SF 2530

1st Engrossment - 91st Legislature (2019 - 2020) Posted on 03/17/2020 11:23am

A bill for an act
relating to human services; requiring a national criminal history record check for
guardians and conservators; requiring quarterly review of licensing agency data
for study subjects; amending Minnesota Statutes 2018, sections 245C.10, by adding
a subdivision; 245C.32, subdivision 2; 524.5-118.

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

Section 1.

Minnesota Statutes 2018, section 245C.10, is amended by adding a subdivision
to read:

new text begin Subd. 15. new text end

new text begin Guardians and conservators. new text end

new text begin The commissioner shall recover the cost of
conducting background studies for guardians and conservators under section 524.5-118
through a fee of no more than $110 per study. The fees collected under this subdivision are
appropriated to the commissioner for the purpose of conducting background studies.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2021.
new text end

Sec. 2.

Minnesota Statutes 2018, section 245C.32, subdivision 2, is amended to read:

Subd. 2.

Use.

(a) The commissioner may also use these systems and records to obtain
and provide criminal history data from the Bureau of Criminal Apprehension, criminal
history data held by the commissioner, and data about substantiated maltreatment under
section 626.556 or 626.557, for other purposes, provided that:

(1) the background study is specifically authorized in statute; or

(2) the request is made with the informed consent of the subject of the study as provided
in section 13.05, subdivision 4.

(b) An individual making a request under paragraph (a), clause (2), must agree in writing
not to disclose the data to any other individual without the consent of the subject of the data.

(c) The commissioner may recover the cost of obtaining and providing background study
data by charging the individual or entity requesting the study a fee of no more than $20 per
study. The fees collected under this paragraph are appropriated to the commissioner for the
purpose of conducting background studies.

deleted text begin (d) The commissioner shall recover the cost of obtaining background study data required
under section 524.5-118 through a fee of $50 per study for an individual who has not lived
outside Minnesota for the past ten years, and a fee of $100 for an individual who has resided
outside of Minnesota for any period during the ten years preceding the background study.
The commissioner shall recover, from the individual, any additional fees charged by other
states' licensing agencies that are associated with these data requests. Fees under subdivision
3 also apply when criminal history data from the National Criminal Records Repository is
required.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2021.
new text end

Sec. 3.

Minnesota Statutes 2018, section 524.5-118, is amended to read:

524.5-118 BACKGROUND STUDY.

Subdivision 1.

When required; exception.

(a) The court shall require a background
study under this section:

(1) before the appointment of a guardian or conservator, unless a background study has
been done on the person under this section within the previous deleted text begin two deleted text end new text begin five new text end years; and

(2) once every deleted text begin two deleted text end new text begin five new text end years after the appointment, if the person continues to serve as
a guardian or conservator.

(b) The background study must include:

(1) criminal history data from the Bureau of Criminal Apprehension, other criminal
history data held by the commissioner of human services, and data regarding whether the
person has been a perpetrator of substantiated maltreatment of a vulnerable adult or minor;

(2) criminal history data from deleted text begin the National Criminal Records Repository if the proposed
guardian or conservator has not resided in Minnesota for the previous ten years or if the
Bureau of Criminal Apprehension information received from the commissioner of human
services under subdivision 2, paragraph (b), indicates that the subject is a multistate offender
or that the individual's multistate offender status is undetermined deleted text end new text begin a national criminal history
record check as defined in section 245C.02, subdivision 13c new text end ; and

(3) state licensing agency data if a search of the database or databases of the agencies
listed in subdivision 2a shows that the proposed guardian or conservator has ever held a
professional license directly related to the responsibilities of a professional fiduciary from
an agency listed in subdivision 2a that was conditioned, suspended, revoked, or canceled.

(c) If the guardian or conservator is not an individual, the background study must be
done on all individuals currently employed by the proposed guardian or conservator who
will be responsible for exercising powers and duties under the guardianship or
conservatorship.

(d) If the court determines that it would be in the best interests of the ward or protected
person to appoint a guardian or conservator before the background study can be completed,
the court may make the appointment pending the results of the study, however, the
background study must then be completed as soon as reasonably possible after appointment,
no later than 30 days after appointment.

(e) new text begin The fee for background studies conducted under this section is specified in section
245C.10, subdivision 14. new text end The fee for conducting a background study for appointment of a
professional guardian or conservator must be paid by the guardian or conservator. In other
cases, the fee must be paid as follows:

(1) if the matter is proceeding in forma pauperis, the fee is an expense for purposes of
section 524.5-502, paragraph (a);

(2) if there is an estate of the ward or protected person, the fee must be paid from the
estate; or

(3) in the case of a guardianship or conservatorship of the person that is not proceeding
in forma pauperis, the court may order that the fee be paid by the guardian or conservator
or by the court.

(f) The requirements of this subdivision do not apply if the guardian or conservator is:

(1) a state agency or county;

(2) a parent or guardian of a proposed ward or protected person who has a developmental
disability, if the parent or guardian has raised the proposed ward or protected person in the
family home until the time the petition is filed, unless counsel appointed for the proposed
ward or protected person under section 524.5-205, paragraph (d); 524.5-304, paragraph (b);
524.5-405, paragraph (a); or 524.5-406, paragraph (b), recommends a background study;
or

(3) a bank with trust powers, bank and trust company, or trust company, organized under
the laws of any state or of the United States and which is regulated by the commissioner of
commerce or a federal regulator.

Subd. 2.

Procedure; criminal history and maltreatment records background
check.

(a) The court shall request the commissioner of human services to complete a
background study under section 245C.32. The request must be accompanied by the applicable
fee and deleted text begin the signed consent of the subject of the study authorizing the release of the data
obtained to the court. If the court is requesting a search of the National Criminal Records
Repository, the request must be accompanied by deleted text end new text begin acknowledgment that the study subject
received a privacy notice required under subdivision 3. The commissioner of human services
shall conduct a national criminal history record check. The study subject shall submit new text end a set
of classifiable fingerprints deleted text begin of the subject of the study deleted text end . The fingerprints must be recorded on
a fingerprint card provided by the commissioner of human services.

(b) The commissioner of human services shall provide the court with criminal history
data as defined in section 13.87 from the Bureau of Criminal Apprehension in the Department
of Public Safety, other criminal history data held by the commissioner of human services,
deleted text begin and deleted text end data regarding substantiated maltreatment of vulnerable adults under section 626.557
and substantiated maltreatment of minors under section 626.556 new text begin , and criminal history
information from other states or jurisdictions as indicated from a national criminal history
record check new text end within deleted text begin 15 deleted text end new text begin 20 new text end working days of receipt of a request. If the subject of the study
has been the perpetrator of substantiated maltreatment of a vulnerable adult or minor, the
response must include a copy of the public portion of the investigation memorandum under
section 626.557, subdivision 12b, or the public portion of the investigation memorandum
under section 626.556, subdivision 10f. deleted text begin If the court did not request a search of the National
Criminal Records Repository and information from the Bureau of Criminal Apprehension
indicates that the subject is a multistate offender or that multistate offender status is
undetermined, the response must include this information. The commissioner shall provide
the court with information from the National Criminal Records Repository within three
working days of the commissioner's receipt of the data deleted text end new text begin The commissioner shall provide the
court with information from a review of information according to subdivision 2a if the study
subject provided information indicating current or prior affiliation with a state licensing
agency new text end .

(c) Notwithstanding section 626.557, subdivision 12b, or 626.556, subdivision 10f, if
the commissioner of human services or a county lead agency or lead investigative agency
has information that a person on whom a background study was previously done under this
section has been determined to be a perpetrator of maltreatment of a vulnerable adult or
minor, the commissioner or the county may provide this information to the court that
requested the background study. The commissioner may also provide the court with additional
criminal history or substantiated maltreatment information that becomes available after the
background study is done.

Subd. 2a.

Procedure; state licensing agency data.

(a) The court shall request the
commissioner of human services to provide the court within 25 working days of receipt of
the request with licensing agency data for licenses directly related to the responsibilities of
a professional fiduciary new text begin if the study subject indicates current or prior affiliation new text end from the
following agencies in Minnesota:

(1) Lawyers Responsibility Board;

(2) State Board of Accountancy;

(3) Board of Social Work;

(4) Board of Psychology;

(5) Board of Nursing;

(6) Board of Medical Practice;

(7) Department of Education;

(8) Department of Commerce;

(9) Board of Chiropractic Examiners;

(10) Board of Dentistry;

(11) Board of Marriage and Family Therapy;

(12) Department of Human Services; deleted text begin and
deleted text end

(13) Peace Officer Standards and Training (POST) Board new text begin ; and
new text end

new text begin (14) Professional Educator Licensing and Standards Board new text end .

(b) The commissioner shall enter into agreements with these agencies to provide deleted text begin for deleted text end new text begin the
commissioner with new text end electronic access to the relevant licensing data deleted text begin by the commissioner deleted text end new text begin ,
and to provide the commissioner with a quarterly list of new sanctions issued by the agency new text end .

(c) The commissioner shall provide to the court the electronically available data
maintained in the agency's database, including whether the proposed guardian or conservator
is or has been licensed by the agency, and if the licensing agency database indicates a
disciplinary action or a sanction against the individual's license, including a condition,
suspension, revocation, or cancellation.

(d) If the proposed guardian or conservator has resided in a state other than Minnesota
in the previous ten years, licensing agency data under this section shall also include the
licensing agency data from any other state where the proposed guardian or conservator
reported to have resided during the previous ten years new text begin if the study subject indicates current
or prior affiliation new text end . If the proposed guardian or conservator has or has had a professional
license in another state that is directly related to the responsibilities of a professional fiduciary
from one of the agencies listed under paragraph (a), state licensing agency data shall also
include data from the relevant licensing agency of that state.

(e) The commissioner is not required to repeat a search for Minnesota or out-of-state
licensing data on an individual if the commissioner has provided this information to the
court within the prior deleted text begin two deleted text end new text begin five new text end years.

(f) deleted text begin If an individual has continuously resided in Minnesota since a previous background
deleted text end deleted text begin study under this section was completed, the commissioner is not required to repeat a search
deleted text end deleted text begin for records in another state. deleted text end new text begin The commissioner shall review the information in paragraph
(c) at least once every four months to determine if an individual who has been studied within
the previous five years:
new text end

new text begin (1) has new disciplinary action or sanction against the individual's license; or
new text end

new text begin (2) did not disclose a prior or current affiliation with a Minnesota licensing agency.
new text end

new text begin (g) If the commissioner's review in paragraph (g) identifies new information, the
commissioner shall provide any new information to the court.
new text end

Subd. 3.

deleted text begin Form deleted text end new text begin Forms and systems new text end .

new text begin The court must provide the study subject with a
privacy notice that complies with section 245C.05, subdivision 2c. new text end The commissioner of
human services shall deleted text begin develop a form to be used for requesting deleted text end new text begin use the NETStudy 2.0 system
to conduct new text end a background study under this section deleted text begin , which must include: deleted text end new text begin .
new text end

deleted text begin (1) a notification to the subject of the study that the court will request the commissioner
to perform a background study under this section;
deleted text end

deleted text begin (2) a notification to the subject of the rights in subdivision 4; and
deleted text end

deleted text begin (3) a signed consent to conduct the background study.
deleted text end

Subd. 4.

Rights.

The court shall notify the subject of a background study that the subject
has the following rights:

(1) the right to be informed that the court will request a background study on the subject
for the purpose of determining whether the person's appointment or continued appointment
is in the best interests of the ward or protected person;

(2) the right to be informed of the results of the study and to obtain from the court a
copy of the results; and

(3) the right to challenge the accuracy and completeness of information contained in the
results under section 13.04, subdivision 4, except to the extent precluded by section 256.045,
subdivision 3.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2021.
new text end