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SF 3256

as introduced - 86th Legislature (2009 - 2010) Posted on 03/12/2010 03:40pm

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to child care; requiring child care centers to develop a risk reduction
plan; defining the term nonmaltreatment mistake; amending Minnesota Statutes
2008, section 245A.66; Minnesota Statutes 2009 Supplement, section 626.556,
subdivisions 2, 10e.

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

Section 1.

Minnesota Statutes 2008, section 245A.66, is amended to read:


245A.66 REQUIREMENTS; MALTREATMENT OF MINORS.

new text begin Subdivision 1. new text end

new text begin Internal review. new text end

Except for family child care settings and foster care
for children in the license holder's residence, license holders serving children shall:

(1) establish and maintain policies and procedures to ensure that an internal review
is completed and that corrective action is taken if necessary to protect the health and
safety of children in care when the facility has reason to know that an internal or external
report of alleged or suspected maltreatment has been made. The review must include
an evaluation of whether:

(i) related policies and procedures were followed;

(ii) the policies and procedures were adequate;

(iii) there is a need for additional staff training;

(iv) the reported event is similar to past events with the children or the services
involved; and

(v) there is a need for corrective action by the license holder to protect the health and
safety of children in care.

Based on the results of this review, the license holder must develop, document, and
implement a corrective action plan designed to correct current lapses and prevent future
lapses in performance by individuals or the license holder, if any;

(2) identify the primary and secondary person or position who will ensure that, when
required, internal reviews are completed. The secondary person shall be involved when
there is reason to believe that the primary person was involved in the alleged or suspected
maltreatment; and

(3) document that the internal review has been completed and provide documentation
showing the review was completed to the commissioner upon the commissioner's request.
The documentation provided to the commissioner by the license holder may consist of a
completed checklist that verifies completion of each of the requirements of the review.

new text begin Subd. 2. new text end

new text begin Child care centers; risk reduction plan. new text end

new text begin (a) Child care centers licensed
under this chapter and Minnesota Rules, chapter 9503, must develop a risk reduction plan
that assesses the general risks to children served by the child care center. The license
holder must establish procedures to minimize identified risks, train staff on the procedures,
and annually review the procedures.
new text end

new text begin (b) The risk reduction plan must include an assessment of risk to children the center
serves or intends to serve based on the following:
new text end

new text begin (1) an assessment of the risk presented by the vulnerability of the children served,
including an evaluation of the following factors: age, developmental functioning, and the
physical and emotional health of children the program serves or intends to serve;
new text end

new text begin (2) an assessment of the risks presented by the physical plant where the licensed
services are provided, including an evaluation of the following factors: the condition and
design of the facility and its outdoor space, bathrooms, storage areas and accessibility of
medications and cleaning products that are harmful to children when children are not
supervised, doors where finger pinching may occur, and the existence of areas that are
difficult to supervise; and
new text end

new text begin (3) an assessment of the risks presented by the environment for each facility and
for each site, including an evaluation of the following factors: the type of grounds and
terrain surrounding the building and the proximity to hazards, busy roads, and publicly
accessed businesses.
new text end

new text begin (c) The risk reduction plan must include a statement of measures that will be taken
to minimize the risk of harm presented to children. At a minimum, the risk reduction
plan must address the following:
new text end

new text begin (1) a general description of supervision, programming, and reference to the
policies and procedures developed and implemented to address the risks identified in the
assessment required under paragraph (b) related to the general population served, the
physical plant, and environment;
new text end

new text begin (2) in addition to any program-specific risks identified in paragraph (b), the plan
must include or refer to policies and procedures developed and implemented to minimize
the risk of harm or injury to children, including:
new text end

new text begin (i) closing children's fingers in doors, including cabinet doors;
new text end

new text begin (ii) leaving children in the community without supervision;
new text end

new text begin (iii) children leaving the facility without supervision;
new text end

new text begin (iv) caregiver dislocation of children's elbows;
new text end

new text begin (v) burns from hot food or beverages, whether served to children or being consumed
by caregivers, and the devices used to warm food and beverages;
new text end

new text begin (vi) injuries from equipment, such as scissors and glue guns;
new text end

new text begin (vii) sunburn;
new text end

new text begin (viii) feeding children foods to which they are allergic;
new text end

new text begin (ix) children falling from changing tables; and
new text end

new text begin (x) children accessing dangerous items or chemicals or coming into contact with
residue from harmful cleaning products; and
new text end

new text begin (3) the plan shall prohibit the accessibility of hazardous items to children.
new text end

new text begin Subd. 3. new text end

new text begin Orientation to risk reduction plan and annual review of plan. new text end

new text begin (a) The
license holder shall ensure that all mandated reporters, as defined in section 626.556,
subdivision 3, who are under the control of the license holder, receive an orientation to
the risk reduction plan prior to first providing unsupervised direct contact services, as
defined in section 245C.02, subdivision 11, to children, not to exceed 14 days from the
first supervised direct contact, and annually thereafter.
new text end

new text begin (b) The license holder must review the risk reduction plan annually. When
conducting the review, the license holder must consider incidents that have occurred in
the center since the last review, including:
new text end

new text begin (1) the assessment factors in the plan;
new text end

new text begin (2) the internal reviews conducted under this section, if any;
new text end

new text begin (3) substantiated maltreatment findings, if any; and
new text end

new text begin (4) incidents that caused injury or harm to a child, if any, that occurred since the
last review.
new text end

new text begin Following any change to the risk reduction plan, the license holder must inform mandated
reporters, under the control of the license holder, of the changes in the risk reduction plan.
new text end

Sec. 2.

Minnesota Statutes 2009 Supplement, section 626.556, subdivision 2, is
amended to read:


Subd. 2.

Definitions.

As used in this section, the following terms have the meanings
given them unless the specific content indicates otherwise:

(a) "Family assessment" means a comprehensive assessment of child safety, risk
of subsequent child maltreatment, and family strengths and needs that is applied to a
child maltreatment report that does not allege substantial child endangerment. Family
assessment does not include a determination as to whether child maltreatment occurred
but does determine the need for services to address the safety of family members and the
risk of subsequent maltreatment.

(b) "Investigation" means fact gathering related to the current safety of a child
and the risk of subsequent maltreatment that determines whether child maltreatment
occurred and whether child protective services are needed. An investigation must be used
when reports involve substantial child endangerment, and for reports of maltreatment in
facilities required to be licensed under chapter 245A or 245B; under sections 144.50 to
144.58 and 241.021; in a school as defined in sections 120A.05, subdivisions 9, 11, and
13, and 124D.10; or in a nonlicensed personal care provider association as defined in
sections 256B.04, subdivision 16, and 256B.0625, subdivision 19a.

(c) "Substantial child endangerment" means a person responsible for a child's care,
and in the case of sexual abuse includes a person who has a significant relationship to the
child as defined in section 609.341, or a person in a position of authority as defined in
section 609.341, who by act or omission commits or attempts to commit an act against a
child under their care that constitutes any of the following:

(1) egregious harm as defined in section 260C.007, subdivision 14;

(2) sexual abuse as defined in paragraph (d);

(3) abandonment under section 260C.301, subdivision 2;

(4) neglect as defined in paragraph (f), clause (2), that substantially endangers the
child's physical or mental health, including a growth delay, which may be referred to as
failure to thrive, that has been diagnosed by a physician and is due to parental neglect;

(5) murder in the first, second, or third degree under section 609.185, 609.19, or
609.195;

(6) manslaughter in the first or second degree under section 609.20 or 609.205;

(7) assault in the first, second, or third degree under section 609.221, 609.222, or
609.223;

(8) solicitation, inducement, and promotion of prostitution under section 609.322;

(9) criminal sexual conduct under sections 609.342 to 609.3451;

(10) solicitation of children to engage in sexual conduct under section 609.352;

(11) malicious punishment or neglect or endangerment of a child under section
609.377 or 609.378;

(12) use of a minor in sexual performance under section 617.246; or

(13) parental behavior, status, or condition which mandates that the county attorney
file a termination of parental rights petition under section 260C.301, subdivision 3,
paragraph (a).

(d) "Sexual abuse" means the subjection of a child by a person responsible for the
child's care, by a person who has a significant relationship to the child, as defined in
section 609.341, or by a person in a position of authority, as defined in section 609.341,
subdivision 10, to any act which constitutes a violation of section 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), or 609.3451 (criminal sexual conduct in the fifth degree). Sexual
abuse also includes any act which involves a minor which constitutes a violation of
prostitution offenses under sections 609.321 to 609.324 or 617.246. Sexual abuse includes
threatened sexual abuse.

(e) "Person responsible for the child's care" means (1) an individual functioning
within the family unit and having responsibilities for the care of the child such as a
parent, guardian, or other person having similar care responsibilities, or (2) an individual
functioning outside the family unit and having responsibilities for the care of the child
such as a teacher, school administrator, other school employees or agents, or other lawful
custodian of a child having either full-time or short-term care responsibilities including,
but not limited to, day care, babysitting whether paid or unpaid, counseling, teaching,
and coaching.

(f) "Neglect" means the commission or omission of any of the acts specified under
clauses (1) to (9), other than by accidental means:

(1) failure by a person responsible for a child's care to supply a child with necessary
food, clothing, shelter, health, medical, or other care required for the child's physical or
mental health when reasonably able to do so;

(2) failure to protect a child from conditions or actions that seriously endanger the
child's physical or mental health when reasonably able to do so, including a growth delay,
which may be referred to as a failure to thrive, that has been diagnosed by a physician and
is due to parental neglect;

(3) failure to provide for necessary supervision or child care arrangements
appropriate for a child after considering factors as the child's age, mental ability, physical
condition, length of absence, or environment, when the child is unable to care for the
child's own basic needs or safety, or the basic needs or safety of another child in their care;

(4) failure to ensure that the child is educated as defined in sections 120A.22 and
260C.163, subdivision 11, which does not include a parent's refusal to provide the parent's
child with sympathomimetic medications, consistent with section 125A.091, subdivision 5;

(5) nothing in this section shall be construed to mean that a child is neglected 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; except that a parent, guardian,
or caretaker, or a person mandated to report pursuant to subdivision 3, has a duty to report
if a lack of medical care may cause serious danger to the child's health. This section does
not impose upon persons, not otherwise legally responsible for providing a child with
necessary food, clothing, shelter, education, or medical care, a duty to provide that care;

(6) prenatal exposure to a controlled substance, as defined in section 253B.02,
subdivision 2, used by the mother for a nonmedical purpose, as evidenced by withdrawal
symptoms in the child at birth, results of a toxicology test performed on the mother at
delivery or the child at birth, or medical effects or developmental delays during the child's
first year of life that medically indicate prenatal exposure to a controlled substance;

(7) "medical neglect" as defined in section 260C.007, subdivision 6, clause (5);

(8) chronic and severe use of alcohol or a controlled substance by a parent or
person responsible for the care of the child that adversely affects the child's basic needs
and safety; or

(9) emotional harm from a pattern of behavior which contributes to impaired
emotional functioning of the child which may be demonstrated by a substantial and
observable effect in the child's behavior, emotional response, or cognition that is not
within the normal range for the child's age and stage of development, with due regard to
the child's culture.

(g) "Physical abuse" means any physical injury, mental injury, or threatened injury,
inflicted by a person responsible for the child's care on a child other than by accidental
means, or any physical or mental injury that cannot reasonably be explained by the child's
history of injuries, or any aversive or deprivation procedures, or regulated interventions,
that have not been authorized under section 121A.67 or 245.825.

Abuse does not include reasonable and moderate physical discipline of a child
administered by a parent or legal guardian which does not result in an injury. Abuse does
not include the use of reasonable force by a teacher, principal, or school employee as
allowed by section 121A.582. Actions which are not reasonable and moderate include,
but are not limited to, any of the following that are done in anger or without regard to the
safety of the child:

(1) throwing, kicking, burning, biting, or cutting a child;

(2) striking a child with a closed fist;

(3) shaking a child under age three;

(4) striking or other actions which result in any nonaccidental injury to a child
under 18 months of age;

(5) unreasonable interference with a child's breathing;

(6) threatening a child with a weapon, as defined in section 609.02, subdivision 6;

(7) striking a child under age one on the face or head;

(8) purposely giving a child poison, alcohol, or dangerous, harmful, or controlled
substances which were not prescribed for the child by a practitioner, in order to control or
punish the child; or other substances that substantially affect the child's behavior, motor
coordination, or judgment or that results in sickness or internal injury, or subjects the
child to medical procedures that would be unnecessary if the child were not exposed
to the substances;

(9) unreasonable physical confinement or restraint not permitted under section
609.379, including but not limited to tying, caging, or chaining; or

(10) in a school facility or school zone, an act by a person responsible for the child's
care that is a violation under section 121A.58.

(h) "Report" means any report received by the local welfare agency, police
department, county sheriff, or agency responsible for assessing or investigating
maltreatment pursuant to this section.

(i) "Facility" means:

(1) a licensed or unlicensed day care facility, residential facility, agency, hospital,
sanitarium, or other facility or institution required to be licensed under sections 144.50 to
144.58, 241.021, or 245A.01 to 245A.16, or chapter 245B;

(2) a school as defined in sections 120A.05, subdivisions 9, 11, and 13; and
124D.10; or

(3) a nonlicensed personal care provider organization as defined in sections 256B.04,
subdivision 16, and 256B.0625, subdivision 19a.

(j) "Operator" means an operator or agency as defined in section 245A.02.

(k) "Commissioner" means the commissioner of human services.

(l) "Practice of social services," for the purposes of subdivision 3, includes but is
not limited to employee assistance counseling and the provision of guardian ad litem and
parenting time expeditor services.

(m) "Mental injury" means an injury to the psychological capacity or emotional
stability of a child as evidenced by an observable or substantial impairment in the child's
ability to function within a normal range of performance and behavior with due regard to
the child's culture.

(n) "Threatened injury" means a statement, overt act, condition, or status that
represents a substantial risk of physical or sexual abuse or mental injury. Threatened
injury includes, but is not limited to, exposing a child to a person responsible for the
child's care, as defined in paragraph (e), clause (1), who has:

(1) subjected a child to, or failed to protect a child from, an overt act or condition
that constitutes egregious harm, as defined in section 260C.007, subdivision 14, or a
similar law of another jurisdiction;

(2) been found to be palpably unfit under section 260C.301, paragraph (b), clause
(4), or a similar law of another jurisdiction;

(3) committed an act that has resulted in an involuntary termination of parental rights
under section 260C.301, or a similar law of another jurisdiction; or

(4) committed an act that has resulted in the involuntary transfer of permanent legal
and physical custody of a child to a relative under section 260C.201, subdivision 11,
paragraph (d), clause (1), or a similar law of another jurisdiction.

(o) Persons who conduct assessments or investigations under this section shall take
into account accepted child-rearing practices of the culture in which a child participates
and accepted teacher discipline practices, which are not injurious to the child's health,
welfare, and safety.

(p) "Accidental" means a sudden, not reasonably foreseeable, and unexpected
occurrence or event which:

(1) is not likely to occur and could not have been prevented by exercise of due
care; and

(2) if occurring while a child is receiving services from a facility, happens when the
facility and the employee or person providing services in the facility are in compliance
with the laws and rules relevant to the occurrence or event.

new text begin (q) "Nonmaltreatment mistake" means:
new text end

new text begin (1) at the time of the incident, the individual was performing duties identified in the
center's child care program plan required under Minnesota Rules, part 9503.0045;
new text end

new text begin (2) the individual has not been determined responsible for a similar incident that
resulted in a finding of maltreatment for at least seven years;
new text end

new text begin (3) the individual has not been determined to have committed a similar
nonmaltreatment mistake under this paragraph for at least four years;
new text end

new text begin (4) any injury to a child resulting from the incident, if treated, is treated only with
remedies that are available over the counter, whether ordered by a medical professional or
not; and
new text end

new text begin (5) except for the period when the incident occurred, the facility and the individual
providing services were both in compliance with all licensing requirements relevant to the
incident.
new text end

new text begin This definition only applies to child care centers licensed under Minnesota Rules,
chapter 9503. If clauses (1) to (5) apply, rather than making a determination of substantial
maltreatment by the individual, the commissioner of human services shall determine that
a nonmaltreatment mistake was made by the individual.
new text end

Sec. 3.

Minnesota Statutes 2009 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.

(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 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 (g);

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

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

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

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

(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.

new text begin 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 polices and
procedures, training, and supervision as cited in Minnesota Statutes and Minnesota Rules.
new text end

(j) Notwithstanding paragraph (i), when maltreatment is determined to have been
committed by an individual who is also the facility license 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
actions under sections 245A.06 or 245A.07 apply.

(k) Individual counties may implement more detailed definitions or criteria that
indicate which allegations to investigate, as long as a county's policies are consistent
with the definitions in the statutes and rules and are approved by the county board. Each
local welfare agency shall periodically inform mandated reporters under subdivision 3
who work in the county of the definitions of maltreatment in the statutes and rules and any
additional definitions or criteria that have been approved by the county board.