SF 3197

2nd Engrossment - 91st Legislature (2019 - 2020) Posted on 04/21/2020 09:12am

A bill for an act
relating to child care licensing; revising the definition of supervision for purposes
of licensed child care centers; requiring county agencies to publish and distribute
information about variances for family child care providers; amending Minnesota
Statutes 2018, section 245A.04, subdivision 9; Minnesota Statutes 2019
Supplement, sections 245A.02, subdivision 18; 245A.16, subdivision 1.

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

Section 1.

Minnesota Statutes 2019 Supplement, section 245A.02, subdivision 18, is
amended to read:

Subd. 18.

Supervision.

(a) For purposes of licensed child care centers, "supervision"
means when a program staff person:

(1) is accountable for the child's care;

(2) can intervene to protect the health and safety of the child; and

(3) is within sight and hearing of the child at all times except as described in paragraphs
(b) to deleted text begin (d) deleted text end new text begin (e) new text end .

(b) When an infant is placed in a crib room to sleep, supervision occurs when a program
staff person is within sight or hearing of the infant. When supervision of a crib room is
provided by sight or hearing, the center must have a plan to address the other supervision
components.

(c) When a single school-age child uses the restroom within the licensed space,
supervision occurs when a program staff person has knowledge of the child's activity and
location and checks on the child at least every five minutes. When a school-age child uses
the restroom outside the licensed space, including but not limited to field trips, supervision
occurs when staff accompany children to the restroom.

(d) When a school-age child leaves the classroom but remains within the licensed space
to deliver or retrieve items from the child's personal storage space, supervision occurs when
a program staff person has knowledge of the child's activity and location and checks on the
child at least every five minutes.

new text begin (e) When a single preschooler uses an individual, private restroom within the classroom
with the door closed, supervision occurs when a program staff person has knowledge of the
child's activity and location, can hear the child, and checks on the child at least every five
minutes.
new text end

Sec. 2.

Minnesota Statutes 2018, section 245A.04, subdivision 9, is amended to read:

Subd. 9.

Variances.

(a) The commissioner may grant variances to rules that do not affect
the health or safety of persons in a licensed program if the following conditions are met:

(1) the variance must be requested by an applicant or license holder on a form and in a
manner prescribed by the commissioner;

(2) the request for a variance must include the reasons that the applicant or license holder
cannot comply with a requirement as stated in the rule and the alternative equivalent measures
that the applicant or license holder will follow to comply with the intent of the rule; and

(3) the request must state the period of time for which the variance is requested.

The commissioner may grant a permanent variance when conditions under which the
variance is requested do not affect the health or safety of persons being served by the licensed
program, nor compromise the qualifications of staff to provide services. The permanent
variance shall expire as soon as the conditions that warranted the variance are modified in
any way. Any applicant or license holder must inform the commissioner of any changes or
modifications that have occurred in the conditions that warranted the permanent variance.
Failure to advise the commissioner shall result in revocation of the permanent variance and
may be cause for other sanctions under sections 245A.06 and 245A.07.

The commissioner's decision to grant or deny a variance request is final and not subject
to appeal under the provisions of chapter 14.

(b) The commissioner shall consider variances for child care center staff qualification
requirements under Minnesota Rules, parts 9503.0032 and 9503.0033, that do not affect
the health and safety of children served by the center. A variance request must be submitted
to the commissioner in accordance with paragraph (a) and must include a plan for the staff
person to gain additional experience, education, or training, as requested by the commissioner.
When reviewing a variance request under this section, the commissioner shall consider the
staff person's level of professional development, including but not limited to steps completed
on the Minnesota career lattice.

new text begin (c) Beginning January 1, 2021, counties shall use a uniform application form for variance
requests by family child care license holders.
new text end

Sec. 3.

Minnesota Statutes 2019 Supplement, section 245A.16, subdivision 1, is amended
to read:

Subdivision 1.

Delegation of authority to agencies.

(a) County agencies and private
agencies that have been designated or licensed by the commissioner to perform licensing
functions and activities under section 245A.04 and background studies for family child care
under chapter 245C; to recommend denial of applicants under section 245A.05; to issue
correction orders, to issue variances, and recommend a conditional license under section
245A.06; or to recommend suspending or revoking a license or issuing a fine under section
245A.07, shall comply with rules and directives of the commissioner governing those
functions and with this section. The following variances are excluded from the delegation
of variance authority and may be issued only by the commissioner:

(1) dual licensure of family child care and child foster care, dual licensure of child and
adult foster care, and adult foster care and family child care;

(2) adult foster care maximum capacity;

(3) adult foster care minimum age requirement;

(4) child foster care maximum age requirement;

(5) variances regarding disqualified individuals except that, before the implementation
of NETStudy 2.0, county agencies may issue variances under section 245C.30 regarding
disqualified individuals when the county is responsible for conducting a consolidated
reconsideration according to sections 245C.25 and 245C.27, subdivision 2, clauses (a) and
(b), of a county maltreatment determination and a disqualification based on serious or
recurring maltreatment;

(6) the required presence of a caregiver in the adult foster care residence during normal
sleeping hours;

(7) variances to requirements relating to chemical use problems of a license holder or a
household member of a license holder; and

(8) variances to section 245A.53 for a time-limited period. If the commissioner grants
a variance under this clause, the license holder must provide notice of the variance to all
parents and guardians of the children in care.

Except as provided in section 245A.14, subdivision 4, paragraph (e), a county agency must
not grant a license holder a variance to exceed the maximum allowable family child care
license capacity of 14 children.

new text begin (b) A county agency that has been designated by the commissioner to issue family child
care variances must:
new text end

new text begin (1) publish the county agency's policies and criteria for issuing variances on the county's
public website and update the policies as necessary; and
new text end

new text begin (2) annually distribute the county agency's policies and criteria for issuing variances to
all family child care license holders in the county.
new text end

deleted text begin (b) deleted text end new text begin (c) new text end Before the implementation of NETStudy 2.0, county agencies must report
information about disqualification reconsiderations under sections 245C.25 and 245C.27,
subdivision 2, paragraphs (a) and (b), and variances granted under paragraph (a), clause
(5), to the commissioner at least monthly in a format prescribed by the commissioner.

deleted text begin (c) deleted text end new text begin (d) new text end For family child care programs, the commissioner shall require a county agency
to conduct one unannounced licensing review at least annually.

deleted text begin (d) deleted text end new text begin (e) new text end For family adult day services programs, the commissioner may authorize licensing
reviews every two years after a licensee has had at least one annual review.

deleted text begin (e) deleted text end new text begin (f) new text end A license issued under this section may be issued for up to two years.

deleted text begin (f) deleted text end new text begin (g) new text end During implementation of chapter 245D, the commissioner shall consider:

(1) the role of counties in quality assurance;

(2) the duties of county licensing staff; and

(3) the possible use of joint powers agreements, according to section 471.59, with counties
through which some licensing duties under chapter 245D may be delegated by the
commissioner to the counties.

Any consideration related to this paragraph must meet all of the requirements of the corrective
action plan ordered by the federal Centers for Medicare and Medicaid Services.

deleted text begin (g) deleted text end new text begin (h) new text end Licensing authority specific to section 245D.06, subdivisions 5, 6, 7, and 8, or
successor provisions; and section 245D.061 or successor provisions, for family child foster
care programs providing out-of-home respite, as identified in section 245D.03, subdivision
1, paragraph (b), clause (1), is excluded from the delegation of authority to county and
private agencies.

deleted text begin (h) deleted text end new text begin (i) new text end A county agency shall report to the commissioner, in a manner prescribed by the
commissioner, the following information for a licensed family child care program:

(1) the results of each licensing review completed, including the date of the review, and
any licensing correction order issued;

(2) any death, serious injury, or determination of substantiated maltreatment; and

(3) any fires that require the service of a fire department within 48 hours of the fire. The
information under this clause must also be reported to the state fire marshal within two
business days of receiving notice from a licensed family child care provider.

Sec. 4. new text begin DIRECTION TO COMMISSIONER OF HUMAN SERVICES; UNIFORM
FAMILY CHILD CARE VARIANCE APPLICATION FORM.
new text end

new text begin By October 1, 2020, the commissioner of human services shall issue to counties the
uniform application form for family child care variance requests developed by the Family
Child Care Task Force. The commissioner shall also issue any necessary training or guidance
for counties to use the form. The Family Child Care Task Force shall develop the uniform
application form and provide the form to the commissioner no later than September 1, 2020.
new text end