
 18.24     (n) The failure or refusal of an applicant, license holder, 
 18.25  or registrant under section 144A.71, subdivision 1, to cooperate 
 18.26  with the commissioner is reasonable cause to disqualify a 
 18.27  subject, deny a license application or immediately suspend, 
 18.28  suspend, or revoke a license or registration.  Failure or 
 18.29  refusal of an individual to cooperate with the study is just 
 18.30  cause for denying or terminating employment of the individual if 
 18.31  the individual's failure or refusal to cooperate could cause the 
 18.32  applicant's application to be denied or the license holder's 
 18.33  license to be immediately suspended, suspended, or revoked. 
 18.34     (o) The commissioner shall not consider an application to 
 18.35  be complete until all of the information required to be provided 
 18.36  under this subdivision has been received.  
 19.1      (p) No person in paragraph (c), clauses (1) to (7), who is 
 19.2   disqualified as a result of this section may be retained by the 
 19.3   agency in a position involving direct contact with persons 
 19.4   served by the program or in a position allowing and no person in 
 19.5   paragraph (c), clauses (2), (6), and (7), or as provided 
 19.6   elsewhere in statute who is disqualified as a result of this 
 19.7   section may be allowed access to persons served by the 
 19.8   program as provided for in statutes, unless the commissioner has 
 19.9   provided written notice to the agency stating that: 
 19.10     (1) the individual may remain in direct contact during the 
 19.11  period in which the individual may request reconsideration as 
 19.12  provided in subdivision 3a, paragraph (b), clause (2) or (3); 
 19.13     (2) the individual's disqualification has been set aside 
 19.14  for that agency as provided in subdivision 3b, paragraph (b); or 
 19.15     (3) the license holder has been granted a variance for the 
 19.16  disqualified individual under subdivision 3e. 
 19.17     (q) Termination of affiliation with persons in paragraph 
 19.18  (c), clauses (1) to (7), made in good faith reliance on a notice 
 19.19  of disqualification provided by the commissioner shall not 
 19.20  subject the applicant or license holder to civil liability. 
 19.21     (r) The commissioner may establish records to fulfill the 
 19.22  requirements of this section. 
 19.23     (s) The commissioner may not disqualify an individual 
 19.24  subject to a study under this section because that person has, 
 19.25  or has had, a mental illness as defined in section 245.462, 
 19.26  subdivision 20. 
 19.27     (t) An individual subject to disqualification under this 
 19.28  subdivision has the applicable rights in subdivision 3a, 3b, or 
 19.29  3c. 
 19.30     (u) For the purposes of background studies completed by 
 19.31  tribal organizations performing licensing activities otherwise 
 19.32  required of the commissioner under this chapter, after obtaining 
 19.33  consent from the background study subject, tribal licensing 
 19.34  agencies shall have access to criminal history data in the same 
 19.35  manner as county licensing agencies and private licensing 
 19.36  agencies under this chapter. 
 20.1      (v) County agencies shall have access to the criminal 
 20.2   history data in the same manner as county licensing agencies 
 20.3   under this chapter for purposes of background studies completed 
 20.4   by county agencies on legal nonlicensed child care providers to 
 20.5   determine eligibility for child care funds under chapter 119B. 
 20.6      Sec. 8.  Minnesota Statutes 2001 Supplement, section 
 20.7   245A.04, subdivision 3a, is amended to read: 
 20.8      Subd. 3a.  [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF 
 20.9   STUDY RESULTS; DETERMINATION OF RISK OF HARM.] (a) Within 15 
 20.10  working days, the commissioner shall notify the applicant, 
 20.11  license holder, or registrant under section 144A.71, subdivision 
 20.12  1, and the individual who is the subject of the study, in 
 20.13  writing or by electronic transmission, of the results of the 
 20.14  study or that more time is needed to complete the study.  When 
 20.15  the study is completed, a notice that the study was undertaken 
 20.16  and completed shall be maintained in the personnel files of the 
 20.17  program.  For studies on individuals pertaining to a license to 
 20.18  provide family day care or group family day care, foster care 
 20.19  for children in the provider's own home, or foster care or day 
 20.20  care services for adults in the provider's own home, the 
 20.21  commissioner is not required to provide a separate notice of the 
 20.22  background study results to the individual who is the subject of 
 20.23  the study unless the study results in a disqualification of the 
 20.24  individual. 
 20.25     The commissioner shall notify the individual studied if the 
 20.26  information in the study indicates the individual is 
 20.27  disqualified from direct contact with persons served by the 
 20.28  program.  The commissioner shall disclose the information 
 20.29  causing disqualification and instructions on how to request a 
 20.30  reconsideration of the disqualification to the individual 
 20.31  studied.  An applicant or license holder who is not the subject 
 20.32  of the study shall be informed that the commissioner has found 
 20.33  information that disqualifies the subject from direct contact 
 20.34  with persons served by the program.  However, only the 
 20.35  individual studied must be informed of the information contained 
 20.36  in the subject's background study unless the basis for the 
 21.1   disqualification is failure to cooperate, substantiated 
 21.2   maltreatment under section 626.556 or 626.557, the Data 
 21.3   Practices Act provides for release of the information, or the 
 21.4   individual studied authorizes the release of the information.  
 21.5   When a disqualification is based on the subject's failure to 
 21.6   cooperate with the background study or substantiated 
 21.7   maltreatment under section 626.556 or 626.557, the agency that 
 21.8   initiated the study shall be informed by the commissioner of the 
 21.9   reason for the disqualification. 
 21.10     (b) Except as provided in subdivision 3d, paragraph (b), if 
 21.11  the commissioner determines that the individual studied has a 
 21.12  disqualifying characteristic, the commissioner shall review the 
 21.13  information immediately available and make a determination as to 
 21.14  the subject's immediate risk of harm to persons served by the 
 21.15  program where the individual studied will have direct contact.  
 21.16  The commissioner shall consider all relevant information 
 21.17  available, including the following factors in determining the 
 21.18  immediate risk of harm:  the recency of the disqualifying 
 21.19  characteristic; the recency of discharge from probation for the 
 21.20  crimes; the number of disqualifying characteristics; the 
 21.21  intrusiveness or violence of the disqualifying characteristic; 
 21.22  the vulnerability of the victim involved in the disqualifying 
 21.23  characteristic; and the similarity of the victim to the persons 
 21.24  served by the program where the individual studied will have 
 21.25  direct contact.  The commissioner may determine that the 
 21.26  evaluation of the information immediately available gives the 
 21.27  commissioner reason to believe one of the following: 
 21.28     (1) The individual poses an imminent risk of harm to 
 21.29  persons served by the program where the individual studied will 
 21.30  have direct contact.  If the commissioner determines that an 
 21.31  individual studied poses an imminent risk of harm to persons 
 21.32  served by the program where the individual studied will have 
 21.33  direct contact, the individual and the license holder must be 
 21.34  sent a notice of disqualification.  The commissioner shall order 
 21.35  the license holder to immediately remove the individual studied 
 21.36  from direct contact.  The notice to the individual studied must 
 22.1   include an explanation of the basis of this determination. 
 22.2      (2) The individual poses a risk of harm requiring 
 22.3   continuous, direct supervision while providing direct contact 
 22.4   services during the period in which the subject may request a 
 22.5   reconsideration.  If the commissioner determines that an 
 22.6   individual studied poses a risk of harm that requires 
 22.7   continuous, direct supervision, the individual and the license 
 22.8   holder must be sent a notice of disqualification.  The 
 22.9   commissioner shall order the license holder to immediately 
 22.10  remove the individual studied from direct contact services or 
 22.11  assure that the individual studied is within sight or hearing 
 22.12  under the continuous, direct supervision of another staff person 
 22.13  when providing direct contact services during the period in 
 22.14  which the individual may request a reconsideration of the 
 22.15  disqualification.  If the individual studied does not submit a 
 22.16  timely request for reconsideration, or the individual submits a 
 22.17  timely request for reconsideration, but the disqualification is 
 22.18  not set aside for that license holder, the license holder will 
 22.19  be notified of the disqualification and ordered to immediately 
 22.20  remove the individual from any position allowing direct contact 
 22.21  with persons receiving services from the license holder. 
 22.22     (3) The individual does not pose an imminent risk of harm 
 22.23  or a risk of harm requiring continuous, direct supervision while 
 22.24  providing direct contact services during the period in which the 
 22.25  subject may request a reconsideration.  If the commissioner 
 22.26  determines that an individual studied does not pose a risk of 
 22.27  harm that requires continuous, direct supervision, only the 
 22.28  individual must be sent a notice of disqualification.  The 
 22.29  license holder must be sent a notice that more time is needed to 
 22.30  complete the individual's background study.  If the individual 
 22.31  studied submits a timely request for reconsideration, and if the 
 22.32  disqualification is set aside for that license holder, the 
 22.33  license holder will receive the same notification received by 
 22.34  license holders in cases where the individual studied has no 
 22.35  disqualifying characteristic.  If the individual studied does 
 22.36  not submit a timely request for reconsideration, or the 
 23.1   individual submits a timely request for reconsideration, but the 
 23.2   disqualification is not set aside for that license holder, the 
 23.3   license holder will be notified of the disqualification and 
 23.4   ordered to immediately remove the individual from any position 
 23.5   allowing direct contact with persons receiving services from the 
 23.6   license holder.  
 23.7      (c) County licensing agencies performing duties under this 
 23.8   subdivision may develop an alternative system for determining 
 23.9   the subject's immediate risk of harm to persons served by the 
 23.10  program, providing the notices under paragraph (b), and 
 23.11  documenting the action taken by the county licensing agency.  
 23.12  Each county licensing agency's implementation of the alternative 
 23.13  system is subject to approval by the commissioner.  
 23.14  Notwithstanding this alternative system, county licensing 
 23.15  agencies shall complete the requirements of paragraph (a). 
 23.16     Sec. 9.  Minnesota Statutes 2001 Supplement, section 
 23.17  245A.04, subdivision 3b, is amended to read: 
 23.18     Subd. 3b.  [RECONSIDERATION OF DISQUALIFICATION.] (a) The 
 23.19  individual who is the subject of the disqualification may 
 23.20  request a reconsideration of the disqualification.  
 23.21     The individual must submit the request for reconsideration 
 23.22  to the commissioner in writing.  A request for reconsideration 
 23.23  for an individual who has been sent a notice of disqualification 
 23.24  under subdivision 3a, paragraph (b), clause (1) or (2), must be 
 23.25  submitted within 30 calendar days of the disqualified 
 23.26  individual's receipt of the notice of disqualification.  Upon 
 23.27  showing that the information in clause (1) or (2) cannot be 
 23.28  obtained within 30 days, the disqualified individual may request 
 23.29  additional time, not to exceed 30 days, to obtain that 
 23.30  information.  A request for reconsideration for an individual 
 23.31  who has been sent a notice of disqualification under subdivision 
 23.32  3a, paragraph (b), clause (3), must be submitted within 15 
 23.33  calendar days of the disqualified individual's receipt of the 
 23.34  notice of disqualification.  An individual who was determined to 
 23.35  have maltreated a child under section 626.556 or a vulnerable 
 23.36  adult under section 626.557, and who was disqualified under this 
 24.1   section on the basis of serious or recurring maltreatment, may 
 24.2   request reconsideration of both the maltreatment and the 
 24.3   disqualification determinations.  The request for 
 24.4   reconsideration of the maltreatment determination and the 
 24.5   disqualification must be submitted within 30 calendar days of 
 24.6   the individual's receipt of the notice of disqualification.  
 24.7   Removal of a disqualified individual from direct contact shall 
 24.8   be ordered if the individual does not request reconsideration 
 24.9   within the prescribed time, and for an individual who submits a 
 24.10  timely request for reconsideration, if the disqualification is 
 24.11  not set aside.  The individual must present information showing 
 24.12  that: 
 24.13     (1) the information the commissioner relied upon is 
 24.14  incorrect or inaccurate.  If the basis of a reconsideration 
 24.15  request is that a maltreatment determination or disposition 
 24.16  under section 626.556 or 626.557 is incorrect, and the 
 24.17  commissioner has issued a final order in an appeal of that 
 24.18  determination or disposition under section 256.045 or 245A.08, 
 24.19  subdivision 5, the commissioner's order is conclusive on the 
 24.20  issue of maltreatment.  If the individual did not request 
 24.21  reconsideration of the maltreatment determination, the 
 24.22  maltreatment determination is deemed conclusive; or 
 24.23     (2) the subject of the study does not pose a risk of harm 
 24.24  to any person served by the applicant, license holder, or 
 24.25  registrant under section 144A.71, subdivision 1. 
 24.26     (b) The commissioner shall rescind the disqualification if 
 24.27  the commissioner finds that the information relied on to 
 24.28  disqualify the subject is incorrect.  The commissioner may set 
 24.29  aside the disqualification under this section if the 
 24.30  commissioner finds that the individual does not pose a risk of 
 24.31  harm to any person served by the applicant, license holder, or 
 24.32  registrant under section 144A.71, subdivision 1.  In determining 
 24.33  that an individual does not pose a risk of harm, the 
 24.34  commissioner shall consider the nature, severity, and 
 24.35  consequences of the event or events that lead to 
 24.36  disqualification, whether there is more than one disqualifying 
 25.1   event, the age and vulnerability of the victim at the time of 
 25.2   the event, the harm suffered by the victim, the similarity 
 25.3   between the victim and persons served by the program, the time 
 25.4   elapsed without a repeat of the same or similar event, 
 25.5   documentation of successful completion by the individual studied 
 25.6   of training or rehabilitation pertinent to the event, and any 
 25.7   other information relevant to reconsideration.  In reviewing a 
 25.8   disqualification under this section, the commissioner shall give 
 25.9   preeminent weight to the safety of each person to be served by 
 25.10  the license holder, applicant, or registrant under section 
 25.11  144A.71, subdivision 1, over the interests of the license 
 25.12  holder, applicant, or registrant under section 144A.71, 
 25.13  subdivision 1. 
 25.14     (c) Unless the information the commissioner relied on in 
 25.15  disqualifying an individual is incorrect, the commissioner may 
 25.16  not set aside the disqualification of nor grant a variance for 
 25.17  an individual in connection with a license to provide family day 
 25.18  care for children, foster care for children in the provider's 
 25.19  own home, or foster care or day care services for adults in the 
 25.20  provider's own home if: 
 25.21     (1) less than ten years have passed since the discharge of 
 25.22  the sentence imposed for the offense; and the individual has 
 25.23  been convicted of a violation of any offense listed in sections 
 25.24  609.20 (manslaughter in the first degree), 609.205 (manslaughter 
 25.25  in the second degree), criminal vehicular homicide under 609.21 
 25.26  (criminal vehicular homicide and injury), 609.215 (aiding 
 25.27  suicide or aiding attempted suicide), felony violations under 
 25.28  609.221 to 609.2231 (assault in the first, second, third, or 
 25.29  fourth degree), 609.713 (terroristic threats), 609.235 (use of 
 25.30  drugs to injure or to facilitate crime), 609.24 (simple 
 25.31  robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 
 25.32  609.255 (false imprisonment), 609.561 or 609.562 (arson in the 
 25.33  first or second degree), 609.71 (riot), burglary in the first or 
 25.34  second degree under 609.582 (burglary), 609.66 (dangerous 
 25.35  weapon), 609.665 (spring guns), 609.67 (machine guns and 
 25.36  short-barreled shotguns), 609.749 (harassment; stalking), 
 26.1   152.021 or 152.022 (controlled substance crime in the first or 
 26.2   second degree), 152.023, subdivision 1, clause (3) or (4), or 
 26.3   subdivision 2, clause (4) (controlled substance crime in the 
 26.4   third degree), 152.024, subdivision 1, clause (2), (3), or (4) 
 26.5   (controlled substance crime in the fourth degree), 609.224, 
 26.6   subdivision 2, paragraph (c) (fifth-degree assault by a 
 26.7   caregiver against a vulnerable adult), 609.228 (great bodily 
 26.8   harm caused by distribution of drugs), 609.23 (mistreatment of 
 26.9   persons confined), 609.231 (mistreatment of residents or 
 26.10  patients), 609.2325 (criminal abuse of a vulnerable adult), 
 26.11  609.233 (criminal neglect of a vulnerable adult), 609.2335 
 26.12  (financial exploitation of a vulnerable adult), 609.234 (failure 
 26.13  to report), 609.265 (abduction), 609.2664 to 609.2665 
 26.14  (manslaughter of an unborn child in the first or second degree), 
 26.15  609.267 to 609.2672 (assault of an unborn child in the first, 
 26.16  second, or third degree), 609.268 (injury or death of an unborn 
 26.17  child in the commission of a crime), 617.293 (disseminating or 
 26.18  displaying harmful material to minors), a felony level 
 26.19  conviction involving alcohol or drug use, a gross misdemeanor 
 26.20  offense under 609.324, subdivision 1 (other prohibited acts), a 
 26.21  gross misdemeanor offense under 609.378 (neglect or endangerment 
 26.22  of a child), a gross misdemeanor offense under 609.377 
 26.23  (malicious punishment of a child), 609.72, subdivision 3 
 26.24  (disorderly conduct against a vulnerable adult); or an attempt 
 26.25  or conspiracy to commit any of these offenses, as each of these 
 26.26  offenses is defined in Minnesota Statutes; or an offense in any 
 26.27  other state, the elements of which are substantially similar to 
 26.28  the elements of any of the foregoing offenses; 
 26.29     (2) regardless of how much time has passed since the 
 26.30  involuntary termination of parental rights under section 
 26.31  260C.301 or the discharge of the sentence imposed for the 
 26.32  offense, the individual was convicted of a violation of any 
 26.33  offense listed in sections 609.185 to 609.195 (murder in the 
 26.34  first, second, or third degree), 609.2661 to 609.2663 (murder of 
 26.35  an unborn child in the first, second, or third degree), a felony 
 26.36  offense under 609.377 (malicious punishment of a child), a 
 27.1   felony offense under 609.324, subdivision 1 (other prohibited 
 27.2   acts), a felony offense under 609.378 (neglect or endangerment 
 27.3   of a child), 609.322 (solicitation, inducement, and promotion of 
 27.4   prostitution), 609.342 to 609.345 (criminal sexual conduct in 
 27.5   the first, second, third, or fourth degree), 609.352 
 27.6   (solicitation of children to engage in sexual conduct), 617.246 
 27.7   (use of minors in a sexual performance), 617.247 (possession of 
 27.8   pictorial representations of a minor), 609.365 (incest), a 
 27.9   felony offense under sections 609.2242 and 609.2243 (domestic 
 27.10  assault), a felony offense of spousal abuse, a felony offense of 
 27.11  child abuse or neglect, a felony offense of a crime against 
 27.12  children, or an attempt or conspiracy to commit any of these 
 27.13  offenses as defined in Minnesota Statutes, or an offense in any 
 27.14  other state, the elements of which are substantially similar to 
 27.15  any of the foregoing offenses; 
 27.16     (3) within the seven years preceding the study, the 
 27.17  individual committed an act that constitutes maltreatment of a 
 27.18  child under section 626.556, subdivision 10e, and that resulted 
 27.19  in substantial bodily harm as defined in section 609.02, 
 27.20  subdivision 7a, or substantial mental or emotional harm as 
 27.21  supported by competent psychological or psychiatric evidence; or 
 27.22     (4) within the seven years preceding the study, the 
 27.23  individual was determined under section 626.557 to be the 
 27.24  perpetrator of a substantiated incident of maltreatment of a 
 27.25  vulnerable adult that resulted in substantial bodily harm as 
 27.26  defined in section 609.02, subdivision 7a, or substantial mental 
 27.27  or emotional harm as supported by competent psychological or 
 27.28  psychiatric evidence. 
 27.29     In the case of any ground for disqualification under 
 27.30  clauses (1) to (4), if the act was committed by an individual 
 27.31  other than the applicant, license holder, or registrant under 
 27.32  section 144A.71, subdivision 1, residing in the applicant's or 
 27.33  license holder's home, or the home of a registrant under section 
 27.34  144A.71, subdivision 1, the applicant, license holder, or 
 27.35  registrant under section 144A.71, subdivision 1, may seek 
 27.36  reconsideration when the individual who committed the act no 
 28.1   longer resides in the home.  
 28.2      The disqualification periods provided under clauses (1), 
 28.3   (3), and (4) are the minimum applicable disqualification 
 28.4   periods.  The commissioner may determine that an individual 
 28.5   should continue to be disqualified from licensure or 
 28.6   registration under section 144A.71, subdivision 1, because the 
 28.7   license holder, applicant, or registrant under section 144A.71, 
 28.8   subdivision 1, poses a risk of harm to a person served by that 
 28.9   individual after the minimum disqualification period has passed. 
 28.10     (d) The commissioner shall respond in writing or by 
 28.11  electronic transmission to all reconsideration requests for 
 28.12  which the basis for the request is that the information relied 
 28.13  upon by the commissioner to disqualify is incorrect or 
 28.14  inaccurate within 30 working days of receipt of a request and 
 28.15  all relevant information.  If the basis for the request is that 
 28.16  the individual does not pose a risk of harm, the commissioner 
 28.17  shall respond to the request within 15 working days after 
 28.18  receiving the request for reconsideration and all relevant 
 28.19  information.  If the request is based on both the correctness or 
 28.20  accuracy of the information relied on to disqualify the 
 28.21  individual and the risk of harm, the commissioner shall respond 
 28.22  to the request within 45 working days after receiving the 
 28.23  request for reconsideration and all relevant information.  If 
 28.24  the disqualification is set aside, the commissioner shall notify 
 28.25  the applicant or license holder in writing or by electronic 
 28.26  transmission of the decision. 
 28.27     (e) Except as provided in subdivision 3c, if a 
 28.28  disqualification is not set aside or is not rescinded, an 
 28.29  individual who was disqualified on the basis of a preponderance 
 28.30  of evidence that the individual committed an act or acts that 
 28.31  meet the definition of any of the crimes lists in subdivision 
 28.32  3d, paragraph (a), clauses (1) to (4); or for failure to make 
 28.33  required reports under section 626.556, subdivision 3, or 
 28.34  626.557, subdivision 3, pursuant to subdivision 3d, paragraph 
 28.35  (a), clause (4), may request a fair hearing under section 
 28.36  256.045.  Except as provided under subdivision 3c, the 
 29.1   commissioner's final order for an individual under this 
 29.2   paragraph is conclusive on the issue of maltreatment and 
 29.3   disqualification, including for purposes of subsequent studies 
 29.4   conducted under subdivision 3, and is the only administrative 
 29.5   appeal of the final agency determination, specifically, 
 29.6   including a challenge to the accuracy and completeness of data 
 29.7   under section 13.04.  
 29.8      (f) Except as provided under subdivision 3c, if an 
 29.9   individual was disqualified on the basis of a determination of 
 29.10  maltreatment under section 626.556 or 626.557, which was serious 
 29.11  or recurring, and the individual has requested reconsideration 
 29.12  of the maltreatment determination under section 626.556, 
 29.13  subdivision 10i, or 626.557, subdivision 9d, and also requested 
 29.14  reconsideration of the disqualification under this subdivision, 
 29.15  reconsideration of the maltreatment determination and 
 29.16  reconsideration of the disqualification shall be consolidated 
 29.17  into a single reconsideration.  For maltreatment and 
 29.18  disqualification determinations made by county agencies, the 
 29.19  consolidated reconsideration shall be conducted by the county 
 29.20  agency.  If the county agency has disqualified an individual on 
 29.21  multiple bases, one of which is a county maltreatment 
 29.22  determination for which the individual has a right to request 
 29.23  reconsideration, the county shall conduct the reconsideration of 
 29.24  all disqualifications.  Except as provided under subdivision 3c, 
 29.25  if an individual who was disqualified on the basis of serious or 
 29.26  recurring maltreatment requests a fair hearing on the 
 29.27  maltreatment determination under section 626.556, subdivision 
 29.28  10i, or 626.557, subdivision 9d, the scope of the fair hearing 
 29.29  under section 256.045 shall include the maltreatment 
 29.30  determination and the disqualification.  Except as provided 
 29.31  under subdivision 3c, the commissioner's final order for an 
 29.32  individual under this paragraph is conclusive on the issue of 
 29.33  maltreatment and disqualification, including for purposes of 
 29.34  subsequent studies conducted under subdivision 3, and is the 
 29.35  only administrative appeal of the final agency determination, 
 29.36  specifically, including a challenge to the accuracy and 
 30.1   completeness of data under section 13.04. 
 30.2      Sec. 10.  Minnesota Statutes 2001 Supplement, section 
 30.3   245A.04, subdivision 3c, is amended to read: 
 30.4      Subd. 3c.  [CONTESTED CASE.] (a) Notwithstanding 
 30.5   subdivision 3b, paragraphs (e) and (f), if a disqualification is 
 30.6   not set aside, a person who is an employee of an employer, as 
 30.7   defined in section 179A.03, subdivision 15, may request a 
 30.8   contested case hearing under chapter 14.  The request for a 
 30.9   contested case hearing must be made in writing and must be 
 30.10  received by the commissioner within 30 calendar days after the 
 30.11  employee receives notice that the disqualification has not been 
 30.12  set aside.  If the disqualification which was not set aside or 
 30.13  was not rescinded was based on a maltreatment determination, the 
 30.14  scope of the contested case hearing shall include the 
 30.15  maltreatment determination and the disqualification.  If a 
 30.16  person has multiple disqualifications which have not been set 
 30.17  aside and at least one of the disqualifications entitles the 
 30.18  person to a contested case hearing under this subdivision, the 
 30.19  scope of the contested case hearing shall include all 
 30.20  disqualifications which were not set aside.  In such cases, a 
 30.21  fair hearing shall not be conducted under section 256.045.  
 30.22  Rules adopted under this chapter may not preclude an employee in 
 30.23  a contested case hearing for disqualification from submitting 
 30.24  evidence concerning information gathered under subdivision 3, 
 30.25  paragraph (e). 
 30.26     (b) If a disqualification for which reconsideration was 
 30.27  requested and which was not set aside or was not rescinded under 
 30.28  subdivision 3b is the basis for a denial of a license under 
 30.29  section 245A.05 or a licensing sanction under section 245A.07, 
 30.30  the license holder has the right to a contested case hearing 
 30.31  under chapter 14 and Minnesota Rules, parts 1400.8510 to 
 30.32  1400.8612 and successor rules.  The appeal must be submitted in 
 30.33  accordance with section 245A.05 or 245A.07, subdivision 3.  As 
 30.34  provided for under section 245A.08, subdivision 2a, the scope of 
 30.35  the consolidated contested case hearing shall include the 
 30.36  disqualification and the licensing sanction or denial of a 
 31.1   license.  If the disqualification was based on a determination 
 31.2   of substantiated serious or recurring maltreatment under section 
 31.3   626.556 or 626.557, the appeal must be submitted in accordance 
 31.4   with sections 245A.07, subdivision 3, and 626.556, subdivision 
 31.5   10i, or 626.557, subdivision 9d.  As provided for under section 
 31.6   245A.08, subdivision 2a, the scope of the contested case hearing 
 31.7   shall include the maltreatment determination, the 
 31.8   disqualification, and the licensing sanction or denial of a 
 31.9   license.  In such cases, a fair hearing shall not be conducted 
 31.10  under section 256.045. 
 31.11     (c) If a maltreatment determination or disqualification, 
 31.12  which was not set aside or was not rescinded under subdivision 
 31.13  3b, is the basis for a denial of a license under section 245A.05 
 31.14  or a licensing sanction under section 245A.07, and the 
 31.15  disqualified subject is an individual other than the license 
 31.16  holder and upon whom a background study must be conducted under 
 31.17  subdivision 3, the hearing of all parties may be consolidated 
 31.18  into a single contested case hearing upon consent of all parties 
 31.19  and the administrative law judge.  
 31.20     (d) The commissioner's final order under section 245A.08, 
 31.21  subdivision 5, is conclusive on the issue of maltreatment and 
 31.22  disqualification, including for purposes of subsequent 
 31.23  background studies.  The contested case hearing under this 
 31.24  subdivision is the only administrative appeal of the final 
 31.25  agency determination, specifically, including a challenge to the 
 31.26  accuracy and completeness of data under section 13.04. 
 31.27     Sec. 11.  Minnesota Statutes 2001 Supplement, section 
 31.28  245A.07, subdivision 2a, is amended to read: 
 31.29     Subd. 2a.  [IMMEDIATE SUSPENSION EXPEDITED HEARING.] (a) 
 31.30  Within five working days of receipt of the license holder's 
 31.31  timely appeal, the commissioner shall request assignment of an 
 31.32  administrative law judge.  The request must include a proposed 
 31.33  date, time, and place of a hearing.  A hearing must be conducted 
 31.34  by an administrative law judge within 30 calendar days of the 
 31.35  request for assignment, unless an extension is requested by 
 31.36  either party and granted by the administrative law judge for 
 32.1   good cause.  The commissioner shall issue a notice of hearing by 
 32.2   certified mail at least ten working days before the hearing.  
 32.3   The scope of the hearing shall be limited solely to the issue of 
 32.4   whether the temporary immediate suspension should remain in 
 32.5   effect pending the commissioner's final order under section 
 32.6   245A.08, regarding a licensing sanction issued under subdivision 
 32.7   3 following the immediate suspension.  The burden of proof in 
 32.8   expedited hearings under this subdivision shall be limited to 
 32.9   the commissioner's demonstration that reasonable cause exists to 
 32.10  believe that the license holder's actions or failure to comply 
 32.11  with applicable law or rule poses an imminent risk of harm to 
 32.12  the health, safety, or rights of persons served by the program.  
 32.13     (b) The administrative law judge shall issue findings of 
 32.14  fact, conclusions, and a recommendation within ten working days 
 32.15  from the date of hearing.  The commissioner's final order shall 
 32.16  be issued within ten working days from receipt of the 
 32.17  recommendation of the administrative law judge.  Within 90 
 32.18  calendar days after a final order affirming an immediate 
 32.19  suspension, the commissioner shall make a determination 
 32.20  regarding whether a final licensing sanction shall be issued 
 32.21  under subdivision 3.  The license holder shall continue to be 
 32.22  prohibited from operation of the program during this 90-day 
 32.23  period.  
 32.24     (c) When the final order under paragraph (b) affirms an 
 32.25  immediate suspension, and a final licensing sanction is issued 
 32.26  under section 245A.07, subdivision 3, and the license holder 
 32.27  appeals that sanction, the license holder continues to be 
 32.28  prohibited from operation of the program pending a final 
 32.29  commissioner's order under section 245A.08, subdivision 5, 
 32.30  regarding the final licensing sanction. 
 32.31     Sec. 12.  Minnesota Statutes 2001 Supplement, section 
 32.32  245A.07, subdivision 3, is amended to read: 
 32.33     Subd. 3.  [LICENSE SUSPENSION, REVOCATION, OR FINE.] The 
 32.34  commissioner may suspend or revoke a license, or impose a fine 
 32.35  if a license holder fails to comply fully with applicable laws 
 32.36  or rules, or knowingly withholds relevant information from or 
 33.1   gives false or misleading information to the commissioner in 
 33.2   connection with an application for a license or during an 
 33.3   investigation.  A license holder who has had a license 
 33.4   suspended, revoked, or has been ordered to pay a fine must be 
 33.5   given notice of the action by certified mail.  The notice must 
 33.6   be mailed to the address shown on the application or the last 
 33.7   known address of the license holder.  The notice must state the 
 33.8   reasons the license was suspended, revoked, or a fine was 
 33.9   ordered. 
 33.10     (a) If the license was suspended or revoked, the notice 
 33.11  must inform the license holder of the right to a contested case 
 33.12  hearing under chapter 14 and Minnesota Rules, parts 1400.8510 to 
 33.13  1400.8612 and successor rules.  The license holder may appeal an 
 33.14  order suspending or revoking a license.  The appeal of an order 
 33.15  suspending or revoking a license must be made in writing by 
 33.16  certified mail and must be received by the commissioner within 
 33.17  ten calendar days after the license holder receives notice that 
 33.18  the license has been suspended or revoked.  Except as provided 
 33.19  in section 245A.07, subdivision 2a, paragraph (c), a timely 
 33.20  appeal of an order suspending or revoking a license shall stay 
 33.21  the suspension or revocation until the commissioner issues a 
 33.22  final order.  
 33.23     (b)(1) If the license holder was ordered to pay a fine, the 
 33.24  notice must inform the license holder of the responsibility for 
 33.25  payment of fines and the right to a contested case hearing under 
 33.26  chapter 14 and Minnesota Rules, parts 1400.8510 to 1400.8612 and 
 33.27  successor rules.  The appeal of an order to pay a fine must be 
 33.28  made in writing by certified mail and must be received by the 
 33.29  commissioner within ten calendar days after the license holder 
 33.30  receives notice that the fine has been ordered.  
 33.31     (2) The license holder shall pay the fines assessed on or 
 33.32  before the payment date specified.  If the license holder fails 
 33.33  to fully comply with the order, the commissioner may issue a 
 33.34  second fine or suspend the license until the license holder 
 33.35  complies.  If the license holder receives state funds, the 
 33.36  state, county, or municipal agencies or departments responsible 
 34.1   for administering the funds shall withhold payments and recover 
 34.2   any payments made while the license is suspended for failure to 
 34.3   pay a fine.  A timely appeal shall stay payment of the fine 
 34.4   until the commissioner issues a final order.  
 34.5      (3) A license holder shall promptly notify the commissioner 
 34.6   of human services, in writing, when a violation specified in the 
 34.7   order to forfeit a fine is corrected.  If upon reinspection the 
 34.8   commissioner determines that a violation has not been corrected 
 34.9   as indicated by the order to forfeit a fine, the commissioner 
 34.10  may issue a second fine.  The commissioner shall notify the 
 34.11  license holder by certified mail that a second fine has been 
 34.12  assessed.  The license holder may appeal the second fine as 
 34.13  provided under this subdivision. 
 34.14     (4) Fines shall be assessed as follows:  the license holder 
 34.15  shall forfeit $1,000 for each determination of maltreatment of a 
 34.16  child under section 626.556 or the maltreatment of a vulnerable 
 34.17  adult under section 626.557; the license holder shall forfeit 
 34.18  $200 for each occurrence of a violation of law or rule governing 
 34.19  matters of health, safety, or supervision, including but not 
 34.20  limited to the provision of adequate staff-to-child or adult 
 34.21  ratios, and failure to submit a background study; and the 
 34.22  license holder shall forfeit $100 for each occurrence of a 
 34.23  violation of law or rule other than those subject to a $1,000 or 
 34.24  $200 fine above.  For purposes of this section, "occurrence" 
 34.25  means each violation identified in the commissioner's fine order.
 34.26     (5) When a fine has been assessed, the license holder may 
 34.27  not avoid payment by closing, selling, or otherwise transferring 
 34.28  the licensed program to a third party.  In such an event, the 
 34.29  license holder will be personally liable for payment.  In the 
 34.30  case of a corporation, each controlling individual is personally 
 34.31  and jointly liable for payment.  
 34.32     Sec. 13.  [245A.085] [CONSOLIDATION OF HEARINGS; 
 34.33  RECONSIDERATION.] 
 34.34     Hearings authorized under this chapter and sections 
 34.35  256.045, 626.556, and 626.557, shall be consolidated if feasible 
 34.36  and in accordance with other applicable statutes and rules.  
 35.1   Reconsideration under sections 245A.04, subdivision 3c; 626.556, 
 35.2   subdivision 10i; and 626.557, subdivision 9d, shall also be 
 35.3   consolidated if feasible. 
 35.4      Sec. 14.  Minnesota Statutes 2001 Supplement, section 
 35.5   245A.144, is amended to read: 
 35.6      245A.144 [REDUCTION OF RISK OF SUDDEN INFANT DEATH SYNDROME 
 35.7   IN CHILD CARE PROGRAMS.] 
 35.8      License holders must ensure that before staff persons, 
 35.9   caregivers, and helpers assist in the care of infants, they 
 35.10  receive training on reducing the risk of sudden infant death 
 35.11  syndrome.  The training on reducing the risk of sudden infant 
 35.12  death syndrome may be provided as orientation training under 
 35.13  Minnesota Rules, part 9503.0035, subpart 1, as initial training 
 35.14  under Minnesota Rules, part 9502.0385, subpart 2, as in-service 
 35.15  training under Minnesota Rules, part 9503.0035, subpart 4, or as 
 35.16  ongoing training under Minnesota Rules, part 9502.0385, subpart 
 35.17  3.  Training required under this section must be at least one 
 35.18  hour in length and must be completed at least once every five 
 35.19  years.  At a minimum, the training must address the risk factors 
 35.20  related to sudden infant death syndrome, means of reducing the 
 35.21  risk of sudden infant death syndrome in child care, and license 
 35.22  holder communication with parents regarding reducing the risk of 
 35.23  sudden infant death syndrome.  Training for family and group 
 35.24  family child care providers must be approved by the county 
 35.25  licensing agency according to Minnesota Rules, part 9502.0385. 
 35.26     Sec. 15.  Minnesota Statutes 2001 Supplement, section 
 35.27  245A.16, subdivision 1, is amended to read: 
 35.28     Subdivision 1.  [DELEGATION OF AUTHORITY TO AGENCIES.] (a) 
 35.29  County agencies and private agencies that have been designated 
 35.30  or licensed by the commissioner to perform licensing functions 
 35.31  and activities under section 245A.04, to recommend denial of 
 35.32  applicants under section 245A.05, to issue correction orders, to 
 35.33  issue variances, and recommend a conditional license under 
 35.34  section 245A.06, or to recommend suspending or revoking a 
 35.35  license or issuing a fine under section 245A.07, shall comply 
 35.36  with rules and directives of the commissioner governing those 
 36.1   functions and with this section.  The following variances are 
 36.2   excluded from the delegation of variance authority and may be 
 36.3   issued only by the commissioner: 
 36.4      (1) dual licensure of family child care and child foster 
 36.5   care, dual licensure of child and adult foster care, and adult 
 36.6   foster care and family child care; 
 36.7      (2) adult foster care maximum capacity; 
 36.8      (3) adult foster care minimum age requirement; 
 36.9      (4) child foster care maximum age requirement; 
 36.10     (5) variances regarding disqualified individuals except 
 36.11  that county agencies may issue variances under section 245A.04, 
 36.12  subdivision 3e, regarding disqualified individuals when the 
 36.13  county is responsible for conducting a consolidated 
 36.14  reconsideration according to section 245A.04, subdivision 3b, 
 36.15  paragraph (f), of a county maltreatment determination and a 
 36.16  disqualification based on serious or recurring maltreatment; and 
 36.17     (6) the required presence of a caregiver in the adult 
 36.18  foster care residence during normal sleeping hours. 
 36.19     (b) County agencies must report information about 
 36.20  disqualification reconsiderations under section 245A.04, 
 36.21  subdivision 3b, paragraph (f), and variances granted under 
 36.22  paragraph (a), clause (5), to the commissioner at least monthly 
 36.23  in a format prescribed by the commissioner. 
 36.24     (c) For family day care programs, the commissioner may 
 36.25  authorize licensing reviews every two years after a licensee has 
 36.26  had at least one annual review. 
 36.27     Sec. 16.  Minnesota Statutes 2001 Supplement, section 
 36.28  256.045, subdivision 3b, is amended to read: 
 36.29     Subd. 3b.  [STANDARD OF EVIDENCE FOR MALTREATMENT AND 
 36.30  DISQUALIFICATION HEARINGS.] The state human services referee 
 36.31  shall determine that maltreatment has occurred if a 
 36.32  preponderance of evidence exists to support the final 
 36.33  disposition under sections 626.556 and 626.557.  For purposes of 
 36.34  hearings regarding disqualification, the state human services 
 36.35  referee shall affirm the proposed disqualification in an appeal 
 36.36  under subdivision 3, paragraph (a), clause (9), if a 
 37.1   preponderance of the evidence shows the individual has:  
 37.2      (1) committed maltreatment under section 626.556 or 
 37.3   626.557, which is serious or recurring; 
 37.4      (2) committed an act or acts meeting the definition of any 
 37.5   of the crimes listed in section 245A.04, subdivision 3d, 
 37.6   paragraph (a), clauses (1) to (4); or 
 37.7      (3) failed to make required reports under section 626.556 
 37.8   or 626.557, for incidents in which:  
 37.9      (i) the final disposition under section 626.556 or 626.557 
 37.10  was substantiated maltreatment; and 
 37.11     (ii) the maltreatment was recurring or serious; or 
 37.12  substantiated serious or recurring maltreatment of a minor under 
 37.13  section 626.556 or of a vulnerable adult under section 626.557 
 37.14  for which there is a preponderance of evidence that the 
 37.15  maltreatment occurred, and that the subject was responsible for 
 37.16  the maltreatment that was serious or recurring.  If the 
 37.17  disqualification is affirmed, the state human services referee 
 37.18  shall determine whether the individual poses a risk of harm in 
 37.19  accordance with the requirements of section 245A.04, subdivision 
 37.20  3b. 
 37.21     The state human services referee shall recommend an order 
 37.22  to the commissioner of health, children, families, and learning, 
 37.23  or human services, as applicable, who shall issue a final 
 37.24  order.  The commissioner shall affirm, reverse, or modify the 
 37.25  final disposition.  Any order of the commissioner issued in 
 37.26  accordance with this subdivision is conclusive upon the parties 
 37.27  unless appeal is taken in the manner provided in subdivision 7.  
 37.28  Except as provided under section 245A.04, subdivisions 3b, 
 37.29  paragraphs (e) and (f), and 3c, in any licensing appeal under 
 37.30  chapter 245A and sections 144.50 to 144.58 and 144A.02 to 
 37.31  144A.46, the commissioner's determination as to maltreatment is 
 37.32  conclusive. 
 37.33     Sec. 17.  Minnesota Statutes 2001 Supplement, section 
 37.34  256.045, subdivision 4, is amended to read: 
 37.35     Subd. 4.  [CONDUCT OF HEARINGS.] (a) All hearings held 
 37.36  pursuant to subdivision 3, 3a, 3b, or 4a shall be conducted 
 38.1   according to the provisions of the federal Social Security Act 
 38.2   and the regulations implemented in accordance with that act to 
 38.3   enable this state to qualify for federal grants-in-aid, and 
 38.4   according to the rules and written policies of the commissioner 
 38.5   of human services.  County agencies shall install equipment 
 38.6   necessary to conduct telephone hearings.  A state human services 
 38.7   referee may schedule a telephone conference hearing when the 
 38.8   distance or time required to travel to the county agency offices 
 38.9   will cause a delay in the issuance of an order, or to promote 
 38.10  efficiency, or at the mutual request of the parties.  Hearings 
 38.11  may be conducted by telephone conferences unless the applicant, 
 38.12  recipient, former recipient, person, or facility contesting 
 38.13  maltreatment objects.  The hearing shall not be held earlier 
 38.14  than five days after filing of the required notice with the 
 38.15  county or state agency.  The state human services referee shall 
 38.16  notify all interested persons of the time, date, and location of 
 38.17  the hearing at least five days before the date of the hearing.  
 38.18  Interested persons may be represented by legal counsel or other 
 38.19  representative of their choice, including a provider of therapy 
 38.20  services, at the hearing and may appear personally, testify and 
 38.21  offer evidence, and examine and cross-examine witnesses.  The 
 38.22  applicant, recipient, former recipient, person, or facility 
 38.23  contesting maltreatment shall have the opportunity to examine 
 38.24  the contents of the case file and all documents and records to 
 38.25  be used by the county or state agency at the hearing at a 
 38.26  reasonable time before the date of the hearing and during the 
 38.27  hearing.  In hearings under subdivision 3, paragraph (a), 
 38.28  clauses (4), (8), and (9), either party may subpoena the private 
 38.29  data relating to the investigation prepared by the agency under 
 38.30  section 626.556 or 626.557 that is not otherwise accessible 
 38.31  under section 13.04, provided the identity of the reporter may 
 38.32  not be disclosed. 
 38.33     (b) The private data obtained by subpoena in a hearing 
 38.34  under subdivision 3, paragraph (a), clause (4), (8), or (9), 
 38.35  must be subject to a protective order which prohibits its 
 38.36  disclosure for any other purpose outside the hearing provided 
 39.1   for in this section without prior order of the district court.  
 39.2   Disclosure without court order is punishable by a sentence of 
 39.3   not more than 90 days imprisonment or a fine of not more than 
 39.4   $700, or both.  These restrictions on the use of private data do 
 39.5   not prohibit access to the data under section 13.03, subdivision 
 39.6   6.  Except for appeals under subdivision 3, paragraph (a), 
 39.7   clauses (4), (5), (8), and (9), upon request, the county agency 
 39.8   shall provide reimbursement for transportation, child care, 
 39.9   photocopying, medical assessment, witness fee, and other 
 39.10  necessary and reasonable costs incurred by the applicant, 
 39.11  recipient, or former recipient in connection with the appeal.  
 39.12  All evidence, except that privileged by law, commonly accepted 
 39.13  by reasonable people in the conduct of their affairs as having 
 39.14  probative value with respect to the issues shall be submitted at 
 39.15  the hearing and such hearing shall not be "a contested case" 
 39.16  within the meaning of section 14.02, subdivision 3.  The agency 
 39.17  must present its evidence prior to or at the hearing, and may 
 39.18  not submit evidence after the hearing except by agreement of the 
 39.19  parties at the hearing, provided the petitioner has the 
 39.20  opportunity to respond. 
 39.21     (c) In hearings under subdivision 3, paragraph (a), clauses 
 39.22  (4), (8), and (9), involving determinations of maltreatment or 
 39.23  disqualification made by more than one county agency, by a 
 39.24  county agency and a state agency, or by more than one state 
 39.25  agency, the hearings may be consolidated into a single fair 
 39.26  hearing upon the consent of all parties and the state human 
 39.27  services referee. 
 39.28     Sec. 18.  Minnesota Statutes 2000, section 626.557, 
 39.29  subdivision 3a, is amended to read: 
 39.30     Subd. 3a.  [REPORT NOT REQUIRED.] The following events are 
 39.31  not required to be reported under this section:  
 39.32     (a) A circumstance where federal law specifically prohibits 
 39.33  a person from disclosing patient identifying information in 
 39.34  connection with a report of suspected maltreatment, unless the 
 39.35  vulnerable adult, or the vulnerable adult's guardian, 
 39.36  conservator, or legal representative, has consented to 
 40.1   disclosure in a manner which conforms to federal requirements.  
 40.2   Facilities whose patients or residents are covered by such a 
 40.3   federal law shall seek consent to the disclosure of suspected 
 40.4   maltreatment from each patient or resident, or a guardian, 
 40.5   conservator, or legal representative, upon the patient's or 
 40.6   resident's admission to the facility.  Persons who are 
 40.7   prohibited by federal law from reporting an incident of 
 40.8   suspected maltreatment shall immediately seek consent to make a 
 40.9   report.  
 40.10     (b) Verbal or physical aggression occurring between 
 40.11  patients, residents, or clients of a facility, or self-abusive 
 40.12  behavior by these persons does not constitute abuse unless the 
 40.13  behavior causes serious harm.  The operator of the facility or a 
 40.14  designee shall record incidents of aggression and self-abusive 
 40.15  behavior to facilitate review by licensing agencies and county 
 40.16  and local welfare agencies. 
 40.17     (c) Accidents as defined in section 626.5572, subdivision 3.
 40.18     (d) Events occurring in a facility that result from an 
 40.19  individual's single mistake error in the provision of 
 40.20  therapeutic conduct to a vulnerable adult, as defined provided 
 40.21  in section 626.5572, subdivision 17, paragraph (c), clause (4). 
 40.22     (e) Nothing in this section shall be construed to require a 
 40.23  report of financial exploitation, as defined in section 
 40.24  626.5572, subdivision 9, solely on the basis of the transfer of 
 40.25  money or property by gift or as compensation for services 
 40.26  rendered.