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SF 3310

2nd Engrossment - 90th Legislature (2017 - 2018) Posted on 06/06/2018 02:01pm

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Current Version - 2nd Engrossment

A bill for an act
relating to human services; modifying provisions relating to child care licensing;
amending Minnesota Statutes 2016, sections 245A.04, subdivision 9; 245A.05;
245A.06, subdivision 1; 245A.14, by adding a subdivision; 245A.152; Minnesota
Statutes 2017 Supplement, sections 245A.07, subdivision 3; 245A.1434.

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

Section 1.

Minnesota Statutes 2016, 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.

Sec. 2.

Minnesota Statutes 2016, section 245A.05, is amended to read:


245A.05 DENIAL OF APPLICATION.

(a) The commissioner may deny a license if an applicant or controlling individual:

(1) fails to submit a substantially complete application after receiving notice from the
commissioner under section 245A.04, subdivision 1;

(2) fails to comply with applicable laws or rules;

(3) knowingly withholds relevant information from or gives false or misleading
information to the commissioner in connection with an application for a license or during
an investigation;

(4) has a disqualification that has not been set aside under section 245C.22 and no
variance has been granted;

(5) has an individual living in the household who received a background study under
section 245C.03, subdivision 1, paragraph (a), clause (2), who has a disqualification that
has not been set aside under section 245C.22, and no variance has been granted;

(6) is associated with an individual who received a background study under section
245C.03, subdivision 1, paragraph (a), clause (6), who may have unsupervised access to
children or vulnerable adults, and who has a disqualification that has not been set aside
under section 245C.22, and no variance has been granted; or

(7) fails to comply with section 245A.04, subdivision 1, paragraph (f) or (g).

(b) An applicant whose application has been denied by the commissioner must be given
notice of the denial, which must state the reasons for the denial in plain language. Notice
must be given by certified mail or personal service. The notice must state the reasons the
application was denied and must inform the applicant of the right to a contested case hearing
under chapter 14 and Minnesota Rules, parts 1400.8505 to 1400.8612. The applicant may
appeal the denial by notifying the commissioner in writing by certified mail or personal
service. If mailed, the appeal must be postmarked and sent to the commissioner within 20
calendar days after the applicant received the notice of denial. If an appeal request is made
by personal service, it must be received by the commissioner within 20 calendar days after
the applicant received the notice of denial. Section 245A.08 applies to hearings held to
appeal the commissioner's denial of an application.

EFFECTIVE DATE.

This section is effective January 1, 2019.

Sec. 3.

Minnesota Statutes 2016, section 245A.06, subdivision 1, is amended to read:


Subdivision 1.

Contents of correction orders and conditional licenses.

(a) If the
commissioner finds that the applicant or license holder has failed to comply with an
applicable law or rule and this failure does not imminently endanger the health, safety, or
rights of the persons served by the program, the commissioner may issue a correction order
and an order of conditional license to the applicant or license holder. When issuing a
conditional license, the commissioner shall consider the nature, chronicity, or severity of
the violation of law or rule and the effect of the violation on the health, safety, or rights of
persons served by the program. The correction order or conditional license must state the
following in plain language
:

(1) the conditions that constitute a violation of the law or rule;

(2) the specific law or rule violated;

(3) the time allowed to correct each violation; and

(4) if a license is made conditional, the length and terms of the conditional license, and
the reasons for making the license conditional
.

(b) Nothing in this section prohibits the commissioner from proposing a sanction as
specified in section 245A.07, prior to issuing a correction order or conditional license.

EFFECTIVE DATE.

This section is effective January 1, 2019.

Sec. 4.

Minnesota Statutes 2017 Supplement, section 245A.07, subdivision 3, is amended
to read:


Subd. 3.

License suspension, revocation, or fine.

(a) The commissioner may suspend
or revoke a license, or impose a fine if:

(1) a license holder fails to comply fully with applicable laws or rules;

(2) a license holder, a controlling individual, or an individual living in the household
where the licensed services are provided or is otherwise subject to a background study has
a disqualification which has not been set aside under section 245C.22;

(3) a license holder knowingly withholds relevant information from or gives false or
misleading information to the commissioner in connection with an application for a license,
in connection with the background study status of an individual, during an investigation,
or regarding compliance with applicable laws or rules; or

(4) after July 1, 2012, and upon request by the commissioner, a license holder fails to
submit the information required of an applicant under section 245A.04, subdivision 1,
paragraph (f) or (g).

A license holder who has had a license suspended, revoked, or has been ordered to pay
a fine must be given notice of the action by certified mail or personal service. If mailed, the
notice must be mailed to the address shown on the application or the last known address of
the license holder. The notice must state in plain language the reasons the license was
suspended, or revoked, or a fine was ordered.

(b) If the license was suspended or revoked, the notice must inform the license holder
of the right to a contested case hearing under chapter 14 and Minnesota Rules, parts
1400.8505 to 1400.8612. The license holder may appeal an order suspending or revoking
a license. The appeal of an order suspending or revoking a license must be made in writing
by certified mail or personal service. If mailed, the appeal must be postmarked and sent to
the commissioner within ten calendar days after the license holder receives notice that the
license has been suspended or revoked. If a request is made by personal service, it must be
received by the commissioner within ten calendar days after the license holder received the
order. Except as provided in subdivision 2a, paragraph (c), if a license holder submits a
timely appeal of an order suspending or revoking a license, the license holder may continue
to operate the program as provided in section 245A.04, subdivision 7, paragraphs (g) and
(h), until the commissioner issues a final order on the suspension or revocation.

(c)(1) If the license holder was ordered to pay a fine, the notice must inform the license
holder of the responsibility for payment of fines and the right to a contested case hearing
under chapter 14 and Minnesota Rules, parts 1400.8505 to 1400.8612. The appeal of an
order to pay a fine must be made in writing by certified mail or personal service. If mailed,
the appeal must be postmarked and sent to the commissioner within ten calendar days after
the license holder receives notice that the fine has been ordered. If a request is made by
personal service, it must be received by the commissioner within ten calendar days after
the license holder received the order.

(2) The license holder shall pay the fines assessed on or before the payment date specified.
If the license holder fails to fully comply with the order, the commissioner may issue a
second fine or suspend the license until the license holder complies. If the license holder
receives state funds, the state, county, or municipal agencies or departments responsible for
administering the funds shall withhold payments and recover any payments made while the
license is suspended for failure to pay a fine. A timely appeal shall stay payment of the fine
until the commissioner issues a final order.

(3) A license holder shall promptly notify the commissioner of human services, in writing,
when a violation specified in the order to forfeit a fine is corrected. If upon reinspection the
commissioner determines that a violation has not been corrected as indicated by the order
to forfeit a fine, the commissioner may issue a second fine. The commissioner shall notify
the license holder by certified mail or personal service that a second fine has been assessed.
The license holder may appeal the second fine as provided under this subdivision.

(4) Fines shall be assessed as follows:

(i) the license holder shall forfeit $1,000 for each determination of maltreatment of a
child under section 626.556 or the maltreatment of a vulnerable adult under section 626.557
for which the license holder is determined responsible for the maltreatment under section
626.556, subdivision 10e, paragraph (i), or 626.557, subdivision 9c, paragraph (c);

(ii) if the commissioner determines that a determination of maltreatment for which the
license holder is responsible is the result of maltreatment that meets the definition of serious
maltreatment as defined in section 245C.02, subdivision 18, the license holder shall forfeit
$5,000;

(iii) for a program that operates out of the license holder's home and a program licensed
under Minnesota Rules, parts 9502.0300 to 9502.0495, the fine assessed against the license
holder shall not exceed $1,000 for each determination of maltreatment;

(iv) the license holder shall forfeit $200 for each occurrence of a violation of law or rule
governing matters of health, safety, or supervision, including but not limited to the provision
of adequate staff-to-child or adult ratios, and failure to comply with background study
requirements under chapter 245C; and

(v) the license holder shall forfeit $100 for each occurrence of a violation of law or rule
other than those subject to a $5,000, $1,000, or $200 fine in items (i) to (iv).

For purposes of this section, "occurrence" means each violation identified in the
commissioner's fine order. Fines assessed against a license holder that holds a license to
provide home and community-based services, as identified in section 245D.03, subdivision
1
, and a community residential setting or day services facility license under chapter 245D
where the services are provided, may be assessed against both licenses for the same
occurrence, but the combined amount of the fines shall not exceed the amount specified in
this clause for that occurrence.

(5) When a fine has been assessed, the license holder may not avoid payment by closing,
selling, or otherwise transferring the licensed program to a third party. In such an event, the
license holder will be personally liable for payment. In the case of a corporation, each
controlling individual is personally and jointly liable for payment.

(d) Except for background study violations involving the failure to comply with an order
to immediately remove an individual or an order to provide continuous, direct supervision,
the commissioner shall not issue a fine under paragraph (c) relating to a background study
violation to a license holder who self-corrects a background study violation before the
commissioner discovers the violation. A license holder who has previously exercised the
provisions of this paragraph to avoid a fine for a background study violation may not avoid
a fine for a subsequent background study violation unless at least 365 days have passed
since the license holder self-corrected the earlier background study violation.

EFFECTIVE DATE.

This section is effective January 1, 2019.

Sec. 5.

Minnesota Statutes 2016, section 245A.14, is amended by adding a subdivision to
read:


Subd. 4a.

Specialized infant and toddler family child care.

A group family day care
program licensed as a class D specialized infant and toddler group family day care under
Minnesota Rules, part 9502.0367, may operate as a class B specialized infant and toddler
family day care program on days when only one caregiver is present.

Sec. 6.

Minnesota Statutes 2017 Supplement, section 245A.1434, is amended to read:


245A.1434 INFORMATION FOR CHILD CARE LICENSE HOLDERS.

The commissioner shall inform family child care and child care center license holders
on a timely basis of changes to state and federal statute, rule, regulation, and policy relating
to the provision of licensed child care, the child care assistance program under chapter 119B,
the quality rating and improvement system under section 124D.142, and child care licensing
functions delegated to counties. Communications under this section shall be in plain language
and
include information to promote license holder compliance with identified changes.
Communications under this section may be accomplished by electronic means and shall be
made available to the public online.

EFFECTIVE DATE.

This section is effective January 1, 2019.

Sec. 7.

Minnesota Statutes 2016, section 245A.152, is amended to read:


245A.152 CHILD CARE LICENSE HOLDER INSURANCE.

(a) A license holder must provide a written notice to all parents or guardians of all
children to be accepted for care prior to admission stating whether the license holder has
liability insurance. This notice may be incorporated into and provided on the admission
form used by the license holder.

(b) If the license holder has liability insurance:

(1) the license holder shall inform parents in writing that a current certificate of coverage
for insurance is available for inspection to all parents or guardians of children receiving
services and to all parents seeking services from the family child care program;

(2) the notice must provide the parent or guardian with the date of expiration or next
renewal of the policy; and

(3) upon the expiration date of the policy or a change in coverage, the license holder
must provide a new written notice informing all parents or guardians of children receiving
services of the change and
indicating whether the insurance policy has lapsed or whether
the license holder has renewed the policy
.

If the policy was renewed, the license holder must provide the new expiration date of the
policy in writing to the parents or guardians.

If a license holder has a continuous insurance policy that renews each year, the license
holder may indicate the policy's renewal date in the initial written notice to parents and
guardians. This initial written notice shall remain valid and no further notices are required
until the insurance coverage changes or the policy lapses.

(c) If the license holder does not have liability insurance, the license holder must provide
an annual notice, on a form developed and made available by the commissioner, to the
parents or guardians of children in care indicating that the license holder does not carry
liability insurance.

(d) The license holder must notify all parents and guardians in writing immediately of
any change in insurance status.

(e) The license holder must make available upon request the certificate of liability
insurance to the parents of children in care, to the commissioner, and to county licensing
agents.

(f) The license holder must document, with the signature of the parent or guardian, that
the parent or guardian received the notices required by this section.

Sec. 8. DIRECTION TO COMMISSIONER; CHILD CARE LICENSING REFORM.

(a) By December 31, 2018, the commissioner shall:

(1) make enhancements to the department's licensing information lookup Web site that
comply with federal requirements to make program-specific monitoring results available,
including the date of inspections, any violations noted, and how the violation was addressed
by the provider;

(2) provide each license holder with a printed copy of the posting guidelines for child
care licensing information; and

(3) convene regional meetings with license holders and county licensing agencies to
review the posting guidelines and the enhancements made to the department's licensing
Web site and obtain feedback and recommendations for future enhancements to ensure
accuracy and transparency for license holders and families using or seeking licensed child
care.

(b) In the 2019 report to the legislature on the status of child care required under
Minnesota Statutes, section 245A.153, the commissioner shall include the following:

(1) a description of the federal and state requirements and any guidelines established
for the posting of child care licensing information and monitoring results;

(2) a summary of how the department is engaging licensed child care providers, county
licensing agencies, and families seeking or using child care services to obtain feedback
about the posting guidelines on the department's Web site;

(3) a summary of the administrative reform and actions identified by licensed child care
providers through stakeholder meetings that could be implemented without statutory changes
that would reduce the regulatory and administrative burden to license holders;

(4) a description of administrative reforms and actions the department has taken in the
prior year or is in the process of implementing; and

(5) an evaluation of existing laws, models, and initiatives from other states that have
implemented child care licensing reforms to reduce barriers and unnecessary administrative
burdens for child care providers.

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