SF 1053

1st Engrossment - 87th Legislature (2011 - 2012) Posted on 03/16/2012 11:17am

A bill for an act
relating to nursing; requiring a criminal history record check; appropriating
money; amending Minnesota Statutes 2010, sections 148.261, subdivision 1;
364.09; proposing coding for new law in Minnesota Statutes, chapter 148.

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

Section 1.

new text begin [148.192] REQUIREMENT FOR CRIMINAL HISTORY RECORD
CHECK.
new text end

new text begin Subdivision 1. new text end

new text begin Applicants. new text end

new text begin The board shall complete a criminal background check
on each applicant for licensure prior to the board's issuance of a license. Each applicant
for licensure must:
new text end

new text begin (1) submit a full set of fingerprints to the board or its designee in a form and manner
specified by the board; and
new text end

new text begin (2) provide consent authorizing the board to obtain the applicant's state and national
criminal history record information for the purpose of determining the applicant's
suitability and eligibility for licensure.
new text end

new text begin Subd. 2. new text end

new text begin Additional background check required. new text end

new text begin An applicant shall be required
to complete a criminal background check if more than one year has elapsed since the
applicant last submitted a background check to the board.
new text end

new text begin Subd. 3. new text end

new text begin Fees. new text end

new text begin The applicant shall be responsible for all fees associated with
preparation of the fingerprints and the criminal background check. The fees for the
background check are determined by the Minnesota Bureau of Criminal Apprehension
(BCA) and the Federal Bureau of Investigation (FBI) and are not refundable.
new text end

new text begin Subd. 4. new text end

new text begin Refusal to consent. new text end

new text begin The board shall not issue a license to any applicant
who refuses to consent to a criminal background check or fails to submit fingerprints
within 90 days after submission of an application for licensure. Any fees paid by the
applicant to the board shall be forfeited if the applicant refuses to consent to the criminal
background check or fails to submit the required fingerprints.
new text end

new text begin Subd. 5. new text end

new text begin Submission of fingerprints to Minnesota BCA. new text end

new text begin The board or its designee
shall submit applicant fingerprints to the Minnesota BCA. The BCA shall perform a
check for state criminal justice information and shall forward the applicant's fingerprints
to the FBI to perform a check for national criminal justice information regarding the
applicant. The BCA shall report to the board the results of the state and national criminal
justice information checks.
new text end

new text begin Subd. 6. new text end

new text begin Alternatives to fingerprint-based background check. new text end

new text begin The board may
require an alternative method of criminal history check for an applicant who has submitted
at least three sets of fingerprints under this section that the BCA or FBI have been unable
to read.
new text end

new text begin Subd. 7. new text end

new text begin Temporary permits. new text end

new text begin An applicant for licensure by interstate endorsement
who has submitted fingerprints, consents to a background check, and meets all other
requirements for issuance of a temporary permit may be granted a nonrenewable permit
prior to the board's receipt of the criminal justice information, but shall not be issued
a license until the board receives and completes its review of the applicant's criminal
justice information.
new text end

new text begin Subd. 8. new text end

new text begin Opportunity to challenge accuracy of report. new text end

new text begin Prior to taking disciplinary
action against an applicant based on a criminal conviction, the board shall provide the
applicant with the opportunity to complete or challenge the accuracy of, the criminal
justice information reported to the board. The applicant shall have 30 calendar days
following notice from the board of the intent to deny licensure to request an opportunity to
correct or complete the record prior to the board taking disciplinary action based on the
report. The board shall provide the applicant up to 180 days to challenge the accuracy or
completeness of the report with the agency responsible for the record.
new text end

new text begin Subd. 9. new text end

new text begin Denial of licensure. new text end

new text begin The board shall deny licensure to an applicant who
has been convicted of any of the following crimes or an offense in any other state where
the elements of the offense are substantially similar:
new text end

new text begin (1) murder in the first degree (section 609.185), in the second degree (section
609.19), or in the third degree (section 609.195);
new text end

new text begin (2) manslaughter in the first degree (section 609.20);
new text end

new text begin (3) felony domestic assault (section 609.2242, subdivision 4);
new text end

new text begin (4) kidnapping (section 609.25);
new text end

new text begin (5) domestic assault by strangulation (section 609.2247);
new text end

new text begin (6) murder of an unborn child in the first degree (section 609.2661);
new text end

new text begin (7) solicitation, inducement, and promotion of prostitution (section 609.322);
new text end

new text begin (8) patrons, prostitutes, housing individuals engaged in prostitution (minors) (section
609.324, subdivision 1);
new text end

new text begin (9) criminal sexual conduct in the first degree (section 609.342), in the second
degree (section 609.343), in the third degree (section 609.344), in the fourth degree
(section 609.345), or in the fifth degree (section 609.3451);
new text end

new text begin (10) criminal sexual predatory conduct (section 609.3453);
new text end

new text begin (11) solicitation of children to engage in sexual conduct; communication of sexually
explicit materials to children (section 609.352);
new text end

new text begin (12) incest (section 609.365);
new text end

new text begin (13) felony malicious punishment of a child (section 609.377);
new text end

new text begin (14) felony neglect or endangerment of a child (section 609.378);
new text end

new text begin (15) arson in the first degree (section 609.561);
new text end

new text begin (16) felony stalking (section 609.749, subdivision 3, 4, or 5);
new text end

new text begin (17) controlled substance crimes in the first degree (section 152.021) or in the
second degree (section 152.022);
new text end

new text begin (18) violation of predatory offender registration law (section 243.166);
new text end

new text begin (19) indecent exposure involving a minor (section 617.23, subdivision 2, clause
(1), or subdivision 3, clause (1));
new text end

new text begin (20) use of minors in sexual performance (section 617.246);
new text end

new text begin (21) possession of pornographic work involving minors (section 617.247);
new text end

new text begin (22) manslaughter in the second degree (section 609.205);
new text end

new text begin (23) assault in the first degree (section 609.221) or in the second degree (section
609.222);
new text end

new text begin (24) assault in the fifth degree (section 609.224, subdivision 2, paragraph (c),
or subdivision 4);
new text end

new text begin (25) great bodily harm caused by distribution of drugs (section 609.228);
new text end

new text begin (26) mistreatment of persons confined (section 609.23);
new text end

new text begin (27) mistreatment of residents or patients (section 609.231);
new text end

new text begin (28) criminal abuse (section 609.2325);
new text end

new text begin (29) criminal neglect (section 609.233);
new text end

new text begin (30) financial exploitation of a vulnerable adult (section 609.2335);
new text end

new text begin (31) failure to report (section 609.234);
new text end

new text begin (32) simple robbery (section 609.24);
new text end

new text begin (33) aggravated robbery (section 609.245);
new text end

new text begin (34) false imprisonment (section 609.255);
new text end

new text begin (35) murder of unborn child in the second degree (section 609.2662) or in the third
degree (section 609.2663);
new text end

new text begin (36) presenting false claims to a public officer or body (section 609.465);
new text end

new text begin (37) medical assistance fraud (section 609.466);
new text end

new text begin (38) felony theft (section 609.52);
new text end

new text begin (39) fraud in obtaining credit (section 609.82);
new text end

new text begin (40) felony identity theft (section 609.527);
new text end

new text begin (41) arson in the second degree (section 609.562) or in the third degree (section
609.563);
new text end

new text begin (42) felony burglary (section 609.582);
new text end

new text begin (43) felony insurance fraud (section 609.611);
new text end

new text begin (44) aggravated forgery (section 609.625);
new text end

new text begin (45) forgery (section 609.63);
new text end

new text begin (46) felony check forgery (section 609.631);
new text end

new text begin (47) felony drive-by shooting (section 609.66, subdivision 1e);
new text end

new text begin (48) felony riot (section 609.71);
new text end

new text begin (49) terroristic threats (section 609.713);
new text end

new text begin (50) disorderly conduct (section 609.72, subdivision 3);
new text end

new text begin (51) felony financial transaction card fraud (section 609.821);
new text end

new text begin (52) shooting at or in a public transit vehicle or facility (section 609.855, subdivision
5);
new text end

new text begin (53) controlled substance crimes in the third degree (section 152.023), fourth degree
(section 152.024), or fifth degree (section 152.025); or
new text end

new text begin (54) aiding and abetting, attempting, or conspiring to commit any of the offenses
in this subdivision.
new text end

new text begin Subd. 10. new text end

new text begin Conviction. new text end

new text begin For purposes of this section, an applicant is considered to
have been convicted of a crime if the applicant has pleaded guilty or nolo contendere, been
found guilty, or entered an Alford plea to any of the offenses in this section by any court in
the state of Minnesota or any similar offense in another state or United States territory or
federal court. The consequences of the conviction shall apply if the applicant has been
convicted or found guilty but the sentence of adjudication is stayed or otherwise withheld.
new text end

new text begin Subd. 11. new text end

new text begin Consideration of other crimes. new text end

new text begin When determining an applicant's
suitability and eligibility for nurse licensure, nothing in this section shall preclude the
board from considering an applicant's conviction of a crime that is not listed in subdivision
9 or public records from a juvenile delinquency proceeding where there has been a judicial
determination that the elements of an offense occurred.
new text end

new text begin Subd. 12. new text end

new text begin Order of denial. new text end

new text begin When an applicant is denied licensure based on
conviction of a crime listed in subdivision 9, and following an opportunity to challenge
the accuracy and completeness of the criminal history report, the board may issue a public
order of denial and is not required to provide the applicant a hearing prior to denying
licensure.
new text end

new text begin Subd. 13. new text end

new text begin Reconsideration of denial. new text end

new text begin (a) An applicant denied licensure based
on a conviction of a crime listed in subdivision 9, clauses (1) to (21), may not request
reconsideration of the denial of licensure and may not reapply for licensure by the board
until ten years following absolute discharge from sentence, or unless the applicant has
received a court order of expungement of the record or a pardon of conviction. Absolute
discharge from sentence means completion of any sentence, including imprisonment,
probation, parole, community service, and any form of court supervision.
new text end

new text begin (b) An applicant denied licensure based on a conviction of a crime listed in
subdivision 9, clauses (22) to (54), may request reconsideration of the board's decision
to deny licensure. The applicant requesting reconsideration has the burden of showing,
to the satisfaction of the board, that the applicant has been sufficiently rehabilitated and
does not pose a risk of harm to the public.
new text end

new text begin (c) An applicant seeking reconsideration of a denial of licensure under this chapter
shall present evidence to the board addressing the following factors, which the board may
consider in determining whether to grant a license to the previously denied applicant:
new text end

new text begin (1) the number of crimes for which the applicant has been convicted;
new text end

new text begin (2) the nature and seriousness of the crimes and vulnerability of the victims of the
crimes, including whether the commission of the crimes involved the abuse of trust or the
exploitation of a unique position or knowledge;
new text end

new text begin (3) the relationship between the crimes and the practice of nursing;
new text end

new text begin (4) the age of the applicant at the time the crimes were committed;
new text end

new text begin (5) the amount of time that has elapsed since the crimes occurred and since the
completion of the terms of any sentence imposed;
new text end

new text begin (6) steps taken by the applicant to address substance abuse or mental or physical
health issues present at the time of the crimes or subsequent to the crimes;
new text end

new text begin (7) evidence of the applicant's work history; and
new text end

new text begin (8) any other evidence demonstrating the applicant does not pose a risk of harm to
the health or safety of the public.
new text end

new text begin (d) The board may impose limitations and conditions on an applicant's license if the
board grants the applicant a license following reconsideration.
new text end

new text begin Subd. 14. new text end

new text begin Data practices. new text end

new text begin All state or national criminal history record information
obtained by the board from the BCA or the FBI is private data on individuals under section
13.02, subdivision 12, and restricted to the exclusive use of the board, its members,
officers, investigative staff, agents, and attorneys for the purpose of evaluating an
applicant's eligibility or qualification for licensure.
new text end

new text begin Subd. 15. new text end

new text begin Current licensees. new text end

new text begin The board may request that a licensee who is the
subject of an investigation by the board submit to a criminal background check if there
is reason to believe the licensee has been charged with or convicted of a crime in this
or any other jurisdiction.
new text end

new text begin Subd. 16. new text end

new text begin Instructions to the board; plan. new text end

new text begin The board shall collaborate with the
Minnesota Department of Human Services and the BCA to establish a plan for completing
criminal background checks of all licensees who were licensed before the effective date of
this section. The plan for background checks of current licensees shall be developed no
later than 2017 and may be contingent upon the BCA's implementation of a system in
which any new crimes that an applicant or licensee commits after an initial background
check are flagged in the BCA's database and reported back to the board. The plan shall
include recommendations for any necessary statutory changes and shall seek to minimize
duplication of requirements for background studies.
new text end

Sec. 2.

Minnesota Statutes 2010, section 148.261, subdivision 1, is amended to read:

Subdivision 1.

Grounds listed.

The board may deny, revoke, suspend, limit, or
condition the license and registration of any person to practice professional, advanced
practice registered, or practical nursing under sections 148.171 to 148.285, or to otherwise
discipline a licensee or applicant as described in section 148.262. The following are
grounds for disciplinary action:

(1) Failure to demonstrate the qualifications or satisfy the requirements for a license
contained in sections 148.171 to 148.285 or rules of the board. In the case of a person
applying for a license, the burden of proof is upon the applicant to demonstrate the
qualifications or satisfaction of the requirements.

(2) Employing fraud or deceit in procuring or attempting to procure a permit, license,
or registration certificate to practice professional or practical nursing or attempting to
subvert the licensing examination process. Conduct that subverts or attempts to subvert
the licensing examination process includes, but is not limited to:

(i) conduct that violates the security of the examination materials, such as removing
examination materials from the examination room or having unauthorized possession of
any portion of a future, current, or previously administered licensing examination;

(ii) conduct that violates the standard of test administration, such as communicating
with another examinee during administration of the examination, copying another
examinee's answers, permitting another examinee to copy one's answers, or possessing
unauthorized materials; or

(iii) impersonating an examinee or permitting an impersonator to take the
examination on one's own behalf.

(3) Conviction deleted text begin during the previous five years deleted text end of a felony or gross misdemeanor
reasonably related to the practice of professional, advanced practice registered, or practical
nursing new text begin , including, but not limited to, the crimes listed in section 148.192, subdivision
9 new text end . Conviction as used in this subdivision includes a conviction of an offense that if
committed in this state would be considered a felony or gross misdemeanor without regard
to its designation elsewhere, or a criminal proceeding where a finding or verdict of guilt is
made or returned but the adjudication of guilt is either withheld or not entered.

(4) Revocation, suspension, limitation, conditioning, or other disciplinary action
against the person's professional or practical nursing license or advanced practice
registered nursing credential, in another state, territory, or country; failure to report to the
board that charges regarding the person's nursing license or other credential are pending in
another state, territory, or country; or having been refused a license or other credential by
another state, territory, or country.

(5) Failure to or inability to perform professional or practical nursing as defined in
section 148.171, subdivision 14 or 15, with reasonable skill and safety, including failure
of a registered nurse to supervise or a licensed practical nurse to monitor adequately the
performance of acts by any person working at the nurse's direction.

(6) Engaging in unprofessional conduct, including, but not limited to, a departure
from or failure to conform to board rules of professional or practical nursing practice that
interpret the statutory definition of professional or practical nursing as well as provide
criteria for violations of the statutes, or, if no rule exists, to the minimal standards of
acceptable and prevailing professional or practical nursing practice, or any nursing
practice that may create unnecessary danger to a patient's life, health, or safety. Actual
injury to a patient need not be established under this clause.

(7) Failure of an advanced practice registered nurse to practice with reasonable
skill and safety or departure from or failure to conform to standards of acceptable and
prevailing advanced practice registered nursing.

(8) Delegating or accepting the delegation of a nursing function or a prescribed
health care function when the delegation or acceptance could reasonably be expected to
result in unsafe or ineffective patient care.

(9) Actual or potential inability to practice nursing with reasonable skill and safety
to patients by reason of illness, use of alcohol, drugs, chemicals, or any other material, or
as a result of any mental or physical condition.

(10) Adjudication as mentally incompetent, mentally ill, a chemically dependent
person, or a person dangerous to the public by a court of competent jurisdiction, within or
without this state.

(11) Engaging in any unethical conduct, including, but not limited to, conduct likely
to deceive, defraud, or harm the public, or demonstrating a willful or careless disregard
for the health, welfare, or safety of a patient. Actual injury need not be established under
this clause.

(12) Engaging in conduct with a patient that is sexual or may reasonably be
interpreted by the patient as sexual, or in any verbal behavior that is seductive or sexually
demeaning to a patient, or engaging in sexual exploitation of a patient or former patient.

(13) Obtaining money, property, or services from a patient, other than reasonable
fees for services provided to the patient, through the use of undue influence, harassment,
duress, deception, or fraud.

(14) Revealing a privileged communication from or relating to a patient except when
otherwise required or permitted by law.

(15) Engaging in abusive or fraudulent billing practices, including violations of
federal Medicare and Medicaid laws or state medical assistance laws.

(16) Improper management of patient records, including failure to maintain adequate
patient records, to comply with a patient's request made pursuant to sections 144.291 to
144.298, or to furnish a patient record or report required by law.

(17) Knowingly aiding, assisting, advising, or allowing an unlicensed person to
engage in the unlawful practice of professional, advanced practice registered, or practical
nursing.

(18) Violating a rule adopted by the board, an order of the board, or a state or federal
law relating to the practice of professional, advanced practice registered, or practical
nursing, or a state or federal narcotics or controlled substance law.

(19) Knowingly providing false or misleading information that is directly related
to the care of that patient unless done for an accepted therapeutic purpose such as the
administration of a placebo.

(20) Aiding suicide or aiding attempted suicide in violation of section 609.215 as
established by any of the following:

(i) a copy of the record of criminal conviction or plea of guilty for a felony in
violation of section 609.215, subdivision 1 or 2;

(ii) a copy of the record of a judgment of contempt of court for violating an
injunction issued under section 609.215, subdivision 4;

(iii) a copy of the record of a judgment assessing damages under section 609.215,
subdivision 5; or

(iv) a finding by the board that the person violated section 609.215, subdivision
1 or 2. The board shall investigate any complaint of a violation of section 609.215,
subdivision 1 or 2.

(21) Practicing outside the scope of practice authorized by section 148.171,
subdivision 5, 10, 11, 13, 14, 15, or 21.

(22) Practicing outside the specific field of nursing practice for which an advanced
practice registered nurse is certified unless the practice is authorized under section 148.284.

(23) Making a false statement or knowingly providing false information to the
board, failing to make reports as required by section 148.263, or failing to cooperate with
an investigation of the board as required by section 148.265.

(24) Engaging in false, fraudulent, deceptive, or misleading advertising.

(25) Failure to inform the board of the person's certification status as a nurse
anesthetist, nurse-midwife, nurse practitioner, or clinical nurse specialist.

(26) Engaging in clinical nurse specialist practice, nurse-midwife practice, nurse
practitioner practice, or registered nurse anesthetist practice without current certification
by a national nurse certification organization acceptable to the board, except during the
period between completion of an advanced practice registered nurse course of study and
certification, not to exceed six months or as authorized by the board.

(27) Engaging in conduct that is prohibited under section 145.412.

(28) Failing to report employment to the board as required by section 148.211,
subdivision 2a, or knowingly aiding, assisting, advising, or allowing a person to fail to
report as required by section 148.211, subdivision 2a.

Sec. 3.

Minnesota Statutes 2010, section 364.09, is amended to read:

364.09 EXCEPTIONS.

(a) This chapter does not apply to the licensing process for peace officers; to law
enforcement agencies as defined in section 626.84, subdivision 1, paragraph (f); to fire
protection agencies; to eligibility for a private detective or protective agent license; to the
licensing and background study process under chapters 245A and 245C; to eligibility
for school bus driver endorsements; to eligibility for special transportation service
endorsements; to eligibility for a commercial driver training instructor license, which is
governed by section 171.35 and rules adopted under that section; to emergency medical
services personnel, or to the licensing by political subdivisions of taxicab drivers, if the
applicant for the license has been discharged from sentence for a conviction within the ten
years immediately preceding application of a violation of any of the following:

(1) sections 609.185 to 609.21, 609.221 to 609.223, 609.342 to 609.3451, or 617.23,
subdivision 2 or 3;

(2) any provision of chapter 152 that is punishable by a maximum sentence of
15 years or more; or

(3) a violation of chapter 169 or 169A involving driving under the influence, leaving
the scene of an accident, or reckless or careless driving.

This chapter also shall not apply to eligibility for juvenile corrections employment, where
the offense involved child physical or sexual abuse or criminal sexual conduct.

(b) This chapter does not apply to a school district or to eligibility for a license
issued or renewed by the Board of Teaching or the commissioner of education.

(c) Nothing in this section precludes the Minnesota Police and Peace Officers
Training Board or the state fire marshal from recommending policies set forth in this
chapter to the attorney general for adoption in the attorney general's discretion to apply to
law enforcement or fire protection agencies.

(d) This chapter does not apply to a license to practice medicine that has been denied
or revoked by the Board of Medical Practice pursuant to section 147.091, subdivision 1a.

(e) This chapter does not apply to any person who has been denied a license to
practice chiropractic or whose license to practice chiropractic has been revoked by the
board in accordance with section 148.10, subdivision 7.

new text begin (f) This chapter does not apply to a person who has been denied a license to practice
nursing by the Board of Nursing pursuant to section 148.192.
new text end

Sec. 4. new text begin APPROPRIATION.
new text end

new text begin $200,000 in fiscal year 2013 is appropriated from the state government special
revenue fund to the Board of Nursing for implementation of section 1.
new text end

Sec. 5. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 and 2 are effective July 1, 2013, or as soon as the necessary interagency
infrastructure and related business processes are operational, whichever is later. Sections
3 and 4 are effective the day following final enactment.
new text end