1st Engrossment - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to vulnerable adults; modifying provisions 1.3 concerning medical errors and neglect; requiring 1.4 health licensing boards to make determinations 1.5 regarding employment disqualifications; amending 1.6 Minnesota Statutes 1998, section 626.5572, subdivision 1.7 17; Minnesota Statutes 1999 Supplement, section 1.8 245A.04, subdivision 3d; proposing coding for new law 1.9 in Minnesota Statutes, chapter 214. 1.10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.11 Section 1. Minnesota Statutes 1999 Supplement, section 1.12 245A.04, subdivision 3d, is amended to read: 1.13 Subd. 3d. [DISQUALIFICATION.] (a) Except as provided in 1.14 paragraph (b), when a background study completed under 1.15 subdivision 3 shows any of the following: a conviction of one 1.16 or more crimes listed in clauses (1) to (4); the individual has 1.17 admitted to or a preponderance of the evidence indicates the 1.18 individual has committed an act or acts that meet the definition 1.19 of any of the crimes listed in clauses (1) to (4); or an 1.20 administrative determination listed under clause (4), the 1.21 individual shall be disqualified from any position allowing 1.22 direct contact with persons receiving services from the license 1.23 holder: 1.24 (1) regardless of how much time has passed since the 1.25 discharge of the sentence imposed for the offense, and unless 1.26 otherwise specified, regardless of the level of the conviction, 1.27 the individual was convicted of any of the following offenses: 2.1 sections 609.185 (murder in the first degree); 609.19 (murder in 2.2 the second degree); 609.195 (murder in the third degree); 2.3 609.2661 (murder of an unborn child in the first degree); 2.4 609.2662 (murder of an unborn child in the second degree); 2.5 609.2663 (murder of an unborn child in the third degree); 2.6 609.322 (solicitation, inducement, and promotion of 2.7 prostitution); 609.342 (criminal sexual conduct in the first 2.8 degree); 609.343 (criminal sexual conduct in the second degree); 2.9 609.344 (criminal sexual conduct in the third degree); 609.345 2.10 (criminal sexual conduct in the fourth degree); 609.352 2.11 (solicitation of children to engage in sexual conduct); 609.365 2.12 (incest); felony offense under 609.377 (malicious punishment of 2.13 a child); 617.246 (use of minors in sexual performance 2.14 prohibited); 617.247 (possession of pictorial representations of 2.15 minors); a felony offense under sections 609.2242 and 609.2243 2.16 (domestic assault), a felony offense of spousal abuse, a felony 2.17 offense of child abuse or neglect, a felony offense of a crime 2.18 against children; or attempt or conspiracy to commit any of 2.19 these offenses as defined in Minnesota Statutes, or an offense 2.20 in any other state or country, where the elements are 2.21 substantially similar to any of the offenses listed in this 2.22 clause; 2.23 (2) if less than 15 years have passed since the discharge 2.24 of the sentence imposed for the offense; and the individual has 2.25 received a felony conviction for a violation of any of these 2.26 offenses: sections 609.20 (manslaughter in the first degree); 2.27 609.205 (manslaughter in the second degree); 609.21 (criminal 2.28 vehicular homicide and injury); 609.215 (suicide); 609.221 to 2.29 609.2231 (assault in the first, second, third, or fourth 2.30 degree); repeat offenses under 609.224 (assault in the fifth 2.31 degree); repeat offenses under 609.3451 (criminal sexual conduct 2.32 in the fifth degree); 609.713 (terroristic threats); 609.235 2.33 (use of drugs to injure or facilitate crime); 609.24 (simple 2.34 robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 2.35 609.255 (false imprisonment); 609.561 (arson in the first 2.36 degree); 609.562 (arson in the second degree); 609.563 (arson in 3.1 the third degree); repeat offenses under 617.23 (indecent 3.2 exposure; penalties); repeat offenses under 617.241 (obscene 3.3 materials and performances; distribution and exhibition 3.4 prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 3.5 609.67 (machine guns and short-barreled shotguns); 609.749 3.6 (harassment; stalking; penalties); 609.228 (great bodily harm 3.7 caused by distribution of drugs); 609.2325 (criminal abuse of a 3.8 vulnerable adult); 609.2664 (manslaughter of an unborn child in 3.9 the first degree); 609.2665 (manslaughter of an unborn child in 3.10 the second degree); 609.267 (assault of an unborn child in the 3.11 first degree); 609.2671 (assault of an unborn child in the 3.12 second degree); 609.268 (injury or death of an unborn child in 3.13 the commission of a crime); 609.378 (neglect or endangerment of 3.14 a child); 609.324, subdivision 1 (other prohibited acts); 609.52 3.15 (theft); 609.2335 (financial exploitation of a vulnerable 3.16 adult); 609.521 (possession of shoplifting gear); 609.582 3.17 (burglary); 609.625 (aggravated forgery); 609.63 (forgery); 3.18 609.631 (check forgery; offering a forged check); 609.635 3.19 (obtaining signature by false pretense); 609.27 (coercion); 3.20 609.275 (attempt to coerce); 609.687 (adulteration); 260C.301 3.21 (grounds for termination of parental rights); and chapter 152 3.22 (drugs; controlled substance). An attempt or conspiracy to 3.23 commit any of these offenses, as each of these offenses is 3.24 defined in Minnesota Statutes; or an offense in any other state 3.25 or country, the elements of which are substantially similar to 3.26 the elements of the offenses in this clause. If the individual 3.27 studied is convicted of one of the felonies listed in this 3.28 clause, but the sentence is a gross misdemeanor or misdemeanor 3.29 disposition, the lookback period for the conviction is the 3.30 period applicable to the disposition, that is the period for 3.31 gross misdemeanors or misdemeanors; 3.32 (3) if less than ten years have passed since the discharge 3.33 of the sentence imposed for the offense; and the individual has 3.34 received a gross misdemeanor conviction for a violation of any 3.35 of the following offenses: sections 609.224 (assault in the 3.36 fifth degree); 609.2242 and 609.2243 (domestic assault); 4.1 violation of an order for protection under 518B.01, subdivision 4.2 14; 609.3451 (criminal sexual conduct in the fifth degree); 4.3 repeat offenses under 609.746 (interference with privacy); 4.4 repeat offenses under 617.23 (indecent exposure); 617.241 4.5 (obscene materials and performances); 617.243 (indecent 4.6 literature, distribution); 617.293 (harmful materials; 4.7 dissemination and display to minors prohibited); 609.71 (riot); 4.8 609.66 (dangerous weapons); 609.749 (harassment; stalking; 4.9 penalties); 609.224, subdivision 2, paragraph (c) (assault in 4.10 the fifth degree by a caregiver against a vulnerable adult); 4.11 609.23 (mistreatment of persons confined); 609.231 (mistreatment 4.12 of residents or patients); 609.2325 (criminal abuse of a 4.13 vulnerable adult); 609.233 (criminal neglect of a vulnerable 4.14 adult); 609.2335 (financial exploitation of a vulnerable adult); 4.15 609.234 (failure to report maltreatment of a vulnerable adult); 4.16 609.72, subdivision 3 (disorderly conduct against a vulnerable 4.17 adult); 609.265 (abduction); 609.378 (neglect or endangerment of 4.18 a child); 609.377 (malicious punishment of a child); 609.324, 4.19 subdivision 1a (other prohibited acts; minor engaged in 4.20 prostitution); 609.33 (disorderly house); 609.52 (theft); 4.21 609.582 (burglary); 609.631 (check forgery; offering a forged 4.22 check); 609.275 (attempt to coerce); or an attempt or conspiracy 4.23 to commit any of these offenses, as each of these offenses is 4.24 defined in Minnesota Statutes; or an offense in any other state 4.25 or country, the elements of which are substantially similar to 4.26 the elements of any of the offenses listed in this clause. If 4.27 the defendant is convicted of one of the gross misdemeanors 4.28 listed in this clause, but the sentence is a misdemeanor 4.29 disposition, the lookback period for the conviction is the 4.30 period applicable to misdemeanors; or 4.31 (4) if less than seven years have passed since the 4.32 discharge of the sentence imposed for the offense; and the 4.33 individual has received a misdemeanor conviction for a violation 4.34 of any of the following offenses: sections 609.224 (assault in 4.35 the fifth degree); 609.2242 (domestic assault); violation of an 4.36 order for protection under 518B.01 (Domestic Abuse Act); 5.1 violation of an order for protection under 609.3232 (protective 5.2 order authorized; procedures; penalties); 609.746 (interference 5.3 with privacy); 609.79 (obscene or harassing phone calls); 5.4 609.795 (letter, telegram, or package; opening; harassment); 5.5 617.23 (indecent exposure; penalties); 609.2672 (assault of an 5.6 unborn child in the third degree); 617.293 (harmful materials; 5.7 dissemination and display to minors prohibited); 609.66 5.8 (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 5.9 exploitation of a vulnerable adult); 609.234 (failure to report 5.10 maltreatment of a vulnerable adult); 609.52 (theft); 609.27 5.11 (coercion); or an attempt or conspiracy to commit any of these 5.12 offenses, as each of these offenses is defined in Minnesota 5.13 Statutes; or an offense in any other state or country, the 5.14 elements of which are substantially similar to the elements of 5.15 any of the offenses listed in this clause; failure to make 5.16 required reports under section 626.556, subdivision 3, or 5.17 626.557, subdivision 3, for incidents in which: (i) the final 5.18 disposition under section 626.556 or 626.557 was substantiated 5.19 maltreatment, and (ii) the maltreatment was recurring or 5.20 serious; or substantiated serious or recurring maltreatment of a 5.21 minor under section 626.556 or of a vulnerable adult under 5.22 section 626.557 for which there is a preponderance of evidence 5.23 that the maltreatment occurred, and that the subject was 5.24 responsible for the maltreatment. 5.25 For the purposes of this section, "serious maltreatment" 5.26 means sexual abuse; maltreatment resulting in death; or 5.27 maltreatment resulting in serious injury
or harmwhich 5.28 reasonably requires the care of a physician whether or not the 5.29 care of a physician was sought; or abuse resulting in serious 5.30 injury. For purposes of this section, "abuse resulting in 5.31 serious injury" means: bruises, bites, skin laceration or 5.32 tissue damage; fractures; dislocations; evidence of internal 5.33 injuries; head injuries with loss of consciousness; extensive 5.34 second-degree or third-degree burns and other burns for which 5.35 complications are present; extensive second-degree or 5.36 third-degree frostbite, and others for which complications are 6.1 present; irreversible mobility or avulsion of teeth; injuries to 6.2 the eyeball; ingestion of foreign substances and objects that 6.3 are harmful; near drowning; and heat exhaustion or sunstroke. 6.4 For purposes of this section, "care of a physician" is treatment 6.5 received or ordered by a physician, but does not include 6.6 diagnostic testing, assessment, or observation. For the 6.7 purposes of this section, "recurring maltreatment" means more 6.8 than one incident of maltreatment for which there is a 6.9 preponderance of evidence that the maltreatment occurred, and 6.10 that the subject was responsible for the maltreatment. 6.11 (b) If the subject of a background study is licensed by a 6.12 health-related licensing board, the board shall make the 6.13 determination regarding a disqualification under this 6.14 subdivision based on a finding of substantiated maltreatment 6.15 under section 626.556 or 626.557. The commissioner shall notify 6.16 the health-related licensing board if a background study shows 6.17 that a licensee would be disqualified because of substantiated 6.18 maltreatment and the board shall make a determination under 6.19 section 2. 6.20 Sec. 2. [214.104] [HEALTH-RELATED LICENSING BOARDS; 6.21 DETERMINATIONS REGARDING DISQUALIFICATIONS FOR MALTREATMENT.] 6.22 (a) A health-related licensing board shall make 6.23 determinations as to whether licensees who are under the board's 6.24 jurisdiction should be disqualified under section 245A.04, 6.25 subdivision 3d, from positions allowing direct contact with 6.26 persons receiving services because of substantiated maltreatment 6.27 under section 626.556 or 626.557. A determination under this 6.28 section may be done as part of an investigation under section 6.29 214.103. The board shall make a determination within 90 days of 6.30 receipt of an investigation memorandum or other notice of 6.31 substantiated maltreatment under section 626.556 or 626.557, or 6.32 of a notice from the commissioner of human services that a 6.33 background study of a licensee shows substantiated 6.34 maltreatment. The board shall also make a determination under 6.35 this section upon consideration of the licensure of an 6.36 individual who was subject to disqualification before licensure 7.1 because of substantiated maltreatment. 7.2 (b) In making a determination under this section, the board 7.3 shall consider the nature and extent of any injury or harm 7.4 resulting from the conduct that would constitute grounds for 7.5 disqualification, the seriousness of the misconduct, the extent 7.6 that disqualification is necessary to protect persons receiving 7.7 services or the public, and other factors specified in section 7.8 245A.04, subdivision 3b, paragraph (b). 7.9 (c) The board shall determine the duration and extent of 7.10 the disqualification or may establish conditions under which the 7.11 licensee may hold a position allowing direct contact with 7.12 persons receiving services or in a licensed facility. The board 7.13 shall notify the commissioner of human services and the lead 7.14 agency that conducted an investigation under section 626.556 or 7.15 626.557, as applicable, of its determination. 7.16 Sec. 3. Minnesota Statutes 1998, section 626.5572, 7.17 subdivision 17, is amended to read: 7.18 Subd. 17. [NEGLECT.] "Neglect" means: 7.19 (a) The failure or omission by a caregiver to supply a 7.20 vulnerable adult with care or services, including but not 7.21 limited to, food, clothing, shelter, health care, or supervision 7.22 which is: 7.23 (1) reasonable and necessary to obtain or maintain the 7.24 vulnerable adult's physical or mental health or safety, 7.25 considering the physical and mental capacity or dysfunction of 7.26 the vulnerable adult; and 7.27 (2) which is not the result of an accident or therapeutic 7.28 conduct. 7.29 (b) The absence or likelihood of absence of care or 7.30 services, including but not limited to, food, clothing, shelter, 7.31 health care, or supervision necessary to maintain the physical 7.32 and mental health of the vulnerable adult which a reasonable 7.33 person would deem essential to obtain or maintain the vulnerable 7.34 adult's health, safety, or comfort considering the physical or 7.35 mental capacity or dysfunction of the vulnerable adult. 7.36 (c) For purposes of this section, a vulnerable adult is not 8.1 neglected for the sole reason that: 8.2 (1) the vulnerable adult or a person with authority to make 8.3 health care decisions for the vulnerable adult under sections 8.4 144.651, 144A.44, chapter 145B, 145C, or 252A, or section 8.5 253B.03, or 525.539 to 525.6199, refuses consent or withdraws 8.6 consent, consistent with that authority and within the boundary 8.7 of reasonable medical practice, to any therapeutic conduct, 8.8 including any care, service, or procedure to diagnose, maintain, 8.9 or treat the physical or mental condition of the vulnerable 8.10 adult, or, where permitted under law, to provide nutrition and 8.11 hydration parenterally or through intubation; this paragraph 8.12 does not enlarge or diminish rights otherwise held under law by: 8.13 (i) a vulnerable adult or a person acting on behalf of a 8.14 vulnerable adult, including an involved family member, to 8.15 consent to or refuse consent for therapeutic conduct; or 8.16 (ii) a caregiver to offer or provide or refuse to offer or 8.17 provide therapeutic conduct; or 8.18 (2) the vulnerable adult, a person with authority to make 8.19 health care decisions for the vulnerable adult, or a caregiver 8.20 in good faith selects and depends upon spiritual means or prayer 8.21 for treatment or care of disease or remedial care of the 8.22 vulnerable adult in lieu of medical care, provided that this is 8.23 consistent with the prior practice or belief of the vulnerable 8.24 adult or with the expressed intentions of the vulnerable adult; 8.25 (3) the vulnerable adult, who is not impaired in judgment 8.26 or capacity by mental or emotional dysfunction or undue 8.27 influence, engages in sexual contact with: 8.28 (i) a person including a facility staff person when a 8.29 consensual sexual personal relationship existed prior to the 8.30 caregiving relationship; or 8.31 (ii) a personal care attendant, regardless of whether the 8.32 consensual sexual personal relationship existed prior to the 8.33 caregiving relationship; or 8.34 (4) an individual makes a single mistakean error in the 8.35 provision of therapeutic conduct to a vulnerable adult which: 8.36 (i) does not result in injury or harm which reasonably 9.1 requires themedical or mental health care of a physician or9.2 mental health professional, whether or not the care was9.3 soughtor, if it reasonably requires care, the care is sought 9.4 and provided in a timely fashion as dictated by the condition of 9.5 the vulnerable adult; and the injury or harm that required care 9.6 does not result in substantial acute, or chronic injury or 9.7 illness, or permanent disability above and beyond that already 9.8 experienced by the vulnerable adult; 9.9 (ii) is immediately reported and recorded internally by the 9.10 employee or person providing services in the facility in order 9.11 to evaluate and identify corrective action; and9.12 (iii) is sufficiently documented for review and evaluation 9.13 by the facility and any applicable licensing and, certification, 9.14 and ombudsman agency; and 9.15 (iv) is not part of a pattern of errors by the individual. 9.16 (d) Nothing in this definition requires a caregiver, if 9.17 regulated, to provide services in excess of those required by 9.18 the caregiver's license, certification, registration, or other 9.19 regulation. 9.20 Sec. 4. [RIGHT TO PETITION FOR LICENSING BOARD REVIEW.] 9.21 Until August 1, 2001, a licensed health professional who 9.22 was disqualified under Minnesota Statutes, section 245A.04, 9.23 subdivision 3d, before the effective date of this act, for 9.24 substantiated maltreatment under Minnesota Statutes, section 9.25 626.556 or 626.557, that occurred on or after October 1, 1995, 9.26 may petition the licensing board for review of the 9.27 disqualification, as provided in section 2. The commissioner of 9.28 human services shall notify individuals who are eligible to 9.29 petition under this section of this right. 9.30 Sec. 5. [COORDINATION OF ACTIVITY REGARDING LICENSED 9.31 PROFESSIONALS.] 9.32 The commissioner of human services, the commissioner of 9.33 health, the health-related licensing boards, and representatives 9.34 of licensed and nonlicensed health professionals, shall study 9.35 and make recommendations regarding the coordination of 9.36 investigatory and disciplinary activity relating to the 10.1 disqualification of licensed and nonlicensed health 10.2 professionals under Minnesota Statutes, section 245A.04, 10.3 subdivision 3d, for purposes of efficiency and avoiding 10.4 duplication of actions affecting health professionals, 10.5 consistent with due process for the health professionals. The 10.6 commissioner shall report recommendations to the legislature by 10.7 January 15, 2001.