SF 1217

as introduced - 91st Legislature (2019 - 2020) Posted on 03/08/2019 02:25pm

A bill for an act
relating to human services; modifying provisions governing child foster care;
amending Minnesota Statutes 2018, sections 245A.05; 245A.07, subdivision 1;
245A.16, by adding a subdivision; 245C.02, by adding a subdivision; 245C.05,
subdivision 4; 245C.14, subdivision 1; 245C.15, by adding a subdivision; 245C.24.

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

Section 1.

Minnesota Statutes 2018, section 245A.05, is amended to read:

245A.05 DENIAL OF APPLICATION.

(a) The commissioner may deny a license if an applicant or controlling individual:

(1) fails to submit a substantially complete application after receiving notice from the
commissioner under section 245A.04, subdivision 1;

(2) fails to comply with applicable laws or rules;

(3) knowingly withholds relevant information from or gives false or misleading
information to the commissioner in connection with an application for a license or during
an investigation;

(4) has a disqualification that has not been set aside under section 245C.22 and no
variance has been granted;

(5) has an individual living in the household who received a background study under
section 245C.03, subdivision 1, paragraph (a), clause (2), who has a disqualification that
has not been set aside under section 245C.22, and no variance has been granted;

(6) is associated with an individual who received a background study under section
245C.03, subdivision 1, paragraph (a), clause (6), who may have unsupervised access to
children or vulnerable adults, and who has a disqualification that has not been set aside
under section 245C.22, and no variance has been granted; deleted text begin or
deleted text end

(7) fails to comply with section 245A.04, subdivision 1, paragraph (f) or (g) deleted text begin . deleted text end new text begin ; or
new text end

new text begin (8) for family child foster care, has nondisqualifying background study information that
reflects on the individual's ability to safely provide care to foster children.
new text end

(b) An applicant whose application has been denied by the commissioner must be given
notice of the denial, which must state the reasons for the denial in plain language. Notice
must be given by certified mail or personal service. The notice must state the reasons the
application was denied and must inform the applicant of the right to a contested case hearing
under chapter 14 and Minnesota Rules, parts 1400.8505 to 1400.8612. The applicant may
appeal the denial by notifying the commissioner in writing by certified mail or personal
service. If mailed, the appeal must be postmarked and sent to the commissioner within 20
calendar days after the applicant received the notice of denial. If an appeal request is made
by personal service, it must be received by the commissioner within 20 calendar days after
the applicant received the notice of denial. Section 245A.08 applies to hearings held to
appeal the commissioner's denial of an application.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective March 1, 2020.
new text end

Sec. 2.

Minnesota Statutes 2018, section 245A.07, subdivision 1, is amended to read:

Subdivision 1.

Sanctions; appeals; license.

(a) In addition to making a license conditional
under section 245A.06, the commissioner may suspend or revoke the license, impose a fine,
or secure an injunction against the continuing operation of the program of a license holder
who does not comply with applicable law or rule new text begin or who has nondisqualifying background
study information that reflects on the license holder's ability to safely provide care to foster
children new text end . When applying sanctions authorized under this section, the commissioner shall
consider the nature, chronicity, or severity of the violation of law or rule and the effect of
the violation on the health, safety, or rights of persons served by the program.

(b) If a license holder appeals the suspension or revocation of a license and the license
holder continues to operate the program pending a final order on the appeal, the commissioner
shall issue the license holder a temporary provisional license. Unless otherwise specified
by the commissioner, variances in effect on the date of the license sanction under appeal
continue under the temporary provisional license. If a license holder fails to comply with
applicable law or rule while operating under a temporary provisional license, the
commissioner may impose additional sanctions under this section and section 245A.06, and
may terminate any prior variance. If a temporary provisional license is set to expire, a new
temporary provisional license shall be issued to the license holder upon payment of any fee
required under section 245A.10. The temporary provisional license shall expire on the date
the final order is issued. If the license holder prevails on the appeal, a new nonprovisional
license shall be issued for the remainder of the current license period.

(c) If a license holder is under investigation and the license is due to expire before
completion of the investigation, the program shall be issued a new license upon completion
of the reapplication requirements and payment of any applicable license fee. Upon completion
of the investigation, a licensing sanction may be imposed against the new license under this
section, section 245A.06, or 245A.08.

(d) Failure to reapply or closure of a license by the license holder prior to the completion
of any investigation shall not preclude the commissioner from issuing a licensing sanction
under this section, section 245A.06, or 245A.08 at the conclusion of the investigation.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective March 1, 2020.
new text end

Sec. 3.

Minnesota Statutes 2018, section 245A.16, is amended by adding a subdivision to
read:

new text begin Subd. 9. new text end

new text begin Licensed family child foster care. new text end

new text begin (a) Before recommending to deny a license
under section 245A.05 or revoke a license under section 245A.07 for nondisqualifying
background study information received under section 245C.05, subdivision 4, paragraph
(a), clause (3), a county agency or private agency that has been designated or licensed by
the commissioner must review the following:
new text end

new text begin (1) the type of crime;
new text end

new text begin (2) the number of crimes;
new text end

new text begin (3) the nature of the offenses;
new text end

new text begin (4) the age of the individual at the time of conviction;
new text end

new text begin (5) the length of time that has elapsed since the last conviction;
new text end

new text begin (6) the relationship of the crime and the capacity to care for a child;
new text end

new text begin (7) evidence of rehabilitation;
new text end

new text begin (8) information or knowledge from community members regarding the individual's
capacity to provide foster care;
new text end

new text begin (9) a statement from the study subject;
new text end

new text begin (10) a statement from the license holder; and
new text end

new text begin (11) other aggravating and mitigating factors.
new text end

new text begin (b) The county or private licensing agency must send a summary of the review completed
according to paragraph (a), on a form developed by the commissioner, to the commissioner
and include any recommendation for licensing action.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective March 1, 2020.
new text end

Sec. 4.

Minnesota Statutes 2018, section 245C.02, is amended by adding a subdivision to
read:

new text begin Subd. 12a. new text end

new text begin Licensed family child foster care. new text end

new text begin "Licensed family child foster care"
includes providers who have submitted an application for family child foster care licensure
under section 245A.04, subdivision 1.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective March 1, 2020.
new text end

Sec. 5.

Minnesota Statutes 2018, section 245C.05, subdivision 4, is amended to read:

Subd. 4.

Electronic transmission.

(a) For background studies conducted by the
Department of Human Services, the commissioner shall implement a secure system for the
electronic transmission of:

(1) background study information to the commissioner;

(2) background study results to the license holder;

(3) background study results to county and private agencies for background studies
conducted by the commissioner for child foster care new text begin , including a summary of
nondisqualifying results new text end ; and

(4) background study results to county agencies for background studies conducted by
the commissioner for adult foster care and family adult day services and, upon
implementation of NETStudy 2.0, family child care and legal nonlicensed child care
authorized under chapter 119B.

(b) Unless the commissioner has granted a hardship variance under paragraph (c), a
license holder or an applicant must use the electronic transmission system known as
NETStudy or NETStudy 2.0 to submit all requests for background studies to the
commissioner as required by this chapter.

(c) A license holder or applicant whose program is located in an area in which high-speed
Internet is inaccessible may request the commissioner to grant a variance to the electronic
transmission requirement.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective March 1, 2020.
new text end

Sec. 6.

Minnesota Statutes 2018, section 245C.14, subdivision 1, is amended to read:

Subdivision 1.

Disqualification from direct contact.

(a) The commissioner shall
disqualify an individual who is the subject of a background study from any position allowing
direct contact with persons receiving services from the license holder or entity identified in
section 245C.03, upon receipt of information showing, or when a background study
completed under this chapter shows any of the following:

(1) a conviction of, admission to, or Alford plea to one or more crimes listed in section
245C.15, regardless of whether the conviction or admission is a felony, gross misdemeanor,
or misdemeanor level crime;

(2) a preponderance of the evidence indicates the individual has committed an act or
acts that meet the definition of any of the crimes listed in section 245C.15, regardless of
whether the preponderance of the evidence is for a felony, gross misdemeanor, or
misdemeanor level crime; or

(3) an investigation results in an administrative determination listed under section
245C.15, subdivision 4, paragraph (b).

(b) No individual who is disqualified following a background study under section
245C.03, subdivisions 1 and 2, may be retained in a position involving direct contact with
persons served by a program or entity identified in section 245C.03, unless the commissioner
has provided written notice under section 245C.17 stating that:

(1) the individual may remain in direct contact during the period in which the individual
may request reconsideration as provided in section 245C.21, subdivision 2;

(2) the commissioner has set aside the individual's disqualification for that program or
entity identified in section 245C.03, as provided in section 245C.22, subdivision 4; or

(3) the license holder has been granted a variance for the disqualified individual under
section 245C.30.

new text begin (c) Notwithstanding paragraph (a), for the purposes of a background study affiliated
with a licensed family child foster care provider, the commissioner shall disqualify an
individual who is the subject of a background study from any position allowing direct contact
with persons receiving services from the license holder or entity identified in section 245C.03,
upon receipt of information showing, or when a background study completed under this
chapter is disqualifying under section 245C.15, subdivision 6.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective March 1, 2020.
new text end

Sec. 7.

Minnesota Statutes 2018, section 245C.15, is amended by adding a subdivision to
read:

new text begin Subd. 6. new text end

new text begin Licensed family child foster care disqualifications. new text end

new text begin (a) Notwithstanding
subdivisions 1 to 5, for a background study affiliated with a licensed family child foster
care, regardless of how much time has passed, an individual is disqualified under section
245C.14 if the individual:
new text end

new text begin (1) committed an action under paragraph (c) that (i) resulted in the death of a minor, or
(ii) involved the sexual abuse of a minor; or
new text end

new text begin (2) committed an act that resulted in a felony-level conviction for: 609.185 (murder in
the first degree); 609.19 (murder in the second degree); 609.195 (murder in the third degree);
609.20 (manslaughter in the first degree); 609.205 (manslaughter in the second degree);
609.2112 (criminal vehicular homicide); 609.223, subdivision 2 (assault in the third degree,
past pattern of child abuse); 609.223, subdivision 3 (assault in the third degree, victim under
four); a felony offense under sections 609.2242 and 609.2243 (domestic assault), spousal
abuse, child abuse or neglect, or a crime against children; 609.2247 (domestic assault by
strangulation); 609.25 (kidnapping); 609.255 (false imprisonment); 609.265 (abduction);
609.2661 (murder of an unborn child in the first degree); 609.2662 (murder of an unborn
child in the second degree); 609.2663 (murder of an unborn child in the third degree);
609.2664 (manslaughter of an unborn child in the first degree); 609.2665 (manslaughter of
an unborn child in the second degree); 609.267 (assault of an unborn child in the first degree);
609.2671 (assault of an unborn child in the second degree); 609.268 (injury or death of an
unborn child in the commission of a crime); 609.324, subdivision 1 (other prohibited acts;
engaging in, hiring, or agreeing to hire minor to engage in prostitution); 609.342 (criminal
sexual conduct in the first degree); 609.343 (criminal sexual conduct in the second degree);
609.344 (criminal sexual conduct in the third degree); 609.345 (criminal sexual conduct in
the fourth degree); 609.3451 (criminal sexual conduct in the fifth degree); 609.3453 (criminal
sexual predatory conduct); 609.352 (solicitation of children to engage in sexual conduct);
609.377 (malicious punishment of a child); 609.378 (neglect or endangerment of a child);
617.246 (use of minors in sexual performance prohibited); or 617.247 (possession of pictorial
representations of minors).
new text end

new text begin (b) Notwithstanding subdivisions 1 to 5, for a background study affiliated with a licensed
family child foster care license, an individual is disqualified under section 245C.14 if:
new text end

new text begin (1) less than five years have passed since the termination of parental rights under section
260C.301, subdivision 1, paragraph (a) or (b); or
new text end

new text begin (2) less than five years have passed since committing an act that resulted in a felony-level
conviction for: 152.021 (controlled substance crime in the first degree); 152.022 (controlled
substance crime in the second degree); 152.023 (controlled substance crime in the third
degree); 152.024 (controlled substance crime in the fourth degree); 152.025 (controlled
substance crime in the fifth degree); 152.0261 (importing controlled substances across state
borders); 152.0262, subdivision 1, paragraph (b) (possession of substance with intent to
manufacture methamphetamine); 152.027, subdivision 6, paragraph (c) (sale or possession
of synthetic cannabinoids); 152.096 (conspiracies prohibited); 152.097 (simulated controlled
substances); 152.136 (anhydrous ammonia; prohibited conduct; criminal penalties; civil
liabilities); 152.137 (methamphetamine-related crimes involving children or vulnerable
adults); 169A.24 (felony first-degree driving while impaired); 609.2113 (criminal vehicular
operation; bodily harm); 609.2114 (criminal vehicular operation; unborn child); 609.221
(assault in the first degree); 609.222 (assault in the second degree); 609.223, subdivision 1
(assault in the third degree); 609.2231, subdivision 1, paragraph (c) (assault in the fourth
degree, secure treatment personnel); 609.224, subdivision 4 (felony assault in the fifth
degree); 609.228 (great bodily harm caused by distribution of drugs); 609.2325 (criminal
abuse of a vulnerable adult); 609.235 (use of drugs to injure or facilitate a crime); 609.66,
subdivision 1e (felony drive-by shooting); 609.687 (adulteration); or 609.855, subdivision
5 (shooting at or in a public transit vehicle or facility).
new text end

new text begin (c) Notwithstanding subdivisions 1 to 5, except as provided in paragraph (a), for a
background study affiliated with a licensed family child foster care license, an individual
is disqualified under section 245C.14 if less than five years have passed since a determination
or disposition of the individual's:
new text end

new text begin (1) failure to make required reports under section 626.556, subdivision 3, or 626.557,
subdivision 3, for incidents in which the final disposition under section 626.556 or 626.557
was substantiated maltreatment and the maltreatment was recurring or serious; or
new text end

new text begin (2) substantiated serious or recurring maltreatment of a minor under section 626.556, a
vulnerable adult under section 626.557, or serious or recurring maltreatment in any other
state, the elements of which are substantially similar to the elements of maltreatment under
section 626.556 or 626.557 for which there is a preponderance of evidence that the
maltreatment occurred and the subject was responsible for the maltreatment.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective March 1, 2020.
new text end

Sec. 8.

Minnesota Statutes 2018, section 245C.24, is amended to read:

245C.24 DISQUALIFICATION; BAR TO SET ASIDE A DISQUALIFICATION;
REQUEST FOR VARIANCE.

Subdivision 1.

Minimum disqualification periods.

The disqualification periods under
subdivisions 3 deleted text begin and 4 deleted text end new text begin to 5 new text end are the minimum applicable disqualification periods. The
commissioner may determine that an individual should continue to be disqualified from
licensure because the individual continues to pose a risk of harm to persons served by that
individual, even after the minimum disqualification period has passed.

Subd. 2.

Permanent bar to set aside a disqualification.

(a) Except as provided in
deleted text begin paragraph deleted text end new text begin paragraphs new text end (b) deleted text begin , deleted text end new text begin to (d), new text end the commissioner may not set aside the disqualification
of any individual disqualified pursuant to this chapter, regardless of how much time has
passed, if the individual was disqualified for a crime or conduct listed in section 245C.15,
subdivision 1.

(b) For an individual in the chemical dependency or corrections field who was disqualified
for a crime or conduct listed under section 245C.15, subdivision 1, and whose disqualification
was set aside prior to July 1, 2005, the commissioner must consider granting a variance
pursuant to section 245C.30 for the license holder for a program dealing primarily with
adults. A request for reconsideration evaluated under this paragraph must include a letter
of recommendation from the license holder that was subject to the prior set-aside decision
addressing the individual's quality of care to children or vulnerable adults and the
circumstances of the individual's departure from that service.

(c) When a licensed foster care provider adopts an individual who had received foster
care services from the provider for over six months, and the adopted individual is required
to receive a background study under section 245C.03, subdivision 1, paragraph (a), clause
(2) or (6), the commissioner may grant a variance to the license holder under section 245C.30
to permit the adopted individual with a permanent disqualification to remain affiliated with
the license holder under the conditions of the variance when the variance is recommended
by the county of responsibility for each of the remaining individuals in placement in the
home and the licensing agency for the home.

new text begin (d) For an individual 18 years of age or older affiliated with a licensed family child foster
care program, the commissioner must not set aside the disqualification of any individual
disqualified pursuant to this chapter, regardless of how much time has passed, if the individual
was disqualified for a crime or conduct listed in section 245C.15, subdivision 6, paragraph
(a). This paragraph does not apply to an individual younger than 18 years of age.
new text end

Subd. 3.

Ten-year bar to set aside disqualification.

(a) The commissioner may not set
aside the disqualification of an individual in connection with a license to provide family
child care for children deleted text begin , foster care for children in the provider's home, deleted text end or foster care or day
care services for adults in the provider's home if: (1) less than ten years has passed since
the discharge of the sentence imposed, if any, for the offense; or (2) when disqualified based
on a preponderance of evidence determination under section 245C.14, subdivision 1,
paragraph (a), clause (2), or an admission under section 245C.14, subdivision 1, paragraph
(a), clause (1), and less than ten years has passed since the individual committed the act or
admitted to committing the act, whichever is later; and (3) the individual has committed a
violation of any of the following offenses: sections 609.165 (felon ineligible to possess
firearm); criminal vehicular homicide or criminal vehicular operation causing death under
609.2112, 609.2113, or 609.2114 (criminal vehicular homicide or injury); 609.215 (aiding
suicide or aiding attempted suicide); felony violations under 609.223 or 609.2231 (assault
in the third or fourth degree); 609.229 (crimes committed for benefit of a gang); 609.713
(terroristic threats); 609.235 (use of drugs to injure or to facilitate crime); 609.24 (simple
robbery); 609.255 (false imprisonment); 609.562 (arson in the second degree); 609.71 (riot);
609.498, subdivision 1 or 1b (aggravated first-degree or first-degree tampering with a
witness); burglary in the first or second degree under 609.582 (burglary); 609.66 (dangerous
weapon); 609.665 (spring guns); 609.67 (machine guns and short-barreled shotguns);
609.749, subdivision 2 (gross misdemeanor stalking); 152.021 or 152.022 (controlled
substance crime in the first or second degree); 152.023, subdivision 1, clause (3) or (4) or
subdivision 2, clause (4) (controlled substance crime in the third degree); 152.024,
subdivision 1, clause (2), (3), or (4) (controlled substance crime in the fourth degree);
609.224, subdivision 2, paragraph (c) (fifth-degree assault by a caregiver against a vulnerable
adult); 609.23 (mistreatment of persons confined); 609.231 (mistreatment of residents or
patients); 609.2325 (criminal abuse of a vulnerable adult); 609.233 (criminal neglect of a
vulnerable adult); 609.2335 (financial exploitation of a vulnerable adult); 609.234 (failure
to report); 609.265 (abduction); 609.2664 to 609.2665 (manslaughter of an unborn child in
the first or second degree); 609.267 to 609.2672 (assault of an unborn child in the first,
second, or third degree); 609.268 (injury or death of an unborn child in the commission of
a crime); repeat offenses under 617.23 (indecent exposure); 617.293 (disseminating or
displaying harmful material to minors); a felony-level conviction involving alcohol or drug
use, a gross misdemeanor offense under 609.324, subdivision 1 (other prohibited acts); a
gross misdemeanor offense under 609.378 (neglect or endangerment of a child); a gross
misdemeanor offense under 609.377 (malicious punishment of a child); 609.72, subdivision
3 (disorderly conduct against a vulnerable adult); or 624.713 (certain persons not to possess
firearms); or Minnesota Statutes 2012, section 609.21.

(b) The commissioner may not set aside the disqualification of an individual if less than
ten years have passed since the individual's aiding and abetting, attempt, or conspiracy to
commit any of the offenses listed in paragraph (a) as each of these offenses is defined in
Minnesota Statutes.

(c) The commissioner may not set aside the disqualification of an individual if less than
ten years have passed since the discharge of the sentence imposed for an offense in any
other state or country, the elements of which are substantially similar to the elements of any
of the offenses listed in paragraph (a).

Subd. 4.

Seven-year bar to set aside disqualification.

The commissioner may not set
aside the disqualification of an individual in connection with a license to provide family
child care for children deleted text begin , foster care for children in the provider's home, deleted text end or foster care or day
care services for adults in the provider's home if within seven years preceding the study:

(1) the individual committed an act that constitutes maltreatment of a child under section
626.556, subdivision 10e, and the maltreatment resulted in substantial bodily harm as defined
in section 609.02, subdivision 7a, or substantial mental or emotional harm as supported by
competent psychological or psychiatric evidence; or

(2) the individual was determined under section 626.557 to be the perpetrator of a
substantiated incident of maltreatment of a vulnerable adult that resulted in substantial
bodily harm as defined in section 609.02, subdivision 7a, or substantial mental or emotional
harm as supported by competent psychological or psychiatric evidence.

new text begin Subd. 5. new text end

new text begin Five-year bar to set aside disqualification. new text end

new text begin The commissioner must not set
aside the disqualification of an individual 18 years of age or older in connection with a
license for foster care for children in the provider's home if within five years preceding the
study the individual is convicted of a felony in section 245C.15, subdivision 6, paragraph
(b). This paragraph does not apply to an individual younger than 18 years of age.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective March 1, 2020.
new text end