SF 2748

1st Engrossment - 90th Legislature (2017 - 2018) Posted on 03/16/2018 03:09pm

A bill for an act
relating to education; expanding grounds for teacher license revocation, suspension,
or denial; expanding grounds for teacher discharge; expanding mandatory reporting;
amending Minnesota Statutes 2016, section 626.556, subdivision 10a; Minnesota
Statutes 2017 Supplement, sections 122A.187, by adding a subdivision; 122A.20,
subdivision 1; 122A.40, subdivision 13; 122A.41, subdivision 6; 123B.03,
subdivision 1; 626.556, subdivisions 3, 10e.

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

Section 1.

Minnesota Statutes 2017 Supplement, section 122A.187, is amended by adding
a subdivision to read:

new text begin Subd. 7. new text end

new text begin Background check. new text end

new text begin The Professional Educator Licensing and Standards Board
must request a criminal history background check from the superintendent of the Bureau
of Criminal Apprehension on a licensed teacher applying for a renewal license who has not
had a background check consistent with section 122A.18, subdivision 8, within the preceding
five years. The board may request payment from the teacher renewing their license in an
amount equal to the actual cost of the background check.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2018.
new text end

Sec. 2.

Minnesota Statutes 2017 Supplement, section 122A.20, subdivision 1, is amended
to read:

Subdivision 1.

Grounds for revocation, suspension, or denial.

(a) The Professional
Educator Licensing and Standards Board or Board of School Administrators, whichever
has jurisdiction over a teacher's licensure, may, on the written complaint of the school board
employing a teacher, a teacher organization, or any other interested person, refuse to issue,
refuse to renew, suspend, or revoke a teacher's license to teach for any of the following
causes:

(1) immoral character or conduct;

(2) failure, without justifiable cause, to teach for the term of the teacher's contract;

(3) gross inefficiency or willful neglect of duty;

(4) failure to meet licensure requirements; or

(5) fraud or misrepresentation in obtaining a license.

The written complaint must specify the nature and character of the charges.

(b) The Professional Educator Licensing and Standards Board or Board of School
Administrators, whichever has jurisdiction over a teacher's licensure, deleted text begin shall deleted text end new text begin must new text end refuse to
issue, refuse to renew, or automatically revoke a teacher's license to teach without the right
to a hearing upon receiving a certified copy of a conviction showing that the teacher has
been convicted of new text begin :
new text end

new text begin (1) new text end child abuse, as defined in section 609.185 deleted text begin , deleted text end new text begin ;
new text end

new text begin (2) new text end sex trafficking in the first degree under section 609.322, subdivision 1 deleted text begin , deleted text end new text begin ;
new text end

new text begin (3) new text end sex trafficking in the second degree under section 609.322, subdivision 1a deleted text begin , deleted text end new text begin ;
new text end

new text begin (4) new text end engaging in hiring, or agreeing to hire a minor to engage in prostitution under section
609.324, subdivision 1, deleted text begin sexual abuse deleted text end new text begin 1a, or 2;
new text end

new text begin (5) criminal sexual conduct new text end under section 609.342, 609.343, 609.344, 609.345, 609.3451,
subdivision 3, or 617.23, subdivision 3 deleted text begin , deleted text end new text begin ;
new text end

new text begin (6) new text end solicitation of children to engage in sexual conduct or communication of sexually
explicit materials to children under section 609.352 deleted text begin , deleted text end new text begin ;
new text end

new text begin (7) new text end interference with privacy under section 609.746 or stalking under section 609.749
and the victim was a minor deleted text begin , deleted text end new text begin ;
new text end

new text begin (8) new text end using minors in a sexual performance under section 617.246 deleted text begin , deleted text end new text begin ;
new text end

new text begin (9) new text end possessing pornographic works involving a minor under section 617.247 deleted text begin , deleted text end new text begin ; new text end or

new text begin (10) new text end any other offense not listed in this paragraph that requires the person to register as
a predatory offender under section 243.166, or a crime under a similar law of another state
or the United States.

The board deleted text begin shall deleted text end new text begin must new text end send notice of this licensing action to the district in which the teacher
is currently employed.

(c) A person whose license to teach has been revoked, not issued, or not renewed under
paragraph (b), may petition the board to reconsider the licensing action if the person's
conviction for child abuse or sexual abuse is reversed by a final decision of the Court of
Appeals or the Supreme Court or if the person has received a pardon for the offense. The
petitioner deleted text begin shall deleted text end new text begin must new text end attach a certified copy of the appellate court's final decision or the
pardon to the petition. Upon receiving the petition and its attachment, the board deleted text begin shall deleted text end new text begin must new text end
schedule and hold a disciplinary hearing on the matter under section 214.10, subdivision 2,
unless the petitioner waives the right to a hearing. If the board finds that, notwithstanding
the reversal of the petitioner's criminal conviction or the issuance of a pardon, the petitioner
is disqualified from teaching under paragraph (a), clause (1), the board deleted text begin shall deleted text end new text begin must new text end affirm
its previous licensing action. If the board finds that the petitioner is not disqualified from
teaching under paragraph (a), clause (1), it deleted text begin shall deleted text end new text begin must new text end reverse its previous licensing action.

new text begin (d) The Professional Educator Licensing and Standards Board or Board of School
Administrators, whichever has jurisdiction over a teacher's licensure, must review and may
refuse to issue, refuse to renew, or revoke a teacher's license to teach if the teacher has been
convicted of:
new text end

new text begin (1) a qualified domestic violence-related offense as defined in section 609.02, subdivision
16;
new text end

new text begin (2) domestic assault under section 609.2242;
new text end

new text begin (3) embezzlement of public funds under section 609.54; or
new text end

new text begin (4) a felony involving a minor as the victim.
new text end

new text begin A person whose license to teach has been revoked, not issued, or not renewed under this
paragraph may petition the board to reconsider for good cause shown, in accordance with
procedures adopted by the board.
new text end

new text begin (e) The Professional Educator Licensing and Standards Board may suspend a teacher's
license to teach during the board's disciplinary investigation of a report of teacher misconduct
that would be a violation of paragraph (b). The teacher's license is suspended until the
licensing board completes their disciplinary investigation and makes a determination whether
or not disciplinary action is necessary.
new text end

deleted text begin (d) deleted text end new text begin (f) new text end For purposes of this subdivision, the Professional Educator Licensing and Standards
Board is delegated the authority to suspend or revoke coaching licenses.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3.

Minnesota Statutes 2017 Supplement, section 122A.40, subdivision 13, is amended
to read:

Subd. 13.

Immediate discharge.

(a) Except as otherwise provided in paragraph (b), a
board may discharge a continuing-contract teacher, effective immediately, upon any of the
following grounds:

(1) immoral conduct, insubordination, or conviction of a felony;

(2) conduct unbecoming a teacher which requires the immediate removal of the teacher
from classroom or other duties;

(3) failure without justifiable cause to teach without first securing the written release of
the school board;

(4) gross inefficiency which the teacher has failed to correct after reasonable written
notice;

(5) willful neglect of duty; or

(6) continuing physical or mental disability subsequent to a 12 months leave of absence
and inability to qualify for reinstatement in accordance with subdivision 12.

For purposes of this paragraph, conduct unbecoming a teacher includes an unfair
discriminatory practice described in section 363A.13.

Prior to discharging a teacher under this paragraph, the board must notify the teacher in
writing and state its ground for the proposed discharge in reasonable detail. Within ten days
after receipt of this notification the teacher may make a written request for a hearing before
the board and it deleted text begin shall deleted text end new text begin must new text end be granted before final action is taken. The board may suspend
a teacher with pay pending the conclusion of the hearing and determination of the issues
raised in the hearing after charges have been filed which constitute ground for discharge.
If a teacher has been charged with a felony and the underlying conduct that is the subject
of the felony charge is a ground for a proposed immediate discharge, the suspension pending
the conclusion of the hearing and determination of the issues may be without pay. If a
hearing under this paragraph is held, the board must reimburse the teacher for any salary
or compensation withheld if the final decision of the board or the arbitrator does not result
in a penalty to or suspension, termination, or discharge of the teacher.

(b) A board must discharge a continuing-contract teacher, effective immediately, upon
receipt of notice under section 122A.20, subdivision 1, paragraph (b), that the teacher's
license has been revoked due to a conviction for new text begin :
new text end

new text begin (1) new text end child abuse, as defined in section 609.185;

new text begin (2) new text end sex trafficking in the first degree under section 609.322, subdivision 1;

new text begin (3) new text end sex trafficking in the second degree under section 609.322, subdivision 1a;

new text begin (4) new text end engaging in hiring or agreeing to hire a minor to engage in prostitution under section
609.324, subdivision 1 new text begin , 1a, or 2 new text end ;

new text begin (5) new text end new text begin criminal new text end sexual deleted text begin abuse deleted text end new text begin conduct new text end under section 609.342, 609.343, 609.344, 609.345,
609.3451, subdivision 3, or 617.23, subdivision 3;

new text begin (6) new text end solicitation of children to engage in sexual conduct or communication of sexually
explicit materials to children under section 609.352;

new text begin (7) new text end interference with privacy under section 609.746 or stalking under section 609.749
and the victim was a minor;

new text begin (8) new text end using minors in a sexual performance under section 617.246;

new text begin (9) new text end possessing pornographic works involving a minor under section 617.247; deleted text begin or
deleted text end

new text begin (10) new text end any other offense not listed in this paragraph that requires the person to register as
a predatory offender under section 243.166, or a crime under a similar law of another state
or the United States new text begin ; or
new text end

new text begin (11) any other offense not listed in this paragraph that requires notice of a licensing
action to the district in accordance with section 122A.20, subdivision 1, paragraph (b) or
(d) new text end .

(c) When a teacher is discharged under paragraph (b) or when the commissioner makes
a final determination of child maltreatment involving a teacher under section 626.556,
subdivision 11, the school principal or other person having administrative control of the
school must include in the teacher's employment record the information contained in the
record of the disciplinary action or the final maltreatment determination, consistent with
the definition of public data under section 13.41, subdivision 5, and must provide the
Professional Educator Licensing and Standards Board and the licensing division at the
department with the necessary and relevant information to enable the Professional Educator
Licensing and Standards Board and the department's licensing division to fulfill their statutory
and administrative duties related to issuing, renewing, suspending, or revoking a teacher's
license. Information received by the Professional Educator Licensing and Standards Board
or the licensing division at the department under this paragraph is governed by section 13.41
or other applicable law governing data of the receiving entity. In addition to the background
check required under section 123B.03, a school board or other school hiring authority must
contact the Professional Educator Licensing and Standards Board and the department to
determine whether the teacher's license has been suspended or revoked, consistent with the
discharge and final maltreatment determinations identified in this paragraph. Unless restricted
by federal or state data practices law or by the terms of a collective bargaining agreement,
the responsible authority for a school district must disseminate to another school district
private personnel data on a current or former teacher employee or contractor of the district,
including the results of background investigations, if the requesting school district seeks
the information because the subject of the data has applied for employment with the
requesting school district.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for the 2018-2019 school year and later.
new text end

Sec. 4.

Minnesota Statutes 2017 Supplement, section 122A.41, subdivision 6, is amended
to read:

Subd. 6.

Grounds for discharge or demotion.

(a) Except as otherwise provided in
paragraph (b), causes for the discharge or demotion of a teacher either during or after the
probationary period must be:

(1) immoral character, conduct unbecoming a teacher, or insubordination;

(2) failure without justifiable cause to teach without first securing the written release of
the school board having the care, management, or control of the school in which the teacher
is employed;

(3) inefficiency in teaching or in the management of a school, consistent with subdivision
5, paragraph (b);

(4) affliction with a communicable disease must be considered as cause for removal or
suspension while the teacher is suffering from such disability; or

(5) discontinuance of position or lack of pupils.

For purposes of this paragraph, conduct unbecoming a teacher includes an unfair
discriminatory practice described in section 363A.13.

(b) A probationary or continuing-contract teacher must be discharged immediately upon
receipt of notice under section 122A.20, subdivision 1, paragraph (b), that the teacher's
license has been revoked due to a conviction for new text begin :
new text end

new text begin (1) new text end child abuse, as defined in section 609.185;

new text begin (2) new text end sex trafficking in the first degree under section 609.322, subdivision 1;

new text begin (3) new text end sex trafficking in the second degree under section 609.322, subdivision 1a;

new text begin (4) new text end engaging in hiring or agreeing to hire a minor to engage in prostitution under section
609.324, subdivision 1 new text begin , 1a, or 2 new text end ;

new text begin (5) new text end new text begin criminal new text end sexual deleted text begin abuse deleted text end new text begin conduct new text end under section 609.342, 609.343, 609.344, 609.345,
609.3451, subdivision 3, or 617.23, subdivision 3;

new text begin (6) new text end solicitation of children to engage in sexual conduct or communication of sexually
explicit materials to children under section 609.352;

new text begin (7) new text end interference with privacy under section 609.746 or stalking under section 609.749
and the victim was a minor;

new text begin (8) new text end using minors in a sexual performance under section 617.246;

new text begin (9) new text end possessing pornographic works involving a minor under section 617.247; deleted text begin or
deleted text end

new text begin (10) new text end any other offense not listed in this paragraph that requires the person to register as
a predatory offender under section 243.166, or a crime under a similar law of another state
or the United States new text begin ; or
new text end

new text begin (11) any other offense not listed in this paragraph that requires notice of a licensing
action to the district in accordance with section 122A.20, subdivision 1, paragraph (b) or
(d) new text end .

(c) When a teacher is discharged under paragraph (b) or when the commissioner makes
a final determination of child maltreatment involving a teacher under section 626.556,
subdivision 11, the school principal or other person having administrative control of the
school must include in the teacher's employment record the information contained in the
record of the disciplinary action or the final maltreatment determination, consistent with
the definition of public data under section 13.41, subdivision 5, and must provide the
Professional Educator Licensing and Standards Board and the licensing division at the
department with the necessary and relevant information to enable the Professional Educator
Licensing and Standards Board and the department's licensing division to fulfill their statutory
and administrative duties related to issuing, renewing, suspending, or revoking a teacher's
license. Information received by the Professional Educator Licensing and Standards Board
or the licensing division at the department under this paragraph is governed by section 13.41
or other applicable law governing data of the receiving entity. In addition to the background
check required under section 123B.03, a school board or other school hiring authority must
contact the Professional Educator Licensing and Standards Board and the department to
determine whether the teacher's license has been suspended or revoked, consistent with the
discharge and final maltreatment determinations identified in this paragraph. Unless restricted
by federal or state data practices law or by the terms of a collective bargaining agreement,
the responsible authority for a school district must disseminate to another school district
private personnel data on a current or former teacher employee or contractor of the district,
including the results of background investigations, if the requesting school district seeks
the information because the subject of the data has applied for employment with the
requesting school district.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for the 2018-2019 school year and later.
new text end

Sec. 5.

Minnesota Statutes 2017 Supplement, section 123B.03, subdivision 1, is amended
to read:

Subdivision 1.

Background check required.

(a) A school hiring authority deleted text begin shall deleted text end new text begin must new text end
request a criminal history background check from the superintendent of the Bureau of
Criminal Apprehension on all individuals who are offered employment in a school and on
all individuals, except enrolled student volunteers, who are offered the opportunity to provide
athletic coaching services or other extracurricular academic coaching services to a school,
regardless of whether any compensation is paid. In order for an individual to be eligible for
employment or to provide the services, the individual must provide an executed criminal
history consent form and a money order or check payable to either the Bureau of Criminal
Apprehension or the school hiring authority, at the discretion of the school hiring authority,
in an amount equal to the actual cost to the Bureau of Criminal Apprehension and the school
district of conducting the criminal history background check. A school hiring authority
deciding to receive payment may, at its discretion, accept payment in the form of a negotiable
instrument other than a money order or check and shall pay the superintendent of the Bureau
of Criminal Apprehension directly to conduct the background check. The superintendent
of the Bureau of Criminal Apprehension shall conduct the background check by retrieving
criminal history data as defined in section 13.87. A school hiring authority, at its discretion,
may decide not to request a criminal history background check on an individual who holds
an initial entrance license issued by the Professional Educator Licensing and Standards
Board or the commissioner of education within the 12 months preceding an offer of
employment.

(b) A school hiring authority may use the results of a criminal background check
conducted at the request of another school hiring authority if:

(1) the results of the criminal background check are on file with the other school hiring
authority or otherwise accessible;

(2) the other school hiring authority conducted a criminal background check within the
previous 12 months;

(3) the individual who is the subject of the criminal background check executes a written
consent form giving a school hiring authority access to the results of the check; and

(4) there is no reason to believe that the individual has committed an act subsequent to
the check that would disqualify the individual for employment.

(c) A school hiring authority may, at its discretion, request a criminal history background
check from the superintendent of the Bureau of Criminal Apprehension on any individual
who seeks to enter a school or its grounds for the purpose of serving as a school volunteer
or working as an independent contractor or student employee. In order for an individual to
enter a school or its grounds under this paragraph when the school hiring authority decides
to request a criminal history background check on the individual, the individual first must
provide an executed criminal history consent form and a money order, check, or other
negotiable instrument payable to the school district in an amount equal to the actual cost to
the Bureau of Criminal Apprehension and the school district of conducting the criminal
history background check. Notwithstanding section 299C.62, subdivision 1, the cost of the
criminal history background check under this paragraph is the responsibility of the individual
unless a school hiring authority decides to pay the costs of conducting a background check
under this paragraph. If the school hiring authority pays the costs, the individual who is the
subject of the background check need not pay for it.

new text begin (d) In addition to the initial background check required for all individuals offered
employment in accordance with paragraph (a), a school hiring authority must request a new
criminal history background check from the superintendent of the Bureau of Criminal
Apprehension on all employees every three years. Notwithstanding any law to the contrary,
in order for an individual to be eligible for continued employment, an individual must
provide an executed criminal history consent form and a money order or check payable to
either the Bureau of Criminal Apprehension or the school hiring authority, at the discretion
of the school hiring authority, in an amount equal to the actual cost to the Bureau of Criminal
Apprehension and the school district of conducting the criminal history background check.
A school hiring authority deciding to receive payment may, at its discretion, accept payment
in the form of a negotiable instrument other than a money order or check and shall pay the
superintendent of the Bureau of Criminal Apprehension directly to conduct the background
check. A school hiring authority, at its discretion, may decide not to request a criminal
history background check on an employee who provides the hiring authority with a copy
of the results of a criminal history background check conducted within the previous 36
months. A school hiring authority may, at its discretion, decide to pay the costs of conducting
a background check under this paragraph.
new text end

deleted text begin (d) deleted text end new text begin (e) new text end For all nonstate residents who are offered employment in a school, a school hiring
authority shall request a criminal history background check on such individuals from the
superintendent of the Bureau of Criminal Apprehension and from the government agency
performing the same function in the resident state or, if no government entity performs the
same function in the resident state, from the Federal Bureau of Investigation. Such individuals
must provide an executed criminal history consent form and a money order, check, or other
negotiable instrument payable to the school hiring authority in an amount equal to the actual
cost to the government agencies and the school district of conducting the criminal history
background check. Notwithstanding section 299C.62, subdivision 1, the cost of the criminal
history background check under this paragraph is the responsibility of the individual.

deleted text begin (e) deleted text end new text begin (f) new text end At the beginning of each school year or when a student enrolls, a school hiring
authority must notify parents and guardians about the school hiring authority's policy
requiring a criminal history background check on employees and other individuals who
provide services to the school, and identify those positions subject to a background check
and the extent of the hiring authority's discretion in requiring a background check. The
school hiring authority may include the notice in the student handbook, a school policy
guide, or other similar communication. Nothing in this paragraph affects a school hiring
authority's ability to request a criminal history background check on an individual under
paragraph (c).

Sec. 6.

Minnesota Statutes 2017 Supplement, section 626.556, subdivision 3, is amended
to read:

Subd. 3.

Persons mandated to report; persons voluntarily reporting.

(a) A person
who knows or has reason to believe a child is being neglected or physically or sexually
abused, as defined in subdivision 2, or has been neglected or physically or sexually abused
within the preceding three years, shall immediately report the information to the local welfare
agency, agency responsible for assessing or investigating the report, police department,
county sheriff, tribal social services agency, or tribal police department if the person is:

(1) a professional or professional's delegate who is engaged in the practice of the healing
arts, social services, hospital administration, psychological or psychiatric treatment, child
care, education, correctional supervision, probation and correctional services, or law
enforcement; deleted text begin or
deleted text end

(2) employed as a member of the clergy and received the information while engaged in
ministerial duties, provided that a member of the clergy is not required by this subdivision
to report information that is otherwise privileged under section 595.02, subdivision 1,
paragraph (c) deleted text begin . deleted text end new text begin ; or
new text end

new text begin (3) a member of the Professional Educator Licensing and Standards Board or the Board
of School Administrators.
new text end

(b) Any person may voluntarily report to the local welfare agency, agency responsible
for assessing or investigating the report, police department, county sheriff, tribal social
services agency, or tribal police department if the person knows, has reason to believe, or
suspects a child is being or has been neglected or subjected to physical or sexual abuse.

(c) A person mandated to report physical or sexual child abuse or neglect occurring
within a licensed facility shall report the information to the agency responsible for licensing
or certifying the facility under sections 144.50 to 144.58; 241.021; 245A.01 to 245A.16;
or chapter 144H, 245D, or 245H; or a nonlicensed personal care provider organization as
defined in section 256B.0625, subdivision 19a. A health or corrections agency receiving a
report may request the local welfare agency to provide assistance pursuant to subdivisions
10, 10a, and 10b. A board or other entity whose licensees perform work within a school
facility, upon receiving a complaint of alleged maltreatment, shall provide information about
the circumstances of the alleged maltreatment to the commissioner of education. Section
13.03, subdivision 4, applies to data received by the commissioner of education from a
licensing entity.

(d) Notification requirements under subdivision 10 apply to all reports received under
this section.

(e) For purposes of this section, "immediately" means as soon as possible but in no event
longer than 24 hours.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 7.

Minnesota Statutes 2016, section 626.556, subdivision 10a, is amended to read:

Subd. 10a.

Law enforcement agency responsibility for investigation; welfare agency
reliance on law enforcement fact-finding; welfare agency offer of services.

(a) If the
report alleges neglect, physical abuse, or sexual abuse by a person who is not a parent,
guardian, sibling, person responsible for the child's care functioning within the family unit,
or a person who lives in the child's household and who has a significant relationship to the
child, in a setting other than a facility as defined in subdivision 2, the local welfare agency
shall immediately notify the appropriate law enforcement agency, which shall conduct an
investigation of the alleged abuse or neglect if a violation of a criminal statute is alleged.

(b) The local agency may rely on the fact-finding efforts of the law enforcement
investigation conducted under this subdivision to make a determination whether or not
threatened injury or other maltreatment has occurred under subdivision 2 if an alleged
offender has minor children or lives with minors.

(c) If a child is the victim of an alleged crime under paragraph (a), the law enforcement
agency shall immediately notify the local welfare agency, which shall offer appropriate
social services for the purpose of safeguarding and enhancing the welfare of the abused or
neglected minor.

new text begin (d) The law enforcement agency must report to the Professional Educator Licensing and
Standards Board an investigation under paragraph (a), involving a person licensed by the
board.
new text end

Sec. 8.

Minnesota Statutes 2017 Supplement, section 626.556, subdivision 10e, is amended
to read:

Subd. 10e.

Determinations.

(a) The local welfare agency shall conclude the family
assessment or the investigation within 45 days of the receipt of a report. The conclusion of
the assessment or investigation may be extended to permit the completion of a criminal
investigation or the receipt of expert information requested within 45 days of the receipt of
the report.

(b) After conducting a family assessment, the local welfare agency shall determine
whether services are needed to address the safety of the child and other family members
and the risk of subsequent maltreatment.

(c) After conducting an investigation, the local welfare agency shall make two
determinations: first, whether maltreatment has occurred; and second, whether child
protective services are needed. No determination of maltreatment shall be made when the
alleged perpetrator is a child under the age of ten.

(d) If the commissioner of education conducts an assessment or investigation, the
commissioner shall determine whether maltreatment occurred and what corrective or
protective action was taken by the school facility. If a determination is made that
maltreatment has occurred, the commissioner shall report to the employer, the school board,
and any appropriate licensing entity the determination that maltreatment occurred and what
corrective or protective action was taken by the school facility. In all other cases, the
commissioner shall inform the school board or employer new text begin and any appropriate licensing
entity new text end that a report was received, the subject of the report, the date of the initial report, the
category of maltreatment alleged as defined in paragraph (f), the fact that maltreatment was
not determined, and a summary of the specific reasons for the determination.

(e) When maltreatment is determined in an investigation involving a facility, the
investigating agency shall also determine whether the facility or individual was responsible,
or whether both the facility and the individual were responsible for the maltreatment using
the mitigating factors in paragraph (i). Determinations under this subdivision must be made
based on a preponderance of the evidence and are private data on individuals or nonpublic
data as maintained by the commissioner of education.

(f) For the purposes of this subdivision, "maltreatment" means any of the following acts
or omissions:

(1) physical abuse as defined in subdivision 2, paragraph (k);

(2) neglect as defined in subdivision 2, paragraph (g);

(3) sexual abuse as defined in subdivision 2, paragraph (n);

(4) mental injury as defined in subdivision 2, paragraph (f); or

(5) maltreatment of a child in a facility as defined in subdivision 2, paragraph (c).

(g) For the purposes of this subdivision, a determination that child protective services
are needed means that the local welfare agency has documented conditions during the
assessment or investigation sufficient to cause a child protection worker, as defined in
section 626.559, subdivision 1, to conclude that a child is at significant risk of maltreatment
if protective intervention is not provided and that the individuals responsible for the child's
care have not taken or are not likely to take actions to protect the child from maltreatment
or risk of maltreatment.

(h) This subdivision does not mean that maltreatment has occurred solely because the
child's parent, guardian, or other person responsible for the child's care in good faith selects
and depends upon spiritual means or prayer for treatment or care of disease or remedial care
of the child, in lieu of medical care. However, if lack of medical care may result in serious
danger to the child's health, the local welfare agency may ensure that necessary medical
services are provided to the child.

(i) When determining whether the facility or individual is the responsible party, or
whether both the facility and the individual are responsible for determined maltreatment in
a facility, the investigating agency shall consider at least the following mitigating factors:

(1) whether the actions of the facility or the individual caregivers were according to,
and followed the terms of, an erroneous physician order, prescription, individual care plan,
or directive; however, this is not a mitigating factor when the facility or caregiver was
responsible for the issuance of the erroneous order, prescription, individual care plan, or
directive or knew or should have known of the errors and took no reasonable measures to
correct the defect before administering care;

(2) comparative responsibility between the facility, other caregivers, and requirements
placed upon an employee, including the facility's compliance with related regulatory standards
and the adequacy of facility policies and procedures, facility training, an individual's
participation in the training, the caregiver's supervision, and facility staffing levels and the
scope of the individual employee's authority and discretion; and

(3) whether the facility or individual followed professional standards in exercising
professional judgment.

The evaluation of the facility's responsibility under clause (2) must not be based on the
completeness of the risk assessment or risk reduction plan required under section 245A.66,
but must be based on the facility's compliance with the regulatory standards for policies
and procedures, training, and supervision as cited in Minnesota Statutes and Minnesota
Rules.

(j) Notwithstanding paragraph (i), when maltreatment is determined to have been
committed by an individual who is also the facility license or certification holder, both the
individual and the facility must be determined responsible for the maltreatment, and both
the background study disqualification standards under section 245C.15, subdivision 4, and
the licensing or certification actions under section 245A.06, 245A.07, 245H.06, or 245H.07
apply.