SF 2683

1st Engrossment - 90th Legislature (2017 - 2018) Posted on 03/14/2018 07:20pm

A bill for an act
relating to human services; modifying background study provisions; amending
Minnesota Statutes 2016, sections 245C.02, subdivisions 4a, 15, by adding
subdivisions; 245C.05, subdivision 2c, by adding a subdivision; 245C.051;
Minnesota Statutes 2017 Supplement, sections 245C.02, subdivision 6a; 245C.03,
subdivision 1; 245C.05, subdivision 5; 245C.08, subdivision 1; 245C.10,
subdivision 9a; 245C.15, subdivision 1.

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

Section 1.

Minnesota Statutes 2016, section 245C.02, subdivision 4a, is amended to read:

Subd. 4a.

Authorized fingerprint collection vendor.

"Authorized fingerprint collection
vendor" means a qualified organization under a written contract with the commissioner to
provide services in accordance with section 245C.05, subdivision 5, paragraph (d) (b).

Sec. 2.

Minnesota Statutes 2017 Supplement, section 245C.02, subdivision 6a, is amended
to read:

Subd. 6a.

Child care staff person background study subject.

"Child care staff person
background study subject" means an individual other than an individual who is related to
all children for whom child care services are provided who is affiliated with a licensed child
care center, certified license exempt child care center, licensed family child care program,
or legal nonlicensed child care provider authorized under chapter 119B, and:

(1) who is employed by a child care provider for compensation;

(2) whose activities involve the care or supervision of a child for a child care provider
or unsupervised access to a child who is cared for or supervised by a child care provider;
or

(3) who is required to have a background study under section 245C.03, subdivision 1.

(3) an individual 13 years of age or older residing in a licensed family child care home
or legal nonlicensed child care program.

EFFECTIVE DATE.

This section is effective upon implementation of NETStudy 2.0
for enhanced child care.

Sec. 3.

Minnesota Statutes 2016, section 245C.02, is amended by adding a subdivision to
read:

Subd. 13c.

National criminal history record check.

(a) "National criminal history
record check" means a check of records maintained by the Federal Bureau of Investigation
through submission of fingerprints through the Minnesota Bureau of Criminal Apprehension
to the Federal Bureau of Investigation, when specifically required by law.

(b) For the purposes of this chapter, "national crime information database," "national
criminal records repository," "criminal history with the Federal Bureau of Investigation,"
and "national criminal record check" refer to a national criminal history record check as
defined in this subdivision.

Sec. 4.

Minnesota Statutes 2016, section 245C.02, subdivision 15, is amended to read:

Subd. 15.

Reasonable cause.

"Reasonable cause" means information or circumstances
exist which that provide the commissioner with articulable suspicion that further pertinent
information may exist concerning a subject. The commissioner has reasonable cause to
require a background study when, but not limited to, the commissioner has received a report
from the subject, the license holder, or a third party indicating that the subject has a history
that would disqualify the individual or that may pose a risk to the health or safety of persons
receiving services.

Sec. 5.

Minnesota Statutes 2016, section 245C.02, is amended by adding a subdivision to
read:

Subd. 15a.

Reasonable cause to require a national criminal history record check.

"Reasonable cause to require a national criminal history record check" means information
or circumstances exist that provide the commissioner with articulable suspicion that further
pertinent information may exist concerning a background study subject that merits conducting
a national criminal history record check on that subject. The commissioner has reasonable
cause to require a national criminal history record check when:

(1) information from the Bureau of Criminal Apprehension indicates that the subject is
a multistate offender;

(2) information from the Bureau of Criminal Apprehension indicates that multistate
offender status is undetermined;

(3) the commissioner has received a report from the subject or a third party indicating
that the subject has a criminal history in a jurisdiction other than Minnesota; or

(4) information from the Bureau of Criminal Apprehension for a state-based name and
date of birth background study in which the subject is a minor that indicates that the subject
has a criminal history.

Sec. 6.

Minnesota Statutes 2017 Supplement, section 245C.03, subdivision 1, is amended
to read:

Subdivision 1.

Licensed programs.

(a) The commissioner shall conduct a background
study on:

(1) the person or persons applying for a license;

(2) an individual age 13 and over living in the household where the licensed program
will be provided who is not receiving licensed services from the program;

(3) current or prospective employees or contractors of the applicant who will have direct
contact with persons served by the facility, agency, or program;

(4) volunteers or student volunteers who will have direct contact with persons served
by the program to provide program services if the contact is not under the continuous, direct
supervision by an individual listed in clause (1) or (3);

(5) an individual age ten to 12 living in the household where the licensed services will
be provided when the commissioner has reasonable cause as defined in section 245C.02,
subdivision 15;

(6) an individual who, without providing direct contact services at a licensed program,
may have unsupervised access to children or vulnerable adults receiving services from a
program, when the commissioner has reasonable cause as defined in section 245C.02,
subdivision 15;

(7) all controlling individuals as defined in section 245A.02, subdivision 5a; and

(8) child care staff persons background study subjects as defined in section 245C.02,
subdivision 6a.

(b) Paragraph (a), clauses (2), (5), and (6), apply to legal nonlicensed child care and
certified license-exempt child care programs.

(c) For child foster care when the license holder resides in the home where foster care
services are provided, a short-term substitute caregiver providing direct contact services for
a child for less than 72 hours of continuous care is not required to receive a background
study under this chapter.

Sec. 7.

Minnesota Statutes 2016, section 245C.05, subdivision 2c, is amended to read:

Subd. 2c.

Privacy notice to background study subject.

(a) Prior to initiating each
background study, the entity initiating the study must provide the commissioner's privacy
notice to the background study subject required under section 13.04, subdivision 2. The
notice must be available through the commissioner's electronic NETStudy and NETStudy
2.0 systems and shall include the information in paragraphs (b) and (c).

(b) The background study subject shall be informed that any previous background studies
that received a set-aside will be reviewed, and without further contact with the background
study subject, the commissioner may notify the agency that initiated the subsequent
background study:

(1) that the individual has a disqualification that has been set aside for the program or
agency that initiated the study;

(2) the reason for the disqualification; and

(3) that information about the decision to set aside the disqualification will be available
to the license holder upon request without the consent of the background study subject.

(c) The background study subject must also be informed that:

(1) the subject's fingerprints collected for purposes of completing the background study
under this chapter must not be retained by the Department of Public Safety, Bureau of
Criminal Apprehension, or by the commissioner, but will be retained by. The Federal Bureau
of Investigation will only retain fingerprints of subjects with a criminal history;

(2) effective upon implementation of NETStudy 2.0, the subject's photographic image
will be retained by the commissioner, and if the subject has provided the subject's Social
Security number for purposes of the background study, the photographic image will be
available to prospective employers and agencies initiating background studies under this
chapter to verify the identity of the subject of the background study;

(3) the commissioner's authorized fingerprint collection vendor shall, for purposes of
verifying the identity of the background study subject, be able to view the identifying
information entered into NETStudy 2.0 by the entity that initiated the background study,
but shall not retain the subject's fingerprints, photograph, or information from NETStudy
2.0. The authorized fingerprint collection vendor shall retain no more than the subject's
name and the date and time the subject's fingerprints were recorded and sent, only as
necessary for auditing and billing activities;

(4) the commissioner shall provide the subject notice, as required in section 245C.17,
subdivision 1, paragraph (a), when an entity initiates a background study on the individual;

(5) the subject may request in writing a report listing the entities that initiated a
background study on the individual as provided in section 245C.17, subdivision 1, paragraph
(b);

(6) the subject may request in writing that information used to complete the individual's
background study in NETStudy 2.0 be destroyed if the requirements of section 245C.051,
paragraph (a), are met; and

(7) notwithstanding clause (6), the commissioner shall destroy:

(i) the subject's photograph after a period of two years when the requirements of section
245C.051, paragraph (c), are met; and

(ii) any data collected on a subject under this chapter after a period of two years following
the individual's death as provided in section 245C.051, paragraph (d).

Sec. 8.

Minnesota Statutes 2017 Supplement, section 245C.05, subdivision 5, is amended
to read:

Subd. 5.

Fingerprints and photograph.

(a) Before the implementation of NETStudy
2.0, except as provided in paragraph (c), for any background study completed under this
chapter, when the commissioner has reasonable cause to believe that further pertinent
information may exist on the subject of the background study, the subject shall provide the
commissioner with a set of classifiable fingerprints obtained from an authorized agency.

(b) Before the implementation of NETStudy 2.0, for purposes of requiring fingerprints,
the commissioner has reasonable cause when, but not limited to, the:

(1) information from the Bureau of Criminal Apprehension indicates that the subject is
a multistate offender;

(2) information from the Bureau of Criminal Apprehension indicates that multistate
offender status is undetermined; or

(3) commissioner has received a report from the subject or a third party indicating that
the subject has a criminal history in a jurisdiction other than Minnesota.

(c) (a) Notwithstanding paragraph (d) (b), for background studies conducted by the
commissioner for child foster care, adoptions, or a transfer of permanent legal and physical
custody of a child, the subject of the background study, who is 18 years of age or older,
shall provide the commissioner with a set of classifiable fingerprints obtained from an
authorized agency for a national criminal history record check.

(d) (b) For background studies initiated on or after the implementation of NETStudy
2.0, except as provided under subdivision 5a, every subject of a background study must
provide the commissioner with a set of the background study subject's classifiable fingerprints
and photograph. The photograph and fingerprints must be recorded at the same time by the
commissioner's authorized fingerprint collection vendor and sent to the commissioner
through the commissioner's secure data system described in section 245C.32, subdivision
1a, paragraph (b).

(c) The fingerprints shall be submitted by the commissioner to the Bureau of Criminal
Apprehension and, when specifically required by law, submitted to the Federal Bureau of
Investigation for a national criminal history record check.

(d) The fingerprints must not be retained by the Department of Public Safety, Bureau
of Criminal Apprehension, or the commissioner, but will be retained by. The Federal Bureau
of Investigation will only retain fingerprints of subjects with a criminal history.

(e) The commissioner's authorized fingerprint collection vendor shall, for purposes of
verifying the identity of the background study subject, be able to view the identifying
information entered into NETStudy 2.0 by the entity that initiated the background study,
but shall not retain the subject's fingerprints, photograph, or information from NETStudy
2.0. The authorized fingerprint collection vendor shall retain no more than the name and
date and time the subject's fingerprints were recorded and sent, only as necessary for auditing
and billing activities.

(e) (f) When specifically required by law under sections 144.057, 518.165, and 524.5-118,
fingerprints collected under this section must be submitted for a national criminal history
record check.

(g) For any background study conducted under this chapter, the subject shall provide
the commissioner with a set of classifiable fingerprints when the commissioner has reasonable
cause to require a national criminal history record check as defined in section 245C.02,
subdivision 15a.

Sec. 9.

Minnesota Statutes 2016, section 245C.05, is amended by adding a subdivision to
read:

Subd. 5a.

Background study requirements for minors.

(a) A background study
completed under this chapter on a subject who is required to be studied under section
245C.03, subdivision 1, and is 17 years of age or younger shall be completed by the
commissioner for:

(1) a legal nonlicensed child care provider authorized under chapter 119B;

(2) a licensed family child care program; or

(3) a licensed foster care home.

(b) The subject shall submit to the commissioner only the information under subdivision
1, paragraph (a).

(c) A subject who is 17 years of age or younger is required to submit fingerprints and a
photograph, and the commissioner shall conduct a national criminal history record check,
if:

(1) the commissioner has reasonable cause to require a national criminal history record
check defined in section 245C.02, subdivision 15a; or

(2) under paragraph (a), clauses (1) and (2), the subject is employed by the provider or
supervises children served by the program.

EFFECTIVE DATE.

This section is effective upon implementation of NETStudy 2.0
for enhanced child care studies.

Sec. 10.

Minnesota Statutes 2016, section 245C.051, is amended to read:

245C.051 DESTRUCTION OF BACKGROUND STUDY SUBJECT
INFORMATION.

(a) A background study subject may request in writing to the commissioner that
information used to complete the individual's study in NETStudy 2.0 be destroyed if the
individual:

(1) has not been affiliated with any entity for the previous two years; and

(2) has no current disqualifying characteristic.

(b) After receiving the request and verifying the information in paragraph (a), the
commissioner shall destroy the information used to complete the subject's background study
and shall keep a record of the subject's name and a notation of the date that the information
was destroyed.

(c) When a previously studied individual has not been on the master roster for two years,
the commissioner shall destroy the photographic image of the individual obtained under
section 245C.05, subdivision 5, paragraph (d) (b).

(d) Any data collected on an individual under this chapter that is maintained by the
commissioner that has not been destroyed according to paragraph (b) or (c) shall be destroyed
when two years have elapsed from the individual's actual death that is reported to the
commissioner or when 90 years have elapsed since the individual's birth except when readily
available data indicate that the individual is still living.

Sec. 11.

Minnesota Statutes 2017 Supplement, section 245C.08, subdivision 1, is amended
to read:

Subdivision 1.

Background studies conducted by Department of Human Services.

(a) For a background study conducted by the Department of Human Services, the
commissioner shall review:

(1) information related to names of substantiated perpetrators of maltreatment of
vulnerable adults that has been received by the commissioner as required under section
626.557, subdivision 9c, paragraph (j);

(2) the commissioner's records relating to the maltreatment of minors in licensed
programs, and from findings of maltreatment of minors as indicated through the social
service information system;

(3) information from juvenile courts as required in subdivision 4 for individuals listed
in section 245C.03, subdivision 1, paragraph (a), when there is reasonable cause;

(4) information from the Bureau of Criminal Apprehension, including information
regarding a background study subject's registration in Minnesota as a predatory offender
under section 243.166;

(5) except as provided in clause (6), information received as a result of submission of
fingerprints for a national criminal history record check, as defined in section 245C.02,
subdivision 13c, when the commissioner has reasonable cause for a national criminal history
record check as defined under section 245C.05, subdivision 5 245C.02, subdivision 15a, or
as required under section 144.057, subdivision 1, clause (2); and

(6) for a background study related to a child foster care application for licensure, a
transfer of permanent legal and physical custody of a child under sections 260C.503 to
260C.515, or adoptions, and for a background study required for family child care, certified
license-exempt child care, child care centers, and legal nonlicensed child care authorized
under chapter 119B, the commissioner shall also review:

(i) information from the child abuse and neglect registry for any state in which the
background study subject has resided for the past five years; and

(ii) when the background study subject is 18 years of age or older, or a minor under
section 245C.05, subdivision 5a, paragraph (c), information received following submission
of fingerprints for a national criminal history record check; and.

(7) for a background study required for family child care, certified license-exempt child
care centers, licensed child care centers, and legal nonlicensed child care authorized under
chapter 119B, the background study shall also include a name and date-of-birth search of
the National Sex Offender Public Web site.

(b) Notwithstanding expungement by a court, the commissioner may consider information
obtained under paragraph (a), clauses (3) and (4), unless the commissioner received notice
of the petition for expungement and the court order for expungement is directed specifically
to the commissioner.

(c) The commissioner shall also review criminal case information received according
to section 245C.04, subdivision 4a, from the Minnesota court information system that relates
to individuals who have already been studied under this chapter and who remain affiliated
with the agency that initiated the background study.

(d) When the commissioner has reasonable cause to believe that the identity of a
background study subject is uncertain, the commissioner may require the subject to provide
a set of classifiable fingerprints for purposes of completing a fingerprint-based record check
with the Bureau of Criminal Apprehension. Fingerprints collected under this paragraph
shall not be saved by the commissioner after they have been used to verify the identity of
the background study subject against the particular criminal record in question.

(e) The commissioner may inform the entity that initiated a background study under
NETStudy 2.0 of the status of processing of the subject's fingerprints.

Sec. 12.

Minnesota Statutes 2017 Supplement, section 245C.10, subdivision 9a, is amended
to read:

Subd. 9a.

Child care programs.

The commissioner shall recover the cost of a background
study required for family child care, certified license-exempt child care centers, licensed
child care centers, and legal nonlicensed child care providers authorized under chapter 119B
through a fee of no more than $40 per study charged to the license holder. A fee of no more
than $20 per study shall be charged for studies conducted under section 245C.05, subdivision
5a, paragraph (a). The fees collected under this subdivision are appropriated to the
commissioner to conduct background studies.

Sec. 13.

Minnesota Statutes 2017 Supplement, section 245C.15, subdivision 1, is amended
to read:

Subdivision 1.

Permanent disqualification.

(a) An individual is disqualified under
section 245C.14 if: (1) regardless of how much time has passed since the discharge of the
sentence imposed, if any, for the offense; and (2) unless otherwise specified, regardless of
the level of the offense, the individual has committed any of the following offenses: sections
243.166 (violation of predatory offender registration law); 609.185 (murder in the first
degree); 609.19 (murder in the second degree); 609.195 (murder in the third degree); 609.20
(manslaughter in the first degree); 609.205 (manslaughter in the second degree); a felony
offense under 609.221 or 609.222 (assault in the first or second degree); a felony offense
under sections 609.2242 and 609.2243 (domestic assault), spousal abuse, child abuse or
neglect, or a crime against children; 609.2247 (domestic assault by strangulation); 609.228
(great bodily harm caused by distribution of drugs); 609.245 (aggravated robbery); 609.25
(kidnapping); 609.2661 (murder of an unborn child in the first degree); 609.2662 (murder
of an unborn child in the second degree); 609.2663 (murder of an unborn child in the third
degree); 609.322 (solicitation, inducement, and promotion of prostitution); 609.324,
subdivision 1 (other prohibited acts); 609.342 (criminal sexual conduct in the first degree);
609.343 (criminal sexual conduct in the second degree); 609.344 (criminal sexual conduct
in the third degree); 609.345 (criminal sexual conduct in the fourth degree); 609.3451
(criminal sexual conduct in the fifth degree); 609.3453 (criminal sexual predatory conduct);
609.352 (solicitation of children to engage in sexual conduct); 609.365 (incest); a felony
offense under 609.377 (malicious punishment of a child); a felony offense under 609.378
(neglect or endangerment of a child); 609.561 (arson in the first degree); 609.66, subdivision
1e (drive-by shooting); 609.749, subdivision 3, 4, or 5 (felony-level stalking); 609.855,
subdivision 5 (shooting at or in a public transit vehicle or facility); 617.23, subdivision 2,
clause (1), or subdivision 3, clause (1) (indecent exposure involving a minor); 617.246 (use
of minors in sexual performance prohibited); 617.247 (possession of pictorial representations
of minors); or, for a child care staff person background study subject, conviction of a crime
that would make the individual ineligible for employment under United States Code, title
42, section 9858f, except for a felony drug conviction, regardless of whether a period of
disqualification under subdivisions 2 to 4, would apply if the individual were not a child
care staff person background study subject.

(b) An individual's aiding and abetting, attempt, or conspiracy to commit any of the
offenses listed in paragraph (a), as each of these offenses is defined in Minnesota Statutes,
permanently disqualifies the individual under section 245C.14.

(c) An individual's offense in any other state or country, where the elements of the offense
are substantially similar to any of the offenses listed in paragraph (a), permanently disqualifies
the individual under section 245C.14.

(d) When a disqualification is based on a judicial determination other than a conviction,
the disqualification period begins from the date of the court order. When a disqualification
is based on an admission, the disqualification period begins from the date of an admission
in court. When a disqualification is based on an Alford Plea, the disqualification period
begins from the date the Alford Plea is entered in court. When a disqualification is based
on a preponderance of evidence of a disqualifying act, the disqualification date begins from
the date of the dismissal, the date of discharge of the sentence imposed for a conviction for
a disqualifying crime of similar elements, or the date of the incident, whichever occurs last.

(e) If the individual studied commits one of the offenses listed in paragraph (a) that is
specified as a felony-level only offense, but the sentence or level of offense is a gross
misdemeanor or misdemeanor, the individual is disqualified, but the disqualification
look-back period for the offense is the period applicable to gross misdemeanor or
misdemeanor offenses.

(f) A child care staff person background study subject shall be disqualified as long as if
the individual is registered, or required to be registered, on a state sex offender registry or
repository or the National Sex Offender Registry.

Sec. 14. DIRECTION TO COMMISSIONER; FINGERPRINT DATA
NOTIFICATION.

The commissioner of human services shall notify all background study subjects under
Minnesota Statutes, chapter 245C, that the Department of Human Services, Department of
Public Safety, and the Bureau of Criminal Apprehension do not retain fingerprint data after
a background study is completed, and that the Federal Bureau of Investigation only retains
the fingerprints of subjects who have a criminal history.

EFFECTIVE DATE.

This section is effective for background studies completed on or
after October 1, 2018.

Sec. 15. REVISOR'S INSTRUCTION.

The revisor of statutes shall change the term "child care staff person" and similar terms
to "child care background study subject" wherever the terms appear in Minnesota Statutes,
chapter 245C. The revisor shall also make grammatical changes related to the changes in
terms.