1st Engrossment - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to human services; making changes to 1.3 licensing provisions; amending Minnesota Statutes 1.4 2002, sections 245.814, subdivision 1; 245A.02, 1.5 subdivisions 2a, 5a, 7, 10, 14, by adding a 1.6 subdivision; 245A.03, subdivision 3; 245A.04, 1.7 subdivisions 5, 6, 7, by adding a subdivision; 1.8 245A.05; 245A.06, subdivisions 2, 4; 245A.07, 1.9 subdivisions 2, 2a, 3; 245A.08, subdivision 5; 1.10 245A.16, subdivision 4; 245A.22, subdivision 2; 1.11 245B.02, by adding a subdivision; 245B.05, subdivision 1.12 2; 245B.07, subdivisions 8, 12; 252.28, subdivision 1; 1.13 Minnesota Statutes 2003 Supplement, sections 241.021, 1.14 subdivision 6; 245A.03, subdivision 2; 245A.04, 1.15 subdivision 1; 245A.08, subdivisions 1, 2a; 245A.085; 1.16 245A.16, subdivision 1; 245A.22, subdivision 3; 1.17 245C.02, subdivision 18; 245C.03, subdivision 1, by 1.18 adding a subdivision; 245C.05, subdivisions 1, 2, 5, 1.19 6; 245C.08, subdivisions 2, 3, 4; 245C.09, subdivision 1.20 1; 245C.13, subdivision 1; 245C.14, subdivision 1; 1.21 245C.15, subdivisions 2, 3, 4; 245C.16, subdivision 1; 1.22 245C.17, subdivisions 1, 3; 245C.18; 245C.20; 245C.21, 1.23 subdivision 3, by adding a subdivision; 245C.22, 1.24 subdivisions 3, 4, 5, 6; 245C.23, subdivisions 1, 2; 1.25 245C.25; 245C.26; 245C.27, subdivisions 1, 2; 245C.28, 1.26 subdivisions 1, 2, 3; 245C.29, subdivision 2; 256.045, 1.27 subdivisions 3, 3b; 626.556, subdivision 10i; 626.557, 1.28 subdivision 9d; proposing coding for new law in 1.29 Minnesota Statutes, chapters 245A; 245B; repealing 1.30 Minnesota Statutes 2003 Supplement, section 245C.02, 1.31 subdivision 17; Minnesota Rules, parts 9525.1600; 1.32 9543.0040, subpart 3; 9543.1000; 9543.1010; 9543.1020; 1.33 9543.1030; 9543.1040; 9543.1050. 1.34 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.35 ARTICLE 1 1.36 HUMAN SERVICES 1.37 Section 1. Minnesota Statutes 2002, section 245.814, 1.38 subdivision 1, is amended to read: 1.39 Subdivision 1. [INSURANCE FOR FOSTER HOME PROVIDERS.] The 2.1 commissioner of human services shall within the appropriation 2.2 provided purchase and provide insurance to individuals licensed 2.3 as foster home providers to cover their liability for: 2.4 (1) injuries or property damage caused or sustained by 2.5 persons in foster care in their home; and 2.6 (2) actions arising out of alienation of affections 2.7 sustained by the birth parents of a foster child or birth 2.8 parents or children of a foster adult. 2.9 For purposes of this subdivision, insurance for homes 2.10 licensed to provide adult foster care shall be limited to family 2.11 adult foster care homes as defined in section 144D.01, 2.12 subdivision 7, and family adult day services licensed under 2.13 section 245A.143. 2.14 Sec. 2. Minnesota Statutes 2002, section 245A.02, 2.15 subdivision 2a, is amended to read: 2.16 Subd. 2a. [ADULT DAY CARE OR FAMILY ADULT DAY SERVICES.] 2.17 "Adult day care,"
means"adult day services," and "family adult 2.18 day services" mean a program operating less than 24 hours per 2.19 day that provides functionally impaired adults with an 2.20 individualized and coordinated set of services including health 2.21 services, social services, and nutritional services that are 2.22 directed at maintaining or improving the participants' 2.23 capabilities for self-care. Adult day care does, adult day 2.24 services, and family adult day services do not include programs 2.25 where adults gather or congregate primarily for purposes of 2.26 socialization, education, supervision, caregiver respite, 2.27 religious expression, exercise, or nutritious meals. 2.28 Sec. 3. Minnesota Statutes 2002, section 245A.02, 2.29 subdivision 5a, is amended to read: 2.30 Subd. 5a. [CONTROLLING INDIVIDUAL.] "Controlling 2.31 individual" means a public body, governmental agency, business 2.32 entity, officer, program administrator, or directorowner, or 2.33 managerial official whose responsibilities include the direction 2.34 of the management or policies of a program. Controlling2.35 individual also means an individual who, directly or indirectly,2.36 beneficially owns an interest in a corporation, partnership, or3.1 other business association that is a controlling individualFor 3.2 purposes of this subdivision, owner means an individual who has 3.3 direct or indirect ownership interest in a corporation, 3.4 partnership, or other business association issued a license 3.5 under this chapter. For purposes of this subdivision, 3.6 managerial official means those individuals who have the 3.7 decision-making authority related to the operation of the 3.8 program, and the responsibility for the ongoing management of or 3.9 direction of the policies, services, or employees of the 3.10 program. Controlling individual does not include: 3.11 (1) a bank, savings bank, trust company, savings 3.12 association, credit union, industrial loan and thrift company, 3.13 investment banking firm, or insurance company unless the entity 3.14 operates a program directly or through a subsidiary; 3.15 (2) an individual who is a state or federal official, or 3.16 state or federal employee, or a member or employee of the 3.17 governing body of a political subdivision of the state or 3.18 federal government that operates one or more programs, unless 3.19 the individual is also an officer, owner, or directormanagerial 3.20 official of the program, receives remuneration from the program, 3.21 or owns any of the beneficial interests not excluded in this 3.22 subdivision; 3.23 (3) an individual who owns less than five percent of the 3.24 outstanding common shares of a corporation: 3.25 (i) whose securities are exempt under section 80A.15, 3.26 subdivision 1, clause (f); or 3.27 (ii) whose transactions are exempt under section 80A.15, 3.28 subdivision 2, clause (b); or 3.29 (4) an individual who is a member of an organization exempt 3.30 from taxation under section 290.05, unless the individual is 3.31 also an officer, owner, or directormanagerial official of the 3.32 program or owns any of the beneficial interests not excluded in 3.33 this subdivision. This clause does not exclude from the 3.34 definition of controlling individual an organization that is 3.35 exempt from taxation. 3.36 Sec. 4. Minnesota Statutes 2002, section 245A.02, is 4.1 amended by adding a subdivision to read: 4.2 Subd. 6c. [FOSTER CARE FOR ADULTS.] "Foster care for 4.3 adults" means a program operating 24 hours a day that provides 4.4 functionally impaired adults with food, lodging, protection, 4.5 supervision, and household services in a residence, in addition 4.6 to services according to the individual service plans under 4.7 Minnesota Rules, part 9555.5105, subpart 18. 4.8 Sec. 5. Minnesota Statutes 2002, section 245A.02, 4.9 subdivision 7, is amended to read: 4.10 Subd. 7. [FUNCTIONAL IMPAIRMENT.] For the purposes of 4.11 adult day care, adult day services, family adult day services, 4.12 or adult foster care, "functional impairment" means: 4.13 (1) a condition that is characterized by substantial 4.14 difficulty in carrying out one or more of the essential major 4.15 activities of daily living, such as caring for oneself, 4.16 performing manual tasks, walking, seeing, hearing, speaking, 4.17 breathing, learning, working; or 4.18 (2) a disorder of thought or mood that significantly 4.19 impairs judgment, behavior, capacity to recognize reality, or 4.20 ability to cope with the ordinary demands of life and that 4.21 requires support to maintain independence in the community. 4.22 Sec. 6. Minnesota Statutes 2002, section 245A.02, 4.23 subdivision 10, is amended to read: 4.24 Subd. 10. [NONRESIDENTIAL PROGRAM.] "Nonresidential 4.25 program" means care, supervision, rehabilitation, training or 4.26 habilitation of a person provided outside the person's own home 4.27 and provided for fewer than 24 hours a day, including adult day 4.28 care programs; a nursing home that receives public funds to4.29 provide services for five or more persons whose primary4.30 diagnosis is mental retardation or a related condition or mental4.31 illness and who do not have a significant physical or medical4.32 problem that necessitates nursing home care; a nursing home or4.33 hospital that was licensed by the commissioner on July 1, 1987,4.34 to provide a program for persons with a physical handicap that4.35 is not the result of the normal aging process and considered to4.36 be a chronic condition;and chemical dependency or chemical 5.1 abuse programs that are located in a nursing home or hospital 5.2 and receive public funds for providing chemical abuse or 5.3 chemical dependency treatment services under chapter 254B. 5.4 Nonresidential programs include home and community-based 5.5 services and semi-independent living services for persons with 5.6 mental retardation or a related condition that are provided in 5.7 or outside of a person's own home. 5.8 Sec. 7. Minnesota Statutes 2002, section 245A.02, 5.9 subdivision 14, is amended to read: 5.10 Subd. 14. [RESIDENTIAL PROGRAM.] "Residential program" 5.11 means a program that provides 24-hour-a-day care, supervision, 5.12 food, lodging, rehabilitation, training, education, 5.13 habilitation, or treatment outside a person's own home, 5.14 including a nursing home or hospital that receives public funds,5.15 administered by the commissioner, to provide services for five5.16 or more persons whose primary diagnosis is mental retardation or5.17 a related condition or mental illness and who do not have a5.18 significant physical or medical problem that necessitates5.19 nursing home care;a program in an intermediate care facility 5.20 for four or more persons with mental retardation or a related 5.21 condition; a nursing home or hospital that was licensed by the5.22 commissioner on July 1, 1987, to provide a program for persons5.23 with a physical handicap that is not the result of the normal5.24 aging process and considered to be a chronic condition;and 5.25 chemical dependency or chemical abuse programs that are located 5.26 in a hospital or nursing home and receive public funds for 5.27 providing chemical abuse or chemical dependency treatment 5.28 services under chapter 254B. Residential programs include home 5.29 and community-based services for persons with mental retardation 5.30 or a related condition that are provided in or outside of a 5.31 person's own home. 5.32 Sec. 8. Minnesota Statutes 2003 Supplement, section 5.33 245A.03, subdivision 2, is amended to read: 5.34 Subd. 2. [EXCLUSION FROM LICENSURE.] (a) This chapter does 5.35 not apply to: 5.36 (1) residential or nonresidential programs that are 6.1 provided to a person by an individual who is related unless the 6.2 residential program is a child foster care placement made by a 6.3 local social services agency or a licensed child-placing agency, 6.4 except as provided in subdivision 2a; 6.5 (2) nonresidential programs that are provided by an 6.6 unrelated individual to persons from a single related family; 6.7 (3) residential or nonresidential programs that are 6.8 provided to adults who do not abuse chemicals or who do not have 6.9 a chemical dependency, a mental illness, mental retardation or a 6.10 related condition, a functional impairment, or a physical 6.11 handicap; 6.12 (4) sheltered workshops or work activity programs that are 6.13 certified by the commissioner of economic security; 6.14 (5) programs operated by a public school for children 6.15 enrolled in kindergarten to the 12th grade and prekindergarten6.16 special education in a school as defined in section 120A.22,6.17 subdivision 4, and programs serving children in combined special6.18 education and regular prekindergarten programs that are operated6.19 or assisted by the commissioner of education33 months or older; 6.20 (6) nonresidential programs primarily for children that 6.21 provide care or supervision , without charge for ten or fewer6.22 days a year, andfor periods of less than three hours a day 6.23 while the child's parent or legal guardian is in the same 6.24 building as the nonresidential program or present within another 6.25 building that is directly contiguous to the building in which 6.26 the nonresidential program is located; 6.27 (7) nursing homes or hospitals licensed by the commissioner 6.28 of health except as specified under section 245A.02; 6.29 (8) board and lodge facilities licensed by the commissioner 6.30 of health that provide services for five or more persons whose 6.31 primary diagnosis is mental illness who have refused an6.32 appropriate residential program offered by a county agencythat 6.33 do not provide intensive residential treatment; 6.34 (9) homes providing programs for persons placed there by a 6.35 licensed agency for legal adoption, unless the adoption is not 6.36 completed within two years; 7.1 (10) programs licensed by the commissioner of corrections; 7.2 (11) recreation programs for children or adults that 7.3 operate for fewer than 40 calendar days in a calendar year or7.4 programs operatedare operated or approved by a park and 7.5 recreation board of a city of the first classwhose primary 7.6 purpose is to provide social and recreational activities to7.7 school age children, provided the program is approved by the7.8 park and recreation board; 7.9 (12) programs operated by a school as defined in section 7.10 120A.22, subdivision 4, whose primary purpose is to provide 7.11 child care to school-age children , provided the program is7.12 approved by the district's school board; 7.13 (13) Head Start nonresidential programs which operate for 7.14 less than 31 days in each calendar year; 7.15 (14) noncertified boarding care homes unless they provide 7.16 services for five or more persons whose primary diagnosis is 7.17 mental illness or mental retardation; 7.18 (15) nonresidential programs for nonhandicappedchildren 7.19 provided for a cumulative total of less than 30 days in any 7.20 12-month period; 7.21 (16) residential programs for persons with mental illness, 7.22 that are located in hospitals , until the commissioner adopts7.23 appropriate rules; 7.24 (17) the religious instruction of school-age children; 7.25 Sabbath or Sunday schools; or the congregate care of children by 7.26 a church, congregation, or religious society during the period 7.27 used by the church, congregation, or religious society for its 7.28 regular worship; 7.29 (18) camps licensed by the commissioner of health under 7.30 Minnesota Rules, chapter 4630; 7.31 (19) mental health outpatient services for adults with 7.32 mental illness or children with emotional disturbance; 7.33 (20) residential programs serving school-age children whose 7.34 sole purpose is cultural or educational exchange, until the 7.35 commissioner adopts appropriate rules; 7.36 (21) unrelated individuals who provide out-of-home respite 8.1 care services to persons with mental retardation or related 8.2 conditions from a single related family for no more than 90 days 8.3 in a 12-month period and the respite care services are for the 8.4 temporary relief of the person's family or legal representative; 8.5 (22) respite care services provided as a home and 8.6 community-based service to a person with mental retardation or a 8.7 related condition, in the person's primary residence; 8.8 (23) community support services programs as defined in 8.9 section 245.462, subdivision 6, and family community support 8.10 services as defined in section 245.4871, subdivision 17; 8.11 (24) the placement of a child by a birth parent or legal 8.12 guardian in a preadoptive home for purposes of adoption as 8.13 authorized by section 259.47; 8.14 (25) settings registered under chapter 144D which provide 8.15 home care services licensed by the commissioner of health to 8.16 fewer than seven adults; or 8.17 (26) consumer-directed community support service funded 8.18 under the Medicaid waiver for persons with mental retardation 8.19 and related conditions when the individual who provided the 8.20 service is: 8.21 (i) the same individual who is the direct payee of these 8.22 specific waiver funds or paid by a fiscal agent, fiscal 8.23 intermediary, or employer of record; and 8.24 (ii) not otherwise under the control of a residential or 8.25 nonresidential program that is required to be licensed under 8.26 this chapter when providing the service. 8.27 (b) For purposes of paragraph (a), clause (6), a building 8.28 is directly contiguous to a building in which a nonresidential 8.29 program is located if it shares a common wall with the building 8.30 in which the nonresidential program is located or is attached to 8.31 that building by skyway, tunnel, atrium, or common roof. 8.32 (c) Nothing in this chapter shall be construed to require 8.33 licensure for any services provided and funded according to an 8.34 approved federal waiver plan where licensure is specifically 8.35 identified as not being a condition for the services and funding. 8.36 Sec. 9. Minnesota Statutes 2002, section 245A.03, 9.1 subdivision 3, is amended to read: 9.2 Subd. 3. [UNLICENSED PROGRAMS.] (a) It is a misdemeanor 9.3 for an individual, corporation, partnership, voluntary 9.4 association, other organization, or a controlling individual to 9.5 provide a residential or nonresidential program without a 9.6 license and in willful disregard of this chapter unless the 9.7 program is excluded from licensure under subdivision 2. 9.8 (b) If, after receiving notice that a license is required,9.9 the individual, corporation, partnership, voluntary association,9.10 other organization, or controlling individual has failed to9.11 apply for a license,The commissioner may ask the appropriate 9.12 county attorney or the attorney general to begin proceedings to 9.13 secure a court order against the continued operation of the 9.14 program, if an individual, corporation, partnership, voluntary 9.15 association, other organization, or controlling individual has: 9.16 (1) failed to apply for a license after receiving notice that a 9.17 license is required; (2) continued to operate without a license 9.18 after the license has been revoked or suspended under section 9.19 245A.07, and the commissioner has issued a final order affirming 9.20 the revocation or suspension, or the license holder did not 9.21 timely appeal the sanction; or (3) continued to operate without 9.22 a license after the license has been temporarily suspended under 9.23 section 245A.07. The county attorney and the attorney general 9.24 have a duty to cooperate with the commissioner. 9.25 Sec. 10. Minnesota Statutes 2003 Supplement, section 9.26 245A.04, subdivision 1, is amended to read: 9.27 Subdivision 1. [APPLICATION FOR LICENSURE.] (a) An 9.28 individual, corporation, partnership, voluntary association, 9.29 other organization or controlling individual that is subject to 9.30 licensure under section 245A.03 must apply for a license. The 9.31 application must be made on the forms and in the manner 9.32 prescribed by the commissioner. The commissioner shall provide 9.33 the applicant with instruction in completing the application and 9.34 provide information about the rules and requirements of other 9.35 state agencies that affect the applicant. An applicant seeking 9.36 licensure in Minnesota with headquarters outside of Minnesota 10.1 must have a program office located within the state. 10.2 The commissioner shall act on the application within 90 10.3 working days after a complete application and any required 10.4 reports have been received from other state agencies or 10.5 departments, counties, municipalities, or other political 10.6 subdivisions. The commissioner shall not consider an 10.7 application to be complete until the commissioner receives all 10.8 of the information required under section 245C.05. 10.9 (b) An application for licensure must specify one or more 10.10 controlling individuals as an agent who is responsible for 10.11 dealing with the commissioner of human services on all matters 10.12 provided for in this chapter and on whom service of all notices 10.13 and orders must be made. The agent must be authorized to accept 10.14 service on behalf of all of the controlling individuals of the 10.15 program. Service on the agent is service on all of the 10.16 controlling individuals of the program. It is not a defense to 10.17 any action arising under this chapter that service was not made 10.18 on each controlling individual of the program. The designation 10.19 of one or more controlling individuals as agents under this 10.20 paragraph does not affect the legal responsibility of any other 10.21 controlling individual under this chapter. 10.22 (c) An applicant or license holder must have a policy that 10.23 prohibits license holders, employees, subcontractors, and 10.24 volunteers, when directly responsible for persons served by the 10.25 program, from abusing prescription medication or being in any 10.26 manner under the influence of a chemical that impairs the 10.27 individual's ability to provide services or care. The license 10.28 holder must train employees, subcontractors, and volunteers 10.29 about the program's drug and alcohol policy. 10.30 (d) An applicant and license holder must have a program 10.31 grievance procedure that permits persons served by the program 10.32 and their authorized representatives to bring a grievance to the 10.33 highest level of authority in the program. 10.34 Sec. 11. Minnesota Statutes 2002, section 245A.04, 10.35 subdivision 5, is amended to read: 10.36 Subd. 5. [COMMISSIONER'S RIGHT OF ACCESS.] When the 11.1 commissioner is exercising the powers conferred by this 11.2 chapter and section 245.69, the commissioner must be given 11.3 access to the physical plant and grounds where the program is 11.4 provided, documents, persons served by the program, and staff 11.5 whenever the program is in operation and the information is 11.6 relevant to inspections or investigations conducted by the 11.7 commissioner. The commissioner must be given access without 11.8 prior notice and as often as the commissioner considers 11.9 necessary if the commissioner is conducting an investigation of 11.10 allegations of maltreatment or other violation of applicable 11.11 laws or rules. In conducting inspections, the commissioner may 11.12 request and shall receive assistance from other state, county, 11.13 and municipal governmental agencies and departments. The 11.14 applicant or license holder shall allow the commissioner to 11.15 photocopy, photograph, and make audio and video tape recordings 11.16 during the inspection of the program at the commissioner's 11.17 expense. The commissioner shall obtain a court order or the 11.18 consent of the subject of the records or the parents or legal 11.19 guardian of the subject before photocopying hospital medical 11.20 records. 11.21 Persons served by the program have the right to refuse to 11.22 consent to be interviewed, photographed, or audio or videotaped. 11.23 Failure or refusal of an applicant or license holder to fully 11.24 comply with this subdivision is reasonable cause for the 11.25 commissioner to deny the application or immediately suspend or 11.26 revoke the license. 11.27 Sec. 12. Minnesota Statutes 2002, section 245A.04, 11.28 subdivision 6, is amended to read: 11.29 Subd. 6. [COMMISSIONER'S EVALUATION.] Before issuing, 11.30 denying, suspending, revoking, or making conditional a license, 11.31 the commissioner shall evaluate information gathered under this 11.32 section. The commissioner's evaluation shall consider facts, 11.33 conditions, or circumstances concerning the program's operation, 11.34 the well-being of persons served by the program, available 11.35 consumer evaluations of the program, and information about the 11.36 qualifications of the personnel employed by the applicant or 12.1 license holder. 12.2 The commissioner shall evaluate the results of the study 12.3 required in subdivision 3 and determine whether a risk of harm 12.4 to the persons served by the program exists. In conducting this 12.5 evaluation, the commissioner shall apply the disqualification 12.6 standards set forth in rules adopted under thischapter 245C. 12.7 Sec. 13. Minnesota Statutes 2002, section 245A.04, 12.8 subdivision 7, is amended to read: 12.9 Subd. 7. [ISSUANCE OF A LICENSE; EXTENSION OF A LICENSE.] 12.10 (a) If the commissioner determines that the program complies 12.11 with all applicable rules and laws, the commissioner shall issue 12.12 a license. At minimum, the license shall state: 12.13 (1) the name of the license holder; 12.14 (2) the address of the program; 12.15 (3) the effective date and expiration date of the license; 12.16 (4) the type of license; 12.17 (5) the maximum number and ages of persons that may receive 12.18 services from the program; and 12.19 (6) any special conditions of licensure. 12.20 (b) The commissioner may issue an initial license for a 12.21 period not to exceed two years if: 12.22 (1) the commissioner is unable to conduct the evaluation or 12.23 observation required by subdivision 4, paragraph (a), clauses (3) 12.24 and (4), because the program is not yet operational; 12.25 (2) certain records and documents are not available because 12.26 persons are not yet receiving services from the program; and 12.27 (3) the applicant complies with applicable laws and rules 12.28 in all other respects. 12.29 (c) A decision by the commissioner to issue a license does 12.30 not guarantee that any person or persons will be placed or cared 12.31 for in the licensed program. A license shall not be 12.32 transferable to another individual, corporation, partnership, 12.33 voluntary association, other organization, or controlling or to 12.34 another location. 12.35 (d) A license holder must notify the commissioner and 12.36 obtain the commissioner's approval before making any changes 13.1 that would alter the license information listed under paragraph 13.2 (a). 13.3 (e) The commissioner shall not issue a license if the 13.4 applicant, license holder, or controlling individual has: (1) 13.5 been disqualified and the disqualification was not set aside; 13.6 (2) has been denied a license within the past two years; or (3) 13.7 had a license revoked within the past five years. 13.8 For purposes of reimbursement for meals only, under the 13.9 Child and Adult Care Food Program, Code of Federal Regulations, 13.10 title 7, subtitle B, chapter II, subchapter A, part 226, 13.11 relocation within the same county by a licensed family day care 13.12 provider, shall be considered an extension of the license for a 13.13 period of no more than 30 calendar days or until the new license 13.14 is issued, whichever occurs first, provided the county agency 13.15 has determined the family day care provider meets licensure 13.16 requirements at the new location. 13.17 Unless otherwise specified by statute, all licenses expire 13.18 at 12:01 a.m. on the day after the expiration date stated on the 13.19 license. A license holder must apply for and be granted a new 13.20 license to operate the program or the program must not be 13.21 operated after the expiration date. 13.22 Sec. 14. Minnesota Statutes 2002, section 245A.04, is 13.23 amended by adding a subdivision to read: 13.24 Subd. 13. [RESIDENTIAL PROGRAMS HANDLING RESIDENT FUNDS 13.25 AND PROPERTY; ADDITIONAL REQUIREMENTS.] (a) A license holder 13.26 must ensure that residents retain the use and availability of 13.27 personal funds or property unless restrictions are justified in 13.28 the resident's individual plan. 13.29 (b) The license holder must ensure separation of resident 13.30 funds from funds of the license holder, the residential program, 13.31 or program staff. 13.32 (c) Whenever the license holder assists a resident with the 13.33 safekeeping of funds or other property, the license holder must: 13.34 (1) immediately document receipt and disbursement of the 13.35 resident's funds or other property at the time of receipt or 13.36 disbursement, including the signature of the resident, 14.1 conservator, or payee; 14.2 (2) provide a statement, at least quarterly, itemizing 14.3 receipts and disbursements of resident funds or other property; 14.4 and 14.5 (3) return to the resident upon the resident's request, 14.6 funds and property in the license holder's possession subject to 14.7 restrictions in the resident's treatment plan, as soon as 14.8 possible, but no later than three working days after the date of 14.9 request. 14.10 (d) License holders and program staff must not: 14.11 (1) borrow money from a resident; 14.12 (2) purchase personal items from a resident; 14.13 (3) sell merchandise or personal services to a resident; 14.14 (4) require a resident to purchase items for which the 14.15 license holder is eligible for reimbursement; or 14.16 (5) use resident funds to purchase items for which the 14.17 facility is already receiving public or private payments. 14.18 Sec. 15. Minnesota Statutes 2002, section 245A.05, is 14.19 amended to read: 14.20 245A.05 [DENIAL OF APPLICATION.] 14.21 The commissioner may deny a license if an applicant fails 14.22 to comply with applicable laws or rules, or knowingly withholds 14.23 relevant information from or gives false or misleading 14.24 information to the commissioner in connection with an 14.25 application for a license or during an investigation. An 14.26 applicant whose application has been denied by the commissioner 14.27 must be given notice of the denial. Notice must be given by 14.28 certified mail or personal service. The notice must state the 14.29 reasons the application was denied and must inform the applicant 14.30 of the right to a contested case hearing under chapter 14 and 14.31 Minnesota Rules, parts 1400.85101400.8505 to 1400.8612 and14.32 successor rules. The applicant may appeal the denial by 14.33 notifying the commissioner in writing by certified mail or 14.34 personal service within 20 calendar days after receiving notice 14.35 that the application was denied. Section 245A.08 applies to 14.36 hearings held to appeal the commissioner's denial of an 15.1 application. 15.2 Sec. 16. Minnesota Statutes 2002, section 245A.06, 15.3 subdivision 2, is amended to read: 15.4 Subd. 2. [RECONSIDERATION OF CORRECTION ORDERS.] If the 15.5 applicant or license holder believes that the contents of the 15.6 commissioner's correction order are in error, the applicant or 15.7 license holder may ask the Department of Human Services to 15.8 reconsider the parts of the correction order that are alleged to 15.9 be in error. The request for reconsideration must be made in 15.10 writing and received bymust be postmarked and sent to the 15.11 commissioner within 20 calendar days after receipt of the 15.12 correction order by the applicant or license holder, and: 15.13 (1) specify the parts of the correction order that are 15.14 alleged to be in error; 15.15 (2) explain why they are in error; and 15.16 (3) include documentation to support the allegation of 15.17 error. 15.18 A request for reconsideration does not stay any provisions 15.19 or requirements of the correction order. The commissioner's 15.20 disposition of a request for reconsideration is final and not 15.21 subject to appeal under chapter 14. 15.22 Sec. 17. Minnesota Statutes 2002, section 245A.06, 15.23 subdivision 4, is amended to read: 15.24 Subd. 4. [NOTICE OF CONDITIONAL LICENSE; RECONSIDERATION 15.25 OF CONDITIONAL LICENSE.] If a license is made conditional, the 15.26 license holder must be notified of the order by certified 15.27 mail or personal service. If mailed, the notice must be mailed 15.28 to the address shown on the application or the last known 15.29 address of the license holder. The notice must state the 15.30 reasons the conditional license was ordered and must inform the 15.31 license holder of the right to request reconsideration of the 15.32 conditional license by the commissioner. The license holder may 15.33 request reconsideration of the order of conditional license by 15.34 notifying the commissioner by certified mail or personal 15.35 service. The request must be made in writing and. If sent by 15.36 certified mail, the request must be received bypostmarked and 16.1 sent to the commissioner within ten calendar days after the 16.2 license holder received the order. If a request is made by 16.3 personal service, it must be received by the commissioner within 16.4 ten calendar days after the license holder received the order. 16.5 The license holder may submit with the request for 16.6 reconsideration written argument or evidence in support of the 16.7 request for reconsideration. A timely request for 16.8 reconsideration shall stay imposition of the terms of the 16.9 conditional license until the commissioner issues a decision on 16.10 the request for reconsideration. If the commissioner issues a 16.11 dual order of conditional license under this section and an 16.12 order to pay a fine under section 245A.07, subdivision 3, the 16.13 license holder has a right to a contested case hearing under 16.14 chapter 14 and Minnesota Rules, parts 1400.8505 to 1400.8612. 16.15 The scope of the contested case hearing shall include the fine 16.16 and the conditional license. In this case, a reconsideration of 16.17 the conditional license will not be conducted under this section. 16.18 The commissioner's disposition of a request for 16.19 reconsideration is final and not subject to appeal under chapter 16.20 14. 16.21 Sec. 18. Minnesota Statutes 2002, section 245A.07, 16.22 subdivision 2, is amended to read: 16.23 Subd. 2. [TEMPORARY IMMEDIATE SUSPENSION.] If the license 16.24 holder's actions or failure to comply with applicable law or 16.25 rule poses, or the actions of other individuals or conditions in 16.26 the program pose an imminent risk of harm to the health, safety, 16.27 or rights of persons served by the program, the commissioner 16.28 shall act immediately to temporarily suspend the license. No 16.29 state funds shall be made available or be expended by any agency 16.30 or department of state, county, or municipal government for use 16.31 by a license holder regulated under this chapter while a license 16.32 is under immediate suspension. A notice stating the reasons for 16.33 the immediate suspension and informing the license holder of the 16.34 right to an expedited hearing under chapter 14 and Minnesota 16.35 Rules, parts 1400.85101400.8505 to 1400.8612 and successor16.36 rules, must be delivered by personal service to the address 17.1 shown on the application or the last known address of the 17.2 license holder. The license holder may appeal an order 17.3 immediately suspending a license. The appeal of an order 17.4 immediately suspending a license must be made in writing by 17.5 certified mail andor personal service. If mailed, the appeal 17.6 must be postmarked and sent to the commissioner within five 17.7 calendar days after the license holder receives notice that the 17.8 license has been immediately suspended. If a request is made by 17.9 personal service, it must be received by the commissioner within 17.10 five calendar days after the license holder received the order. 17.11 A license holder and any controlling individual shall 17.12 discontinue operation of the program upon receipt of the 17.13 commissioner's order to immediately suspend the license. 17.14 Sec. 19. Minnesota Statutes 2002, section 245A.07, 17.15 subdivision 2a, is amended to read: 17.16 Subd. 2a. [IMMEDIATE SUSPENSION EXPEDITED HEARING.] (a) 17.17 Within five working days of receipt of the license holder's 17.18 timely appeal, the commissioner shall request assignment of an 17.19 administrative law judge. The request must include a proposed 17.20 date, time, and place of a hearing. A hearing must be conducted 17.21 by an administrative law judge within 30 calendar days of the 17.22 request for assignment, unless an extension is requested by 17.23 either party and granted by the administrative law judge for 17.24 good cause. The commissioner shall issue a notice of hearing by 17.25 certified mail or personal service at least ten working days 17.26 before the hearing. The scope of the hearing shall be limited 17.27 solely to the issue of whether the temporary immediate 17.28 suspension should remain in effect pending the commissioner's 17.29 final order under section 245A.08, regarding a licensing 17.30 sanction issued under subdivision 3 following the immediate 17.31 suspension. The burden of proof in expedited hearings under 17.32 this subdivision shall be limited to the commissioner's 17.33 demonstration that reasonable cause exists to believe that the 17.34 license holder's actions or failure to comply with applicable 17.35 law or rule poses an imminent risk of harm to the health, 17.36 safety, or rights of persons served by the program. 18.1 (b) The administrative law judge shall issue findings of 18.2 fact, conclusions, and a recommendation within ten working days 18.3 from the date of hearing. The parties shall have ten calendar 18.4 days to submit exceptions to the administrative law judge's 18.5 report. The record shall close at the end of the ten-day period 18.6 for submission of exceptions. The commissioner's final order 18.7 shall be issued within ten working days from receipt of the18.8 recommendation of the administrative law judgethe close of the 18.9 record. Within 90 calendar days after a final order affirming 18.10 an immediate suspension, the commissioner shall make a 18.11 determination regarding whether a final licensing sanction shall 18.12 be issued under subdivision 3. The license holder shall 18.13 continue to be prohibited from operation of the program during 18.14 this 90-day period. 18.15 (c) When the final order under paragraph (b) affirms an 18.16 immediate suspension, and a final licensing sanction is issued 18.17 under subdivision 3 and the license holder appeals that 18.18 sanction, the license holder continues to be prohibited from 18.19 operation of the program pending a final commissioner's order 18.20 under section 245A.08, subdivision 5, regarding the final 18.21 licensing sanction. 18.22 Sec. 20. Minnesota Statutes 2002, section 245A.07, 18.23 subdivision 3, is amended to read: 18.24 Subd. 3. [LICENSE SUSPENSION, REVOCATION, OR FINE.] The 18.25 commissioner may suspend or revoke a license, or impose a fine 18.26 if a license holder fails to comply fully with applicable laws 18.27 or rules, has a disqualification which has not been set aside 18.28 under section 245C.22, or knowingly withholds relevant 18.29 information from or gives false or misleading information to the 18.30 commissioner in connection with an application for a license, in 18.31 connection with the background study status of an individual, or 18.32 during an investigation. A license holder who has had a license 18.33 suspended, revoked, or has been ordered to pay a fine must be 18.34 given notice of the action by certified mail or personal 18.35 service. If mailed, the notice must be mailed to the address 18.36 shown on the application or the last known address of the 19.1 license holder. The notice must state the reasons the license 19.2 was suspended, revoked, or a fine was ordered. 19.3 (a) If the license was suspended or revoked, the notice 19.4 must inform the license holder of the right to a contested case 19.5 hearing under chapter 14 and Minnesota Rules, parts 1400.851019.6 1400.8505 to 1400.8612 and successor rules. The license holder 19.7 may appeal an order suspending or revoking a license. The 19.8 appeal of an order suspending or revoking a license must be made 19.9 in writing by certified mail andor personal service. If 19.10 mailed, the appeal must be postmarked and sent to the 19.11 commissioner within ten calendar days after the license holder 19.12 receives notice that the license has been suspended or revoked. 19.13 If a request is made by personal service, it must be received by 19.14 the commissioner within ten calendar days after the license 19.15 holder received the order. Except as provided in subdivision 19.16 2a, paragraph (c), a timely appeal of an order suspending or 19.17 revoking a license shall stay the suspension or revocation until 19.18 the commissioner issues a final order. 19.19 (b)(1) If the license holder was ordered to pay a fine, the 19.20 notice must inform the license holder of the responsibility for 19.21 payment of fines and the right to a contested case hearing under 19.22 chapter 14 and Minnesota Rules, parts 1400.85101400.8505 to 19.23 1400.8612 and successor rules. The appeal of an order to pay a 19.24 fine must be made in writing by certified mail andor personal 19.25 service. If mailed, the appeal must be postmarked and sent to 19.26 the commissioner within ten calendar days after the license 19.27 holder receives notice that the fine has been ordered. If a 19.28 request is made by personal service, it must be received by the 19.29 commissioner within ten calendar days after the license holder 19.30 received the order. 19.31 (2) The license holder shall pay the fines assessed on or 19.32 before the payment date specified. If the license holder fails 19.33 to fully comply with the order, the commissioner may issue a 19.34 second fine or suspend the license until the license holder 19.35 complies. If the license holder receives state funds, the 19.36 state, county, or municipal agencies or departments responsible 20.1 for administering the funds shall withhold payments and recover 20.2 any payments made while the license is suspended for failure to 20.3 pay a fine. A timely appeal shall stay payment of the fine 20.4 until the commissioner issues a final order. 20.5 (3) A license holder shall promptly notify the commissioner 20.6 of human services, in writing, when a violation specified in the 20.7 order to forfeit a fine is corrected. If upon reinspection the 20.8 commissioner determines that a violation has not been corrected 20.9 as indicated by the order to forfeit a fine, the commissioner 20.10 may issue a second fine. The commissioner shall notify the 20.11 license holder by certified mail or personal service that a 20.12 second fine has been assessed. The license holder may appeal 20.13 the second fine as provided under this subdivision. 20.14 (4) Fines shall be assessed as follows: the license holder 20.15 shall forfeit $1,000 for each determination of maltreatment of a 20.16 child under section 626.556 or the maltreatment of a vulnerable 20.17 adult under section 626.557; the license holder shall forfeit 20.18 $200 for each occurrence of a violation of law or rule governing 20.19 matters of health, safety, or supervision, including but not 20.20 limited to the provision of adequate staff-to-child or adult 20.21 ratios, and failure to submit a background study; and the 20.22 license holder shall forfeit $100 for each occurrence of a 20.23 violation of law or rule other than those subject to a $1,000 or 20.24 $200 fine above. For purposes of this section, "occurrence" 20.25 means each violation identified in the commissioner's fine order. 20.26 (5) When a fine has been assessed, the license holder may 20.27 not avoid payment by closing, selling, or otherwise transferring 20.28 the licensed program to a third party. In such an event, the 20.29 license holder will be personally liable for payment. In the 20.30 case of a corporation, each controlling individual is personally 20.31 and jointly liable for payment. 20.32 Sec. 21. Minnesota Statutes 2003 Supplement, section 20.33 245A.08, subdivision 1, is amended to read: 20.34 Subdivision 1. [RECEIPT OF APPEAL; CONDUCT OF HEARING.] 20.35 Upon receiving a timely appeal or petition pursuant to section 20.36 245A.05, 245A.07, subdivision 3, or 245C.28, the commissioner 21.1 shall issue a notice of and order for hearing to the appellant 21.2 under chapter 14 and Minnesota Rules, parts 1400.85101400.8505 21.3 to 1400.8612 and successor rules. 21.4 Sec. 22. Minnesota Statutes 2003 Supplement, section 21.5 245A.08, subdivision 2a, is amended to read: 21.6 Subd. 2a. [CONSOLIDATED CONTESTED CASE HEARINGS FOR 21.7 SANCTIONS BASED ON MALTREATMENT DETERMINATIONS AND 21.8 DISQUALIFICATIONS.] (a) When a denial of a license under section 21.9 245A.05 or a licensing sanction under section 245A.07, 21.10 subdivision 3, is based on a disqualification for which 21.11 reconsideration was requested and which was not set aside or was21.12 not rescindedunder sections 245C.21 to 245C.27section 245C.22, 21.13 the scope of the contested case hearing shall include the 21.14 disqualification and the licensing sanction or denial of a 21.15 license. When the licensing sanction or denial of a license is 21.16 based on a determination of maltreatment under section 626.556 21.17 or 626.557, or a disqualification for serious or recurring 21.18 maltreatment which was not set aside or was not rescinded, the 21.19 scope of the contested case hearing shall include the 21.20 maltreatment determination, disqualification, and the licensing 21.21 sanction or denial of a license. In such cases, a fair hearing 21.22 under section 256.045 shall not be conducted as provided for in 21.23 sections 626.556, subdivision 10i, and 626.557, subdivision 9d. 21.24 (b) In consolidated contested case hearings regarding 21.25 sanctions issued in family child care, child foster care, and 21.26 adult foster care, the county attorney shall defend the 21.27 commissioner's orders in accordance with section 245A.16, 21.28 subdivision 4. 21.29 (c) The commissioner's final order under subdivision 5 is 21.30 the final agency action on the issue of maltreatment and 21.31 disqualification, including for purposes of subsequent 21.32 background studies under chapter 245C and is the only 21.33 administrative appeal of the final agency determination, 21.34 specifically, including a challenge to the accuracy and 21.35 completeness of data under section 13.04. 21.36 (d) When consolidated hearings under this subdivision 22.1 involve a licensing sanction based on a previous maltreatment 22.2 determination for which the commissioner has issued a final 22.3 order in an appeal of that determination under section 256.045, 22.4 or the individual failed to exercise the right to appeal the 22.5 previous maltreatment determination under section 626.556, 22.6 subdivision 10i, or 626.557, subdivision 9d, the commissioner's 22.7 order is conclusive on the issue of maltreatment. In such 22.8 cases, the scope of the administrative law judge's review shall 22.9 be limited to the disqualification and the licensing sanction or 22.10 denial of a license. In the case of a denial of a license or a 22.11 licensing sanction issued to a facility based on a maltreatment 22.12 determination regarding an individual who is not the license 22.13 holder or a household member, the scope of the administrative 22.14 law judge's review includes the maltreatment determination. 22.15 (e) If a maltreatment determination or disqualification, 22.16 which was not set aside or was not rescindedunder sections22.17 245C.21 to 245C.27section 245C.22, is the basis for a denial of 22.18 a license under section 245A.05 or a licensing sanction under 22.19 section 245A.07, and the disqualified subject is an individual 22.20 other than the license holder and upon whom a background study 22.21 must be conducted under section 245C.03, the hearings of all 22.22 parties may be consolidated into a single contested case hearing 22.23 upon consent of all parties and the administrative law judge. 22.24 Sec. 23. Minnesota Statutes 2002, section 245A.08, 22.25 subdivision 5, is amended to read: 22.26 Subd. 5. [NOTICE OF THE COMMISSIONER'S FINAL ORDER.] After 22.27 considering the findings of fact, conclusions, and 22.28 recommendations of the administrative law judge, the 22.29 commissioner shall issue a final order. The commissioner shall 22.30 consider, but shall not be bound by, the recommendations of the 22.31 administrative law judge. The appellant must be notified of the 22.32 commissioner's final order as required by chapter 14 and 22.33 Minnesota Rules, parts 1400.85101400.8505 to 1400.8612 and22.34 successor rules. The notice must also contain information about 22.35 the appellant's rights under chapter 14 and Minnesota Rules, 22.36 parts 1400.85101400.8505 to 1400.8612 and successor rules. The 23.1 institution of proceedings for judicial review of the 23.2 commissioner's final order shall not stay the enforcement of the 23.3 final order except as provided in section 14.65. A license 23.4 holder and each controlling individual of a license holder whose 23.5 license has been revoked because of noncompliance with 23.6 applicable law or rule must not be granted a license for five 23.7 years following the revocation. An applicant whose application 23.8 was denied must not be granted a license for two years following 23.9 a denial, unless the applicant's subsequent application contains 23.10 new information which constitutes a substantial change in the 23.11 conditions that caused the previous denial. 23.12 Sec. 24. Minnesota Statutes 2003 Supplement, section 23.13 245A.085, is amended to read: 23.14 245A.085 [CONSOLIDATION OF HEARINGS; RECONSIDERATION.] 23.15 Hearings authorized under this chapter, chapter 245C, and 23.16 sections 256.045, 626.556, and 626.557, shall be consolidated if 23.17 feasible and in accordance with other applicable statutes and 23.18 rules. Reconsideration under sections 245C.28; 626.556, 23.19 subdivision 10i; and 626.557, subdivision 9d, shall also be 23.20 consolidated if feasible. 23.21 Sec. 25. [245A.143] [FAMILY ADULT DAY SERVICES.] 23.22 Subdivision 1. [SCOPE.] (a) The licensing standards in 23.23 this section must be met to obtain and maintain a license to 23.24 provide family adult day services. For the purposes of this 23.25 section, family adult day services means a program operating 23.26 fewer than 24 hours per day that provides functionally impaired 23.27 adults, none of which are under age 55, have serious or 23.28 persistent mental illness, or have mental retardation or a 23.29 related condition, with an individualized and coordinated set of 23.30 services including health services, social services, and 23.31 nutritional services that are directed at maintaining or 23.32 improving the participants' capabilities for self-care. 23.33 (b) A family adult day services license shall only be 23.34 issued when the services are provided in the license holder's 23.35 primary residence, and the license holder is the primary 23.36 provider of care. The license holder may not serve more than 24.1 eight adults at one time, including residents, if any, served 24.2 under a license issued under Minnesota Rules, parts 9555.5105 to 24.3 9555.6265. 24.4 (c) An adult foster care license holder may provide family 24.5 adult day services if the license holder meets the requirements 24.6 of this section. 24.7 (d) When an applicant or license holder submits an 24.8 application for initial licensure or relicensure for both adult 24.9 foster care and family adult day services, the county agency 24.10 shall process the request as a single application and shall 24.11 conduct concurrent routine licensing inspections. 24.12 (e) Adult foster care license holders providing family 24.13 adult day services under their foster care license on March 30, 24.14 2004, shall be permitted to continue providing these services 24.15 with no additional requirements until their adult foster care 24.16 license is due for renewal. At the time of relicensure, an 24.17 adult foster care license holder may continue to provide family 24.18 adult day services upon demonstration of compliance with this 24.19 section. Adult foster care license holders who provide family 24.20 adult day services on August 1, 2004, may apply for a license 24.21 under this section instead of an adult foster care license. 24.22 Subd. 2. [DEFINITIONS.] (a) For the purposes of this 24.23 section, the terms defined in this subdivision have the 24.24 following meanings unless otherwise provided for by text. 24.25 (b) [CAREGIVER.] "Caregiver" means a spouse, adult child, 24.26 parent, relative, friend, or others who normally provide unpaid 24.27 support or care to the individual needing assistance. For the 24.28 purpose of this section, the caregiver may or may not have legal 24.29 or financial responsibility for the participant. 24.30 (c) [PARTICIPANT.] "Participant" means a functionally 24.31 impaired adult receiving family adult day services. 24.32 (d) [CONSULTATION BY A HEALTH CARE 24.33 PROFESSIONAL.] "Consultation by a health care professional" 24.34 means the review and oversight of the participant's 24.35 health-related services by a registered nurse, physician, or 24.36 mental health professional. 25.1 Subd. 3. [POLICY AND PROGRAM INFORMATION 25.2 REQUIREMENTS.] (a) The license holder shall have available for 25.3 review, and shall distribute to participants and their 25.4 caregivers upon admission, written information about: 25.5 (1) the scope of the programs, services, and care offered 25.6 by the license holder; 25.7 (2) a description of the population to be served by the 25.8 license holder; 25.9 (3) a description of individual conditions which the 25.10 license holder is not prepared to accept, such as a communicable 25.11 disease requiring isolation, a history of violence to self or 25.12 others, unmanageable incontinence, or uncontrollable wandering; 25.13 (4) the participants' rights and procedure for presenting 25.14 grievances, including the name, address, and telephone number of 25.15 the Office of Ombudsman for Older Minnesotans and the county 25.16 licensing department, to which a participant or participant's 25.17 caregiver may submit an oral or written complaint; 25.18 (5) the license holder's policy on and arrangements for 25.19 providing transportation; 25.20 (6) the license holder's policy on providing meals and 25.21 snacks; 25.22 (7) the license holder's fees, billing arrangements, and 25.23 plans for payment; 25.24 (8) the license holder's policy governing the presence of 25.25 pets in the home; 25.26 (9) the license holder's policy on smoking in the home; 25.27 (10) types of insurance coverage carried by the license 25.28 holder; 25.29 (11) information on orientation requirements under section 25.30 245A.65, subdivisions 1, paragraph (c), and 2, paragraph (a), 25.31 clause (4); 25.32 (12) the terms and conditions of the license holder's 25.33 license issued by the department; 25.34 (13) the license holder's plan for emergency evacuation of 25.35 participants involving fire, weather, and other disasters. The 25.36 plan must include instructions for evacuation or rescue of 26.1 participants, identification of an emergency shelter area 26.2 quarterly fire drill schedule, and staff responsibilities; and 26.3 (14) the license holder's policy for handling harmful 26.4 objects, materials, or equipment including the storage of 26.5 poisonous chemicals, use of appliances, sharp instruments, 26.6 matches, or any other potentially harmful materials. 26.7 (b) The information in paragraph (a) must be provided in 26.8 writing to the commissioner's representative upon request and 26.9 must be available for inspection by the commissioner's 26.10 representative at the home. 26.11 Subd. 4. [ADMISSION SCREENING AND EVALUATION.] (a) Before 26.12 admitting an individual into the family adult day services 26.13 program, the license holder shall screen the individual to 26.14 determine how or whether the license holder can serve the 26.15 individual, based on the license holder's policies, services, 26.16 expertise, and the individual's needs and condition. If 26.17 possible, the screening shall include an interview with the 26.18 individual and with the individual's caregiver. 26.19 (b) The screening required under paragraph (a) shall 26.20 include an evaluation of the health, nutritional, and social 26.21 services needs of the individual. 26.22 Subd. 5. [SERVICE DELIVERY PLAN.] Before providing family 26.23 adult day services, an individual, the individual's caregiver, 26.24 the legal representative if there is one, the county or private 26.25 case manager, if applicable, and the license holder shall enter 26.26 into a signed service agreement. At a minimum, the service 26.27 agreement shall include: 26.28 (1) a description of the health services, nutritional 26.29 services, and social services to be arranged or provided by the 26.30 license holder and the frequency of those services and that the 26.31 services will be based on the needs of the individual; 26.32 (2) scheduled days and hours of participant's attendance at 26.33 the license holder's home; 26.34 (3) transportation arrangements for getting the participant 26.35 to and from the license holder's home; 26.36 (4) contingency plans if scheduled services cannot be 27.1 provided by the license holder; 27.2 (5) identification of responsibilities of the participant 27.3 and the license holder with respect to payment for the services; 27.4 (6) circumstances when emergency services will be called; 27.5 and 27.6 (7) identification of the license holder's discharge policy 27.7 when services are no longer needed or when the participant's 27.8 needs can no longer be met by the license holder. 27.9 Subd. 6. [INDIVIDUAL SERVICE PLAN.] (a) The service plan 27.10 must be coordinated with other plans of services for the 27.11 participant, as appropriate. 27.12 (b) The service plan must be dated and revised when there 27.13 is a change in the needs of the participant or annually, 27.14 whichever occurs sooner. 27.15 Subd. 7. [HEALTH SERVICES.] (a) The license holder shall 27.16 provide health services as specified in the service delivery 27.17 plan under the direction of the designated caregiver or county 27.18 or private case manager. Health services must include: 27.19 (1) monitoring the participant's level of function and 27.20 health while participating; taking appropriate action for a 27.21 change in condition including immediately reporting changes to 27.22 the participant's caregiver, physician, mental health 27.23 professional, or registered nurse; and seeking consultation; 27.24 (2) offering information to participants and caregivers on 27.25 good health and safety practices; and 27.26 (3) maintaining a listing of health resources available for 27.27 referrals as needed by participants and caregivers. 27.28 (b) Unless the person is a licensed health care 27.29 practitioner qualified to administer medications, the person 27.30 responsible for medication administration or assistance shall 27.31 provide a certificate verifying successful completion of a 27.32 trained medication aid program for unlicensed personnel approved 27.33 by the Minnesota Department of Health or comparable program, or 27.34 biennially provide evidence of competency as demonstrated to a 27.35 registered nurse or physician. 27.36 (c) The license holder must have secure storage and 28.1 safeguarding of all medications with storage of medications in 28.2 their original container, know what information regarding 28.3 medication administration must be reported to a health care 28.4 professional, and must maintain a record of all medications 28.5 administered. 28.6 Subd. 8. [NUTRITIONAL SERVICES.] (a) The license holder 28.7 shall ensure that food served is nutritious and meets any 28.8 special dietary needs of the participants as prescribed by the 28.9 participant's physician or dietitian as specified in the service 28.10 delivery plan. 28.11 (b) Food and beverages must be obtained, handled, and 28.12 properly stored to prevent contamination, spoilage, or a threat 28.13 to the health of a resident. 28.14 Subd. 9. [SOCIAL SERVICES.] The license holder, in 28.15 consultation with the county or private case manager, when 28.16 appropriate, shall actively assist the participant in 28.17 identifying and achieving personal goals, support the 28.18 participant in maintaining personal support networks and 28.19 socially valued roles, provide assistance to the participant to 28.20 enable community participation, and refer participants to the 28.21 Office of Ombudsman for Older Minnesotans and other advocacy 28.22 organizations for assistance when there is a potential conflict 28.23 of interest between the license holder and the participant. 28.24 Subd. 10. [PARTICIPANT RIGHTS.] (a) The license holder 28.25 shall adopt and comply with a participant bill of rights. The 28.26 rights shall include the participants' right to: 28.27 (1) participate in the development of the service plan; 28.28 (2) refuse services or participation; 28.29 (3) privacy; 28.30 (4) confidentiality of participant information; and 28.31 (5) present grievances regarding treatment or services to 28.32 the Office of Ombudsman for Older Minnesotans or the county 28.33 licensing department. The license holder's policies shall 28.34 include a procedure for addressing participant grievances, 28.35 including the name, address, and telephone number of the county 28.36 licensing department, to which a participant or participant 29.1 caregiver may submit an oral or written complaint. 29.2 (b) The license holder shall post the participant rights in 29.3 the home and shall provide a copy to the participant and the 29.4 participant's primary caregiver and legal representative if the 29.5 participant has one. 29.6 Subd. 11. [STAFFING.] Whenever participants are in the 29.7 home, there must be present at least one individual who is 29.8 trained in basic first aid and certified in cardiopulmonary 29.9 resuscitation and the treatment of obstructed airways. Whenever 29.10 there are six, seven, or eight participants present, there must 29.11 be a second staff person present. 29.12 Subd. 12. [TRAINING.] The license holder and license 29.13 holder's staff must annually complete 12 hours of training 29.14 related to the health, nutritional, and social needs of the 29.15 license holder's target population. The annual training must 29.16 include training on the reporting of maltreatment of vulnerable 29.17 adults under sections 626.557 and 626.5572; license holder 29.18 requirements governing maltreatment of vulnerable adults under 29.19 section 245A.65; and, when a license holder serves participants 29.20 who rely on medical monitoring equipment to sustain life or 29.21 monitor a medical condition, training on medical equipment as 29.22 required under section 245A.155 for foster care providers. A 29.23 record of all training must be maintained in the home. 29.24 Subd. 13. [RESIDENTIAL REQUIREMENTS.] (a) The home where 29.25 family adult day services are to be provided shall be classified 29.26 as a residential group R-3 occupancy under the State Fire Code 29.27 for purposes of building code and fire code inspections. A 29.28 building code inspection is not required for licensure under 29.29 this section. The state or local fire marshal must inspect the 29.30 family adult day services home operating in the residence for 29.31 compliance with the residential group R-3 occupancy provisions 29.32 of the State Fire Code. 29.33 (b) The licensed capacity of the home shall be limited by 29.34 the amount of indoor space available for use by participants. 29.35 The total indoor space available for use by participants must 29.36 equal at least 35 square feet for each participant, the license 30.1 holder, and each staff member present in the home. In 30.2 determining the square footage of usable indoor space available, 30.3 the following must not be counted: hallways, stairways, 30.4 closets, offices, restrooms, and utility and storage areas. The 30.5 usable indoor space available must include a room or an area 30.6 that can be used as private space for providing personal hygiene 30.7 services or social services to participants. 30.8 (c) The residence must comply with all applicable local 30.9 ordinances. 30.10 Subd. 14. [VARIANCES.] The commissioner may grant a 30.11 variance to any of the requirements in this section if the 30.12 conditions in section 245A.04, subdivision 9, are met. 30.13 Sec. 26. Minnesota Statutes 2003 Supplement, section 30.14 245A.16, subdivision 1, is amended to read: 30.15 Subdivision 1. [DELEGATION OF AUTHORITY TO AGENCIES.] (a) 30.16 County agencies and private agencies that have been designated 30.17 or licensed by the commissioner to perform licensing functions 30.18 and activities under section 245A.04 and chapter 245C, to 30.19 recommend denial of applicants under section 245A.05, to issue 30.20 correction orders, to issue variances, and recommend a 30.21 conditional license under section 245A.06, or to recommend 30.22 suspending or revoking a license or issuing a fine under section 30.23 245A.07, shall comply with rules and directives of the 30.24 commissioner governing those functions and with this section. 30.25 The following variances are excluded from the delegation of 30.26 variance authority and may be issued only by the commissioner: 30.27 (1) dual licensure of family child care and child foster 30.28 care, dual licensure of child and adult foster care, and adult 30.29 foster care and family child care; 30.30 (2) adult foster care maximum capacity; 30.31 (3) adult foster care minimum age requirement; 30.32 (4) child foster care maximum age requirement; 30.33 (5) variances regarding disqualified individuals except 30.34 that county agencies may issue variances under section 245C.30 30.35 regarding disqualified individuals when the county is 30.36 responsible for conducting a consolidated reconsideration 31.1 according to sections 245C.25 and 245C.27, subdivision 2, 31.2 clauses (a) and (b), of a county maltreatment determination and 31.3 a disqualification based on serious or recurring maltreatment; 31.4 and 31.5 (6) the required presence of a caregiver in the adult 31.6 foster care residence during normal sleeping hours. 31.7 (b) County agencies must report information about 31.8 disqualification reconsiderations under sections 245C.25 and 31.9 245C.27, subdivision 2, clauses (a) and (b), and variances 31.10 granted under paragraph (a), clause (5), to the commissioner at 31.11 least monthly in a format prescribed by the commissioner. 31.12 (c) For family day care programs, the commissioner may 31.13 authorize licensing reviews every two years after a licensee has 31.14 had at least one annual review. 31.15 (d) For family adult day services programs, the 31.16 commissioner may authorize licensing reviews every two years 31.17 after a licensee has had at least one annual review. 31.18 Sec. 27. Minnesota Statutes 2002, section 245A.16, 31.19 subdivision 4, is amended to read: 31.20 Subd. 4. [ENFORCEMENT OF THE COMMISSIONER'S ORDERS.] The 31.21 county or private agency shall enforce the commissioner's orders 31.22 under sections 245A.07 and, 245A.08, subdivision 5, and chapter 31.23 245C, according to the instructions of the commissioner. The 31.24 county attorney shall assist the county agency in the 31.25 enforcement and defense of the commissioner's orders under 31.26 sections 245A.07 and, 245A.08, and chapter 245C, according to 31.27 the instructions of the commissioner, unless a conflict of 31.28 interest exists between the county attorney and the commissioner. 31.29 Sec. 28. Minnesota Statutes 2002, section 245A.22, 31.30 subdivision 2, is amended to read: 31.31 Subd. 2. [ADMISSION.] (a) The license holder shall accept 31.32 as clients in the independent living assistance program only 31.33 individuals specified under section 256E.115youth ages 16 to 21 31.34 who are in out-of-home placement, leaving out-of-home placement, 31.35 at risk of becoming homeless, or homeless. 31.36 (b) Youth who have current drug or alcohol problems, a 32.1 recent history of violent behaviors, or a mental health disorder 32.2 or issue that is not being resolved through counseling or 32.3 treatment are not eligible to receive the services described in 32.4 subdivision 1. 32.5 (c) Youth who are not employed, participating in employment 32.6 training, or enrolled in an academic program are not eligible to 32.7 receive transitional housing or independent living assistance. 32.8 Sec. 29. Minnesota Statutes 2003 Supplement, section 32.9 245A.22, subdivision 3, is amended to read: 32.10 Subd. 3. [INDEPENDENT LIVING PLAN.] (a) Unless an 32.11 independent living plan has been developed by the local agency, 32.12 the license holder shall develop a plan based on the client's 32.13 individual needs that specifies objectives for the client. The 32.14 services provided shall include those specified in this section. 32.15 The plan shall identify the persons responsible for 32.16 implementation of each part of the plan. The plan shall be 32.17 reviewed as necessary, but at least annually. 32.18 (b) The following services, or adequate access to referrals 32.19 for the following services, must be made available to the 32.20 targeted youth participating in the programs described in 32.21 subdivision 1: 32.22 (1) counseling services for the youth, and their families, 32.23 if appropriate, on site, to help with problems that contributed 32.24 to the homelessness or could impede making the transition to 32.25 independent living; 32.26 (2) educational, vocational, or employment services; 32.27 (3) health care; 32.28 (4) transportation services including, where appropriate, 32.29 assisting the child in obtaining a driver's license; 32.30 (5) money management skills training; 32.31 (6) planning for ongoing housing; 32.32 (7) social and recreational skills training; and 32.33 (8) assistance establishing and maintaining connections 32.34 with the child's family and community. 32.35 Sec. 30. Minnesota Statutes 2002, section 245B.02, is 32.36 amended by adding a subdivision to read: 33.1 Subd. 12a. [INTERDISCIPLINARY TEAM.] "Interdisciplinary 33.2 team" means a team composed of the case manager, the person, the 33.3 person's legal representative and advocate, if any, and 33.4 representatives of providers of the service areas relevant to 33.5 the needs of the person as described in the individual service 33.6 plan. 33.7 Sec. 31. Minnesota Statutes 2002, section 245B.05, 33.8 subdivision 2, is amended to read: 33.9 Subd. 2. [LICENSED CAPACITY FOR FACILITY-BASED DAY 33.10 TRAINING AND HABILITATION SERVICES.] The licensed capacity of 33.11 each day training and habilitation service sitessite must be 33.12 determined by the amount of primary space available, the 33.13 scheduling of activities at other service sites, and the space 33.14 requirements of consumers receiving services at the site. 33.15 Primary space does not include hallways, stairways, closets, 33.16 utility areas, bathrooms, kitchens, and floor areas beneath 33.17 stationary equipment. A facility-based day training and 33.18 habilitation site must have a minimum of 40 square feet of 33.19 primary space must beavailable for each consumer who is engaged33.20 in a day training and habilitation activity at the site for33.21 which the licensed capacity must be determinedpresent at the 33.22 site at any one time. Licensed capacity under this subdivision 33.23 does not apply to: 33.24 (1) consumers receiving community-based day training and 33.25 habilitation services; and 33.26 (2) the temporary use of a facility-based training and 33.27 habilitation service site for the limited purpose of providing 33.28 transportation to consumers receiving community-based day 33.29 training and habilitation services from the license holder. The 33.30 license holder must comply at all times with all applicable fire 33.31 and safety codes under subdivision 4 and adequate supervision 33.32 requirements under section 245B.055, subdivision 8, for all 33.33 persons receiving day training and habilitation services. 33.34 Sec. 32. [245B.055] [MINIMUM LEVEL OF STAFFING REQUIRED 33.35 FOR DAY TRAINING AND HABILITATION SERVICES.] 33.36 Subdivision 1. [SCOPE.] This section applies only to 34.1 license holders that provide day training and habilitation 34.2 services. 34.3 Subd. 2. [FACTORS.] (a) The number of direct service staff 34.4 members that a license holder must have on duty at a given time 34.5 to meet the minimum staffing requirements established in this 34.6 section varies according to: 34.7 (1) the number of persons who are enrolled and receiving 34.8 direct services at that given time; 34.9 (2) the staff ratio requirement established under 34.10 subdivision 3 for each of the persons who is present; and 34.11 (3) whether the conditions described in subdivision 8 exist 34.12 and warrant additional staffing beyond the number determined to 34.13 be needed under subdivision 7. 34.14 (b) The commissioner shall consider the factors in 34.15 paragraph (a) in determining a license holder's compliance with 34.16 the staffing requirements and shall further consider whether the 34.17 staff ratio requirement established under subdivision 3 for each 34.18 person receiving services accurately reflects the person's need 34.19 for staff time. 34.20 Subd. 3. [DETERMINING AND DOCUMENTING THE STAFF RATIO 34.21 REQUIREMENT FOR EACH PERSON RECEIVING SERVICES.] The case 34.22 manager, in consultation with the interdisciplinary team, shall 34.23 determine at least once each year which of the ratios in 34.24 subdivisions 4, 5, and 6 is appropriate for each person 34.25 receiving services on the basis of the characteristics described 34.26 in subdivisions 4, 5, and 6. The ratio assigned each person and 34.27 the documentation of how the ratio was arrived at must be kept 34.28 in each person's individual service plan. Documentation must 34.29 include an assessment of the person with respect to the 34.30 characteristics in subdivisions 4, 5, and 6 recorded on a 34.31 standard assessment form required by the commissioner. 34.32 Subd. 4. [PERSON REQUIRING STAFF RATIO OF ONE TO FOUR.] A 34.33 person who has one or more of the following characteristics must 34.34 be assigned a staff ratio requirement of one to four: 34.35 (1) on a daily basis the person requires total care and 34.36 monitoring or constant hand-over-hand physical guidance to 35.1 successfully complete at least three of the following activities: 35.2 toileting, communicating basic needs, eating, or ambulating; or 35.3 (2) the person assaults others, is self injurious, or 35.4 manifests severe dysfunctional behaviors at a documented level 35.5 of frequency, intensity, or duration requiring frequent daily 35.6 ongoing intervention and monitoring as established in an 35.7 approved behavior management program. 35.8 Subd. 5. [PERSON REQUIRING STAFF RATIO OF ONE TO EIGHT.] A 35.9 person who has all of the following characteristics must be 35.10 assigned a staff ratio requirement of one to eight: 35.11 (1) the person does not meet the requirements in 35.12 subdivision 4; and 35.13 (2) on a daily basis the person requires verbal prompts or 35.14 spot checks and minimal or no physical assistance to 35.15 successfully complete at least three of the following 35.16 activities: toileting, communicating basic needs, eating, or 35.17 ambulating. 35.18 Subd. 6. [PERSON REQUIRING STAFF RATIO OF ONE TO SIX.] A 35.19 person who does not have any of the characteristics described in 35.20 subdivision 4 or 5 must be assigned a staff ratio requirement of 35.21 one to six. 35.22 Subd. 7. [DETERMINING NUMBER OF DIRECT SERVICE STAFF 35.23 REQUIRED.] The minimum number of direct service staff members 35.24 required at any one time to meet the combined staff ratio 35.25 requirements of the persons present at that time can be 35.26 determined by following the steps in clauses (1) through (4): 35.27 (1) assign each person in attendance the three digit 35.28 decimal below that corresponds to the staff ratio requirement 35.29 assigned to that person. A staff ratio requirement of one to 35.30 four equals 0.250. A staff ratio requirement of one to eight 35.31 equals 0.125. A staff ratio requirement of one to six equals 35.32 0.166; 35.33 (2) add all of the three digit decimals (one three digit 35.34 decimal for every person in attendance) assigned in clause (1); 35.35 (3) when the sum in clause (2) falls between two whole 35.36 numbers, round off the sum to the larger of the two whole 36.1 numbers; and 36.2 (4) the larger of the two whole numbers in clause (3) 36.3 equals the number of direct service staff members needed to meet 36.4 the staff ratio requirements of the persons in attendance. 36.5 Subd. 8. [CONDITIONS REQUIRING ADDITIONAL DIRECT SERVICE 36.6 STAFF.] The license holder shall increase the number of direct 36.7 service staff members present at any one time beyond the number 36.8 arrived at in subdivision 4 if necessary when any one or 36.9 combination of the following circumstances can be documented by 36.10 the commissioner as existing: 36.11 (1) the health and safety needs of the persons receiving 36.12 services cannot be met by the number of staff members available 36.13 under the staffing pattern in effect even though the number has 36.14 been accurately calculated under subdivision 7; or 36.15 (2) the behavior of a person presents an immediate danger 36.16 and the person is not eligible for a special needs rate 36.17 exception under Minnesota Rules, parts 9510.1020 to 9510.1140. 36.18 Subd. 9. [SUPERVISION REQUIREMENTS.] At no time shall one 36.19 direct service staff member be assigned responsibility for 36.20 supervision and training of more than ten persons receiving 36.21 supervision and training, except as otherwise stated in each 36.22 person's risk management plan. 36.23 Sec. 33. Minnesota Statutes 2002, section 245B.07, 36.24 subdivision 8, is amended to read: 36.25 Subd. 8. [POLICIES AND PROCEDURES.] The license holder 36.26 must develop and implement the policies and procedures in 36.27 paragraphs (1) to (3). 36.28 (1) policies and procedures that promote consumer health 36.29 and safety by ensuring: 36.30 (i) consumer safety in emergency situations as identified 36.31 in section 245B.05, subdivision 7; 36.32 (ii) consumer health through sanitary practices; 36.33 (iii) safe transportation, when the license holder is 36.34 responsible for transportation of consumers, with provisions for 36.35 handling emergency situations; 36.36 (iv) a system of record keeping for both individuals and 37.1 the organization, for review of incidents and emergencies, and 37.2 corrective action if needed; 37.3 (v) a plan for responding to and reporting all emergencies,37.4 including deaths, medical emergencies, illnesses, accidents,37.5 missing consumers,all incidents, as defined in section 245B.02, 37.6 subdivision 10, fires, severe weather and natural disasters, 37.7 bomb threats, and other threats and reporting all incidents 37.8 required to be reported under section 245B.05, subdivision 7; 37.9 (vi) safe medication administration as identified in 37.10 section 245B.05, subdivision 5, incorporating an observed skill 37.11 assessment to ensure that staff demonstrate the ability to 37.12 administer medications consistent with the license holder's 37.13 policy and procedures; 37.14 (vii) psychotropic medication monitoring when the consumer 37.15 is prescribed a psychotropic medication, including the use of 37.16 the psychotropic medication use checklist. If the 37.17 responsibility for implementing the psychotropic medication use 37.18 checklist has not been assigned in the individual service plan 37.19 and the consumer lives in a licensed site, the residential 37.20 license holder shall be designated; and 37.21 (viii) criteria for admission or service initiation 37.22 developed by the license holder; 37.23 (2) policies and procedures that protect consumer rights 37.24 and privacy by ensuring: 37.25 (i) consumer data privacy, in compliance with the Minnesota 37.26 Data Practices Act, chapter 13; and 37.27 (ii) that complaint procedures provide consumers with a 37.28 simple process to bring grievances and consumers receive a 37.29 response to the grievance within a reasonable time period. The 37.30 license holder must provide a copy of the program's grievance 37.31 procedure and time lines for addressing grievances. The 37.32 program's grievance procedure must permit consumers served by 37.33 the program and the authorized representatives to bring a 37.34 grievance to the highest level of authority in the program; and 37.35 (3) policies and procedures that promote continuity and 37.36 quality of consumer supports by ensuring: 38.1 (i) continuity of care and service coordination, including 38.2 provisions for service termination, temporary service 38.3 suspension, and efforts made by the license holder to coordinate 38.4 services with other vendors who also provide support to the 38.5 consumer. The policy must include the following requirements: 38.6 (A) the license holder must notify the consumer or 38.7 consumer's legal representative and the consumer's case manager 38.8 in writing of the intended termination or temporary service 38.9 suspension and the consumer's right to seek a temporary order 38.10 staying the termination or suspension of service according to 38.11 the procedures in section 256.045, subdivision 4a or subdivision 38.12 6, paragraph (c); 38.13 (B) notice of the proposed termination of services, 38.14 including those situations that began with a temporary service 38.15 suspension, must be given at least 60 days before the proposed 38.16 termination is to become effective; 38.17 (C) the license holder must provide information requested 38.18 by the consumer or consumer's legal representative or case 38.19 manager when services are temporarily suspended or upon notice 38.20 of termination; 38.21 (D) use of temporary service suspension procedures are 38.22 restricted to situations in which the consumer's behavior causes 38.23 immediate and serious danger to the health and safety of the 38.24 individual or others; 38.25 (E) prior to giving notice of service termination or 38.26 temporary service suspension, the license holder must document 38.27 actions taken to minimize or eliminate the need for service 38.28 termination or temporary service suspension; and 38.29 (F) during the period of temporary service suspension, the 38.30 license holder will work with the appropriate county agency to 38.31 develop reasonable alternatives to protect the individual and 38.32 others; and 38.33 (ii) quality services measured through a program evaluation 38.34 process including regular evaluations of consumer satisfaction 38.35 and sharing the results of the evaluations with the consumers 38.36 and legal representatives. 39.1 Sec. 34. Minnesota Statutes 2002, section 245B.07, 39.2 subdivision 12, is amended to read: 39.3 Subd. 12. [SEPARATE LICENSE REQUIRED FOR SEPARATE SITES.] 39.4 The license holder shall apply for separate licenses for each 39.5 day training and habilitation service site owned or leased by 39.6 the license holder at which persons receiving services and the 39.7 provider's employees who provide training and habilitation 39.8 services are present for a cumulative total of more than 30 days 39.9 within any 12-month period, and for each residential service 39.10 site. Notwithstanding this subdivision, a separate license is 39.11 not required for a day training and habilitation service site 39.12 used only for the limited purpose of providing transportation to 39.13 consumers receiving community-based day training and 39.14 habilitation services from a license holder. 39.15 Sec. 35. Minnesota Statutes 2003 Supplement, section 39.16 245C.02, subdivision 18, is amended to read: 39.17 Subd. 18. [SERIOUS MALTREATMENT.] (a) "Serious 39.18 maltreatment" means sexual abuse, maltreatment resulting in 39.19 death, maltreatment resulting in serious injury which reasonably 39.20 requires the care of a physician whether or not the care of a 39.21 physician was sought, or abuse resulting in serious injury. 39.22 (b) For purposes of this definition, "care of a physician" 39.23 is treatment received or ordered by a physician but does not 39.24 include diagnostic testing, assessment, or observation. 39.25 (c) For purposes of this definition, "abuse resulting in 39.26 serious injury" means: bruises, bites, skin laceration, or 39.27 tissue damage; fractures; dislocations; evidence of internal 39.28 injuries; head injuries with loss of consciousness; extensive 39.29 second-degree or third-degree burns and other burns for which 39.30 complications are present; extensive second-degree or 39.31 third-degree frostbite and other frostbite for which 39.32 complications are present; irreversible mobility or avulsion of 39.33 teeth; injuries to the eyes; ingestion of foreign substances and 39.34 objects that are harmful; near drowning; and heat exhaustion or 39.35 sunstroke. 39.36 (d) Serious maltreatment includes neglect when it results 40.1 in criminal sexual conduct against a child or vulnerable adult. 40.2 Sec. 36. Minnesota Statutes 2003 Supplement, section 40.3 245C.03, subdivision 1, is amended to read: 40.4 Subdivision 1. [LICENSED PROGRAMS.] (a) The commissioner 40.5 shall conduct a background study on: 40.6 (1) the applicantperson or persons applying for a license; 40.7 (2) an individual age 13 and over living in the household 40.8 where the licensed program will be provided; 40.9 (3) current employees or contractors of the applicant who 40.10 will have direct contact with persons served by the facility, 40.11 agency, or program; 40.12 (4) volunteers or student volunteers who will have direct 40.13 contact with persons served by the program to provide program 40.14 services if the contact is not under the continuous, direct 40.15 supervision by an individual listed in clause (1) or (3); 40.16 (5) an individual age ten to 12 living in the household 40.17 where the licensed services will be provided when the 40.18 commissioner has reasonable cause; and40.19 (6) an individual who, without providing direct contact 40.20 services at a licensed program, may have unsupervised access to 40.21 children or vulnerable adults receiving services from a program 40.22 licensed to provide: 40.23 (i) family child care for children; 40.24 (ii) foster care for children in the provider's own home; 40.25 or 40.26 (iii) foster care or day care services for adults in the 40.27 provider's own home; and 40.28 (7) all managerial officials as defined under section 40.29 245A.02, subdivision 5a. 40.30 The commissioner must have reasonable cause to study an 40.31 individual under this clausesubdivision. 40.32 (b) For family child foster care settings, a short-term 40.33 substitute caregiver providing direct contact services for a 40.34 child for less than 72 hours of continuous care is not required 40.35 to receive a background study under this chapter. 40.36 Sec. 37. Minnesota Statutes 2003 Supplement, section 41.1 245C.03, is amended by adding a subdivision to read: 41.2 Subd. 5. [OTHER STATE AGENCIES.] The commissioner shall 41.3 conduct background studies on applicants and license holders 41.4 under the jurisdiction of other state agencies who are required 41.5 in other statutory sections to initiate background studies under 41.6 this chapter, including the applicant's or license holder's 41.7 employees, contractors, and volunteers when required under other 41.8 statutory sections. 41.9 Sec. 38. Minnesota Statutes 2003 Supplement, section 41.10 245C.05, subdivision 1, is amended to read: 41.11 Subdivision 1. [INDIVIDUAL STUDIED.] (a) The individual 41.12 who is the subject of the background study must provide the 41.13 applicant, license holder, or other entity under section 245C.04 41.14 with sufficient information to ensure an accurate study, 41.15 including: 41.16 (1) the individual's first, middle, and last name and all 41.17 other names by which the individual has been known; 41.18 (2) home address, city, county,and state of residence for41.19 the past five years; 41.20 (3) zip code; 41.21 (4) sex; 41.22 (5) date of birth; and 41.23 (6) Minnesota driver's license number or state 41.24 identification number. 41.25 (b) Every subject of a background study conducted by 41.26 counties or private agencies under this chapter must also 41.27 provide the home address, city, county, and state of residence 41.28 for the past five years. 41.29 Sec. 39. Minnesota Statutes 2003 Supplement, section 41.30 245C.05, subdivision 2, is amended to read: 41.31 Subd. 2. [APPLICANT, LICENSE HOLDER, OR OTHER ENTITY.] The 41.32 applicant, license holder, or other entity under section 245C.0441.33 entities as provided in this chapter shall provide the 41.34 information collected under subdivision 1 about an individual 41.35 who is the subject of the background study on forms or in a 41.36 format prescribed by the commissioner. 42.1 Sec. 40. Minnesota Statutes 2003 Supplement, section 42.2 245C.05, subdivision 5, is amended to read: 42.3 Subd. 5. [FINGERPRINTS.] (a) For any background study 42.4 completed under this sectionchapter, when the commissioner has 42.5 reasonable cause to believe that further pertinent information 42.6 may exist on the subject of the background study, the subject 42.7 shall provide the commissioner with a set of classifiable 42.8 fingerprints obtained from an authorized law enforcement agency. 42.9 (b) For purposes of requiring fingerprints, the 42.10 commissioner has reasonable cause when, but not limited to, the: 42.11 (1) information from the Bureau of Criminal Apprehension 42.12 indicates that the subject is a multistate offender; 42.13 (2) information from the Bureau of Criminal Apprehension 42.14 indicates that multistate offender status is undetermined; or 42.15 (3) commissioner has received a report from the subject or 42.16 a third party indicating that the subject has a criminal history 42.17 in a jurisdiction other than Minnesota. 42.18 Sec. 41. Minnesota Statutes 2003 Supplement, section 42.19 245C.05, subdivision 6, is amended to read: 42.20 Subd. 6. [APPLICANT, LICENSE HOLDER, REGISTRANTOTHER 42.21 ENTITIES, AND AGENCIES.] (a) The applicant, license 42.22 holder, registrantother entities as provided in this chapter, 42.23 Bureau of Criminal Apprehension, commissioner of health, and 42.24 county agencies shall help with the study by giving the 42.25 commissioner criminal conviction data and reports about the 42.26 maltreatment of adults substantiated under section 626.557 and 42.27 the maltreatment of minors in licensed programssubstantiated 42.28 under section 626.556. 42.29 (b) If a background study is initiated by an applicant or, 42.30 license holder, or other entities as provided in this chapter, 42.31 and the applicant or, license holder, or other entity receives 42.32 information about the possible criminal or maltreatment history 42.33 of an individual who is the subject of the background study, the 42.34 applicant or, license holder, or other entity must immediately 42.35 provide the information to the commissioner. 42.36 (c) The program or county or other agency must provide 43.1 written notice to the individual who is the subject of the 43.2 background study of the requirements under this subdivision. 43.3 Sec. 42. Minnesota Statutes 2003 Supplement, section 43.4 245C.08, subdivision 2, is amended to read: 43.5 Subd. 2. [BACKGROUND STUDIES CONDUCTED BY A COUNTY OR 43.6 PRIVATE AGENCY; FOSTER CARE AND FAMILY CHILD CARE.] (a) For a 43.7 background study conducted by a county or private agency for 43.8 child foster care, adult foster care, and family child care 43.9 homes, the commissioner shall review: 43.10 (1) information from the county agency's record of 43.11 substantiated maltreatment of adults and the maltreatment of 43.12 minors; 43.13 (2) information from juvenile courts as required in 43.14 subdivision 4 for individuals listed in section 245C.03, 43.15 subdivision 1, clauses (2), (5), and (6); and43.16 (3) information from the Bureau of Criminal Apprehension; 43.17 and 43.18 (4) arrest and investigative records maintained by the 43.19 Bureau of Criminal Apprehension, county attorneys, county 43.20 sheriffs, courts, county agencies, local police, the National 43.21 Criminal Records Repository, and criminal records from other 43.22 states. 43.23 (b) If the individual has resided in the county for less 43.24 than five years, the study shall include the records specified 43.25 under paragraph (a) for the previous county or counties of 43.26 residence for the past five years. 43.27 Sec. 43. Minnesota Statutes 2003 Supplement, section 43.28 245C.08, subdivision 3, is amended to read: 43.29 Subd. 3. [ARREST AND INVESTIGATIVE INFORMATION.] (a) For 43.30 any background study completed under this section, if the 43.31 commissioner has reasonable cause to believe the information is 43.32 pertinent to the disqualification of an individual listed in43.33 section 245C.03, subdivisions 1 and 2, the commissioner also may 43.34 review arrest and investigative information from: 43.35 (1) the Bureau of Criminal Apprehension; 43.36 (2) the commissioner of health; 44.1 (3) a county attorney; 44.2 (4) a county sheriff; 44.3 (5) a county agency; 44.4 (6) a local chief of police; 44.5 (7) other states; 44.6 (8) the courts; or 44.7 (9) the Federal Bureau of Investigation. 44.8 (b) The commissioner is not required to conduct more than 44.9 one review of a subject's records from the Federal Bureau of 44.10 Investigation if a review of the subject's criminal history with 44.11 the Federal Bureau of Investigation has already been completed 44.12 by the commissioner and there has been no break in the subject's 44.13 affiliation with the license holder who initiated the background 44.14 study. 44.15 Sec. 44. Minnesota Statutes 2003 Supplement, section 44.16 245C.08, subdivision 4, is amended to read: 44.17 Subd. 4. [JUVENILE COURT RECORDS.] (a) The commissioner 44.18 shall review records from the juvenile courts for an individual 44.19 studied under section 245C.03, subdivision 1, clauses (2) and 44.20 (5). 44.21 (b) For individuals studied under section 245C.03, 44.22 subdivision 1, clauses (1), (3), (4), and (6), and subdivision 44.23 2, who are ages 13 to 17, the commissioner shall review records 44.24 from the juvenile courts when the commissioner has reasonable 44.25 cause. 44.26 (c) The juvenile courts shall help with the study by giving 44.27 the commissioner existing juvenile court records on individuals 44.28 described in section 245C.03, subdivision 1, clauses (2), (5), 44.29 and (6), relating to delinquency proceedings held within either 44.30 the five years immediately preceding the background study or the 44.31 five years immediately preceding the individual's 18th birthday, 44.32 whichever time period is longer. 44.33 (d) For purposes of this chapter, a finding that a 44.34 delinquency petition is proven in juvenile court shall be 44.35 considered a conviction in state district court. 44.36 (e) The commissioner shall destroy juvenile court records 45.1 obtained under this subdivision when the subject of the records 45.2 reaches age 23. 45.3 Sec. 45. Minnesota Statutes 2003 Supplement, section 45.4 245C.09, subdivision 1, is amended to read: 45.5 Subdivision 1. [DISQUALIFICATION; LICENSING ACTION.] An 45.6 applicant's, license holder's, or registrant'sother entity's 45.7 failure or refusal to cooperate with the commissioner is 45.8 reasonable cause to disqualify a subject, deny a license 45.9 application, or immediately suspend or revoke a license or 45.10 registration. 45.11 Sec. 46. Minnesota Statutes 2003 Supplement, section 45.12 245C.13, subdivision 1, is amended to read: 45.13 Subdivision 1. [TIMING.] Upon receipt of the background 45.14 study forms from an applicant, license holder, registrant,45.15 agency, organization, program,or other entity as provided in 45.16 this chapter required to initiate a background study under 45.17 section 245C.04, the commissioner shall complete the background 45.18 study and provide the notice required under section 245C.17, 45.19 subdivision 1, within 15 working days. 45.20 Sec. 47. Minnesota Statutes 2003 Supplement, section 45.21 245C.14, subdivision 1, is amended to read: 45.22 Subdivision 1. [DISQUALIFICATION FROM DIRECT CONTACT.] (a) 45.23 The commissioner shall disqualify an individual who is the 45.24 subject of a background study from any position allowing direct 45.25 contact with persons receiving services from the license holder 45.26 or entity identified in section 245C.03, upon receipt of 45.27 information showing, or when a background study completed under 45.28 this chapter shows any of the following: 45.29 (1) a conviction of or admission to one or more crimes 45.30 listed in section 245C.15, regardless of whether the conviction 45.31 or admission is a felony, gross misdemeanor, or misdemeanor 45.32 level crime; 45.33 (2) a preponderance of the evidence indicates the 45.34 individual has committed an act or acts that meet the definition 45.35 of any of the crimes listed in section 245C.15, regardless of 45.36 whether the preponderance of the evidence is for a felony, gross 46.1 misdemeanor, or misdemeanor level crime; or 46.2 (3) an investigation results in an administrative 46.3 determination listed under section 245C.15, subdivision 4, 46.4 paragraph (b). 46.5 (b) No individual who is disqualified following a 46.6 background study under section 245C.03, subdivisions 1 and 2, 46.7 may be retained in a position involving direct contact with 46.8 persons served by a program or entity identified in section 46.9 245C.03, unless the commissioner has provided written notice 46.10 under section 245C.17 stating that: 46.11 (1) the individual may remain in direct contact during the 46.12 period in which the individual may request reconsideration as 46.13 provided in section 245C.21, subdivision 2; 46.14 (2) the commissioner has set aside the individual's 46.15 disqualification for that program or entity identified in 46.16 section 245C.03, as provided in section 245C.22, subdivision 4; 46.17 or 46.18 (3) the license holder has been granted a variance for the 46.19 disqualified individual under section 245C.30. 46.20 Sec. 48. Minnesota Statutes 2003 Supplement, section 46.21 245C.15, subdivision 2, is amended to read: 46.22 Subd. 2. [15-YEAR DISQUALIFICATION.] (a) An individual is 46.23 disqualified under section 245C.14 if: (1) less than 15 years 46.24 have passed since the discharge of the sentence imposed for the 46.25 offense; and (2) the individual has received a felony conviction 46.26 for a violation of any of the following offenses: sections 46.27 260C.301 (grounds for termination of parental rights); 609.165 46.28 (felon ineligible to possess firearm); 609.21 (criminal 46.29 vehicular homicide and injury); 609.215 (suicide); 609.223 or 46.30 609.2231 (assault in the third or fourth degree); repeat 46.31 offenses under 609.224 (assault in the fifth degree); 609.2325 46.32 (criminal abuse of a vulnerable adult); 609.2335 (financial 46.33 exploitation of a vulnerable adult); 609.235 (use of drugs to 46.34 injure or facilitate crime); 609.24 (simple robbery); 609.255 46.35 (false imprisonment); 609.2664 (manslaughter of an unborn child 46.36 in the first degree); 609.2665 (manslaughter of an unborn child 47.1 in the second degree); 609.267 (assault of an unborn child in 47.2 the first degree); 609.2671 (assault of an unborn child in the 47.3 second degree); 609.268 (injury or death of an unborn child in 47.4 the commission of a crime); 609.27 (coercion); 609.275 (attempt 47.5 to coerce); repeat offenses under 609.3451 (criminal sexual 47.6 conduct in the fifth degree); 609.498, subdivision 1 or 1b 47.7 (aggravated first degree or first degree tampering with a 47.8 witness); 609.52 (theft); 609.521 (possession of shoplifting 47.9 gear); 609.562 (arson in the second degree); 609.563 (arson in 47.10 the third degree); 609.582 (burglary); 609.625 (aggravated 47.11 forgery); 609.63 (forgery); 609.631 (check forgery; offering a 47.12 forged check); 609.635 (obtaining signature by false pretense); 47.13 609.66 (dangerous weapons); 609.67 (machine guns and 47.14 short-barreled shotguns); 609.687 (adulteration); 609.71 (riot); 47.15 609.713 (terroristic threats); repeat offenses under 617.23 47.16 (indecent exposure; penalties); repeat offenses under 617.241 47.17 (obscene materials and performances; distribution and exhibition 47.18 prohibited; penalty); chapter 152 (drugs; controlled substance); 47.19 or a felony level conviction involving alcohol or drug use. 47.20 (b) An individual is disqualified under section 245C.14 if 47.21 less than 15 years has passed since the individual's attempt or 47.22 conspiracy to commit any of the offenses listed in paragraph 47.23 (a), as each of these offenses is defined in Minnesota Statutes. 47.24 (c) An individual is disqualified under section 245C.14 if 47.25 less than 15 years has passed since the discharge of the 47.26 sentence imposed for an offense in any other state or country, 47.27 the elements of which are substantially similar to the elements 47.28 of the offenses listed in paragraph (a). 47.29 (d) If the individual studied is convicted of one of the 47.30 felonies listed in paragraph (a), but the sentence is a gross 47.31 misdemeanor or misdemeanor disposition, the individual is 47.32 disqualified but the disqualification lookback period for the 47.33 conviction is the period applicable to the gross misdemeanor or 47.34 misdemeanor disposition. 47.35 Sec. 49. Minnesota Statutes 2003 Supplement, section 47.36 245C.15, subdivision 3, is amended to read: 48.1 Subd. 3. [TEN-YEAR DISQUALIFICATION.] (a) An individual is 48.2 disqualified under section 245C.14 if: (1) less than ten years 48.3 have passed since the discharge of the sentence imposed for the 48.4 offense; and (2) the individual has received a gross misdemeanor 48.5 conviction for a violation of any of the following offenses: 48.6 sections 609.224 (assault in the fifth degree); 609.224, 48.7 subdivision 2, paragraph (c) (assault in the fifth degree by a 48.8 caregiver against a vulnerable adult); 609.2242 and 609.2243 48.9 (domestic assault); 609.23 (mistreatment of persons confined); 48.10 609.231 (mistreatment of residents or patients); 609.2325 48.11 (criminal abuse of a vulnerable adult); 609.233 (criminal 48.12 neglect of a vulnerable adult); 609.2335 (financial exploitation 48.13 of a vulnerable adult); 609.234 (failure to report maltreatment 48.14 of a vulnerable adult); 609.265 (abduction); 609.275 (attempt to 48.15 coerce); 609.324, subdivision 1a (other prohibited acts; minor 48.16 engaged in prostitution); 609.33 (disorderly house); 609.3451 48.17 (criminal sexual conduct in the fifth degree); 609.377 48.18 (malicious punishment of a child); 609.378 (neglect or 48.19 endangerment of a child); 609.52 (theft); 609.582 (burglary); 48.20 609.631 (check forgery; offering a forged check); 609.66 48.21 (dangerous weapons); 609.71 (riot); 609.72, subdivision 3 48.22 (disorderly conduct against a vulnerable adult); repeat offenses 48.23 under 609.746 (interference with privacy); 609.749, subdivision 48.24 2 (harassment; stalking); repeat offenses under 617.23 (indecent 48.25 exposure); 617.241 (obscene materials and performances); 617.243 48.26 (indecent literature, distribution); 617.293 (harmful materials; 48.27 dissemination and display to minors prohibited); or violation of 48.28 an order for protection under section 518B.01, subdivision 14. 48.29 (b) An individual is disqualified under section 245C.14 if 48.30 less than ten years has passed since the individual's attempt or 48.31 conspiracy to commit any of the offenses listed in paragraph 48.32 (a), as each of these offenses is defined in Minnesota Statutes. 48.33 (c) An individual is disqualified under section 245C.14 if 48.34 less than ten years has passed since the discharge of the 48.35 sentence imposed for an offense in any other state or country, 48.36 the elements of which are substantially similar to the elements 49.1 of any of the offenses listed in paragraph (a). 49.2 (d) If the defendant is convicted of one of the gross 49.3 misdemeanors listed in paragraph (a), but the sentence is a 49.4 misdemeanor disposition, the individual is disqualified but the 49.5 disqualification lookback period for the conviction is the 49.6 period applicable to misdemeanors. 49.7 Sec. 50. Minnesota Statutes 2003 Supplement, section 49.8 245C.15, subdivision 4, is amended to read: 49.9 Subd. 4. [SEVEN-YEAR DISQUALIFICATION.] (a) An individual 49.10 is disqualified under section 245C.14 if: (1) less than seven 49.11 years has passed since the discharge of the sentence imposed for 49.12 the offense; and (2) the individual has received a misdemeanor 49.13 conviction for a violation of any of the following offenses: 49.14 sections 609.224 (assault in the fifth degree); 609.2242 49.15 (domestic assault); 609.2335 (financial exploitation of a 49.16 vulnerable adult); 609.234 (failure to report maltreatment of a 49.17 vulnerable adult); 609.2672 (assault of an unborn child in the 49.18 third degree); 609.27 (coercion); violation of an order for 49.19 protection under 609.3232 (protective order authorized; 49.20 procedures; penalties); 609.52 (theft); 609.66 (dangerous 49.21 weapons); 609.665 (spring guns); 609.746 (interference with 49.22 privacy); 609.79 (obscene or harassing phone calls); 609.795 49.23 (letter, telegram, or package; opening; harassment); 617.23 49.24 (indecent exposure; penalties); 617.293 (harmful materials; 49.25 dissemination and display to minors prohibited); or violation of 49.26 an order for protection under section 518B.01 (Domestic Abuse 49.27 Act). 49.28 (b) An individual is disqualified under section 245C.14 if 49.29 less than seven years has passed since a determination or 49.30 disposition of the individual's: 49.31 (1) failure to make required reports under section 626.556, 49.32 subdivision 3, or 626.557, subdivision 3, for incidents in 49.33 which: (i) the final disposition under section 626.556 or 49.34 626.557 was substantiated maltreatment, and (ii) the 49.35 maltreatment was recurring or serious; or 49.36 (2) substantiated serious or recurring maltreatment of a 50.1 minor under section 626.556 or of, a vulnerable adult under 50.2 section 626.557, or serious or recurring maltreatment in any 50.3 other state, the elements of which are substantially similar to 50.4 the elements of maltreatment under section 626.556 or 626.557 50.5 for which: (i) there is a preponderance of evidence that the 50.6 maltreatment occurred, and (ii) the subject was responsible for 50.7 the maltreatment. 50.8 (c) An individual is disqualified under section 245C.14 if 50.9 less than seven years has passed since the individual's attempt 50.10 or conspiracy to commit any of the offenses listed in paragraphs 50.11 (a) and (b), as each of these offenses is defined in Minnesota 50.12 Statutes. 50.13 (d) An individual is disqualified under section 245C.14 if 50.14 less than seven years has passed since the discharge of the 50.15 sentence imposed for an offense in any other state or country, 50.16 the elements of which are substantially similar to the elements 50.17 of any of the offenses listed in paragraphs (a) and (b). 50.18 Sec. 51. Minnesota Statutes 2003 Supplement, section 50.19 245C.16, subdivision 1, is amended to read: 50.20 Subdivision 1. [DETERMINING IMMEDIATE RISK OF HARM.] (a) 50.21 If the commissioner determines that the individual studied has a 50.22 disqualifying characteristic, the commissioner shall review the 50.23 information immediately available and make a determination as to 50.24 the subject's immediate risk of harm to persons served by the 50.25 program where the individual studied will have direct contact. 50.26 (b) The commissioner shall consider all relevant 50.27 information available, including the following factors in 50.28 determining the immediate risk of harm: 50.29 (1) the recency of the disqualifying characteristic; 50.30 (2) the recency of discharge from probation for the crimes; 50.31 (3) the number of disqualifying characteristics; 50.32 (4) the intrusiveness or violence of the disqualifying 50.33 characteristic; 50.34 (5) the vulnerability of the victim involved in the 50.35 disqualifying characteristic; and50.36 (6) the similarity of the victim to the persons served by 51.1 the program where the individual studied will have direct 51.2 contact; and 51.3 (7) whether the individual has a disqualification from a 51.4 previous background study that has not been set aside. 51.5 (c) This section does not apply when the subject of a 51.6 background study is regulated by a health-related licensing 51.7 board as defined in chapter 214, and the subject is determined 51.8 to be responsible for substantiated maltreatment under section 51.9 626.556 or 626.557. 51.10 (d) If the commissioner has reason to believe, based on 51.11 arrest information or an active maltreatment investigation, that 51.12 an individual poses an imminent risk of harm to persons 51.13 receiving services, the commissioner may order that the person 51.14 be continuously supervised or immediately removed pending the 51.15 conclusion of the maltreatment investigation or criminal 51.16 proceedings. 51.17 Sec. 52. Minnesota Statutes 2003 Supplement, section 51.18 245C.17, subdivision 1, is amended to read: 51.19 Subdivision 1. [TIME FRAME FOR NOTICE OF STUDY RESULTS.] 51.20 (a) Within 15 working days after the commissioner's receipt of 51.21 the background study form, the commissioner shall notify the 51.22 individual who is the subject of the study in writing or by 51.23 electronic transmission of the results of the study or that more 51.24 time is needed to complete the study. 51.25 (b) Within 15 working days after the commissioner's receipt 51.26 of the background study form, the commissioner shall notify the 51.27 applicant, license holder, or registrantother entity as 51.28 provided in this chapter in writing or by electronic 51.29 transmission of the results of the study or that more time is 51.30 needed to complete the study. 51.31 Sec. 53. Minnesota Statutes 2003 Supplement, section 51.32 245C.17, subdivision 3, is amended to read: 51.33 Subd. 3. [DISQUALIFICATION NOTICE SENT TO APPLICANT, 51.34 LICENSE HOLDER, OR REGISTRANTOTHER ENTITY.] (a) The 51.35 commissioner shall notify an applicant, license holder, 51.36 or registrantother entity as provided in this chapter who is 52.1 not the subject of the study: 52.2 (1) that the commissioner has found information that 52.3 disqualifies the individual studied from direct contact with, or 52.4 from access to, persons served by the program; and 52.5 (2) the commissioner's determination of the individual's 52.6 risk of harm under section 245C.16. 52.7 (b) If the commissioner determines under section 245C.16 52.8 that an individual studied poses an imminent risk of harm to 52.9 persons served by the program where the individual studied will 52.10 have direct contact, the commissioner shall order the license 52.11 holder to immediately remove the individual studied from direct 52.12 contact. 52.13 (c) If the commissioner determines under section 245C.16 52.14 that an individual studied poses a risk of harm that requires 52.15 continuous, direct supervision, the commissioner shall order the 52.16 applicant, license holder, or other entities as provided in this 52.17 chapter to: 52.18 (1) immediately remove the individual studied from direct 52.19 contact services; or 52.20 (2) assure that the individual studied is under continuous, 52.21 direct supervision when providing direct contact services during 52.22 the period in which the individual may request a reconsideration 52.23 of the disqualification under section 245C.21. 52.24 (d) If the commissioner determines under section 245C.16 52.25 that an individual studied does not pose a risk of harm that 52.26 requires continuous, direct supervision, the commissioner shall 52.27 send the license holder a notice that more time is needed to 52.28 complete the individual's background study. 52.29 (e) The commissioner shall not notify the applicant, 52.30 license holder, or registrantother entity as provided in this 52.31 chapter of the information contained in the subject's background 52.32 study unless: 52.33 (1) the basis for the disqualification is failure to 52.34 cooperate with the background study or substantiated 52.35 maltreatment under section 626.556 or 626.557; 52.36 (2) the Data Practices Act under chapter 13 provides for 53.1 release of the information; or 53.2 (3) the individual studied authorizes the release of the 53.3 information. 53.4 Sec. 54. Minnesota Statutes 2003 Supplement, section 53.5 245C.18, is amended to read: 53.6 245C.18 [OBLIGATION TO REMOVE DISQUALIFIED INDIVIDUAL FROM 53.7 DIRECT CONTACT.] 53.8 Upon receipt of notice from the commissioner, the license 53.9 holder must remove a disqualified individual from direct contact 53.10 with persons served by the licensed program if: (1) the 53.11 individual does not request reconsideration under section 53.12 245C.21 within the prescribed time , or if; (2) the individual 53.13 submits a timely request for reconsideration, andthe 53.14 commissioner does not set aside the disqualification under 53.15 section 245C.22, subdivision 4 ., and the individual does not 53.16 submit a timely request for a hearing under sections 245C.27 and 53.17 256.045, or 245C.28 and chapter 14; or (3) the individual 53.18 submits a timely request for a hearing under sections 245C.27 53.19 and 256.045, or 245C.28 and chapter 14, and the commissioner 53.20 does not set aside or rescind the disqualification under section 53.21 245A.08, subdivision 5, or 256.045. 53.22 Sec. 55. Minnesota Statutes 2003 Supplement, section 53.23 245C.20, is amended to read: 53.24 245C.20 [LICENSE HOLDER RECORD KEEPING.] 53.25 A licensed program shall document the date the program 53.26 initiates a background study under this chapter in the program's 53.27 personnel files. When a background study is completed under 53.28 this chapter, a licensed program shall maintain a notice that 53.29 the study was undertaken and completed in the program's 53.30 personnel files. If a licensed program has not received a 53.31 response from the commissioner under section 245C.17 within 45 53.32 days of initiation of the background study request, the licensed 53.33 program must contact the commissioner to inquire about the 53.34 status of the study. 53.35 Sec. 56. Minnesota Statutes 2003 Supplement, section 53.36 245C.21, subdivision 3, is amended to read: 54.1 Subd. 3. [INFORMATION DISQUALIFIED INDIVIDUALS MUST 54.2 PROVIDE WHEN REQUESTING RECONSIDERATION.] The disqualified 54.3 individual requesting reconsideration must submit information 54.4 showing that: 54.5 (1) the information the commissioner relied upon in 54.6 determining the underlying conduct that gave rise to the 54.7 disqualification is incorrect; 54.8 (2) for maltreatment, the information the commissioner 54.9 relied upon in determining that maltreatment was serious or 54.10 recurring is incorrect; or 54.11 (3) the subject of the study does not pose a risk of harm 54.12 to any person served by the applicant, license holder, or 54.13 registrantother entities as provided in this chapter, by 54.14 addressing the information required under section 245C.22, 54.15 subdivision 4. 54.16 Sec. 57. Minnesota Statutes 2003 Supplement, section 54.17 245C.21, is amended by adding a subdivision to read: 54.18 Subd. 4. [NOTICE OF REQUEST FOR RECONSIDERATION.] Upon 54.19 request, the commissioner may inform the applicant, license 54.20 holder, or other entities as provided in this chapter who 54.21 received a notice of the individual's disqualification under 54.22 section 245C.17, subdivision 3, or has the consent of the 54.23 disqualified individual, whether the disqualified individual has 54.24 requested reconsideration. 54.25 Sec. 58. Minnesota Statutes 2003 Supplement, section 54.26 245C.22, subdivision 3, is amended to read: 54.27 Subd. 3. [PREEMINENT WEIGHT GIVEN TO SAFETY OF PERSONS 54.28 BEING SERVED.] In reviewing a request for reconsideration of a 54.29 disqualification, the commissioner shall give preeminent weight 54.30 to the safety of each person served by the license holder, 54.31 applicant, or registrantother entities as provided in this 54.32 chapter over the interests of the license holder, applicant, 54.33 or registrantother entity as provided in this chapter, and any 54.34 single factor under subdivision 4, paragraph (b), may be 54.35 determinative of the commissioner's decision whether to set 54.36 aside the individual's disqualification. 55.1 Sec. 59. Minnesota Statutes 2003 Supplement, section 55.2 245C.22, subdivision 4, is amended to read: 55.3 Subd. 4. [RISK OF HARM; SET ASIDE.] (a) The commissioner 55.4 may set aside the disqualification if the commissioner finds 55.5 that the individual has submitted sufficient information to 55.6 demonstrate that the individual does not pose a risk of harm to 55.7 any person served by the applicant, license holder, 55.8 or registrantother entities as provided in this chapter. 55.9 (b) In determining ifwhether the individual has met the 55.10 burden of proof by demonstrating the individual does not pose a 55.11 risk of harm, the commissioner shall consider: 55.12 (1) the nature, severity, and consequences of the event or 55.13 events that led to the disqualification; 55.14 (2) whether there is more than one disqualifying event; 55.15 (3) the age and vulnerability of the victim at the time of 55.16 the event; 55.17 (4) the harm suffered by the victim; 55.18 (5) the similarity between the victim and persons served by 55.19 the program; 55.20 (6) the time elapsed without a repeat of the same or 55.21 similar event; 55.22 (7) documentation of successful completion by the 55.23 individual studied of training or rehabilitation pertinent to 55.24 the event; and 55.25 (8) any other information relevant to reconsideration. 55.26 Sec. 60. Minnesota Statutes 2003 Supplement, section 55.27 245C.22, subdivision 5, is amended to read: 55.28 Subd. 5. [SCOPE OF SET ASIDE.] If the commissioner sets 55.29 aside a disqualification under this section, the disqualified 55.30 individual remains disqualified, but may hold a license and have 55.31 direct contact with or access to persons receiving services. 55.32 The commissioner's set aside of a disqualification is limited 55.33 solely to the licensed program, applicant, or agency specified 55.34 in the set aside notice under section 245C.23, unless otherwise 55.35 specified in the notice. 55.36 Sec. 61. Minnesota Statutes 2003 Supplement, section 56.1 245C.22, subdivision 6, is amended to read: 56.2 Subd. 6. [RECISION OF SET ASIDE.] The commissioner may 56.3 rescind a previous set aside of a disqualification under this 56.4 section based on new information that indicates the individual 56.5 may pose a risk of harm to persons served by the applicant, 56.6 license holder, or registrantother entities as provided in this 56.7 chapter. If the commissioner rescinds a set aside of a 56.8 disqualification under this paragraphsubdivision, the appeal 56.9 rights under sections 245C.21 and, 245C.27, subdivision 1, and 56.10 245C.28, subdivision 3, shall apply. 56.11 Sec. 62. Minnesota Statutes 2003 Supplement, section 56.12 245C.23, subdivision 1, is amended to read: 56.13 Subdivision 1. [COMMISSIONER'S NOTICE OF DISQUALIFICATION 56.14 THAT IS SET ASIDE.] (a) Except as provided under paragraph (c), 56.15 if the commissioner sets aside a disqualification, the 56.16 commissioner shall notify the applicant or license holder in 56.17 writing or by electronic transmission of the decision. In the 56.18 notice from the commissioner that a disqualification has been 56.19 set aside, the commissioner must inform the license holder that 56.20 information about the nature of the disqualification and which 56.21 factors under section 245C.22, subdivision 4, were the basis of 56.22 the decision to set aside the disqualification are available to 56.23 the license holder upon request without the consent of the 56.24 background study subject. 56.25 (b) With the written consent of the background study 56.26 subject, the commissioner may release to the license holder 56.27 copies of all information related to the background study 56.28 subject's disqualification and the commissioner's decision to 56.29 set aside the disqualification as specified in the written 56.30 consent. 56.31 (c) If the individual studied submits a timely request for 56.32 reconsideration under section 245C.21 and the license holder was 56.33 previously sent a notice under section 245C.17, subdivision 3, 56.34 paragraph (d), and if the commissioner sets aside the 56.35 disqualification for that license holder under section 245C.22, 56.36 the commissioner shall send the license holder the same 57.1 notification received by license holders in cases where the 57.2 individual studied has no disqualifying characteristic. 57.3 Sec. 63. Minnesota Statutes 2003 Supplement, section 57.4 245C.23, subdivision 2, is amended to read: 57.5 Subd. 2. [COMMISSIONER'S NOTICE OF DISQUALIFICATION THAT 57.6 IS NOT SET ASIDE.] (a) The commissioner shall notify the license 57.7 holder of the disqualification and order the license holder to 57.8 immediately remove the individual from any position allowing 57.9 direct contact with persons receiving services from the license 57.10 holder if: (1) the individual studied does not submit a timely 57.11 request for reconsideration under section 245C.21 , or; (2) the 57.12 individual submits a timely request for reconsideration, but the 57.13 commissioner does not set aside the disqualification for that 57.14 license holder under section 245C.22 , the commissioner shall57.15 notify the license holder of the disqualification and order the57.16 license holder to immediately remove the individual from any57.17 position allowing direct contact with persons receiving services57.18 from the license holder.; (3) an individual who has a right to 57.19 request a hearing under sections 245C.27 and 256.045, or 245C.28 57.20 and chapter 14 for a disqualification that has not been set 57.21 aside, does not request a hearing within the specified time; or 57.22 (4) an individual submitted a timely request for a hearing under 57.23 sections 245C.27 and 256.045, or 245C.28 and chapter 14, but the 57.24 commissioner does not set aside the disqualification under 57.25 section 245A.08, subdivision 5, or 256.045. 57.26 (b) If the commissioner does not set aside the 57.27 disqualification under section 245C.22, and the license holder 57.28 was previously ordered under section 245C.17 to immediately 57.29 remove the disqualified individual from direct contact with 57.30 persons receiving services or to ensure that the individual is 57.31 under continuous, direct supervision when providing direct 57.32 contact services, the order remains in effect pending the 57.33 outcome of a hearing under sections 245C.27 and 256.045, or 57.34 245C.28 and chapter 14. 57.35 Sec. 64. Minnesota Statutes 2003 Supplement, section 57.36 245C.25, is amended to read: 58.1 245C.25 [CONSOLIDATED RECONSIDERATION OF MALTREATMENT 58.2 DETERMINATION AND DISQUALIFICATION.] 58.3 (a) If an individual is disqualified on the basis of a 58.4 determination of maltreatment under section 626.556 or 626.557, 58.5 which was serious or recurring, and the individual requests 58.6 reconsideration of the maltreatment determination under section 58.7 626.556, subdivision 10i, or 626.557, subdivision 9d, and also 58.8 requests reconsideration of the disqualification under section 58.9 245C.21, the commissioner shall consolidate the reconsideration 58.10 of the maltreatment determination and the disqualification into 58.11 a single reconsideration. 58.12 (b) For maltreatment and disqualification determinations 58.13 made by county agencies, the county agency shall conduct the 58.14 consolidated reconsideration. If the county agency has 58.15 disqualified an individual on multiple bases, one of which is a 58.16 county maltreatment determination for which the individual has a 58.17 right to request reconsideration, the county shall conduct the 58.18 reconsideration of all disqualifications. 58.19 (c) If the county has previously conducted a consolidated 58.20 reconsideration under paragraph (b) of a maltreatment 58.21 determination and a disqualification based on serious or 58.22 recurring maltreatment, and the county subsequently disqualifies 58.23 the individual based on that determination, the county shall 58.24 conduct the reconsideration of the subsequent disqualification. 58.25 The scope of the subsequent disqualification shall be limited to 58.26 whether the individual poses a risk of harm in accordance with 58.27 section 245C.22, subdivision 4. 58.28 Sec. 65. Minnesota Statutes 2003 Supplement, section 58.29 245C.26, is amended to read: 58.30 245C.26 [RECONSIDERATION OF A DISQUALIFICATION FOR AN 58.31 INDIVIDUAL LIVING IN A LICENSED HOME.] 58.32 In the case of any ground for disqualification under this 58.33 chapter, if the act was committed by an individual other than 58.34 the applicant ,or license holder , or registrantresiding in the 58.35 applicant's ,or license holder's , or registrant'shome, the 58.36 applicant ,or license holder , or registrantmay seek 59.1 reconsideration when the individual who committed the act no 59.2 longer resides in the home. 59.3 Sec. 66. Minnesota Statutes 2003 Supplement, section 59.4 245C.27, subdivision 1, is amended to read: 59.5 Subdivision 1. [FAIR HEARING WHEN DISQUALIFICATION IS NOT 59.6 SET ASIDE.] (a) If the commissioner does not set aside or 59.7 rescind a disqualification of an individual under section 59.8 245C.22 who is disqualified on the basis of a preponderance of 59.9 evidence that the individual committed an act or acts that meet 59.10 the definition of any of the crimes listed in section 245C.15; 59.11 for a determination under section 626.556 or 626.557 of 59.12 substantiated maltreatment that was serious or recurring under 59.13 section 245C.15; or for failure to make required reports under 59.14 section 626.556, subdivision 3; or 626.557, subdivision 3, 59.15 pursuant to section 245C.15, subdivision 4, paragraph (b), 59.16 clause (1), the individual may request a fair hearing under 59.17 section 256.045, unless the disqualification is deemed 59.18 conclusive under section 245C.29. 59.19 (b) The fair hearing is the only administrative appeal of 59.20 the final agency determination for purposes of appeal by the 59.21 disqualified individual. The disqualified individual does not 59.22 have the right to challenge the accuracy and completeness of 59.23 data under section 13.04. 59.24 (c) If the individual was disqualified based on a 59.25 conviction or admission to any crimes listed in section 245C.15, 59.26 subdivisions 1 to 4, the reconsideration decision under this59.27 subdivisionsection 245C.22 is the final agency determination 59.28 for purposes of appeal by the disqualified individual and is not 59.29 subject to a hearing under section 256.045. 59.30 (d) This sectionsubdivision does not apply to a public 59.31 employee's appeal of a disqualification under section 245C.28, 59.32 subdivision 3. 59.33 Sec. 67. Minnesota Statutes 2003 Supplement, section 59.34 245C.27, subdivision 2, is amended to read: 59.35 Subd. 2. [CONSOLIDATED FAIR HEARING FOR MALTREATMENT 59.36 DETERMINATION AND DISQUALIFICATION NOT SET ASIDE.] (a) If an 60.1 individual who is disqualified on the bases of serious or 60.2 recurring maltreatment requests a fair hearing on the 60.3 maltreatment determination under section 626.556, subdivision 60.4 10i, or 626.557, subdivision 9d, and requests a fair hearing 60.5 under this section on the disqualification, which has not been 60.6 set aside or rescinded, the scope of the fair hearing under 60.7 section 256.045 shall include the maltreatment determination and 60.8 the disqualification. 60.9 (b) A fair hearing is the only administrative appeal of the 60.10 final agency determination. The disqualified individual does 60.11 not have the right to challenge the accuracy and completeness of 60.12 data under section 13.04. 60.13 (c) This sectionsubdivision does not apply to a public 60.14 employee's appeal of a disqualification under section 245C.28, 60.15 subdivision 3. 60.16 Sec. 68. Minnesota Statutes 2003 Supplement, section 60.17 245C.28, subdivision 1, is amended to read: 60.18 Subdivision 1. [LICENSE HOLDER.] (a) If a maltreatment 60.19 determination or a disqualification for which reconsideration 60.20 was requested and which was not set aside or rescindedis the 60.21 basis for a denial of a license under section 245A.05 or a 60.22 licensing sanction under section 245A.07, the license holder has 60.23 the right to a contested case hearing under chapter 14 and 60.24 Minnesota Rules, parts 1400.8505 to 1400.8612. 60.25 (b) The license holder must submit the appeal in accordance 60.26 with section 245A.05 or 245A.07, subdivision 3. As provided 60.27 under section 245A.08, subdivision 2a, the scope of the 60.28 consolidated contested case hearing must include the 60.29 disqualification and the licensing sanction or denial of a 60.30 license. 60.31 (c) If the disqualification was based on a determination of 60.32 substantiated serious or recurring maltreatment under section 60.33 626.556 or 626.557, the appeal must be submitted in accordance 60.34 with sections 245A.07, subdivision 3, and 626.556, subdivision 60.35 10i, or 626.557, subdivision 9d. As provided for under section 60.36 245A.08, subdivision 2a, the scope of the contested case hearing 61.1 must include the maltreatment determination, the 61.2 disqualification, and the licensing sanction or denial of a 61.3 license. In such cases, a fair hearing must not be conducted 61.4 under section 256.045. 61.5 Sec. 69. Minnesota Statutes 2003 Supplement, section 61.6 245C.28, subdivision 2, is amended to read: 61.7 Subd. 2. [INDIVIDUAL OTHER THAN LICENSE HOLDER.] If the 61.8 basis for the commissioner's denial of a license under section 61.9 245A.05 or a licensing sanction under section 245A.07 is a 61.10 maltreatment determination or disqualification that was not set 61.11 aside or rescindedunder section 245C.22, and the disqualified 61.12 subject is an individual other than the license holder and upon 61.13 whom a background study must be conducted under section 245C.03, 61.14 the hearing of all parties may be consolidated into a single 61.15 contested case hearing upon consent of all parties and the 61.16 administrative law judge. 61.17 Sec. 70. Minnesota Statutes 2003 Supplement, section 61.18 245C.28, subdivision 3, is amended to read: 61.19 Subd. 3. [EMPLOYEES OF PUBLIC EMPLOYER.] (a) If the 61.20 commissioner does not set aside the disqualification of an 61.21 individual who is an employee of an employer, as defined in 61.22 section 179A.03, subdivision 15, the individual may request a 61.23 contested case hearing under chapter 14. The request for a 61.24 contested case hearing must be made in writing and must be 61.25 postmarked and mailed within 30 calendar days after the employee 61.26 receives notice that the disqualification has not been set aside. 61.27 (b) If the commissioner does not set aside or rescind a 61.28 disqualification that is based on a maltreatment determination, 61.29 the scope of the contested case hearing must include the 61.30 maltreatment determination and the disqualification. In such 61.31 cases, a fair hearing must not be conducted under section 61.32 256.045. 61.33 (c) Rules adopted under this chapter may not preclude an 61.34 employee in a contested case hearing for a disqualification from 61.35 submitting evidence concerning information gathered under this 61.36 chapter. 62.1 (d) When a person has been disqualified from multiple 62.2 licensed programs and the disqualifications have not been set 62.3 aside under section 245C.22, if at least one of the 62.4 disqualifications entitles the person to a contested case 62.5 hearing under this subdivision, the scope of the contested case 62.6 hearing shall include all disqualifications from licensed 62.7 programs which were not set aside. 62.8 (e) In determining whether the disqualification should be 62.9 set aside, the administrative law judge shall consider all of 62.10 the characteristics that cause the individual to be 62.11 disqualified, including those characteristics that were not 62.12 subject to review under paragraph (b), in order to determine 62.13 whether the individual poses a risk of harm. The administrative 62.14 law judge's recommendation and the commissioner's order to set 62.15 aside a disqualification that is the subject of the hearing 62.16 constitutes a determination that the individual does not pose a 62.17 risk of harm and that the individual may provide direct contact 62.18 services in the individual program specified in the set aside. 62.19 Sec. 71. Minnesota Statutes 2003 Supplement, section 62.20 245C.29, subdivision 2, is amended to read: 62.21 Subd. 2. [CONCLUSIVE DISQUALIFICATION DETERMINATION.] (a) 62.22 Unless otherwise specified in statute, a determination that: 62.23 (1) the information the commissioner relied upon to 62.24 disqualify an individual under section 245C.14 was correct based 62.25 on serious or recurring maltreatment; 62.26 (2) a preponderance of the evidence shows that the 62.27 individual committed an act or acts that meet the definition of 62.28 any of the crimes listed in section 245C.15; or 62.29 (3) the individual failed to make required reports under 62.30 section 626.556, subdivision 3, or 626.557, subdivision 3, is 62.31 conclusive if: 62.32 (i) the commissioner has issued a final order in an appeal 62.33 of that determination under section 245A.08, subdivision 5, or 62.34 256.045, or a court has issued a final decision; 62.35 (ii) the individual did not request reconsideration of the 62.36 disqualification under section 245C.21; or 63.1 (iii) the individual did not request a hearing on the 63.2 disqualification under section 256.045 or chapter 14. 63.3 (b) When a licensing action under section 245A.05, 245A.06, 63.4 or 245A.07 is based on the disqualification of an individual in 63.5 connection with a license to provide family child care, foster 63.6 care for children in the provider's own home, or foster care 63.7 services for adults in the provider's own home, that 63.8 disqualification shall be conclusive for purposes of the 63.9 licensing action if a request for reconsideration was not 63.10 submitted within 30 calendar days of the individual's receipt of 63.11 the notice of disqualification. 63.12 (c) If a determination that the information relied upon to 63.13 disqualify an individual was correct and is conclusive under 63.14 this section, and the individual is subsequently disqualified 63.15 under section 245C.15, the individual has a right to request 63.16 reconsideration on the risk of harm under section 245C.21. 63.17 Subsequent determinations regarding the risk of harm shall be 63.18 made according to section 245C.22 and are not subject to another 63.19 hearing under section 256.045 or chapter 14. 63.20 Sec. 72. Minnesota Statutes 2002, section 252.28, 63.21 subdivision 1, is amended to read: 63.22 Subdivision 1. [DETERMINATIONS; REDETERMINATIONS.] In 63.23 conjunction with the appropriate county boards, the commissioner 63.24 of human services shall determine, and shall redetermine at 63.25 least every four years, the need, anticipated growth or decline 63.26 in need until the next anticipated redetermination, location, 63.27 size, and program of public and private day training and 63.28 habilitation services for persons with mental retardation or 63.29 related conditions. This subdivision does not apply to 63.30 semi-independent living services and residential-based 63.31 habilitation services provided to four or fewer persons at a 63.32 single site funded as home and community-based services. A 63.33 determination of need shall not be required for a change in 63.34 ownership. 63.35 Sec. 73. Minnesota Statutes 2003 Supplement, section 63.36 256.045, subdivision 3, is amended to read: 64.1 Subd. 3. [STATE AGENCY HEARINGS.] (a) State agency 64.2 hearings are available for the following: (1) any person 64.3 applying for, receiving or having received public assistance, 64.4 medical care, or a program of social services granted by the 64.5 state agency or a county agency or the federal Food Stamp Act 64.6 whose application for assistance is denied, not acted upon with 64.7 reasonable promptness, or whose assistance is suspended, 64.8 reduced, terminated, or claimed to have been incorrectly paid; 64.9 (2) any patient or relative aggrieved by an order of the 64.10 commissioner under section 252.27; (3) a party aggrieved by a 64.11 ruling of a prepaid health plan; (4) except as provided under 64.12 chapter 245C, any individual or facility determined by a lead 64.13 agency to have maltreated a vulnerable adult under section 64.14 626.557 after they have exercised their right to administrative 64.15 reconsideration under section 626.557; (5) any person whose 64.16 claim for foster care payment according to a placement of the 64.17 child resulting from a child protection assessment under section 64.18 626.556 is denied or not acted upon with reasonable promptness, 64.19 regardless of funding source; (6) any person to whom a right of 64.20 appeal according to this section is given by other provision of 64.21 law; (7) an applicant aggrieved by an adverse decision to an 64.22 application for a hardship waiver under section 256B.15; (8) 64.23 except as provided under chapter 245A, an individual or facility 64.24 determined to have maltreated a minor under section 626.556, 64.25 after the individual or facility has exercised the right to 64.26 administrative reconsideration under section 626.556; or (9) 64.27 except as provided under chapter 245C, an individual 64.28 disqualified under sections 245C.14 and 245C.15, on the basis of 64.29 serious or recurring maltreatment; a preponderance of the 64.30 evidence that the individual has committed an act or acts that 64.31 meet the definition of any of the crimes listed in section 64.32 245C.15, subdivisions 1 to 4; or for failing to make reports 64.33 required under section 626.556, subdivision 3, or 626.557, 64.34 subdivision 3. Hearings regarding a maltreatment determination 64.35 under clause (4) or (8) and a disqualification under this clause 64.36 in which the basis for a disqualification is serious or 65.1 recurring maltreatment, which has not been set aside or65.2 rescindedunder sections 245C.22 and 245C.23, shall be 65.3 consolidated into a single fair hearing. In such cases, the 65.4 scope of review by the human services referee shall include both 65.5 the maltreatment determination and the disqualification. The 65.6 failure to exercise the right to an administrative 65.7 reconsideration shall not be a bar to a hearing under this 65.8 section if federal law provides an individual the right to a 65.9 hearing to dispute a finding of maltreatment. Individuals and 65.10 organizations specified in this section may contest the 65.11 specified action, decision, or final disposition before the 65.12 state agency by submitting a written request for a hearing to 65.13 the state agency within 30 days after receiving written notice 65.14 of the action, decision, or final disposition, or within 90 days 65.15 of such written notice if the applicant, recipient, patient, or 65.16 relative shows good cause why the request was not submitted 65.17 within the 30-day time limit. 65.18 The hearing for an individual or facility under clause (4), 65.19 (8), or (9) is the only administrative appeal to the final 65.20 agency determination specifically, including a challenge to the 65.21 accuracy and completeness of data under section 13.04. Hearings 65.22 requested under clause (4) apply only to incidents of 65.23 maltreatment that occur on or after October 1, 1995. Hearings 65.24 requested by nursing assistants in nursing homes alleged to have 65.25 maltreated a resident prior to October 1, 1995, shall be held as 65.26 a contested case proceeding under the provisions of chapter 14. 65.27 Hearings requested under clause (8) apply only to incidents of 65.28 maltreatment that occur on or after July 1, 1997. A hearing for 65.29 an individual or facility under clause (8) is only available 65.30 when there is no juvenile court or adult criminal action 65.31 pending. If such action is filed in either court while an 65.32 administrative review is pending, the administrative review must 65.33 be suspended until the judicial actions are completed. If the 65.34 juvenile court action or criminal charge is dismissed or the 65.35 criminal action overturned, the matter may be considered in an 65.36 administrative hearing. 66.1 For purposes of this section, bargaining unit grievance 66.2 procedures are not an administrative appeal. 66.3 The scope of hearings involving claims to foster care 66.4 payments under clause (5) shall be limited to the issue of 66.5 whether the county is legally responsible for a child's 66.6 placement under court order or voluntary placement agreement 66.7 and, if so, the correct amount of foster care payment to be made 66.8 on the child's behalf and shall not include review of the 66.9 propriety of the county's child protection determination or 66.10 child placement decision. 66.11 (b) A vendor of medical care as defined in section 256B.02, 66.12 subdivision 7, or a vendor under contract with a county agency 66.13 to provide social services is not a party and may not request a 66.14 hearing under this section, except if assisting a recipient as 66.15 provided in subdivision 4. 66.16 (c) An applicant or recipient is not entitled to receive 66.17 social services beyond the services included in the amended 66.18 community social services plan. 66.19 (d) The commissioner may summarily affirm the county or 66.20 state agency's proposed action without a hearing when the sole 66.21 issue is an automatic change due to a change in state or federal 66.22 law. 66.23 Sec. 74. Minnesota Statutes 2003 Supplement, section 66.24 256.045, subdivision 3b, is amended to read: 66.25 Subd. 3b. [STANDARD OF EVIDENCE FOR MALTREATMENT AND 66.26 DISQUALIFICATION HEARINGS.] (a) The state human services referee 66.27 shall determine that maltreatment has occurred if a 66.28 preponderance of evidence exists to support the final 66.29 disposition under sections 626.556 and 626.557. For purposes of 66.30 hearings regarding disqualification, the state human services 66.31 referee shall affirm the proposed disqualification in an appeal 66.32 under subdivision 3, paragraph (a), clause (9), if a 66.33 preponderance of the evidence shows the individual has: 66.34 (1) committed maltreatment under section 626.556 or 66.35 626.557, which is serious or recurring; 66.36 (2) committed an act or acts meeting the definition of any 67.1 of the crimes listed in section 245C.15, subdivisions 1 to 4; or 67.2 (3) failed to make required reports under section 626.556 67.3 or 626.557, for incidents in which the final disposition under 67.4 section 626.556 or 626.557 was substantiated maltreatment that 67.5 was serious or recurring. 67.6 (b) If the disqualification is affirmed, the state human 67.7 services referee shall determine whether the individual poses a 67.8 risk of harm in accordance with the requirements of section 67.9 245C.16 ., and whether the disqualification should be set aside 67.10 or not set aside. In determining whether the disqualification 67.11 should be set aside, the human services referee shall consider 67.12 all of the characteristics that cause the individual to be 67.13 disqualified, including those characteristics that were not 67.14 subject to review under paragraph (a), in order to determine 67.15 whether the individual poses a risk of harm. A decision to set 67.16 aside a disqualification that is the subject of the hearing 67.17 constitutes a determination that the individual does not pose a 67.18 risk of harm and that the individual may provide direct contact 67.19 services in the individual program specified in the set aside. 67.20 If a determination that the information relied upon to 67.21 disqualify an individual was correct and is conclusive under 67.22 section 245C.29, and the individual is subsequently disqualified 67.23 under section 245C.14, the individual has a right to again 67.24 request reconsideration on the risk of harm under section 67.25 245C.21. Subsequent determinations regarding risk of harm are 67.26 not subject to another hearing under this section. 67.27 (c) The state human services referee shall recommend an 67.28 order to the commissioner of health, education, or human 67.29 services, as applicable, who shall issue a final order. The 67.30 commissioner shall affirm, reverse, or modify the final 67.31 disposition. Any order of the commissioner issued in accordance 67.32 with this subdivision is conclusive upon the parties unless 67.33 appeal is taken in the manner provided in subdivision 7. In any 67.34 licensing appeal under chapters 245A and 245C and sections 67.35 144.50 to 144.58 and 144A.02 to 144A.46, the commissioner's 67.36 determination as to maltreatment is conclusive, as provided 68.1 under section 245C.29. 68.2 Sec. 75. Minnesota Statutes 2003 Supplement, section 68.3 626.556, subdivision 10i, is amended to read: 68.4 Subd. 10i. [ADMINISTRATIVE RECONSIDERATION OF FINAL 68.5 DETERMINATION OF MALTREATMENT AND DISQUALIFICATION BASED ON 68.6 SERIOUS OR RECURRING MALTREATMENT; REVIEW PANEL.] (a) Except as 68.7 provided under paragraph (e), an individual or facility that the 68.8 commissioner of human services, a local social service agency, 68.9 or the commissioner of education determines has maltreated a 68.10 child, an interested person acting on behalf of the child, 68.11 regardless of the determination, who contests the investigating 68.12 agency's final determination regarding maltreatment, may request 68.13 the investigating agency to reconsider its final determination 68.14 regarding maltreatment. The request for reconsideration must be 68.15 submitted in writing to the investigating agency within 15 68.16 calendar days after receipt of notice of the final determination 68.17 regarding maltreatment or, if the request is made by an 68.18 interested person who is not entitled to notice, within 15 days 68.19 after receipt of the notice by the parent or guardian of the 68.20 child. Effective January 1, 2002, an individual who was 68.21 determined to have maltreated a child under this section and who 68.22 was disqualified on the basis of serious or recurring 68.23 maltreatment under sections 245C.14 and 245C.15, may request 68.24 reconsideration of the maltreatment determination and the 68.25 disqualification. The request for reconsideration of the 68.26 maltreatment determination and the disqualification must be 68.27 submitted within 30 calendar days of the individual's receipt of 68.28 the notice of disqualification under sections 245C.16 and 68.29 245C.17. 68.30 (b) Except as provided under paragraphs (e) and (f), if the 68.31 investigating agency denies the request or fails to act upon the 68.32 request within 15 calendar days after receiving the request for 68.33 reconsideration, the person or facility entitled to a fair 68.34 hearing under section 256.045 may submit to the commissioner of 68.35 human services or the commissioner of education a written 68.36 request for a hearing under that section. Section 256.045 also 69.1 governs hearings requested to contest a final determination of 69.2 the commissioner of education. For reports involving 69.3 maltreatment of a child in a facility, an interested person 69.4 acting on behalf of the child may request a review by the Child 69.5 Maltreatment Review Panel under section 256.022 if the 69.6 investigating agency denies the request or fails to act upon the 69.7 request or if the interested person contests a reconsidered 69.8 determination. The investigating agency shall notify persons 69.9 who request reconsideration of their rights under this 69.10 paragraph. The request must be submitted in writing to the 69.11 review panel and a copy sent to the investigating agency within 69.12 30 calendar days of receipt of notice of a denial of a request 69.13 for reconsideration or of a reconsidered determination. The 69.14 request must specifically identify the aspects of the agency 69.15 determination with which the person is dissatisfied. 69.16 (c) If, as a result of a reconsideration or review, the 69.17 investigating agency changes the final determination of 69.18 maltreatment, that agency shall notify the parties specified in 69.19 subdivisions 10b, 10d, and 10f. 69.20 (d) Except as provided under paragraph (f), if an 69.21 individual or facility contests the investigating agency's final 69.22 determination regarding maltreatment by requesting a fair 69.23 hearing under section 256.045, the commissioner of human 69.24 services shall assure that the hearing is conducted and a 69.25 decision is reached within 90 days of receipt of the request for 69.26 a hearing. The time for action on the decision may be extended 69.27 for as many days as the hearing is postponed or the record is 69.28 held open for the benefit of either party. 69.29 (e) Effective January 1, 2002, if an individual was 69.30 disqualified under sections 245C.14 and 245C.15, on the basis of 69.31 a determination of maltreatment, which was serious or recurring, 69.32 and the individual has requested reconsideration of the 69.33 maltreatment determination under paragraph (a) and requested 69.34 reconsideration of the disqualification under sections 245C.21 69.35 to 245C.27, reconsideration of the maltreatment determination 69.36 and reconsideration of the disqualification shall be 70.1 consolidated into a single reconsideration. If reconsideration 70.2 of the maltreatment determination is denied or the 70.3 disqualification is not set aside or rescindedunder sections 70.4 245C.21 to 245C.27, the individual may request a fair hearing 70.5 under section 256.045. If an individual requests a fair hearing 70.6 on the maltreatment determination and the disqualification, the 70.7 scope of the fair hearing shall include both the maltreatment 70.8 determination and the disqualification. 70.9 (f) Effective January 1, 2002, if a maltreatment 70.10 determination or a disqualification based on serious or 70.11 recurring maltreatment is the basis for a denial of a license 70.12 under section 245A.05 or a licensing sanction under section 70.13 245A.07, the license holder has the right to a contested case 70.14 hearing under chapter 14 and Minnesota Rules, parts 1400.851070.15 1400.8505 to 1400.8612 and successor rules. As provided for 70.16 under section 245A.08, subdivision 2a, the scope of the 70.17 contested case hearing shall include the maltreatment 70.18 determination, disqualification, and licensing sanction or 70.19 denial of a license. In such cases, a fair hearing regarding 70.20 the maltreatment determination shall not be conducted under 70.21 paragraph (b). If the disqualified subject is an individual 70.22 other than the license holder and upon whom a background study 70.23 must be conducted under chapter 245C, the hearings of all 70.24 parties may be consolidated into a single contested case hearing 70.25 upon consent of all parties and the administrative law judge. 70.26 (g) For purposes of this subdivision, "interested person 70.27 acting on behalf of the child" means a parent or legal guardian; 70.28 stepparent; grandparent; guardian ad litem; adult stepbrother, 70.29 stepsister, or sibling; or adult aunt or uncle; unless the 70.30 person has been determined to be the perpetrator of the 70.31 maltreatment. 70.32 Sec. 76. Minnesota Statutes 2003 Supplement, section 70.33 626.557, subdivision 9d, is amended to read: 70.34 Subd. 9d. [ADMINISTRATIVE RECONSIDERATION OF FINAL 70.35 DISPOSITION OF MALTREATMENT AND DISQUALIFICATION BASED ON 70.36 SERIOUS OR RECURRING MALTREATMENT; REVIEW PANEL.] (a) Except as 71.1 provided under paragraph (e), any individual or facility which a 71.2 lead agency determines has maltreated a vulnerable adult, or the 71.3 vulnerable adult or an interested person acting on behalf of the 71.4 vulnerable adult, regardless of the lead agency's determination, 71.5 who contests the lead agency's final disposition of an 71.6 allegation of maltreatment, may request the lead agency to 71.7 reconsider its final disposition. The request for 71.8 reconsideration must be submitted in writing to the lead agency 71.9 within 15 calendar days after receipt of notice of final 71.10 disposition or, if the request is made by an interested person 71.11 who is not entitled to notice, within 15 days after receipt of 71.12 the notice by the vulnerable adult or the vulnerable adult's 71.13 legal guardian. An individual who was determined to have 71.14 maltreated a vulnerable adult under this section and who was 71.15 disqualified on the basis of serious or recurring maltreatment 71.16 under sections 245C.14 and 245C.15, may request reconsideration 71.17 of the maltreatment determination and the disqualification. The 71.18 request for reconsideration of the maltreatment determination 71.19 and the disqualification must be submitted within 30 calendar 71.20 days of the individual's receipt of the notice of 71.21 disqualification under sections 245C.16 and 245C.17. 71.22 (b) Except as provided under paragraphs (e) and (f), if the 71.23 lead agency denies the request or fails to act upon the request 71.24 within 15 calendar days after receiving the request for 71.25 reconsideration, the person or facility entitled to a fair 71.26 hearing under section 256.045, may submit to the commissioner of 71.27 human services a written request for a hearing under that 71.28 statute. The vulnerable adult, or an interested person acting 71.29 on behalf of the vulnerable adult, may request a review by the 71.30 Vulnerable Adult Maltreatment Review Panel under section 256.021 71.31 if the lead agency denies the request or fails to act upon the 71.32 request, or if the vulnerable adult or interested person 71.33 contests a reconsidered disposition. The lead agency shall 71.34 notify persons who request reconsideration of their rights under 71.35 this paragraph. The request must be submitted in writing to the 71.36 review panel and a copy sent to the lead agency within 30 72.1 calendar days of receipt of notice of a denial of a request for 72.2 reconsideration or of a reconsidered disposition. The request 72.3 must specifically identify the aspects of the agency 72.4 determination with which the person is dissatisfied. 72.5 (c) If, as a result of a reconsideration or review, the 72.6 lead agency changes the final disposition, it shall notify the 72.7 parties specified in subdivision 9c, paragraph (d). 72.8 (d) For purposes of this subdivision, "interested person 72.9 acting on behalf of the vulnerable adult" means a person 72.10 designated in writing by the vulnerable adult to act on behalf 72.11 of the vulnerable adult, or a legal guardian or conservator or 72.12 other legal representative, a proxy or health care agent 72.13 appointed under chapter 145B or 145C, or an individual who is 72.14 related to the vulnerable adult, as defined in section 245A.02, 72.15 subdivision 13. 72.16 (e) If an individual was disqualified under sections 72.17 245C.14 and 245C.15, on the basis of a determination of 72.18 maltreatment, which was serious or recurring, and the individual 72.19 has requested reconsideration of the maltreatment determination 72.20 under paragraph (a) and reconsideration of the disqualification 72.21 under sections 245C.21 to 245C.27, reconsideration of the 72.22 maltreatment determination and requested reconsideration of the 72.23 disqualification shall be consolidated into a single 72.24 reconsideration. If reconsideration of the maltreatment 72.25 determination is denied or if the disqualification is not set 72.26 aside or rescindedunder sections 245C.21 to 245C.27, the 72.27 individual may request a fair hearing under section 256.045. If 72.28 an individual requests a fair hearing on the maltreatment 72.29 determination and the disqualification, the scope of the fair 72.30 hearing shall include both the maltreatment determination and 72.31 the disqualification. 72.32 (f) If a maltreatment determination or a disqualification 72.33 based on serious or recurring maltreatment is the basis for a 72.34 denial of a license under section 245A.05 or a licensing 72.35 sanction under section 245A.07, the license holder has the right 72.36 to a contested case hearing under chapter 14 and Minnesota 73.1 Rules, parts 1400.85101400.8505 to 1400.8612 and successor73.2 rules. As provided for under section 245A.08, the scope of the 73.3 contested case hearing shall include the maltreatment 73.4 determination, disqualification, and licensing sanction or 73.5 denial of a license. In such cases, a fair hearing shall not be 73.6 conducted under paragraph (b). If the disqualified subject is 73.7 an individual other than the license holder and upon whom a 73.8 background study must be conducted under chapter 245C, the 73.9 hearings of all parties may be consolidated into a single 73.10 contested case hearing upon consent of all parties and the 73.11 administrative law judge. 73.12 (g) Until August 1, 2002, an individual or facility that 73.13 was determined by the commissioner of human services or the 73.14 commissioner of health to be responsible for neglect under 73.15 section 626.5572, subdivision 17, after October 1, 1995, and 73.16 before August 1, 2001, that believes that the finding of neglect 73.17 does not meet an amended definition of neglect may request a 73.18 reconsideration of the determination of neglect. The 73.19 commissioner of human services or the commissioner of health 73.20 shall mail a notice to the last known address of individuals who 73.21 are eligible to seek this reconsideration. The request for 73.22 reconsideration must state how the established findings no 73.23 longer meet the elements of the definition of neglect. The 73.24 commissioner shall review the request for reconsideration and 73.25 make a determination within 15 calendar days. The 73.26 commissioner's decision on this reconsideration is the final 73.27 agency action. 73.28 (1) For purposes of compliance with the data destruction 73.29 schedule under subdivision 12b, paragraph (d), when a finding of 73.30 substantiated maltreatment has been changed as a result of a 73.31 reconsideration under this paragraph, the date of the original 73.32 finding of a substantiated maltreatment must be used to 73.33 calculate the destruction date. 73.34 (2) For purposes of any background studies under chapter 73.35 245C, when a determination of substantiated maltreatment has 73.36 been changed as a result of a reconsideration under this 74.1 paragraph, any prior disqualification of the individual under 74.2 chapter 245C that was based on this determination of 74.3 maltreatment shall be rescinded, and for future background 74.4 studies under chapter 245C the commissioner must not use the 74.5 previous determination of substantiated maltreatment as a basis 74.6 for disqualification or as a basis for referring the 74.7 individual's maltreatment history to a health-related licensing 74.8 board under section 245C.31. 74.9 Sec. 77. [REVISOR'S INSTRUCTION.] 74.10 The revisor of statutes shall insert the phrase "or adult 74.11 day services" after the phrase "adult day care," and the phrase 74.12 "or adult day services center" after "adult day care center," 74.13 wherever it appears in Minnesota Rules, parts 9555.9600 to 74.14 9555.9730, or the headnotes to the rule parts. 74.15 Sec. 78. [REPEALER.] 74.16 Minnesota Statutes 2003 Supplement, section 245C.02, 74.17 subdivision 17; and Minnesota Rules, parts 9525.1600; 9543.0040, 74.18 subpart 3; 9543.1000; 9543.1010; 9543.1020; 9543.1030; 74.19 9543.1040; and 9543.1050, are repealed. 74.20 ARTICLE 2 74.21 CORRECTIONS 74.22 Section 1. Minnesota Statutes 2003 Supplement, section 74.23 241.021, subdivision 6, is amended to read: 74.24 Subd. 6. [BACKGROUND STUDIES.] (a) The commissioner of 74.25 corrections is authorized to do background studies on personnel 74.26 employed by any facility serving children or youth that is 74.27 licensed under this section. The commissioner of corrections 74.28 shall contract with the commissioner of human services to 74.29 conduct background studies of individuals providing services in 74.30 secure and nonsecure residential facilities and detention 74.31 facilities who have direct contact, as defined under section 74.32 245C.02, subdivision 11, with persons served in the facilities. 74.33 A disqualification of an individual in this section shall 74.34 disqualify the individual from positions allowing direct contact74.35 or access to persons and residents receiving services in74.36 programs licensed by the Departments of Health and Human75.1 Servicesas provided in chapter 245C. 75.2 (b) A clerk or administrator of any court, the Bureau of 75.3 Criminal Apprehension, a prosecuting attorney, a county sheriff, 75.4 or a chief of a local police department, shall assist in these 75.5 studies by providing to the commissioner of human services, or 75.6 the commissioner's representative, all criminal conviction data 75.7 available from local, state, and national criminal history 75.8 record repositories, including the criminal justice data 75.9 communications network, pertaining to the following individuals: 75.10 applicants, operators, all persons living in the household, and 75.11 all staff of any facility subject to background studies under 75.12 this subdivision. 75.13 (c) The Department of Human Services shall conduct the 75.14 background studies required by paragraph (a) in compliance with 75.15 the provisions of chapter 245C. For the purpose of this 75.16 subdivision, the term "secure and nonsecure residential facility 75.17 and detention facility" shall include programs licensed or 75.18 certified under subdivision 2. The Department of Human Services 75.19 shall provide necessary forms and instructions, shall conduct 75.20 the necessary background studies of individuals, and shall 75.21 provide notification of the results of the studies to the 75.22 facilities, individuals, and the commissioner of corrections. 75.23 Individuals shall be disqualified under the provisions of 75.24 chapter 245C. 75.25 If an individual is disqualified, the Department of Human 75.26 Services shall notify the facility and the individual and shall 75.27 inform the individual of the right to request a reconsideration 75.28 of the disqualification by submitting the request to the 75.29 Department of Corrections. 75.30 (d) The commissioner of corrections shall review and decide 75.31 reconsideration requests, including the granting of variances, 75.32 in accordance with the procedures and criteria contained in 75.33 chapter 245C. The commissioner's decision shall be provided to 75.34 the individual and to the Department of Human Services. The 75.35 commissioner's decision to grant or deny a reconsideration of 75.36 disqualification is the final administrative agency action. 76.1 (e) Facilities described in paragraph (a) shall be 76.2 responsible for cooperating with the departments in implementing 76.3 the provisions of this subdivision. The responsibilities 76.4 imposed on applicants and licensees under chapters 245A and 245C 76.5 shall apply to these facilities. The provisions of sections76.6 245C.03, subdivision 3, 245C.04, subdivision 4, paragraph (b),76.7 and 245C.10, subdivision 2, shall apply to applicants,76.8 licensees, and individuals.