as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to human services; modifying requirements for 1.3 background studies; limiting authority of commissioner 1.4 of human services to set aside a disqualification; 1.5 amending Minnesota Statutes 2001 Supplement, section 1.6 245A.04, subdivision 3b. 1.7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.8 Section 1. Minnesota Statutes 2001 Supplement, section 1.9 245A.04, subdivision 3b, is amended to read: 1.10 Subd. 3b. [RECONSIDERATION OF DISQUALIFICATION.] (a) The 1.11 individual who is the subject of the disqualification may 1.12 request a reconsideration of the disqualification. 1.13 The individual must submit the request for reconsideration 1.14 to the commissioner in writing. A request for reconsideration 1.15 for an individual who has been sent a notice of disqualification 1.16 under subdivision 3a, paragraph (b), clause (1) or (2), must be 1.17 submitted within 30 calendar days of the disqualified 1.18 individual's receipt of the notice of disqualification. Upon 1.19 showing that the information in clause (1) or (2) cannot be 1.20 obtained within 30 days, the disqualified individual may request 1.21 additional time, not to exceed 30 days, to obtain that 1.22 information. A request for reconsideration for an individual 1.23 who has been sent a notice of disqualification under subdivision 1.24 3a, paragraph (b), clause (3), must be submitted within 15 1.25 calendar days of the disqualified individual's receipt of the 1.26 notice of disqualification. An individual who was determined to 2.1 have maltreated a child under section 626.556 or a vulnerable 2.2 adult under section 626.557, and who was disqualified under this 2.3 section on the basis of serious or recurring maltreatment, may 2.4 request reconsideration of both the maltreatment and the 2.5 disqualification determinations. The request for 2.6 reconsideration of the maltreatment determination and the 2.7 disqualification must be submitted within 30 calendar days of 2.8 the individual's receipt of the notice of disqualification. 2.9 Removal of a disqualified individual from direct contact shall 2.10 be ordered if the individual does not request reconsideration 2.11 within the prescribed time, and for an individual who submits a 2.12 timely request for reconsideration, if the disqualification is 2.13 not set aside. The individual must present information showing 2.14 that: 2.15 (1) the information the commissioner relied upon is 2.16 incorrect or inaccurate. If the basis of a reconsideration 2.17 request is that a maltreatment determination or disposition 2.18 under section 626.556 or 626.557 is incorrect, and the 2.19 commissioner has issued a final order in an appeal of that 2.20 determination or disposition under section 256.045 or 245A.08, 2.21 subdivision 5, the commissioner's order is conclusive on the 2.22 issue of maltreatment. If the individual did not request 2.23 reconsideration of the maltreatment determination, the 2.24 maltreatment determination is deemed conclusive; or 2.25 (2) the subject of the study does not pose a risk of harm 2.26 to any person served by the applicant, license holder, or 2.27 registrant under section 144A.71, subdivision 1. 2.28 (b) The commissioner shall rescind the disqualification if 2.29 the commissioner finds that the information relied on to 2.30 disqualify the subject is incorrect. The commissioner may set 2.31 aside the disqualification under this section if the 2.32 commissioner finds that the individual does not pose a risk of 2.33 harm to any person served by the applicant, license holder, or 2.34 registrant under section 144A.71, subdivision 1. In determining 2.35 that an individual does not pose a risk of harm, the 2.36 commissioner shall consider the nature, severity, and 3.1 consequences of the event or events that lead to 3.2 disqualification, whether there is more than one disqualifying 3.3 event, the age and vulnerability of the victim at the time of 3.4 the event, the harm suffered by the victim, the similarity 3.5 between the victim and persons served by the program, the time 3.6 elapsed without a repeat of the same or similar event, 3.7 documentation of successful completion by the individual studied 3.8 of training or rehabilitation pertinent to the event, and any 3.9 other information relevant to reconsideration. In reviewing a 3.10 disqualification under this section, the commissioner shall give 3.11 preeminent weight to the safety of each person to be served by 3.12 the license holder, applicant, or registrant under section 3.13 144A.71, subdivision 1, over the interests of the license 3.14 holder, applicant, or registrant under section 144A.71, 3.15 subdivision 1. 3.16 (c) Unless the information the commissioner relied on in 3.17 disqualifying an individual is incorrect, the commissioner may 3.18 not set aside the disqualification of an individual in 3.19 connection with a
license to provide family day care for3.20 children, foster care for children in the provider's own home,3.21 or foster care or day care services for adults in the provider's3.22 own homeprogram licensed under this chapter or an individual 3.23 required to have a background study completed under section 3.24 256B.0627 if: 3.25 (1) less than ten years have passed since the discharge of 3.26 the sentence imposed for the offense; and the individual has 3.27 been convicted of a violation of any offense listed in sections 3.28 609.20 (manslaughter in the first degree), 609.205 (manslaughter 3.29 in the second degree), criminal vehicular homicide under 609.21 3.30 (criminal vehicular homicide and injury), 609.215 (aiding 3.31 suicide or aiding attempted suicide), felony violations under 3.32 609.221 to 609.2231 (assault in the first, second, third, or 3.33 fourth degree), 609.713 (terroristic threats), 609.235 (use of 3.34 drugs to injure or to facilitate crime), 609.24 (simple 3.35 robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 3.36 609.255 (false imprisonment), 609.561 or 609.562 (arson in the 4.1 first or second degree), 609.71 (riot), burglary in the first or 4.2 second degree under 609.582 (burglary), 609.66 (dangerous 4.3 weapon), 609.665 (spring guns), 609.67 (machine guns and 4.4 short-barreled shotguns), 609.749 (harassment; stalking), 4.5 152.021 or 152.022 (controlled substance crime in the first or 4.6 second degree), 152.023, subdivision 1, clause (3) or (4), or 4.7 subdivision 2, clause (4) (controlled substance crime in the 4.8 third degree), 152.024, subdivision 1, clause (2), (3), or (4) 4.9 (controlled substance crime in the fourth degree), 609.224, 4.10 subdivision 2, paragraph (c) (fifth-degree assault by a 4.11 caregiver against a vulnerable adult), 609.228 (great bodily 4.12 harm caused by distribution of drugs), 609.23 (mistreatment of 4.13 persons confined), 609.231 (mistreatment of residents or 4.14 patients), 609.2325 (criminal abuse of a vulnerable adult), 4.15 609.233 (criminal neglect of a vulnerable adult), 609.2335 4.16 (financial exploitation of a vulnerable adult), 609.234 (failure 4.17 to report), 609.265 (abduction), 609.2664 to 609.2665 4.18 (manslaughter of an unborn child in the first or second degree), 4.19 609.267 to 609.2672 (assault of an unborn child in the first, 4.20 second, or third degree), 609.268 (injury or death of an unborn 4.21 child in the commission of a crime), 617.293 (disseminating or 4.22 displaying harmful material to minors), a felony level 4.23 conviction involving alcohol or drug use, a gross misdemeanor 4.24 offense under 609.324, subdivision 1 (other prohibited acts), a 4.25 gross misdemeanor offense under 609.378 (neglect or endangerment 4.26 of a child), a gross misdemeanor offense under 609.377 4.27 (malicious punishment of a child), 609.72, subdivision 3 4.28 (disorderly conduct against a vulnerable adult); or an attempt 4.29 or conspiracy to commit any of these offenses, as each of these 4.30 offenses is defined in Minnesota Statutes; or an offense in any 4.31 other state, the elements of which are substantially similar to 4.32 the elements of any of the foregoing offenses; 4.33 (2) regardless of how much time has passed since the 4.34 involuntary termination of parental rights under section 4.35 260C.301 or the discharge of the sentence imposed for the 4.36 offense, the individual was convicted of a violation of any 5.1 offense listed in sections 609.185 to 609.195 (murder in the 5.2 first, second, or third degree), 609.2661 to 609.2663 (murder of 5.3 an unborn child in the first, second, or third degree), a felony 5.4 offense under 609.377 (malicious punishment of a child), a 5.5 felony offense under 609.324, subdivision 1 (other prohibited 5.6 acts), a felony offense under 609.378 (neglect or endangerment 5.7 of a child), 609.322 (solicitation, inducement, and promotion of 5.8 prostitution), 609.342 to 609.345 (criminal sexual conduct in 5.9 the first, second, third, or fourth degree), 609.352 5.10 (solicitation of children to engage in sexual conduct), 617.246 5.11 (use of minors in a sexual performance), 617.247 (possession of 5.12 pictorial representations of a minor), 609.365 (incest), a 5.13 felony offense under sections 609.2242 and 609.2243 (domestic 5.14 assault), a felony offense of spousal abuse, a felony offense of 5.15 child abuse or neglect, a felony offense of a crime against 5.16 children, or an attempt or conspiracy to commit any of these 5.17 offenses as defined in Minnesota Statutes, or an offense in any 5.18 other state, the elements of which are substantially similar to 5.19 any of the foregoing offenses; 5.20 (3) within the seven years preceding the study, the 5.21 individual committed an act that constitutes maltreatment of a 5.22 child under section 626.556, subdivision 10e, and that resulted 5.23 in substantial bodily harm as defined in section 609.02, 5.24 subdivision 7a, or substantial mental or emotional harm as 5.25 supported by competent psychological or psychiatric evidence; or 5.26 (4) within the seven years preceding the study, the 5.27 individual was determined under section 626.557 to be the 5.28 perpetrator of a substantiated incident of maltreatment of a 5.29 vulnerable adult that resulted in substantial bodily harm as 5.30 defined in section 609.02, subdivision 7a, or substantial mental 5.31 or emotional harm as supported by competent psychological or 5.32 psychiatric evidence. 5.33 In the case of any ground for disqualification under 5.34 clauses (1) to (4), if the act was committed by an individual 5.35 other than the applicant, license holder, or registrant under 5.36 section 144A.71, subdivision 1, residing in the applicant's or 6.1 license holder's home, or the home of a registrant under section 6.2 144A.71, subdivision 1, the applicant, license holder, or 6.3 registrant under section 144A.71, subdivision 1, may seek 6.4 reconsideration when the individual who committed the act no 6.5 longer resides in the home. 6.6 The disqualification periods provided under clauses (1), 6.7 (3), and (4) are the minimum applicable disqualification 6.8 periods. The commissioner may determine that an individual 6.9 should continue to be disqualified from licensure or 6.10 registration under section 144A.71, subdivision 1, because the 6.11 license holder, applicant, or registrant under section 144A.71, 6.12 subdivision 1, poses a risk of harm to a person served by that 6.13 individual after the minimum disqualification period has passed. 6.14 (d) The commissioner shall respond in writing or by 6.15 electronic transmission to all reconsideration requests for 6.16 which the basis for the request is that the information relied 6.17 upon by the commissioner to disqualify is incorrect or 6.18 inaccurate within 30 working days of receipt of a request and 6.19 all relevant information. If the basis for the request is that 6.20 the individual does not pose a risk of harm, the commissioner 6.21 shall respond to the request within 15 working days after 6.22 receiving the request for reconsideration and all relevant 6.23 information. If the request is based on both the correctness or 6.24 accuracy of the information relied on to disqualify the 6.25 individual and the risk of harm, the commissioner shall respond 6.26 to the request within 45 working days after receiving the 6.27 request for reconsideration and all relevant information. If 6.28 the disqualification is set aside, the commissioner shall notify 6.29 the applicant or license holder in writing or by electronic 6.30 transmission of the decision. 6.31 (e) Except as provided in subdivision 3c, if a 6.32 disqualification is not set aside or is not rescinded, an 6.33 individual who was disqualified on the basis of a preponderance 6.34 of evidence that the individual committed an act or acts that 6.35 meet the definition of any of the crimes lists in subdivision 6.36 3d, paragraph (a), clauses (1) to (4); or for failure to make 7.1 required reports under section 626.556, subdivision 3, or 7.2 626.557, subdivision 3, pursuant to subdivision 3d, paragraph 7.3 (a), clause (4), may request a fair hearing under section 7.4 256.045. Except as provided under subdivision 3c, the 7.5 commissioner's final order for an individual under this 7.6 paragraph is conclusive on the issue of maltreatment and 7.7 disqualification, including for purposes of subsequent studies 7.8 conducted under subdivision 3, and is the only administrative 7.9 appeal of the final agency determination, specifically, 7.10 including a challenge to the accuracy and completeness of data 7.11 under section 13.04. 7.12 (f) Except as provided under subdivision 3c, if an 7.13 individual was disqualified on the basis of a determination of 7.14 maltreatment under section 626.556 or 626.557, which was serious 7.15 or recurring, and the individual has requested reconsideration 7.16 of the maltreatment determination under section 626.556, 7.17 subdivision 10i, or 626.557, subdivision 9d, and also requested 7.18 reconsideration of the disqualification under this subdivision, 7.19 reconsideration of the maltreatment determination and 7.20 reconsideration of the disqualification shall be consolidated 7.21 into a single reconsideration. For maltreatment and 7.22 disqualification determinations made by county agencies, the 7.23 consolidated reconsideration shall be conducted by the county 7.24 agency. Except as provided under subdivision 3c, if an 7.25 individual who was disqualified on the basis of serious or 7.26 recurring maltreatment requests a fair hearing on the 7.27 maltreatment determination under section 626.556, subdivision 7.28 10i, or 626.557, subdivision 9d, the scope of the fair hearing 7.29 under section 256.045 shall include the maltreatment 7.30 determination and the disqualification. Except as provided 7.31 under subdivision 3c, the commissioner's final order for an 7.32 individual under this paragraph is conclusive on the issue of 7.33 maltreatment and disqualification, including for purposes of 7.34 subsequent studies conducted under subdivision 3, and is the 7.35 only administrative appeal of the final agency determination, 7.36 specifically, including a challenge to the accuracy and 8.1 completeness of data under section 13.04.