HF 3701

as introduced - 92nd Legislature (2021 - 2022) Posted on 02/24/2022 02:06pm

A bill for an act
relating to human services; updating and modernizing child care regulations;
amending Minnesota Statutes 2020, sections 245A.02, subdivision 5a; 245A.04,
subdivision 4; 245A.1435; 245A.1443; 245A.146, subdivision 3; 245H.05;
Minnesota Statutes 2021 Supplement, section 245A.14, subdivision 4.

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

Section 1.

Minnesota Statutes 2020, section 245A.02, subdivision 5a, is amended to read:

Subd. 5a.

Controlling individual.

(a) "Controlling individual" means an owner of a
program or service provider licensed under this chapter and the following individuals, if
applicable:

(1) each officer of the organization, including the chief executive officer and chief
financial officer;

(2) the individual designated as the authorized agent under section 245A.04, subdivision
1, paragraph (b);

(3) the individual designated as the compliance officer under section 256B.04, subdivision
21, paragraph (g); deleted text begin and
deleted text end

(4) each managerial official whose responsibilities include the direction of the
management or policies of a program deleted text begin . deleted text end new text begin ; and
new text end

new text begin (5) the individual designated as the primary provider of care for a special family child
care program under section 245A.14, subdivision 4, paragraph (i).
new text end

(b) Controlling individual does not include:

(1) a bank, savings bank, trust company, savings association, credit union, industrial
loan and thrift company, investment banking firm, or insurance company unless the entity
operates a program directly or through a subsidiary;

(2) an individual who is a state or federal official, or state or federal employee, or a
member or employee of the governing body of a political subdivision of the state or federal
government that operates one or more programs, unless the individual is also an officer,
owner, or managerial official of the program, receives remuneration from the program, or
owns any of the beneficial interests not excluded in this subdivision;

(3) an individual who owns less than five percent of the outstanding common shares of
a corporation:

(i) whose securities are exempt under section 80A.45, clause (6); or

(ii) whose transactions are exempt under section 80A.46, clause (2);

(4) an individual who is a member of an organization exempt from taxation under section
290.05, unless the individual is also an officer, owner, or managerial official of the program
or owns any of the beneficial interests not excluded in this subdivision. This clause does
not exclude from the definition of controlling individual an organization that is exempt from
taxation; or

(5) an employee stock ownership plan trust, or a participant or board member of an
employee stock ownership plan, unless the participant or board member is a controlling
individual according to paragraph (a).

(c) For purposes of this subdivision, "managerial official" means an individual who has
the decision-making authority related to the operation of the program, and the responsibility
for the ongoing management of or direction of the policies, services, or employees of the
program. A site director who has no ownership interest in the program is not considered to
be a managerial official for purposes of this definition.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2022.
new text end

Sec. 2.

Minnesota Statutes 2020, section 245A.04, subdivision 4, is amended to read:

Subd. 4.

Inspections; waiver.

(a) Before issuing a license under this chapter, the
commissioner shall conduct an inspection of the program. The inspection must include but
is not limited to:

(1) an inspection of the physical plant;

(2) an inspection of records and documents;

(3) observation of the program in operation; and

(4) an inspection for the health, safety, and fire standards in licensing requirements for
a child care license holder.

(b) The observation in paragraph (a), clause (3), is not required prior to issuing a license
under subdivision 7. If the commissioner issues a license under this chapter, these
requirements must be completed within one year after the issuance of the license.

(c) Before completing a licensing inspection in a family child care program or child care
center, the licensing agency must offer the license holder an exit interview to discuss
violations or potential violations of law or rule observed during the inspection and offer
technical assistance on how to comply with applicable laws and rules. The commissioner
shall not issue a correction order or negative licensing action for violations of law or rule
not discussed in an exit interview, unless a license holder chooses not to participate in an
exit interview or not to complete the exit interview. If the license holder is unable to complete
the exit interview, the licensing agency must offer an alternate time for the license holder
to complete the exit interview.

(d) If a family child care license holder disputes a county licensor's interpretation of a
licensing requirement during a licensing inspection or exit interview, the license holder
may, within five business days after the exit interview or licensing inspection, request
clarification from the commissioner, in writing, in a manner prescribed by the commissioner.
The license holder's request must describe the county licensor's interpretation of the licensing
requirement at issue, and explain why the license holder believes the county licensor's
interpretation is inaccurate. The commissioner and the county must include the license
holder in all correspondence regarding the disputed interpretation, and must provide an
opportunity for the license holder to contribute relevant information that may impact the
commissioner's decision. The county licensor must not issue a correction order related to
the disputed licensing requirement until the commissioner has provided clarification to the
license holder about the licensing requirement.

(e) The commissioner or the county shall inspect at least deleted text begin annually deleted text end new text begin once each calendar
year new text end a child care provider licensed under this chapter and Minnesota Rules, chapter 9502
or 9503, for compliance with applicable licensing standards.

(f) No later than November 19, 2017, the commissioner shall make publicly available
on the department's website the results of inspection reports of all child care providers
licensed under this chapter and under Minnesota Rules, chapter 9502 or 9503, and the
number of deaths, serious injuries, and instances of substantiated child maltreatment that
occurred in licensed child care settings each year.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3.

Minnesota Statutes 2021 Supplement, section 245A.14, subdivision 4, is amended
to read:

Subd. 4.

Special family child care homes.

Nonresidential child care programs serving
14 or fewer children that are conducted at a location other than the license holder's own
residence shall be licensed under this section and the rules governing family child care or
group family child care if:

(a) the license holder is the primary provider of care and the nonresidential child care
program is conducted in a dwelling that is located on a residential lot;

(b) the license holder is an employer who may or may not be the primary provider of
care, and the purpose for the child care program is to provide child care services to children
of the license holder's employees;

(c) the license holder is a church or religious organization;

(d) the license holder is a community collaborative child care provider. For purposes of
this subdivision, a community collaborative child care provider is a provider participating
in a cooperative agreement with a community action agency as defined in section 256E.31;

(e) the license holder is a not-for-profit agency that provides child care in a dwelling
located on a residential lot and the license holder maintains two or more contracts with
community employers or other community organizations to provide child care services.
The county licensing agency may grant a capacity variance to a license holder licensed
under this paragraph to exceed the licensed capacity of 14 children by no more than five
children during transition periods related to the work schedules of parents, if the license
holder meets the following requirements:

(1) the program does not exceed a capacity of 14 children more than a cumulative total
of four hours per day;

(2) the program meets a one to seven staff-to-child ratio during the variance period;

(3) all employees receive at least an extra four hours of training per year than required
in the rules governing family child care each year;

(4) the facility has square footage required per child under Minnesota Rules, part
9502.0425;

(5) the program is in compliance with local zoning regulations;

(6) the program is in compliance with the applicable fire code as follows:

(i) if the program serves more than five children older than 2-1/2 years of age, but no
more than five children 2-1/2 years of age or less, the applicable fire code is educational
occupancy, as provided in Group E Occupancy under the Minnesota State Fire Code 2015,
Section 202; or

(ii) if the program serves more than five children 2-1/2 years of age or less, the applicable
fire code is Group I-4 Occupancies, as provided in the Minnesota State Fire Code 2015,
Section 202, unless the rooms in which the children are cared for are located on a level of
exit discharge and each of these child care rooms has an exit door directly to the exterior,
then the applicable fire code is Group E occupancies, as provided in the Minnesota State
Fire Code 2015, Section 202; and

(7) any age and capacity limitations required by the fire code inspection and square
footage determinations shall be printed on the license; or

(f) the license holder is the primary provider of care and has located the licensed child
care program in a commercial space, if the license holder meets the following requirements:

(1) the program is in compliance with local zoning regulations;

(2) the program is in compliance with the applicable fire code as follows:

(i) if the program serves more than five children older than 2-1/2 years of age, but no
more than five children 2-1/2 years of age or less, the applicable fire code is educational
occupancy, as provided in Group E Occupancy under the Minnesota State Fire Code 2015,
Section 202; or

(ii) if the program serves more than five children 2-1/2 years of age or less, the applicable
fire code is Group I-4 Occupancies, as provided under the Minnesota State Fire Code 2015,
Section 202;

(3) any age and capacity limitations required by the fire code inspection and square
footage determinations are printed on the license; and

(4) the license holder prominently displays the license issued by the commissioner which
contains the statement "This special family child care provider is not licensed as a child
care center."

(g) Notwithstanding Minnesota Rules, part 9502.0335, subpart 12, the commissioner
may issue up to four licenses to an organization licensed under paragraph (b), (c), or (e).
Each license must have its own primary provider of care as required under paragraph (i).
Each license must operate as a distinct and separate program in compliance with all applicable
laws and regulations.

(h) For licenses issued under paragraph (b), (c), (d), (e), or (f), the commissioner may
approve up to four licenses at the same location or under one contiguous roof if each license
holder is able to demonstrate compliance with all applicable rules and laws. Each licensed
program must operate as a distinct program and within the capacity, age, and ratio
distributions of each license.

(i) For a license issued under paragraph (b), (c), or (e), the license holder must designate
a person to be the primary provider of care at the licensed location on a form and in a manner
prescribed by the commissioner. The license holder shall notify the commissioner in writing
before there is a change of the person designated to be the primary provider of care. The
primary provider of care:

(1) must be the person who will be the provider of care at the program and present during
the hours of operation;

(2) must operate the program in compliance with applicable laws and regulations under
chapter 245A and Minnesota Rules, chapter 9502;

(3) is considered a child care background study subject as defined in section 245C.02,
subdivision 6a, and must comply with background study requirements in chapter 245C; deleted text begin and
deleted text end

(4) must complete the training that is required of license holders in section 245A.50 deleted text begin . deleted text end new text begin ;
new text end

new text begin (5) is authorized to communicate with the county licensing agency and the department
on matters related to licensing; and
new text end

new text begin (6) must meet the requirements of Minnesota Rules, part 9502.0355, subpart 3, before
providing group family child care.
new text end

(j) For any license issued under this subdivision, the license holder must ensure that any
other caregiver, substitute, or helper who assists in the care of children meets the training
requirements in section 245A.50 and background study requirements under chapter 245C.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2022.
new text end

Sec. 4.

Minnesota Statutes 2020, section 245A.1435, is amended to read:

245A.1435 REDUCTION OF RISK OF SUDDEN UNEXPECTED INFANT DEATH
IN LICENSED PROGRAMS.

(a) When a license holder is placing an infant to sleep, the license holder must place the
infant on the infant's back, unless the license holder has documentation from the infant's
physician or advanced practice registered nurse directing an alternative sleeping position
for the infant. The physician or advanced practice registered nurse directive must be on a
form deleted text begin approved deleted text end new text begin developed new text end by the commissioner and must remain on file at the licensed
location.

An infant who independently rolls onto its stomach after being placed to sleep on its
back may be allowed to remain sleeping on its stomach if the infant is at least six months
of age or the license holder has a signed statement from the parent indicating that the infant
regularly rolls over at home.

(b) The license holder must place the infant in a crib directly on a firm mattress with a
fitted sheet that is appropriate to the mattress size, that fits tightly on the mattress, and
overlaps the underside of the mattress so it cannot be dislodged by pulling on the corner of
the sheet with reasonable effort. The license holder must not place anything in the crib with
the infant except for the infant's pacifier, as defined in Code of Federal Regulations, title
16, part 1511. new text begin The pacifier must be free from any sort of attachment. new text end The requirements of
this section apply to license holders serving infants younger than one year of age. Licensed
child care providers must meet the crib requirements under section 245A.146. A correction
order shall not be issued under this paragraph unless there is evidence that a violation
occurred when an infant was present in the license holder's care.

(c) If an infant falls asleep before being placed in a crib, the license holder must move
the infant to a crib as soon as practicable, and must keep the infant within sight of the license
holder until the infant is placed in a crib. When an infant falls asleep while being held, the
license holder must consider the supervision needs of other children in care when determining
how long to hold the infant before placing the infant in a crib to sleep. The sleeping infant
must not be in a position where the airway may be blocked or with anything covering the
infant's face.

new text begin (d) When a license holder places an infant under one year of age down to sleep, the
infant's clothing or sleepwear must not have weighted materials, a hood, or a bib.
new text end

new text begin (e) A license holder may place an infant under one year of age down to sleep wearing
a helmet if the license holder has signed documentation by a physician, advanced practice
registered nurse, licensed occupational therapist, or a licensed physical therapist on a form
developed by the commissioner.
new text end

deleted text begin (d) deleted text end new text begin (f) new text end Placing a swaddled infant down to sleep in a licensed setting is not recommended
for an infant of any age and is prohibited for any infant who has begun to roll over
independently. However, with the written consent of a parent or guardian according to this
paragraph, a license holder may place the infant who has not yet begun to roll over on its
own down to sleep in a deleted text begin one-piece sleeper equipped with an attached system that fastens
securely only across the upper torso, with no constriction of the hips or legs, to create a deleted text end
swaddle new text begin . A swaddle is defined as one-piece sleepwear that wraps over the infant's arms,
fastens securely only across the infant's upper torso, and does not constrict the infant's hips
or legs. If a swaddle is used by a license holder, the license holder must ensure that it meets
the requirements of paragraph (d) and is not so tight that it restricts the infant's ability to
breathe or so loose that the fabric could cover the infant's nose and mouth new text end . Prior to any use
of swaddling for sleep by a provider licensed under this chapter, the license holder must
obtain informed written consent for the use of swaddling from the parent or guardian of the
infant on a form deleted text begin provided deleted text end new text begin developed new text end by the commissioner deleted text begin and prepared in partnership with
the Minnesota Sudden Infant Death Center deleted text end .

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2023.
new text end

Sec. 5.

Minnesota Statutes 2020, section 245A.1443, is amended to read:

245A.1443 deleted text begin CHEMICAL DEPENDENCY deleted text end new text begin SUBSTANCE USE DISORDER
TREATMENT LICENSED new text end PROGRAMS THAT SERVE PARENTS WITH THEIR
CHILDREN.

Subdivision 1.

Application.

This section applies to deleted text begin chemical dependency deleted text end new text begin residential
substance use disorder new text end treatment facilities that are licensed under this chapter and deleted text begin Minnesota
Rules, deleted text end chapter deleted text begin 9530, deleted text end new text begin 245G new text end and that provide services in accordance with section 245G.19.

Subd. 2.

Requirements for providing education.

(a) On or before the date of a child's
initial physical presence at the facility, the license holder must provide education to the
child's parent related to safe bathing and reducing the risk of sudden unexpected infant death
and abusive head trauma from shaking infants and young children. new text begin The license holder must
use the educational material developed by the commissioner to comply with this requirement.
new text end At a minimum, the education must address:

(1) instruction that a child or infant should never be left unattended around water, a tub
should be filled with only two to four inches of water for infants, and an infant should never
be put into a tub when the water is running; and

(2) the risk factors related to sudden unexpected infant death and abusive head trauma
from shaking infants and young children, and means of reducing the risks, including the
safety precautions identified in section 245A.1435 and the deleted text begin dangers deleted text end new text begin risks new text end of co-sleeping.

(b) The license holder must document the parent's receipt of the education and keep the
documentation in the parent's file. The documentation must indicate whether the parent
agrees to comply with the safeguards. If the parent refuses to comply, program staff must
provide additional education to the parent deleted text begin at appropriate intervals, at least weekly deleted text end new text begin as described
in the parental supervision plan. The parental supervision plan must include the intervention,
frequency, and staff responsible new text end for the duration of the parent's participation in the program
or until the parent agrees to comply with the safeguards.

Subd. 3.

Parental supervision of children.

(a) On or before the date of a child's initial
physical presence at the facility, the license holder must deleted text begin complete and deleted text end document deleted text begin an
assessment of deleted text end the parent's capacity to meet the health and safety needs of the child while
on the facility premises deleted text begin , including identifying circumstances when the parent may be unable
to adequately care for their child due to deleted text end new text begin considering the following factors new text end :

(1) the parent's physical deleted text begin or deleted text end new text begin and new text end mental health;

(2) the parent being under the influence of drugs, alcohol, medications, or other chemicals;

deleted text begin (3) the parent being unable to provide appropriate supervision for the child; or
deleted text end

new text begin (3) the child's physical and mental health; and
new text end

(4) any other information available to the license holder that indicates the parent may
not be able to adequately care for the child.

(b) The license holder must have written procedures specifying the actions to be taken
by staff if a parent is or becomes unable to adequately care for the parent's child.

new text begin (c) If the parent refuses to comply with the safeguards described in subdivision 2 or is
unable to adequately care for the child, the license holder must develop a parental supervision
plan in conjunction with the client. The plan must account for any factors in paragraph (a)
that contribute to the parent's inability to adequately care for the child. The plan must be
dated and signed by the staff person who completed the plan.
new text end

Subd. 4.

Alternative supervision arrangements.

The license holder must have written
procedures addressing whether the program permits a parent to arrange for supervision of
the parent's child by another client in the program. If permitted, the facility must have a
procedure that requires staff approval of the supervision arrangement before the supervision
by the nonparental client occurs. The procedure for approval must include an assessment
of the nonparental client's capacity to assume the supervisory responsibilities using the
criteria in subdivision 3. The license holder must document the license holder's approval of
the supervisory arrangement and the assessment of the nonparental client's capacity to
supervise the child, and must keep this documentation in the file of the parent of the child
being supervised.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2023.
new text end

Sec. 6.

Minnesota Statutes 2020, section 245A.146, subdivision 3, is amended to read:

Subd. 3.

License holder documentation of cribs.

(a) Annually, from the date printed
on the license, all license holders shall check all their cribs' brand names and model numbers
against the United States Consumer Product Safety Commission website listing of unsafe
cribs.

(b) The license holder shall maintain written documentation to be reviewed on site for
each crib showing that the review required in paragraph (a) has been completed, and which
of the following conditions applies:

(1) the crib was not identified as unsafe on the United States Consumer Product Safety
Commission website;

(2) the crib was identified as unsafe on the United States Consumer Product Safety
Commission website, but the license holder has taken the action directed by the United
States Consumer Product Safety Commission to make the crib safe; or

(3) the crib was identified as unsafe on the United States Consumer Product Safety
Commission website, and the license holder has removed the crib so that it is no longer
used by or accessible to children in care.

(c) Documentation of the review completed under this subdivision shall be maintained
by the license holder on site and made available to parents or guardians of children in care
and the commissioner.

(d) Notwithstanding Minnesota Rules, part 9502.0425, a family child care provider that
complies with this section may use a mesh-sided or fabric-sided play yard, pack and play,
or playpen or crib that has not been identified as unsafe on the United States Consumer
Product Safety Commission website for the care or sleeping of infants.

(e) On at least a monthly basis, the family child care license holder shall perform safety
inspections of every mesh-sided or fabric-sided play yard, pack and play, or playpen used
by or that is accessible to any child in care, and must document the following:

(1) there are no tears, holes, or loose or unraveling threads in mesh or fabric sides of
crib;

(2) the weave of the mesh on the crib is no larger than one-fourth of an inch;

(3) no mesh fabric is unsecure or unattached to top rail and floor plate of crib;

(4) no tears or holes to top rail of crib;

(5) the mattress floor board is not soft and does not exceed one inch thick;

(6) the mattress floor board has no rips or tears in covering;

(7) the mattress floor board in use is deleted text begin a waterproof deleted text end new text begin an new text end original mattress or replacement
mattress provided by the manufacturer of the crib;

(8) there are no protruding or loose rivets, metal nuts, or bolts on the crib;

(9) there are no knobs or wing nuts on outside crib legs;

(10) there are no missing, loose, or exposed staples; and

(11) the latches on top and side rails used to collapse crib are secure, they lock properly,
and are not loose.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2023.
new text end

Sec. 7.

Minnesota Statutes 2020, section 245H.05, is amended to read:

245H.05 MONITORING AND INSPECTIONS.

(a) The commissioner must conduct an on-site inspection of a certified license-exempt
child care center at least deleted text begin annually deleted text end new text begin once each calendar year new text end to determine compliance with
the health, safety, and fire standards specific to a certified license-exempt child care center.

(b) No later than November 19, 2017, the commissioner shall make publicly available
on the department's website the results of inspection reports for all certified centers including
the number of deaths, serious injuries, and instances of substantiated child maltreatment
that occurred in certified centers each year.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 8. new text begin CHILD CARE REGULATION MODERNIZATION; PILOT PROJECTS.
new text end

new text begin The commissioner of human services may conduct and administer pilot projects to test
methods and procedures for the projects to modernize regulation of child care centers and
family child care allowed under Laws 2021, First Special Session chapter 7, article 2, sections
75 and 81. To carry out the pilot projects, the commissioner of human services may, by
issuing a commissioner's order, waive enforcement of existing specific statutory program
requirements, rules, and standards in one or more counties. The commissioner's order
establishing the waiver must provide alternative methods and procedures of administration
and must not be in conflict with the basic purposes, coverage, or benefits provided by law.
In no event may a pilot project under this section extend beyond February 1, 2024. Pilot
projects must comply with the requirements of the child care and development fund plan.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end