SF 2032

as introduced - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to professions and occupations; modifying 
  1.3             criminal background checks for certain health and 
  1.4             human services workers; amending Minnesota Statutes 
  1.5             1998, section 245A.04, subdivision 3. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  Minnesota Statutes 1998, section 245A.04, 
  1.8   subdivision 3, is amended to read: 
  1.9      Subd. 3.  [BACKGROUND STUDY OF THE APPLICANT.] (a) Before 
  1.10  the commissioner issues a license, the commissioner shall 
  1.11  conduct a study of the individuals specified in paragraph (c), 
  1.12  clauses (1) to (5), according to rules of the commissioner.  
  1.13     Beginning January 1, 1997, the commissioner shall also 
  1.14  conduct a study of employees providing direct contact services 
  1.15  for nonlicensed personal care provider organizations described 
  1.16  in paragraph (c), clause (5). 
  1.17     The commissioner shall recover the cost of these background 
  1.18  studies through a fee of no more than $12 per study charged to 
  1.19  the personal care provider organization.  
  1.20     Beginning August 1, 1997, the commissioner shall conduct 
  1.21  all background studies required under this chapter for adult 
  1.22  foster care providers who are licensed by the commissioner of 
  1.23  human services and registered under chapter 144D.  The 
  1.24  commissioner shall conduct these background studies in 
  1.25  accordance with this chapter.  The commissioner shall initiate a 
  2.1   pilot project to conduct up to 5,000 background studies under 
  2.2   this chapter in programs with joint licensure as home and 
  2.3   community-based services and adult foster care for people with 
  2.4   developmental disabilities when the license holder does not 
  2.5   reside in the foster care residence. 
  2.6      (b) Beginning July 1, 1998, the commissioner shall conduct 
  2.7   a background study on individuals specified in paragraph (c), 
  2.8   clauses (1) to (5), who perform direct contact services in a 
  2.9   nursing home or a home care agency licensed under chapter 144A 
  2.10  or a boarding care home licensed under sections 144.50 to 
  2.11  144.58, when the subject of the study resides outside Minnesota; 
  2.12  the study must be at least as comprehensive as that of a 
  2.13  Minnesota resident and include a search of information from the 
  2.14  criminal justice data communications network in the state where 
  2.15  the subject of the study resides. 
  2.16     (c) The applicant, license holder, the bureau of criminal 
  2.17  apprehension, the commissioner of health and county agencies, 
  2.18  after written notice to the individual who is the subject of the 
  2.19  study, shall help with the study by giving the commissioner 
  2.20  criminal conviction data and reports about the maltreatment of 
  2.21  adults substantiated under section 626.557 and the maltreatment 
  2.22  of minors in licensed programs substantiated under section 
  2.23  626.556.  The commissioner shall collect the same information 
  2.24  from corresponding agencies in other states.  The individuals to 
  2.25  be studied shall include: 
  2.26     (1) the applicant; 
  2.27     (2) persons over the age of 13 living in the household 
  2.28  where the licensed program will be provided; 
  2.29     (3) current employees or contractors of the applicant who 
  2.30  will have direct contact with persons served by the facility, 
  2.31  agency, or program; 
  2.32     (4) volunteers or student volunteers who have direct 
  2.33  contact with persons served by the program to provide program 
  2.34  services, if the contact is not directly supervised by the 
  2.35  individuals listed in clause (1) or (3); and 
  2.36     (5) any person who, as an individual or as a member of an 
  3.1   organization, exclusively offers, provides, or arranges for 
  3.2   personal care assistant services under the medical assistance 
  3.3   program as authorized under sections 256B.04, subdivision 16, 
  3.4   and 256B.0625, subdivision 19. 
  3.5      The juvenile courts shall also help with the study by 
  3.6   giving the commissioner existing juvenile court records on 
  3.7   individuals described in clause (2) relating to delinquency 
  3.8   proceedings held within either the five years immediately 
  3.9   preceding the application or the five years immediately 
  3.10  preceding the individual's 18th birthday, whichever time period 
  3.11  is longer.  The commissioner shall destroy juvenile records 
  3.12  obtained pursuant to this subdivision when the subject of the 
  3.13  records reaches age 23.  
  3.14     For purposes of this section and Minnesota Rules, part 
  3.15  9543.3070, a finding that a delinquency petition is proven in 
  3.16  juvenile court shall be considered a conviction in state 
  3.17  district court. 
  3.18     For purposes of this subdivision, "direct contact" means 
  3.19  providing face-to-face care, training, supervision, counseling, 
  3.20  consultation, or medication assistance to persons served by a 
  3.21  program.  For purposes of this subdivision, "directly supervised"
  3.22  means an individual listed in clause (1), (3), or (5) is within 
  3.23  sight or hearing of a volunteer to the extent that the 
  3.24  individual listed in clause (1), (3), or (5) is capable at all 
  3.25  times of intervening to protect the health and safety of the 
  3.26  persons served by the program who have direct contact with the 
  3.27  volunteer. 
  3.28     A study of an individual in clauses (1) to (5) shall be 
  3.29  conducted at least upon application for initial license and 
  3.30  reapplication for a license.  The commissioner is not required 
  3.31  to conduct a study of an individual at the time of reapplication 
  3.32  for a license or if the individual has been continuously 
  3.33  affiliated with a foster care provider licensed by the 
  3.34  commissioner of human services and registered under chapter 
  3.35  144D, other than a family day care or foster care license, if:  
  3.36  (i) a study of the individual was conducted either at the time 
  4.1   of initial licensure or when the individual became affiliated 
  4.2   with the license holder; (ii) the individual has been 
  4.3   continuously affiliated with the license holder since the last 
  4.4   study was conducted; and (iii) the procedure described in 
  4.5   paragraph (d) has been implemented and was in effect 
  4.6   continuously since the last study was conducted.  For the 
  4.7   purposes of this section, a physician licensed under chapter 147 
  4.8   is considered to be continuously affiliated upon the license 
  4.9   holder's receipt from the commissioner of health or human 
  4.10  services of the physician's background study results.  For 
  4.11  individuals who are required to have background studies under 
  4.12  clauses (1) to (5) and who have been continuously affiliated 
  4.13  with a foster care provider that is licensed in more than one 
  4.14  county, criminal conviction data may be shared among those 
  4.15  counties in which the foster care programs are licensed.  A 
  4.16  county agency's receipt of criminal conviction data from another 
  4.17  county agency shall meet the criminal data background study 
  4.18  requirements of this section. 
  4.19     The commissioner may also conduct studies on individuals 
  4.20  specified in clauses (3) and (4) when the studies are initiated 
  4.21  by: 
  4.22     (i) personnel pool agencies; 
  4.23     (ii) temporary personnel agencies; 
  4.24     (iii) educational programs that train persons by providing 
  4.25  direct contact services in licensed programs; and 
  4.26     (iv) professional services agencies that are not licensed 
  4.27  and which contract with licensed programs to provide direct 
  4.28  contact services or individuals who provide direct contact 
  4.29  services. 
  4.30     Studies on individuals in items (i) to (iv) must be 
  4.31  initiated annually by these agencies, programs, and 
  4.32  individuals.  Except for personal care provider organizations, 
  4.33  no applicant, license holder, or individual who is the subject 
  4.34  of the study shall pay any fees required to conduct the study. 
  4.35     (1) At the option of the licensed facility, rather than 
  4.36  initiating another background study on an individual required to 
  5.1   be studied who has indicated to the licensed facility that a 
  5.2   background study by the commissioner was previously completed, 
  5.3   the facility may make a request to the commissioner for 
  5.4   documentation of the individual's background study status, 
  5.5   provided that: 
  5.6      (i) the facility makes this request using a form provided 
  5.7   by the commissioner; 
  5.8      (ii) in making the request the facility informs the 
  5.9   commissioner that either: 
  5.10     (A) the individual has been continuously affiliated with a 
  5.11  licensed facility since the individual's previous background 
  5.12  study was completed, or since October 1, 1995, whichever is 
  5.13  shorter; or 
  5.14     (B) the individual is affiliated only with a personnel pool 
  5.15  agency, a temporary personnel agency, an educational program 
  5.16  that trains persons by providing direct contact services in 
  5.17  licensed programs, or a professional services agency that is not 
  5.18  licensed and which contracts with licensed programs to provide 
  5.19  direct contact services or individuals who provide direct 
  5.20  contact services; and 
  5.21     (iii) the facility provides notices to the individual as 
  5.22  required in paragraphs (a) to (d), and that the facility is 
  5.23  requesting written notification of the individual's background 
  5.24  study status from the commissioner.  
  5.25     (2) The commissioner shall respond to each request under 
  5.26  paragraph (1) with a written or electronic notice to the 
  5.27  facility and the study subject.  If the commissioner determines 
  5.28  that a background study is necessary, the study shall be 
  5.29  completed without further request from a licensed agency or 
  5.30  notifications to the study subject.  
  5.31     (3) When a background study is being initiated by a 
  5.32  licensed facility or a foster care provider that is also 
  5.33  registered under chapter 144D, a study subject affiliated with 
  5.34  multiple licensed facilities may attach to the background study 
  5.35  form a cover letter indicating the additional facilities' names, 
  5.36  addresses, and background study identification numbers.  When 
  6.1   the commissioner receives such notices, each facility identified 
  6.2   by the background study subject shall be notified of the study 
  6.3   results.  The background study notice sent to the subsequent 
  6.4   agencies shall satisfy those facilities' responsibilities for 
  6.5   initiating a background study on that individual. 
  6.6      (d) If an individual who is affiliated with a program or 
  6.7   facility regulated by the department of human services or 
  6.8   department of health or who is affiliated with a nonlicensed 
  6.9   personal care provider organization, is convicted of a crime 
  6.10  constituting a disqualification under subdivision 3d, the 
  6.11  probation officer or corrections agent shall notify the 
  6.12  commissioner of the conviction.  The commissioner, in 
  6.13  consultation with the commissioner of corrections, shall develop 
  6.14  forms and information necessary to implement this paragraph and 
  6.15  shall provide the forms and information to the commissioner of 
  6.16  corrections for distribution to local probation officers and 
  6.17  corrections agents.  The commissioner shall inform individuals 
  6.18  subject to a background study that criminal convictions for 
  6.19  disqualifying crimes will be reported to the commissioner by the 
  6.20  corrections system.  A probation officer, corrections agent, or 
  6.21  corrections agency is not civilly or criminally liable for 
  6.22  disclosing or failing to disclose the information required by 
  6.23  this paragraph.  Upon receipt of disqualifying information, the 
  6.24  commissioner shall provide the notifications required in 
  6.25  subdivision 3a, as appropriate to agencies on record as having 
  6.26  initiated a background study or making a request for 
  6.27  documentation of the background study status of the individual.  
  6.28  This paragraph does not apply to family day care and child 
  6.29  foster care programs. 
  6.30     (e) The individual who is the subject of the study must 
  6.31  provide the applicant or license holder with sufficient 
  6.32  information to ensure an accurate study including the 
  6.33  individual's first, middle, and last name; home address, city, 
  6.34  county, and state of residence for the past five years; zip 
  6.35  code; sex; date of birth; and driver's license number.  The 
  6.36  applicant or license holder shall provide this information about 
  7.1   an individual in paragraph (c), clauses (1) to (5), on forms 
  7.2   prescribed by the commissioner.  By January 1, 2000, for 
  7.3   background studies conducted by the department of human 
  7.4   services, the commissioner shall implement a system for the 
  7.5   electronic transmission of:  (1) background study information to 
  7.6   the commissioner; and (2) background study results to the 
  7.7   license holder.  The commissioner may request additional 
  7.8   information of the individual, which shall be optional for the 
  7.9   individual to provide, such as the individual's social security 
  7.10  number or race. 
  7.11     (f) Except for child foster care, adult foster care, and 
  7.12  family day care homes, a study must include information related 
  7.13  to names of substantiated perpetrators of maltreatment of 
  7.14  vulnerable adults that has been received by the commissioner as 
  7.15  required under section 626.557, subdivision 9c, paragraph (i), 
  7.16  and the commissioner's records relating to the maltreatment of 
  7.17  minors in licensed programs, information from juvenile courts as 
  7.18  required in paragraph (c) for persons listed in paragraph (c), 
  7.19  clause (2), and information from the bureau of criminal 
  7.20  apprehension.  For child foster care, adult foster care, and 
  7.21  family day care homes, the study must include information from 
  7.22  the county agency's record of substantiated maltreatment of 
  7.23  adults, and the maltreatment of minors, information from 
  7.24  juvenile courts as required in paragraph (c) for persons listed 
  7.25  in paragraph (c), clause (2), and information from the bureau of 
  7.26  criminal apprehension.  The commissioner may shall also review 
  7.27  arrest and investigative information from the bureau of criminal 
  7.28  apprehension, the commissioner of health, a county attorney, 
  7.29  county sheriff, county agency, local chief of police, other 
  7.30  states, the courts, or the Federal Bureau of Investigation if 
  7.31  the commissioner has reasonable cause to believe the information 
  7.32  is pertinent to the disqualification of an individual listed in 
  7.33  paragraph (c), clauses (1) to (5).  The commissioner is not 
  7.34  required to conduct more than one review of a subject's records 
  7.35  from the Federal Bureau of Investigation if a review of the 
  7.36  subject's criminal history with the Federal Bureau of 
  8.1   Investigation has already been completed by the commissioner and 
  8.2   there has been no break in the subject's affiliation with the 
  8.3   license holder who initiated the background studies. 
  8.4      When the commissioner has reasonable cause to believe that 
  8.5   further pertinent information may exist on the subject, the 
  8.6   subject shall provide a set of classifiable fingerprints 
  8.7   obtained from an authorized law enforcement agency.  For 
  8.8   purposes of requiring fingerprints, the commissioner shall be 
  8.9   considered to have reasonable cause under, but not limited to, 
  8.10  the following circumstances: 
  8.11     (1) information from the bureau of criminal apprehension 
  8.12  indicates that the subject is a multistate offender; 
  8.13     (2) information from the bureau of criminal apprehension 
  8.14  indicates that multistate offender status is undetermined; or 
  8.15     (3) the commissioner has received a report from the subject 
  8.16  or a third party indicating that the subject has a criminal 
  8.17  history in a jurisdiction other than Minnesota. 
  8.18     (g) An applicant's or license holder's failure or refusal 
  8.19  to cooperate with the commissioner is reasonable cause to 
  8.20  disqualify a subject, deny a license application or immediately 
  8.21  suspend, suspend, or revoke a license.  Failure or refusal of an 
  8.22  individual to cooperate with the study is just cause for denying 
  8.23  or terminating employment of the individual if the individual's 
  8.24  failure or refusal to cooperate could cause the applicant's 
  8.25  application to be denied or the license holder's license to be 
  8.26  immediately suspended, suspended, or revoked. 
  8.27     (h) The commissioner shall not consider an application to 
  8.28  be complete until all of the information required to be provided 
  8.29  under this subdivision has been received.  
  8.30     (i) No person in paragraph (c), clause (1), (2), (3), (4), 
  8.31  or (5) who is disqualified as a result of this section may be 
  8.32  retained by the agency in a position involving direct contact 
  8.33  with persons served by the program. 
  8.34     (j) Termination of persons in paragraph (c), clause (1), 
  8.35  (2), (3), (4), or (5), made in good faith reliance on a notice 
  8.36  of disqualification provided by the commissioner shall not 
  9.1   subject the applicant or license holder to civil liability. 
  9.2      (k) The commissioner may establish records to fulfill the 
  9.3   requirements of this section. 
  9.4      (l) The commissioner may not disqualify an individual 
  9.5   subject to a study under this section because that person has, 
  9.6   or has had, a mental illness as defined in section 245.462, 
  9.7   subdivision 20. 
  9.8      (m) An individual subject to disqualification under this 
  9.9   subdivision has the applicable rights in subdivision 3a, 3b, or 
  9.10  3c.