SF 1485

as introduced - 88th Legislature (2013 - 2014) Posted on 03/21/2013 09:34am

A bill for an act
relating to human services; modifying background study requirements for
individuals with juvenile court records; modifying the commissioner's authority
to grant a variance; amending Minnesota Statutes 2012, sections 13.46,
subdivision 4; 245C.04, by adding a subdivision; 245C.17, subdivisions 2, 3;
245C.22, subdivision 5; 245C.24, subdivision 2.

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

Section 1.

Minnesota Statutes 2012, section 13.46, subdivision 4, is amended to read:

Subd. 4.

Licensing data.

(a) As used in this subdivision:

(1) "licensing data" are all data collected, maintained, used, or disseminated by the
welfare system pertaining to persons licensed or registered or who apply for licensure
or registration or who formerly were licensed or registered under the authority of the
commissioner of human services;

(2) "client" means a person who is receiving services from a licensee or from an
applicant for licensure; and

(3) "personal and personal financial data" are Social Security numbers, identity
of and letters of reference, insurance information, reports from the Bureau of Criminal
Apprehension, health examination reports, and social/home studies.

(b)(1)(i) Except as provided in paragraph (c), the following data on applicants,
license holders, and former licensees are public: name, address, telephone number of
licensees, date of receipt of a completed application, dates of licensure, licensed capacity,
type of client preferred, variances granted, record of training and education in child care
and child development, type of dwelling, name and relationship of other family members,
previous license history, class of license, the existence and status of complaints, and the
number of serious injuries to or deaths of individuals in the licensed program as reported
to the commissioner of human services, the local social services agency, or any other
county welfare agency. For purposes of this clause, a serious injury is one that is treated
by a physician.

(ii) When a correction order, an order to forfeit a fine, an order of license suspension,
an order of temporary immediate suspension, an order of license revocation, an order
of license denial, or an order of conditional license has been issued, or a complaint is
resolved, the following data on current and former licensees and applicants are public: the
substance and investigative findings of the licensing or maltreatment complaint, licensing
violation, or substantiated maltreatment; the record of informal resolution of a licensing
violation; orders of hearing; findings of fact; conclusions of law; specifications of the final
correction order, fine, suspension, temporary immediate suspension, revocation, denial, or
conditional license contained in the record of licensing action; whether a fine has been
paid; and the status of any appeal of these actions.

(iii) When a license denial under section 245A.05 or a sanction under section
245A.07 is based on a determination that the license holder or applicant is responsible for
maltreatment under section 626.556 or 626.557, the identity of the applicant or license
holder as the individual responsible for maltreatment is public data at the time of the
issuance of the license denial or sanction.

(iv) When a license denial under section 245A.05 or a sanction under section
245A.07 is based on a determination that the license holder or applicant is disqualified
under chapter 245C, the identity of the license holder or applicant as the disqualified
individual and the reason for the disqualification are public data at the time of the
issuance of the licensing sanction or denial. If the applicant or license holder requests
reconsideration of the disqualification and the disqualification is affirmed, the reason for
the disqualification and the reason to not set aside the disqualification are public data.

(2) Notwithstanding sections 626.556, subdivision 11, and 626.557, subdivision 12b,
when any person subject to disqualification under section 245C.14 in connection with a
license to provide family day care for children, child care center services, foster care for
children in the provider's home, or foster care or day care services for adults in the provider's
home is a substantiated perpetrator of maltreatment, and the substantiated maltreatment is
a reason for a licensing action, the identity of the substantiated perpetrator of maltreatment
is public data. For purposes of this clause, a person is a substantiated perpetrator if the
maltreatment determination has been upheld under section 256.045; 626.556, subdivision
10i; 626.557, subdivision 9d; or chapter 14, or if an individual or facility has not timely
exercised appeal rights under these sections, except as provided under clause (1).

(3) For applicants who withdraw their application prior to licensure or denial of a
license, the following data are public: the name of the applicant, the city and county in
which the applicant was seeking licensure, the dates of the commissioner's receipt of the
initial application and completed application, the type of license sought, and the date
of withdrawal of the application.

(4) For applicants who are denied a license, the following data are public: the name
and address of the applicant, the city and county in which the applicant was seeking
licensure, the dates of the commissioner's receipt of the initial application and completed
application, the type of license sought, the date of denial of the application, the nature of
the basis for the denial, the record of informal resolution of a denial, orders of hearings,
findings of fact, conclusions of law, specifications of the final order of denial, and the
status of any appeal of the denial.

(5) new text begin Except as provided in paragraph (l), new text end the following data on persons subject to
disqualification under section 245C.14 in connection with a license to provide family day
care for children, child care center services, foster care for children in the provider's home,
or foster care or day care services for adults in the provider's home, are public: the nature
of any disqualification set aside under section 245C.22, subdivisions 2 and 4, and the
reasons for setting aside the disqualification; the nature of any disqualification for which
a variance was granted under sections 245A.04, subdivision 9; and 245C.30, and the
reasons for granting any variance under section 245A.04, subdivision 9; and, if applicable,
the disclosure that any person subject to a background study under section 245C.03,
subdivision 1, has successfully passed a background study. If a licensing sanction under
section 245A.07, or a license denial under section 245A.05, is based on a determination
that an individual subject to disqualification under chapter 245C is disqualified, the
disqualification as a basis for the licensing sanction or denial is public data. As specified
in clause (1), item (iv), if the disqualified individual is the license holder or applicant,
the identity of the license holder or applicant and the reason for the disqualification
are public data; and, if the license holder or applicant requested reconsideration of the
disqualification and the disqualification is affirmed, the reason for the disqualification and
the reason to not set aside the disqualification are public data. If the disqualified individual
is an individual other than the license holder or applicant, the identity of the disqualified
individual shall remain private data.

(6) When maltreatment is substantiated under section 626.556 or 626.557 and the
victim and the substantiated perpetrator are affiliated with a program licensed under
chapter 245A, the commissioner of human services, local social services agency, or
county welfare agency may inform the license holder where the maltreatment occurred of
the identity of the substantiated perpetrator and the victim.

(7) Notwithstanding clause (1), for child foster care, only the name of the license
holder and the status of the license are public if the county attorney has requested that data
otherwise classified as public data under clause (1) be considered private data based on the
best interests of a child in placement in a licensed program.

(c) The following are private data on individuals under section 13.02, subdivision
12, or nonpublic data under section 13.02, subdivision 9: personal and personal financial
data on family day care program and family foster care program applicants and licensees
and their family members who provide services under the license.

(d) The following are private data on individuals: the identity of persons who have
made reports concerning licensees or applicants that appear in inactive investigative data,
and the records of clients or employees of the licensee or applicant for licensure whose
records are received by the licensing agency for purposes of review or in anticipation of a
contested matter. The names of reporters of complaints or alleged violations of licensing
standards under chapters 245A, 245B, 245C, and applicable rules and alleged maltreatment
under sections 626.556 and 626.557, are confidential data and may be disclosed only as
provided in section 626.556, subdivision 11, or 626.557, subdivision 12b.

(e) Data classified as private, confidential, nonpublic, or protected nonpublic under
this subdivision become public data if submitted to a court or administrative law judge as
part of a disciplinary proceeding in which there is a public hearing concerning a license
which has been suspended, immediately suspended, revoked, or denied.

(f) Data generated in the course of licensing investigations that relate to an alleged
violation of law are investigative data under subdivision 3.

(g) Data that are not public data collected, maintained, used, or disseminated under
this subdivision that relate to or are derived from a report as defined in section 626.556,
subdivision 2, or 626.5572, subdivision 18, are subject to the destruction provisions of
sections 626.556, subdivision 11c, and 626.557, subdivision 12b.

(h) Upon request, not public data collected, maintained, used, or disseminated under
this subdivision that relate to or are derived from a report of substantiated maltreatment as
defined in section 626.556 or 626.557 may be exchanged with the Department of Health
for purposes of completing background studies pursuant to section 144.057 and with
the Department of Corrections for purposes of completing background studies pursuant
to section 241.021.

(i) Data on individuals collected according to licensing activities under chapters
245A and 245C, data on individuals collected by the commissioner of human services
according to investigations under chapters 245A, 245B, and 245C, and sections 626.556
and 626.557 may be shared with the Department of Human Rights, the Department
of Health, the Department of Corrections, the ombudsman for mental health and
developmental disabilities, and the individual's professional regulatory board when there
is reason to believe that laws or standards under the jurisdiction of those agencies may
have been violated or the information may otherwise be relevant to the board's regulatory
jurisdiction. Background study data on an individual who is the subject of a background
study under chapter 245C for a licensed service for which the commissioner of human
services is the license holder may be shared with the commissioner and the commissioner's
delegate by the licensing division. Unless otherwise specified in this chapter, the identity
of a reporter of alleged maltreatment or licensing violations may not be disclosed.

(j) In addition to the notice of determinations required under section 626.556,
subdivision 10f, if the commissioner or the local social services agency has determined
that an individual is a substantiated perpetrator of maltreatment of a child based on sexual
abuse, as defined in section 626.556, subdivision 2, and the commissioner or local social
services agency knows that the individual is a person responsible for a child's care in
another facility, the commissioner or local social services agency shall notify the head
of that facility of this determination. The notification must include an explanation of the
individual's available appeal rights and the status of any appeal. If a notice is given under
this paragraph, the government entity making the notification shall provide a copy of the
notice to the individual who is the subject of the notice.

(k) All not public data collected, maintained, used, or disseminated under this
subdivision and subdivision 3 may be exchanged between the Department of Human
Services, Licensing Division, and the Department of Corrections for purposes of
regulating services for which the Department of Human Services and the Department
of Corrections have regulatory authority.

new text begin (l) For individuals whose disqualification under chapter 245C was based only on
juvenile court records, and for which it was determined there have been no offenses in the
previous five or more years, the disqualification, the reason for the disqualification, and any
information about a set-aside shall be private data on the individual, and disclosed to the
program or entity that initiated the background study only as provided under chapter 245C.
new text end

Sec. 2.

Minnesota Statutes 2012, section 245C.04, is amended by adding a subdivision
to read:

new text begin Subd. 7. new text end

new text begin Initiation of background study by an individual. new text end

new text begin The commissioner shall
modify the online NETStudy system to allow an individual to initiate a background study
on himself or herself when the individual has only juvenile court records, and no adult
criminal history information on file with the courts or Bureau of Criminal Apprehension,
so that if disqualified, the individual may request a set-aside of the disqualification under
section 245C.22 before applying for employment with a program or agency required to
initiate a background study under this chapter. If the individual receives a set-aside of
the disqualification under section 245C.22, the provisions of section 245C.22 shall apply
to future background studies initiated by a program or entity under this chapter. The
commissioner shall collect a fee from the individual initiating the background study under
this subdivision according to the fee requirements for human services licensed programs
under section 245C.10, subdivision 9.
new text end

Sec. 3.

Minnesota Statutes 2012, section 245C.17, subdivision 2, is amended to read:

Subd. 2.

Disqualification notice sent to subject.

(a) If the information in the study
indicates the individual is disqualified from direct contact with, or from access to, persons
served by the program, the deleted text begin commissioner shall disclose deleted text end new text begin commissioner's notice new text end to the
individual studied new text begin shall include new text end :

(1) the information causing disqualification;

(2) instructions on how to request a reconsideration of the disqualification;

(3) an explanation of any restrictions on the commissioner's discretion to set aside
the disqualification under section 245C.24, when applicable to the individual;

(4) new text begin except as provided under paragraph (d), the commissioner's notice to the
individual will include new text end a statement that, if the individual's disqualification is set aside
under section 245C.22, the applicant, license holder, or other entity that initiated the
background study will be provided with the reason for the individual's disqualification
and an explanation that the factors under section 245C.22, subdivision 4, which were the
basis of the decision to set aside the disqualification shall be made available to the license
holder upon request without the consent of the subject of the background study;

(5) new text begin except as provided under paragraph (d), the commissioner's notice to the
individual will include new text end a statement indicating that if the individual's disqualification is set
aside or the facility is granted a variance under section 245C.30, the individual's identity
and the reason for the individual's disqualification will become public data under section
245C.22, subdivision 7, when applicable to the individual;

(6) new text begin except as provided under paragraph (d), the commissioner's notice to the
individual will include new text end a statement that when a subsequent background study is initiated
on the individual following a set-aside of the individual's disqualification, and the
commissioner makes a determination under section 245C.22, subdivision 5, paragraph
(b), that the previous set-aside applies to the subsequent background study, the applicant,
license holder, or other entity that initiated the background study will be informed in the
notice under section 245C.22, subdivision 5, paragraph (c):

(i) of the reason for the individual's disqualification;

(ii) that the individual's disqualification is set aside for that program or agency; and

(iii) that information about the factors under section 245C.22, subdivision 4, that
were the basis of the decision to set aside the disqualification are available to the license
holder upon request without the consent of the background study subject; and

(7) the commissioner's determination of the individual's immediate risk of harm
under section 245C.16.

(b) If the commissioner determines under section 245C.16 that an individual poses
an imminent risk of harm to persons served by the program where the individual will have
direct contact with, or access to, people receiving services, the commissioner's notice must
include an explanation of the basis of this determination.

(c) If the commissioner determines under section 245C.16 that an individual studied
does not pose a risk of harm that requires immediate removal, the individual shall be
informed of the conditions under which the agency that initiated the background study
may allow the individual to have direct contact with, or access to, people receiving
services, as provided under subdivision 3.

new text begin (d) For a disqualification based only on juvenile court records, and for which there
have been no offenses in the previous five or more years, and unless the commissioner
determines that the individual must be immediately removed or provided continuous
supervision under subdivision 3, the notice of disqualification sent to the individual
shall explain that:
new text end

new text begin (1) the notice to the program or agency that initiated the background study stated
only that more time is needed to complete the background study;
new text end

new text begin (2) if the disqualified individual submits a timely request for reconsideration and the
result is a rescission of the disqualification or a set-aside of the disqualification, the fact that
the individual was disqualified will not be made public or provided to the employer; and
new text end

new text begin (3) if the disqualification is rescinded or set aside, the commissioner shall send
the program or agency the same notification received by the program or agency for a
background study in which the individual studied has not been disqualified.
new text end

Sec. 4.

Minnesota Statutes 2012, section 245C.17, subdivision 3, is amended to read:

Subd. 3.

Disqualification notification new text begin to the applicant, license holder, or other
entity new text end .

(a) The commissioner shall notify an applicant, license holder, or other entity as
provided in this chapter who is not the subject of the study:

(1) that the commissioner has found information that disqualifies the individual
studied from being in a position allowing direct contact with, or access to, people served
by the program; and

(2) the commissioner's determination of the individual's risk of harm under section
245C.16.

(b) If the commissioner determines under section 245C.16 that an individual studied
poses an imminent risk of harm to persons served by the program where the individual
studied will have direct contact with, or access to, people served by the program, the
commissioner shall order the license holder to immediately remove the individual studied
from any position allowing direct contact with, or access to, people served by the program.

(c) If the commissioner determines under section 245C.16 that an individual studied
poses a risk of harm that requires continuous, direct supervision, the commissioner shall
order the applicant, license holder, or other entities as provided in this chapter to:

(1) immediately remove the individual studied from any position allowing direct
contact with, or access to, people receiving services; deleted text begin or
deleted text end

(2) before allowing the disqualified individual to be in a position allowing direct
contact with, or access to, people receiving services, the applicant, license holder, or other
entity, as provided in this chapter, must:

(i) obtain from the disqualified individual a copy of the individual's notice of
disqualification from the commissioner that explains the reason for disqualification;

(ii) ensure that the individual studied is under continuous, direct supervision when
in a position allowing direct contact with, or access to, people receiving services during
the period in which the individual may request a reconsideration of the disqualification
under section 245C.21; and

(iii) ensure that the disqualified individual requests reconsideration within 30 days of
receipt of the notice of disqualification new text begin ; or
new text end

new text begin (3) for a disqualification based only on juvenile court records, and there have been
no offenses in the previous five or more years, the notice under this paragraph shall not
require the program or entity to obtain from the individual a copy of the individual's notice
of disqualification under clause (2), item (i) new text end .

(d) new text begin Except as provided under paragraph (f), new text end if the commissioner determines under
section 245C.16 that an individual studied does not pose a risk of harm that requires
continuous, direct supervision, the commissioner shall order the applicant, license holder,
or other entities as provided in this chapter to:

(1) immediately remove the individual studied from any position allowing direct
contact with, or access to, people receiving services; or

(2) before allowing the disqualified individual to be in any position allowing direct
contact with, or access to, people receiving services, the applicant, license holder, or
other entity as provided in this chapter must:

(i) obtain from the disqualified individual a copy of the individual's notice of
disqualification from the commissioner that explains the reason for disqualification; and

(ii) ensure that the disqualified individual requests reconsideration within 15 days
of receipt of the notice of disqualification.

(e) The commissioner shall not notify the applicant, license holder, or other entity
as provided in this chapter of the information contained in the subject's background
study unless:

(1) the basis for the disqualification is failure to cooperate with the background study
or substantiated maltreatment under section 626.556 or 626.557;

(2) the Data Practices Act under chapter 13 provides for release of the information; or

(3) the individual studied authorizes the release of the information.

new text begin (f) When an individual's disqualification is based only on juvenile court records, and
there have been no offenses in the previous five or more years, and the commissioner does
not determine that the individual must be immediately removed according to paragraph (b)
or continuously supervised according to paragraph (c), the notice to the program or entity
shall not identify that the individual is disqualified, but state only that the commissioner
needs more time to complete the background study.
new text end

Sec. 5.

Minnesota Statutes 2012, section 245C.22, subdivision 5, is amended to read:

Subd. 5.

Scope of set-aside.

(a) If the commissioner sets aside a disqualification
under this section, the disqualified individual remains disqualified, but may hold a license
and have direct contact with or access to persons receiving services. Except as provided in
paragraph (b) new text begin or (c) new text end , the commissioner's set-aside of a disqualification is limited solely to
the licensed program, applicant, or agency specified in the set aside notice under section
245C.23. For personal care provider organizations, the commissioner's set-aside may
further be limited to a specific individual who is receiving services. For new background
studies required under section 245C.04, subdivision 1, paragraph (i), if an individual's
disqualification was previously set aside for the license holder's program and the new
background study results in no new information that indicates the individual may pose a
risk of harm to persons receiving services from the license holder, the previous set-aside
shall remain in effect.

(b) If the commissioner has previously set aside an individual's disqualification
for one or more programs or agencies, and the individual is the subject of a subsequent
background study for a different program or agency, the commissioner shall determine
whether the disqualification is set aside for the program or agency that initiated the
subsequent background study. A notice of a set-aside under paragraph (c) shall be issued
within 15 working days if all of the following criteria are met:

(1) the subsequent background study was initiated in connection with a program
licensed or regulated under the same provisions of law and rule for at least one program
for which the individual's disqualification was previously set aside by the commissioner;

(2) deleted text begin the individual is not disqualified for an offense specified in section 245C.15,
subdivision 1 or 2;
deleted text end

deleted text begin (3) deleted text end the commissioner has received no new information to indicate that the individual
may pose a risk of harm to any person served by the program; and

deleted text begin (4) deleted text end new text begin (3) new text end the previous set-aside was not limited to a specific person receiving services.

(c) new text begin Except as provided in paragraph (d), new text end when a disqualification is set aside under
paragraph (b), the notice of background study results issued under section 245C.17, in
addition to the requirements under section 245C.17, shall state that the disqualification is
set aside for the program or agency that initiated the subsequent background study. The
notice must inform the individual that the individual may request reconsideration of the
disqualification under section 245C.21 on the basis that the information used to disqualify
the individual is incorrect.

new text begin (d) When a disqualification is set aside under paragraph (b) for a disqualification
based only on juvenile court records, the notice of background study results issued to
the program or agency by the commissioner under section 245C.17 shall be the same
notification received by the program or agency for a background study in which the
individual studied has no disqualifying characteristic.
new text end

Sec. 6.

Minnesota Statutes 2012, section 245C.24, subdivision 2, is amended to read:

Subd. 2.

Permanent bar to set aside a disqualification.

(a) Except as provided in
paragraph (b), 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 deleted text begin crime or conduct listed in section 245C.15, subdivision
1 deleted text end new text begin conviction under section 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); 609.342 (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);
or 609.365 (incest) new text end .

(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.