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Minnesota Legislature

Office of the Revisor of Statutes

SF 790

2nd Engrossment - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

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

Current Version - 2nd Engrossment

  1.1                          A bill for an act 
  1.2             relating to human services; recodifying and 
  1.3             reorganizing the background study provisions in the 
  1.4             Human Services Licensing Act; making conforming 
  1.5             changes; amending Minnesota Statutes 2002, sections 
  1.6             245A.04, subdivisions 1, 3, 3a, 3b, 3c, 3d, 3e, 3f; 
  1.7             245A.041; proposing coding for new law as Minnesota 
  1.8             Statutes, chapter 245C. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10                             ARTICLE 1
  1.11                         BACKGROUND STUDIES
  1.12     Section 1.  [245C.01] [TITLE.] 
  1.13     This chapter may be cited as the "Department of Human 
  1.14  Services Background Studies Act." 
  1.15     Sec. 2.  [245C.02] [DEFINITIONS.] 
  1.16     Subdivision 1.  [SCOPE.] The definitions in this section 
  1.17  apply to this chapter. 
  1.18     Subd. 2.  [ACCESS TO PERSONS SERVED BY A PROGRAM.] "Access 
  1.19  to persons served by a program" means physical access to persons 
  1.20  receiving services or the persons' personal property without 
  1.21  continuous, direct supervision, as defined in subdivision 8. 
  1.22     Subd. 3.  [ANNUAL OR ANNUALLY.] "Annual" or "annually" has 
  1.23  the meaning given in section 245A.02, subdivision 2b. 
  1.24     Subd. 4.  [APPLICANT.] "Applicant" has the meaning given in 
  1.25  section 245A.02, subdivision 3. 
  1.26     Subd. 5.  [BACKGROUND STUDY.] "Background study" means the 
  1.27  review of records conducted by the commissioner to determine 
  2.1   whether a subject is disqualified from direct contact with 
  2.2   persons served by a program and, where specifically provided in 
  2.3   statutes, whether a subject is disqualified from having access 
  2.4   to persons served by a program. 
  2.5      Subd. 6.  [CHILD.] "Child" has the meaning given in section 
  2.6   245A.02, subdivision 4. 
  2.7      Subd. 7.  [COMMISSIONER.] "Commissioner" has the meaning 
  2.8   given in section 245A.02, subdivision 5. 
  2.9      Subd. 8.  [CONTINUOUS, DIRECT SUPERVISION.] "Continuous, 
  2.10  direct supervision" means an individual is within sight or 
  2.11  hearing of the program's supervising individual to the extent 
  2.12  that the program's supervising individual is capable at all 
  2.13  times of intervening to protect the health and safety of the 
  2.14  persons served by the program. 
  2.15     Subd. 9.  [CONTRACTOR.] "Contractor" means any individual, 
  2.16  regardless of employer, who is providing program services for 
  2.17  hire under the control of the provider. 
  2.18     Subd. 10.  [COUNTY AGENCY.] "County agency" has the meaning 
  2.19  given in section 245A.02, subdivision 6. 
  2.20     Subd. 11.  [DIRECT CONTACT.] "Direct contact" means 
  2.21  providing face-to-face care, training, supervision, counseling, 
  2.22  consultation, or medication assistance to persons served by the 
  2.23  program. 
  2.24     Subd. 12.  [LICENSE.] "License" has the meaning given in 
  2.25  section 245A.02, subdivision 8. 
  2.26     Subd. 13.  [LICENSE HOLDER.] "License holder" has the 
  2.27  meaning given in section 245A.02, subdivision 9. 
  2.28     Subd. 14.  [PERSON.] "Person" means a child as defined in 
  2.29  subdivision 6 or an adult as defined in section 245A.02, 
  2.30  subdivision 2. 
  2.31     Subd. 15.  [REASONABLE CAUSE.] "Reasonable cause" means 
  2.32  information or circumstances exist which provide the 
  2.33  commissioner with articulable suspicion that further pertinent 
  2.34  information may exist concerning a subject.  The commissioner 
  2.35  has reasonable cause when, but not limited to, the commissioner 
  2.36  has received a report from the subject, the license holder, or a 
  3.1   third party indicating that the subject has a history that would 
  3.2   disqualify the individual or that may pose a risk to the health 
  3.3   or safety of persons receiving services. 
  3.4      Subd. 16.  [RECURRING MALTREATMENT.] "Recurring 
  3.5   maltreatment" means more than one incident of maltreatment for 
  3.6   which there is a preponderance of evidence that the maltreatment 
  3.7   occurred and that the subject was responsible for the 
  3.8   maltreatment. 
  3.9      Subd. 17.  [REGISTRANT.] "Registrant" means an individual 
  3.10  who operates a supplemental nursing services agency and who 
  3.11  registers the agency with the commissioner of health under 
  3.12  section 144A.71, subdivision 1. 
  3.13     Subd. 18.  [SERIOUS MALTREATMENT.] (a) "Serious 
  3.14  maltreatment" means sexual abuse, maltreatment resulting in 
  3.15  death, maltreatment resulting in serious injury which reasonably 
  3.16  requires the care of a physician whether or not the care of a 
  3.17  physician was sought, or abuse resulting in serious injury. 
  3.18     (b) For purposes of this definition, "care of a physician" 
  3.19  is treatment received or ordered by a physician but does not 
  3.20  include diagnostic testing, assessment, or observation. 
  3.21     (c) For purposes of this definition, "abuse resulting in 
  3.22  serious injury" means:  bruises, bites, skin laceration, or 
  3.23  tissue damage; fractures; dislocations; evidence of internal 
  3.24  injuries; head injuries with loss of consciousness; extensive 
  3.25  second-degree or third-degree burns and other burns for which 
  3.26  complications are present; extensive second-degree or 
  3.27  third-degree frostbite and other frostbite for which 
  3.28  complications are present; irreversible mobility or avulsion of 
  3.29  teeth; injuries to the eyes; ingestion of foreign substances and 
  3.30  objects that are harmful; near drowning; and heat exhaustion or 
  3.31  sunstroke. 
  3.32     Subd. 19.  [SUBJECT OF A BACKGROUND STUDY.] "Subject of a 
  3.33  background study" means an individual on whom a background study 
  3.34  is required or completed. 
  3.35     Sec. 3.  [245C.03] [BACKGROUND STUDY; INDIVIDUALS TO BE 
  3.36  STUDIED.] 
  4.1      Subdivision 1.  [LICENSED PROGRAMS.] The commissioner shall 
  4.2   conduct a background study on: 
  4.3      (1) the applicant; 
  4.4      (2) an individual age 13 and over living in the household 
  4.5   where the licensed program will be provided; 
  4.6      (3) current employees or contractors of the applicant who 
  4.7   will have direct contact with persons served by the facility, 
  4.8   agency, or program; 
  4.9      (4) volunteers or student volunteers who will have direct 
  4.10  contact with persons served by the program to provide program 
  4.11  services if the contact is not under the continuous, direct 
  4.12  supervision by an individual listed in clause (1) or (3); 
  4.13     (5) an individual age ten to 12 living in the household 
  4.14  where the licensed services will be provided when the 
  4.15  commissioner has reasonable cause; and 
  4.16     (6) an individual who, without providing direct contact 
  4.17  services at a licensed program, may have unsupervised access to 
  4.18  children or vulnerable adults receiving services from a program 
  4.19  licensed to provide: 
  4.20     (i) family child care for children; 
  4.21     (ii) foster care for children in the provider's own home; 
  4.22  or 
  4.23     (iii) foster care or day care services for adults in the 
  4.24  provider's own home. 
  4.25  The commissioner must have reasonable cause to study an 
  4.26  individual under this clause. 
  4.27     Subd. 2.  [PERSONAL CARE PROVIDER ORGANIZATIONS.] The 
  4.28  commissioner shall conduct background studies on any individual 
  4.29  required under section 256B.0627 to have a background study 
  4.30  completed under this chapter. 
  4.31     Subd. 3.  [SUPPLEMENTAL NURSING SERVICES AGENCIES.] The 
  4.32  commissioner shall conduct all background studies required under 
  4.33  this chapter and initiated by supplemental nursing services 
  4.34  agencies registered under section 144A.71, subdivision 1. 
  4.35     Subd. 4.  [PERSONNEL AGENCIES; EDUCATIONAL PROGRAMS; 
  4.36  PROFESSIONAL SERVICES AGENCIES.] The commissioner also may 
  5.1   conduct studies on individuals specified in subdivision 1, 
  5.2   clauses (3) and (4), when the studies are initiated by: 
  5.3      (1) personnel pool agencies; 
  5.4      (2) temporary personnel agencies; 
  5.5      (3) educational programs that train individuals by 
  5.6   providing direct contact services in licensed programs; and 
  5.7      (4) professional services agencies that are not licensed 
  5.8   and which contract with licensed programs to provide direct 
  5.9   contact services or individuals who provide direct contact 
  5.10  services. 
  5.11     Sec. 4.  [245C.04] [WHEN BACKGROUND STUDY MUST OCCUR.] 
  5.12     Subdivision 1.  [LICENSED PROGRAMS.] (a) The commissioner 
  5.13  shall conduct a background study of an individual required to be 
  5.14  studied under section 245C.03, subdivision 1, at least upon 
  5.15  application for initial license for all license types. 
  5.16     (b) The commissioner shall conduct a background study of an 
  5.17  individual required to be studied under section 245C.03, 
  5.18  subdivision 1, at reapplication for a license for family child 
  5.19  care, child foster care, and adult foster care. 
  5.20     (c) The commissioner is not required to conduct a study of 
  5.21  an individual at the time of reapplication for a license if the 
  5.22  individual's background study was completed by the commissioner 
  5.23  of human services for an adult foster care license holder that 
  5.24  is also: 
  5.25     (1) registered under chapter 144D; or 
  5.26     (2) licensed to provide home and community-based services 
  5.27  to people with disabilities at the foster care location and the 
  5.28  license holder does not reside in the foster care residence; and 
  5.29     (3) the following conditions are met: 
  5.30     (i) a study of the individual was conducted either at the 
  5.31  time of initial licensure or when the individual became 
  5.32  affiliated with the license holder; 
  5.33     (ii) the individual has been continuously affiliated with 
  5.34  the license holder since the last study was conducted; and 
  5.35     (iii) the last study of the individual was conducted on or 
  5.36  after October 1, 1995. 
  6.1      (d) Applicants for licensure, license holders, and other 
  6.2   entities as provided in this chapter must submit completed 
  6.3   background study forms to the commissioner before individuals 
  6.4   specified in section 245C.03, subdivision 1, begin positions 
  6.5   allowing direct contact in any licensed program. 
  6.6      (e) For purposes of this section, a physician licensed 
  6.7   under chapter 147 is considered to be continuously affiliated 
  6.8   upon the license holder's receipt from the commissioner of 
  6.9   health or human services of the physician's background study 
  6.10  results. 
  6.11     Subd. 2.  [OTHER STATE AGENCIES.] Applicants and license 
  6.12  holders under the jurisdiction of other state agencies who are 
  6.13  required in other statutory sections to initiate background 
  6.14  studies under this chapter must submit completed background 
  6.15  study forms to the commissioner before the background study 
  6.16  subject begins in a position allowing direct contact in the 
  6.17  licensed program or, where applicable, prior to being employed. 
  6.18     Subd. 3.  [PERSONAL CARE PROVIDER ORGANIZATIONS.] (a) The 
  6.19  commissioner shall conduct a background study of an individual 
  6.20  required to be studied under section 245C.03, subdivision 2, at 
  6.21  least upon application for initial enrollment under section 
  6.22  256B.0627. 
  6.23     (b) Organizations required to initiate background studies 
  6.24  under section 256B.0627 for individuals described in section 
  6.25  245C.03, subdivision 2, must submit a completed background study 
  6.26  form to the commissioner before those individuals begin a 
  6.27  position allowing direct contact with persons served by the 
  6.28  organization. 
  6.29     Subd. 4.  [SUPPLEMENTAL NURSING SERVICES AGENCIES.] (a) The 
  6.30  commissioner shall conduct a background study of an individual 
  6.31  required to be studied under section 245C.03, subdivision 3, at 
  6.32  least upon application for registration under section 144A.71, 
  6.33  subdivision 1. 
  6.34     (b) Each supplemental nursing services agency must initiate 
  6.35  background studies before an individual begins a position 
  6.36  allowing direct contact with persons served by the agency and 
  7.1   annually thereafter. 
  7.2      Subd. 5.  [PERSONNEL AGENCIES; EDUCATIONAL PROGRAMS; 
  7.3   PROFESSIONAL SERVICES AGENCIES.] Agencies, programs, and 
  7.4   individuals who initiate background studies under section 
  7.5   245C.03, subdivision 4, must initiate the studies annually. 
  7.6      Sec. 5.  [245C.05] [BACKGROUND STUDY; INFORMATION AND DATA 
  7.7   PROVIDED TO COMMISSIONER.] 
  7.8      Subdivision 1.  [INDIVIDUAL STUDIED.] The individual who is 
  7.9   the subject of the background study must provide the applicant, 
  7.10  license holder, or other entity under section 245C.04 with 
  7.11  sufficient information to ensure an accurate study, including: 
  7.12     (1) the individual's first, middle, and last name and all 
  7.13  other names by which the individual has been known; 
  7.14     (2) home address, city, county, and state of residence for 
  7.15  the past five years; 
  7.16     (3) zip code; 
  7.17     (4) sex; 
  7.18     (5) date of birth; and 
  7.19     (6) driver's license number or state identification number. 
  7.20     Subd. 2.  [APPLICANT, LICENSE HOLDER, OR OTHER ENTITY.] The 
  7.21  applicant, license holder, or other entity under section 245C.04 
  7.22  shall provide the information collected under subdivision 1 
  7.23  about an individual who is the subject of the background study 
  7.24  on forms prescribed by the commissioner. 
  7.25     Subd. 3.  [ADDITIONAL INFORMATION FROM INDIVIDUAL STUDIED.] 
  7.26  The commissioner may request additional information of the 
  7.27  individual, such as the individual's social security number or 
  7.28  race.  The individual is not required to provide this 
  7.29  information to the commissioner. 
  7.30     Subd. 4.  [ELECTRONIC TRANSMISSION.] For background studies 
  7.31  conducted by the department of human services, the commissioner 
  7.32  shall implement a system for the electronic transmission of: 
  7.33     (1) background study information to the commissioner; and 
  7.34     (2) background study results to the license holder. 
  7.35     Subd. 5.  [FINGERPRINTS.] (a) When the commissioner has 
  7.36  reasonable cause to believe that further pertinent information 
  8.1   may exist on the subject of the background study, the subject 
  8.2   shall provide the commissioner with a set of classifiable 
  8.3   fingerprints obtained from an authorized law enforcement agency. 
  8.4      (b) For purposes of requiring fingerprints, the 
  8.5   commissioner has reasonable cause when, but not limited to, the: 
  8.6      (1) information from the bureau of criminal apprehension 
  8.7   indicates that the subject is a multistate offender; 
  8.8      (2) information from the bureau of criminal apprehension 
  8.9   indicates that multistate offender status is undetermined; or 
  8.10     (3) commissioner has received a report from the subject or 
  8.11  a third party indicating that the subject has a criminal history 
  8.12  in a jurisdiction other than Minnesota. 
  8.13     Subd. 6.  [APPLICANT, LICENSE HOLDER, REGISTRANT, AND 
  8.14  AGENCIES.] (a) The applicant, license holder, registrant, bureau 
  8.15  of criminal apprehension, commissioner of health, and county 
  8.16  agencies shall help with the study by giving the commissioner 
  8.17  criminal conviction data and reports about the maltreatment of 
  8.18  adults substantiated under section 626.557 and the maltreatment 
  8.19  of minors in licensed programs substantiated under section 
  8.20  626.556. 
  8.21     (b) If a background study is initiated by an applicant or 
  8.22  license holder and the applicant or license holder receives 
  8.23  information about the possible criminal or maltreatment history 
  8.24  of an individual who is the subject of the background study, the 
  8.25  applicant or license holder must immediately provide the 
  8.26  information to the commissioner. 
  8.27     (c) The program or county or other agency must provide 
  8.28  written notice to the individual who is the subject of the 
  8.29  background study of the requirements under this subdivision. 
  8.30     Subd. 7.  [PROBATION OFFICER AND CORRECTIONS AGENT.] (a) A 
  8.31  probation officer or corrections agent shall notify the 
  8.32  commissioner of an individual's conviction if the individual is: 
  8.33     (1) affiliated with a program or facility regulated by the 
  8.34  department of human services or department of health, or any 
  8.35  type of home care agency or provider of personal care assistance 
  8.36  services; and 
  9.1      (2) convicted of a crime constituting a disqualification 
  9.2   under section 245C.14. 
  9.3      (b) For the purpose of this subdivision, "conviction" has 
  9.4   the meaning given it in section 609.02, subdivision 5. 
  9.5      (c) The commissioner, in consultation with the commissioner 
  9.6   of corrections, shall develop forms and information necessary to 
  9.7   implement this subdivision and shall provide the forms and 
  9.8   information to the commissioner of corrections for distribution 
  9.9   to local probation officers and corrections agents. 
  9.10     (d) The commissioner shall inform individuals subject to a 
  9.11  background study that criminal convictions for disqualifying 
  9.12  crimes will be reported to the commissioner by the corrections 
  9.13  system. 
  9.14     (e) A probation officer, corrections agent, or corrections 
  9.15  agency is not civilly or criminally liable for disclosing or 
  9.16  failing to disclose the information required by this subdivision.
  9.17     (f) Upon receipt of disqualifying information, the 
  9.18  commissioner shall provide the notice required under section 
  9.19  245C.17, as appropriate, to agencies on record as having 
  9.20  initiated a background study or making a request for 
  9.21  documentation of the background study status of the individual. 
  9.22     (g) This subdivision does not apply to family child care 
  9.23  and child foster care programs. 
  9.24     Sec. 6.  [245C.06] [INDIVIDUAL PREVIOUSLY STUDIED.] 
  9.25     Subdivision 1.  [FACILITY REQUEST.] At the option of the 
  9.26  licensed facility, rather than initiating another background 
  9.27  study on an individual required to be studied who has indicated 
  9.28  to the licensed facility that a background study by the 
  9.29  commissioner was previously completed, the facility may make a 
  9.30  request to the commissioner for documentation of the 
  9.31  individual's background study status, provided that: 
  9.32     (1) the facility makes this request using a form provided 
  9.33  by the commissioner; 
  9.34     (2) in making the request, the facility informs the 
  9.35  commissioner that either: 
  9.36     (i) the individual has been continuously affiliated with a 
 10.1   licensed facility since the individual's previous background 
 10.2   study was completed, or since October 1, 1995, whichever is 
 10.3   shorter; or 
 10.4      (ii) the individual is affiliated only with a personnel 
 10.5   pool agency, a temporary personnel agency, an educational 
 10.6   program that trains individuals by providing direct contact 
 10.7   services in licensed programs, or a professional services agency 
 10.8   that is not licensed and which contracts with licensed programs 
 10.9   to provide direct contact services or individuals who provide 
 10.10  direct contact services; and 
 10.11     (3) the facility provides notices to the individual as 
 10.12  required under section 245C.05, subdivision 6, paragraph (c), 
 10.13  and that the facility is requesting written notification of the 
 10.14  individual's background study status from the commissioner. 
 10.15     Subd. 2.  [COMMISSIONER'S RESPONSE.] The commissioner shall 
 10.16  respond to each request under subdivision 1 with a written or 
 10.17  electronic notice to the facility and the study subject.  If the 
 10.18  commissioner determines that a background study is necessary, 
 10.19  the commissioner shall complete the study without further 
 10.20  request from a licensed agency or notifications to the study 
 10.21  subject. 
 10.22     Sec. 7.  [245C.07] [STUDY SUBJECT AFFILIATED WITH MULTIPLE 
 10.23  LICENSED FACILITIES.] 
 10.24     When a background study is being initiated by a licensed 
 10.25  facility or a foster care provider that is also registered under 
 10.26  chapter 144D, a study subject affiliated with multiple licensed 
 10.27  facilities may attach to the background study form a cover 
 10.28  letter indicating the additional facilities' names, addresses, 
 10.29  and background study identification numbers. 
 10.30     When the commissioner receives a notice, the commissioner 
 10.31  shall notify each facility identified by the background study 
 10.32  subject of the study results. 
 10.33     The background study notice the commissioner sends to the 
 10.34  subsequent agencies shall satisfy those facilities' 
 10.35  responsibilities for initiating a background study on that 
 10.36  individual. 
 11.1      Sec. 8.  [245C.08] [BACKGROUND STUDY; INFORMATION 
 11.2   COMMISSIONER REVIEWS.] 
 11.3      Subdivision 1.  [BACKGROUND STUDIES CONDUCTED BY THE 
 11.4   COMMISSIONER OF HUMAN SERVICES.] For a background study 
 11.5   conducted by the commissioner, the commissioner shall review: 
 11.6      (1) information related to names of substantiated 
 11.7   perpetrators of maltreatment of vulnerable adults that has been 
 11.8   received by the commissioner as required under section 626.557, 
 11.9   subdivision 9c, paragraph (i); 
 11.10     (2) the commissioner's records relating to the maltreatment 
 11.11  of minors in licensed programs; 
 11.12     (3) information from juvenile courts as required in 
 11.13  subdivision 4 for individuals listed in section 245C.03, 
 11.14  subdivision 1, clauses (2), (5), and (6); and 
 11.15     (4) information from the bureau of criminal apprehension. 
 11.16     Subd. 2.  [BACKGROUND STUDIES CONDUCTED BY A COUNTY OR 
 11.17  PRIVATE AGENCY; FOSTER CARE AND FAMILY CHILD CARE.] For a 
 11.18  background study conducted by a county or private agency for 
 11.19  child foster care, adult foster care, and family child care 
 11.20  homes, the commissioner shall review: 
 11.21     (1) information from the county agency's record of 
 11.22  substantiated maltreatment of adults and the maltreatment of 
 11.23  minors; 
 11.24     (2) information from juvenile courts as required in 
 11.25  subdivision 4 for individuals listed in section 245C.03, 
 11.26  subdivision 1, clauses (2), (5), and (6); and 
 11.27     (3) information from the bureau of criminal apprehension. 
 11.28     Subd. 3.  [ARREST AND INVESTIGATIVE INFORMATION.] (a) If 
 11.29  the commissioner has reasonable cause to believe the information 
 11.30  is pertinent to the disqualification of an individual listed in 
 11.31  section 245C.03, subdivisions 1 and 2, the commissioner also may 
 11.32  review arrest and investigative information from: 
 11.33     (1) the bureau of criminal apprehension; 
 11.34     (2) the commissioner of health; 
 11.35     (3) a county attorney; 
 11.36     (4) a county sheriff; 
 12.1      (5) a county agency; 
 12.2      (6) a local chief of police; 
 12.3      (7) other states; 
 12.4      (8) the courts; or 
 12.5      (9) the Federal Bureau of Investigation. 
 12.6      (b) The commissioner is not required to conduct more than 
 12.7   one review of a subject's records from the Federal Bureau of 
 12.8   Investigation if a review of the subject's criminal history with 
 12.9   the Federal Bureau of Investigation has already been completed 
 12.10  by the commissioner and there has been no break in the subject's 
 12.11  affiliation with the license holder who initiated the background 
 12.12  study. 
 12.13     Subd. 4.  [JUVENILE COURT RECORDS.] (a) The commissioner 
 12.14  shall review records from the juvenile courts for an individual 
 12.15  studied under section 245C.03, subdivision 1, clauses (2) and 
 12.16  (5). 
 12.17     (b) For individuals studied under section 245C.03, 
 12.18  subdivision 1, clauses (1), (3), (4), and (6), and subdivision 
 12.19  2, who are ages 13 to 17, the commissioner shall review records 
 12.20  from the juvenile courts when the commissioner has reasonable 
 12.21  cause. 
 12.22     (c) The juvenile courts shall help with the study by giving 
 12.23  the commissioner existing juvenile court records on individuals 
 12.24  described in section 245C.03, subdivision 1, clauses (2), (5), 
 12.25  and (6), relating to delinquency proceedings held within either 
 12.26  the five years immediately preceding the background study or the 
 12.27  five years immediately preceding the individual's 18th birthday, 
 12.28  whichever time period is longer. 
 12.29     (d) For purposes of this chapter, a finding that a 
 12.30  delinquency petition is proven in juvenile court shall be 
 12.31  considered a conviction in state district court. 
 12.32     (e) The commissioner shall destroy juvenile records 
 12.33  obtained under this subdivision when the subject of the records 
 12.34  reaches age 23. 
 12.35     Sec. 9.  [245C.09] [FAILURE OR REFUSAL TO COOPERATE WITH 
 12.36  BACKGROUND STUDY.] 
 13.1      Subdivision 1.  [DISQUALIFICATION; LICENSING ACTION.] An 
 13.2   applicant's, license holder's, or registrant's failure or 
 13.3   refusal to cooperate with the commissioner is reasonable cause 
 13.4   to disqualify a subject, deny a license application, or 
 13.5   immediately suspend or revoke a license or registration. 
 13.6      Subd. 2.  [EMPLOYMENT ACTION.] An individual's failure or 
 13.7   refusal to cooperate with the background study is just cause for 
 13.8   denying or terminating employment of the individual if the 
 13.9   individual's failure or refusal to cooperate could cause the 
 13.10  applicant's application to be denied or the license holder's 
 13.11  license to be immediately suspended or revoked. 
 13.12     Sec. 10.  [245C.10] [BACKGROUND STUDY; FEES.] 
 13.13     Subdivision 1.  [SUBJECT OF A BACKGROUND STUDY.] No 
 13.14  applicant, license holder, or individual who is the subject of a 
 13.15  background study shall pay any fees required to conduct the 
 13.16  study. 
 13.17     Subd. 2.  [SUPPLEMENTAL NURSING SERVICES AGENCIES.] The 
 13.18  commissioner shall recover the cost of the background studies 
 13.19  initiated by supplemental nursing services agencies registered 
 13.20  under section 144A.71, subdivision 1, through a fee of no more 
 13.21  than $8 per study charged to the agency.  The fees collected 
 13.22  under this subdivision are appropriated to the commissioner for 
 13.23  the purpose of conducting background studies. 
 13.24     Subd. 3.  [PERSONAL CARE PROVIDER ORGANIZATIONS.] The 
 13.25  commissioner shall recover the cost of background studies 
 13.26  initiated by a personal care provider organization under section 
 13.27  256B.0627 through a fee of no more than $12 per study charged to 
 13.28  the organization responsible for submitting the background study 
 13.29  form.  The fees collected under this subdivision are 
 13.30  appropriated to the commissioner for the purpose of conducting 
 13.31  background studies. 
 13.32     Sec. 11.  [245C.11] [BACKGROUND STUDY; COUNTY AGENCIES.] 
 13.33     Subdivision 1.  [FOSTER CARE; CRIMINAL CONVICTION 
 13.34  DATA.] For individuals who are required to have background 
 13.35  studies under section 245C.03, subdivisions 1 and 2, and who 
 13.36  have been continuously affiliated with a foster care provider 
 14.1   that is licensed in more than one county, criminal conviction 
 14.2   data may be shared among those counties in which the foster care 
 14.3   programs are licensed.  A county agency's receipt of criminal 
 14.4   conviction data from another county agency shall meet the 
 14.5   criminal data background study requirements of this chapter. 
 14.6      Subd. 2.  [JOINTLY LICENSED PROGRAMS.] A county agency may 
 14.7   accept a background study completed by the commissioner under 
 14.8   this chapter in place of the background study required under 
 14.9   section 245A.16, subdivision 3, in programs with joint licensure 
 14.10  as home and community-based services and adult foster care for 
 14.11  people with developmental disabilities when the license holder 
 14.12  does not reside in the foster care residence and the subject of 
 14.13  the study has been continuously affiliated with the license 
 14.14  holder since the date of the commissioner's study. 
 14.15     Subd. 3.  [CRIMINAL HISTORY DATA.] County agencies shall 
 14.16  have access to the criminal history data in the same manner as 
 14.17  county licensing agencies under this chapter for purposes of 
 14.18  background studies completed by county agencies on legal 
 14.19  nonlicensed child care providers to determine eligibility for 
 14.20  child care funds under chapter 119B. 
 14.21     Sec. 12.  [245C.12] [BACKGROUND STUDY; TRIBAL 
 14.22  ORGANIZATIONS.] 
 14.23     For the purposes of background studies completed by tribal 
 14.24  organizations performing licensing activities otherwise required 
 14.25  of the commissioner under this chapter, after obtaining consent 
 14.26  from the background study subject, tribal licensing agencies 
 14.27  shall have access to criminal history data in the same manner as 
 14.28  county licensing agencies and private licensing agencies under 
 14.29  this chapter. 
 14.30     Sec. 13.  [245C.13] [PROCESSING THE BACKGROUND STUDY FORM.] 
 14.31     Subdivision 1.  [TIMING.] Upon receipt of the background 
 14.32  study forms from an applicant, license holder, registrant, 
 14.33  agency, organization, program, or entity required to initiate a 
 14.34  background study under section 245C.04, the commissioner shall 
 14.35  complete the background study and provide the notice required 
 14.36  under section 245C.17, subdivision 1, within 15 working days. 
 15.1      Subd. 2.  [DIRECT CONTACT PENDING COMPLETION OF BACKGROUND 
 15.2   STUDY.] Unless otherwise specified, the subject of a background 
 15.3   study may have direct contact with persons served by a program 
 15.4   after the background study form is mailed or submitted to the 
 15.5   commissioner pending notification of the study results under 
 15.6   section 245C.17. 
 15.7      Sec. 14.  [245C.14] [DISQUALIFICATION.] 
 15.8      Subdivision 1.  [DISQUALIFICATION FROM DIRECT CONTACT.] (a) 
 15.9   The commissioner shall disqualify an individual who is the 
 15.10  subject of a background study from any position allowing direct 
 15.11  contact with persons receiving services from the license holder 
 15.12  or entity identified in section 245C.03, upon receipt of 
 15.13  information showing, or when a background study completed under 
 15.14  this chapter shows any of the following: 
 15.15     (1) a conviction of or admission to one or more crimes 
 15.16  listed in section 245C.15; 
 15.17     (2) a preponderance of the evidence indicates the 
 15.18  individual has committed an act or acts that meet the definition 
 15.19  of any of the crimes listed in section 245C.15; or 
 15.20     (3) an investigation results in an administrative 
 15.21  determination listed under section 245C.15, subdivision 4, 
 15.22  paragraph (b). 
 15.23     (b) No individual who is disqualified following a 
 15.24  background study under section 245C.03, subdivisions 1 and 2, 
 15.25  may be retained in a position involving direct contact with 
 15.26  persons served by a program or entity identified in section 
 15.27  245C.03, unless the commissioner has provided written notice 
 15.28  under section 245C.17 stating that: 
 15.29     (1) the individual may remain in direct contact during the 
 15.30  period in which the individual may request reconsideration as 
 15.31  provided in section 245C.21, subdivision 2; 
 15.32     (2) the commissioner has set aside the individual's 
 15.33  disqualification for that program or entity identified in 
 15.34  section 245C.03, as provided in section 245C.22, subdivision 4; 
 15.35  or 
 15.36     (3) the license holder has been granted a variance for the 
 16.1   disqualified individual under section 245C.30. 
 16.2      Subd. 2.  [DISQUALIFICATION FROM ACCESS.] (a) If an 
 16.3   individual who is studied under section 245C.03, subdivision 1, 
 16.4   clauses (2), (5), and (6), is disqualified from direct contact 
 16.5   under subdivision 1, the commissioner shall also disqualify the 
 16.6   individual from access to a person receiving services from the 
 16.7   license holder. 
 16.8      (b) No individual who is disqualified following a 
 16.9   background study under section 245C.03, subdivision 1, clauses 
 16.10  (2), (5), and (6), or as provided elsewhere in statute who is 
 16.11  disqualified as a result of this section, may be allowed access 
 16.12  to persons served by the program unless the commissioner has 
 16.13  provided written notice under section 245C.17 stating that: 
 16.14     (1) the individual may remain in direct contact during the 
 16.15  period in which the individual may request reconsideration as 
 16.16  provided in section 245C.21, subdivision 2; 
 16.17     (2) the commissioner has set aside the individual's 
 16.18  disqualification for that licensed program or entity identified 
 16.19  in section 245C.03 as provided in section 245C.22, subdivision 
 16.20  4; or 
 16.21     (3) the license holder has been granted a variance for the 
 16.22  disqualified individual under section 245C.30. 
 16.23     Sec. 15.  [245C.15] [DISQUALIFYING CRIMES OR CONDUCT.] 
 16.24     Subdivision 1.  [PERMANENT DISQUALIFICATION.] (a) An 
 16.25  individual is disqualified under section 245C.14 if:  (1) 
 16.26  regardless of how much time has passed since the discharge of 
 16.27  the sentence imposed for the offense; and (2) unless otherwise 
 16.28  specified, regardless of the level of the conviction, the 
 16.29  individual is convicted of any of the following offenses:  
 16.30  sections 609.185 (murder in the first degree); 609.19 (murder in 
 16.31  the second degree); 609.195 (murder in the third degree); 609.20 
 16.32  (manslaughter in the first degree); 609.205 (manslaughter in the 
 16.33  second degree); 609.221 or 609.222 (assault in the first or 
 16.34  second degree); a felony offense under sections 609.2242 and 
 16.35  609.2243 (domestic assault), spousal abuse, child abuse or 
 16.36  neglect, or a crime against children; 609.228 (great bodily harm 
 17.1   caused by distribution of drugs); 609.245 (aggravated robbery); 
 17.2   609.25 (kidnapping); 609.2661 (murder of an unborn child in the 
 17.3   first degree); 609.2662 (murder of an unborn child in the second 
 17.4   degree); 609.2663 (murder of an unborn child in the third 
 17.5   degree); 609.322 (solicitation, inducement, and promotion of 
 17.6   prostitution); a felony offense under 609.324, subdivision 1 
 17.7   (other prohibited acts); 609.342 (criminal sexual conduct in the 
 17.8   first degree); 609.343 (criminal sexual conduct in the second 
 17.9   degree); 609.344 (criminal sexual conduct in the third degree); 
 17.10  609.345 (criminal sexual conduct in the fourth degree); 609.352 
 17.11  (solicitation of children to engage in sexual conduct); 609.365 
 17.12  (incest); a felony offense under 609.377 (malicious punishment 
 17.13  of a child); a felony offense under 609.378 (neglect or 
 17.14  endangerment of a child); 609.561 (arson in the first degree); 
 17.15  609.66, subdivision 1e (drive-by shooting); 609.749, subdivision 
 17.16  3, 4, or 5 (felony-level harassment; stalking); 609.855, 
 17.17  subdivision 5 (shooting at or in a public transit vehicle or 
 17.18  facility); 617.246 (use of minors in sexual performance 
 17.19  prohibited); or 617.247 (possession of pictorial representations 
 17.20  of minors).  An individual also is disqualified under section 
 17.21  245C.14 regardless of how much time has passed since the 
 17.22  involuntary termination of the individual's parental rights 
 17.23  under section 260C.301. 
 17.24     (b) An individual's attempt or conspiracy to commit any of 
 17.25  the offenses listed in paragraph (a), as each of these offenses 
 17.26  is defined in Minnesota Statutes, permanently disqualifies the 
 17.27  individual under section 245C.14. 
 17.28     (c) An individual's offense in any other state or country, 
 17.29  where the elements of the offense are substantially similar to 
 17.30  any of the offenses listed in paragraph (a), permanently 
 17.31  disqualifies the individual under section 245C.14. 
 17.32     Subd. 2.  [15-YEAR DISQUALIFICATION.] (a) An individual is 
 17.33  disqualified under section 245C.14 if:  (1) less than 15 years 
 17.34  have passed since the discharge of the sentence imposed for the 
 17.35  offense; and (2) the individual has received a felony conviction 
 17.36  for a violation of any of the following offenses:  sections 
 18.1   260C.301 (grounds for termination of parental rights); 609.165 
 18.2   (felon ineligible to possess firearm); 609.21 (criminal 
 18.3   vehicular homicide and injury); 609.215 (suicide); 609.223 or 
 18.4   609.2231 (assault in the third or fourth degree); repeat 
 18.5   offenses under 609.224 (assault in the fifth degree); 609.2325 
 18.6   (criminal abuse of a vulnerable adult); 609.2335 (financial 
 18.7   exploitation of a vulnerable adult); 609.235 (use of drugs to 
 18.8   injure or facilitate crime); 609.24 (simple robbery); 609.255 
 18.9   (false imprisonment); 609.2664 (manslaughter of an unborn child 
 18.10  in the first degree); 609.2665 (manslaughter of an unborn child 
 18.11  in the second degree); 609.267 (assault of an unborn child in 
 18.12  the first degree); 609.2671 (assault of an unborn child in the 
 18.13  second degree); 609.268 (injury or death of an unborn child in 
 18.14  the commission of a crime); 609.27 (coercion); 609.275 (attempt 
 18.15  to coerce); repeat offenses under 609.3451 (criminal sexual 
 18.16  conduct in the fifth degree); 609.498, subdivision 1 or 1b 
 18.17  (aggravated first degree or first degree tampering with a 
 18.18  witness); 609.52 (theft); 609.521 (possession of shoplifting 
 18.19  gear); 609.562 (arson in the second degree); 609.563 (arson in 
 18.20  the third degree); 609.582 (burglary); 609.625 (aggravated 
 18.21  forgery); 609.63 (forgery); 609.631 (check forgery; offering a 
 18.22  forged check); 609.635 (obtaining signature by false pretense); 
 18.23  609.66 (dangerous weapons); 609.67 (machine guns and 
 18.24  short-barreled shotguns); 609.687 (adulteration); 609.71 (riot); 
 18.25  609.713 (terroristic threats); repeat offenses under 617.23 
 18.26  (indecent exposure; penalties); repeat offenses under 617.241 
 18.27  (obscene materials and performances; distribution and exhibition 
 18.28  prohibited; penalty); chapter 152 (drugs; controlled substance); 
 18.29  or a felony level conviction involving alcohol or drug use. 
 18.30     (b) An individual is disqualified under section 245C.14 if 
 18.31  less than 15 years has passed since the individual's attempt or 
 18.32  conspiracy to commit any of the offenses listed in paragraph 
 18.33  (a), as each of these offenses is defined in Minnesota Statutes. 
 18.34     (c) An individual is disqualified under section 245C.14 if 
 18.35  less than 15 years has passed since the discharge of the 
 18.36  sentence imposed for an offense in any other state or country, 
 19.1   the elements of which are substantially similar to the elements 
 19.2   of the offenses listed in paragraph (a). 
 19.3      (d) If the individual studied is convicted of one of the 
 19.4   felonies listed in paragraph (a), but the sentence is a gross 
 19.5   misdemeanor or misdemeanor disposition, the lookback period for 
 19.6   the conviction is the period applicable to the gross misdemeanor 
 19.7   or misdemeanor disposition. 
 19.8      Subd. 3.  [TEN-YEAR DISQUALIFICATION.] (a) An individual is 
 19.9   disqualified under section 245C.14 if:  (1) less than ten years 
 19.10  have passed since the discharge of the sentence imposed for the 
 19.11  offense; and (2) the individual has received a gross misdemeanor 
 19.12  conviction for a violation of any of the following offenses:  
 19.13  sections 609.224 (assault in the fifth degree); 609.224, 
 19.14  subdivision 2, paragraph (c) (assault in the fifth degree by a 
 19.15  caregiver against a vulnerable adult); 609.2242 and 609.2243 
 19.16  (domestic assault); 609.23 (mistreatment of persons confined); 
 19.17  609.231 (mistreatment of residents or patients); 609.2325 
 19.18  (criminal abuse of a vulnerable adult); 609.233 (criminal 
 19.19  neglect of a vulnerable adult); 609.2335 (financial exploitation 
 19.20  of a vulnerable adult); 609.234 (failure to report maltreatment 
 19.21  of a vulnerable adult); 609.265 (abduction); 609.275 (attempt to 
 19.22  coerce); 609.324, subdivision 1a (other prohibited acts; minor 
 19.23  engaged in prostitution); 609.33 (disorderly house); 609.3451 
 19.24  (criminal sexual conduct in the fifth degree); 609.377 
 19.25  (malicious punishment of a child); 609.378 (neglect or 
 19.26  endangerment of a child); 609.52 (theft); 609.582 (burglary); 
 19.27  609.631 (check forgery; offering a forged check); 609.66 
 19.28  (dangerous weapons); 609.71 (riot); 609.72, subdivision 3 
 19.29  (disorderly conduct against a vulnerable adult); repeat offenses 
 19.30  under 609.746 (interference with privacy); 609.749, subdivision 
 19.31  2 (harassment; stalking); repeat offenses under 617.23 (indecent 
 19.32  exposure); 617.241 (obscene materials and performances); 617.243 
 19.33  (indecent literature, distribution); 617.293 (harmful materials; 
 19.34  dissemination and display to minors prohibited); or violation of 
 19.35  an order for protection under 518B.01, subdivision 14. 
 19.36     (b) An individual is disqualified under section 245C.14 if 
 20.1   less than ten years has passed since the individual's attempt or 
 20.2   conspiracy to commit any of the offenses listed in paragraph 
 20.3   (a), as each of these offenses is defined in Minnesota Statutes. 
 20.4      (c) An individual is disqualified under section 245C.14 if 
 20.5   less than ten years has passed since the discharge of the 
 20.6   sentence imposed for an offense in any other state or country, 
 20.7   the elements of which are substantially similar to the elements 
 20.8   of any of the offenses listed in paragraph (a). 
 20.9      (d) If the defendant is convicted of one of the gross 
 20.10  misdemeanors listed in paragraph (a), but the sentence is a 
 20.11  misdemeanor disposition, the lookback period for the conviction 
 20.12  is the period applicable to misdemeanors. 
 20.13     Subd. 4.  [SEVEN-YEAR DISQUALIFICATION.] (a) An individual 
 20.14  is disqualified under section 245C.14 if:  (1) less than seven 
 20.15  years have passed since the discharge of the sentence imposed 
 20.16  for the offense; and (2) the individual has received a 
 20.17  misdemeanor conviction for a violation of any of the following 
 20.18  offenses:  sections 609.224 (assault in the fifth degree); 
 20.19  609.2242 (domestic assault); 609.2335 (financial exploitation of 
 20.20  a vulnerable adult); 609.234 (failure to report maltreatment of 
 20.21  a vulnerable adult); 609.2672 (assault of an unborn child in the 
 20.22  third degree); 609.27 (coercion); violation of an order for 
 20.23  protection under 609.3232 (protective order authorized; 
 20.24  procedures; penalties); 609.52 (theft); 609.66 (dangerous 
 20.25  weapons); 609.665 (spring guns); 609.746 (interference with 
 20.26  privacy); 609.79 (obscene or harassing phone calls); 609.795 
 20.27  (letter, telegram, or package; opening; harassment); 617.23 
 20.28  (indecent exposure; penalties); 617.293 (harmful materials; 
 20.29  dissemination and display to minors prohibited); or violation of 
 20.30  an order for protection under 518B.01 (Domestic Abuse Act). 
 20.31     (b) An individual is disqualified under section 245C.14 if 
 20.32  less than seven years has passed since a determination or 
 20.33  disposition of the individual's: 
 20.34     (1) failure to make required reports under section 626.556, 
 20.35  subdivision 3, or 626.557, subdivision 3, for incidents in 
 20.36  which:  (i) the final disposition under section 626.556 or 
 21.1   626.557 was substantiated maltreatment, and (ii) the 
 21.2   maltreatment was recurring or serious; or 
 21.3      (2) substantiated serious or recurring maltreatment of a 
 21.4   minor under section 626.556 or of a vulnerable adult under 
 21.5   section 626.557 for which:  (i) there is a preponderance of 
 21.6   evidence that the maltreatment occurred, and (ii) the subject 
 21.7   was responsible for the maltreatment. 
 21.8      (c) An individual is disqualified under section 245C.14 if 
 21.9   less than seven years has passed since the individual's attempt 
 21.10  or conspiracy to commit any of the offenses listed in paragraphs 
 21.11  (a) and (b), as each of these offenses is defined in Minnesota 
 21.12  Statutes. 
 21.13     (d) An individual is disqualified under section 245C.14 if 
 21.14  less than seven years has passed since the discharge of the 
 21.15  sentence imposed for an offense in any other state or country, 
 21.16  the elements of which are substantially similar to the elements 
 21.17  of any of the offenses listed in paragraphs (a) and (b). 
 21.18     Subd. 5.  [MENTAL ILLNESS.] The commissioner may not 
 21.19  disqualify an individual subject to a background study under 
 21.20  this chapter because that individual has, or has had, a mental 
 21.21  illness as defined in section 245.462, subdivision 20. 
 21.22     Sec. 16.  [245C.16] [DISQUALIFIED INDIVIDUAL'S RISK OF 
 21.23  HARM.] 
 21.24     Subdivision 1.  [DETERMINING IMMEDIATE RISK OF HARM.] (a) 
 21.25  If the commissioner determines that the individual studied has a 
 21.26  disqualifying characteristic, the commissioner shall review the 
 21.27  information immediately available and make a determination as to 
 21.28  the subject's immediate risk of harm to persons served by the 
 21.29  program where the individual studied will have direct contact. 
 21.30     (b) The commissioner shall consider all relevant 
 21.31  information available, including the following factors in 
 21.32  determining the immediate risk of harm: 
 21.33     (1) the recency of the disqualifying characteristic; 
 21.34     (2) the recency of discharge from probation for the crimes; 
 21.35     (3) the number of disqualifying characteristics; 
 21.36     (4) the intrusiveness or violence of the disqualifying 
 22.1   characteristic; 
 22.2      (5) the vulnerability of the victim involved in the 
 22.3   disqualifying characteristic; and 
 22.4      (6) the similarity of the victim to the persons served by 
 22.5   the program where the individual studied will have direct 
 22.6   contact. 
 22.7      (c) This section does not apply when the subject of a 
 22.8   background study is regulated by a health-related licensing 
 22.9   board as defined in chapter 214, and the subject is determined 
 22.10  to be responsible for substantiated maltreatment under section 
 22.11  626.556 or 626.557. 
 22.12     Subd. 2.  [FINDINGS.] (a) After evaluating the information 
 22.13  immediately available under subdivision 1, the commissioner may 
 22.14  have reason to believe one of the following: 
 22.15     (1) the individual poses an imminent risk of harm to 
 22.16  persons served by the program where the individual studied will 
 22.17  have direct contact; 
 22.18     (2) the individual poses a risk of harm requiring 
 22.19  continuous, direct supervision while providing direct contact 
 22.20  services during the period in which the subject may request a 
 22.21  reconsideration; or 
 22.22     (3) the individual does not pose an imminent risk of harm 
 22.23  or a risk of harm requiring continuous, direct supervision while 
 22.24  providing direct contact services during the period in which the 
 22.25  subject may request a reconsideration. 
 22.26     (b) After determining an individual's risk of harm under 
 22.27  this section, the commissioner must notify the subject of the 
 22.28  background study and the applicant or license holder as required 
 22.29  under section 245C.17. 
 22.30     Subd. 3.  [COUNTY AGENCY.] (a) County licensing agencies 
 22.31  performing duties under this section may develop an alternative 
 22.32  system for determining the subject's immediate risk of harm to 
 22.33  persons served by the program, providing the notices under 
 22.34  subdivision 2, paragraph (b), and documenting the action taken 
 22.35  by the county licensing agency. 
 22.36     (b) Each county licensing agency's implementation of the 
 23.1   alternative system is subject to approval by the commissioner. 
 23.2      (c) Notwithstanding this alternative system, county 
 23.3   licensing agencies shall complete the requirements of section 
 23.4   245C.17. 
 23.5      Sec. 17.  [245C.17] [NOTICE OF BACKGROUND STUDY RESULTS.] 
 23.6      Subdivision 1.  [TIME FRAME FOR NOTICE OF STUDY 
 23.7   RESULTS.] (a) Within 15 working days after the commissioner's 
 23.8   receipt of the background study form, the commissioner shall 
 23.9   notify the individual who is the subject of the study in writing 
 23.10  or by electronic transmission of the results of the study or 
 23.11  that more time is needed to complete the study. 
 23.12     (b) Within 15 working days after the commissioner's receipt 
 23.13  of the background study form, the commissioner shall notify the 
 23.14  applicant, license holder, or registrant in writing or by 
 23.15  electronic transmission of the results of the study or that more 
 23.16  time is needed to complete the study. 
 23.17     Subd. 2.  [DISQUALIFICATION NOTICE SENT TO SUBJECT.] (a) If 
 23.18  the information in the study indicates the individual is 
 23.19  disqualified from direct contact with, or from access to, 
 23.20  persons served by the program, the commissioner shall disclose 
 23.21  to the individual studied: 
 23.22     (1) the information causing disqualification; 
 23.23     (2) instructions on how to request a reconsideration of the 
 23.24  disqualification; and 
 23.25     (3) the commissioner's determination of the individual's 
 23.26  risk of harm under section 245C.16. 
 23.27     (b) If the commissioner determines under section 245C.16 
 23.28  that an individual poses an imminent risk of harm to persons 
 23.29  served by the program where the individual will have direct 
 23.30  contact, the commissioner's notice must include an explanation 
 23.31  of the basis of this determination. 
 23.32     (c) If the commissioner determines under section 245C.16 
 23.33  that an individual studied does not pose a risk of harm that 
 23.34  requires continuous, direct supervision, the commissioner shall 
 23.35  only notify the individual of the disqualification. 
 23.36     Subd. 3.  [DISQUALIFICATION NOTICE SENT TO APPLICANT, 
 24.1   LICENSE HOLDER, OR REGISTRANT.] (a) The commissioner shall 
 24.2   notify an applicant, license holder, or registrant who is not 
 24.3   the subject of the study: 
 24.4      (1) that the commissioner has found information that 
 24.5   disqualifies the individual studied from direct contact with, or 
 24.6   from access to, persons served by the program; and 
 24.7      (2) the commissioner's determination of the individual's 
 24.8   risk of harm under section 245C.16. 
 24.9      (b) If the commissioner determines under section 245C.16 
 24.10  that an individual studied poses an imminent risk of harm to 
 24.11  persons served by the program where the individual studied will 
 24.12  have direct contact, the commissioner shall order the license 
 24.13  holder to immediately remove the individual studied from direct 
 24.14  contact. 
 24.15     (c) If the commissioner determines under section 245C.16 
 24.16  that an individual studied poses a risk of harm that requires 
 24.17  continuous, direct supervision, the commissioner shall order the 
 24.18  license holder to: 
 24.19     (1) immediately remove the individual studied from direct 
 24.20  contact services; or 
 24.21     (2) assure that the individual studied is under continuous, 
 24.22  direct supervision when providing direct contact services during 
 24.23  the period in which the individual may request a reconsideration 
 24.24  of the disqualification under section 245C.21. 
 24.25     (d) If the commissioner determines under section 245C.16 
 24.26  that an individual studied does not pose a risk of harm that 
 24.27  requires continuous, direct supervision, the commissioner shall 
 24.28  send the license holder a notice that more time is needed to 
 24.29  complete the individual's background study. 
 24.30     (e) The commissioner shall not notify the applicant, 
 24.31  license holder, or registrant of the information contained in 
 24.32  the subject's background study unless: 
 24.33     (1) the basis for the disqualification is failure to 
 24.34  cooperate with the background study or substantiated 
 24.35  maltreatment under section 626.556 or 626.557; 
 24.36     (2) the Data Practices Act under chapter 13 provides for 
 25.1   release of the information; or 
 25.2      (3) the individual studied authorizes the release of the 
 25.3   information. 
 25.4      Subd. 4.  [DISQUALIFICATION NOTICE TO FAMILY CHILD CARE OR 
 25.5   FOSTER CARE PROVIDER.] For studies on individuals pertaining to 
 25.6   a license to provide family child care or group family child 
 25.7   care, foster care for children in the provider's own home, or 
 25.8   foster care or day care services for adults in the provider's 
 25.9   own home, the commissioner is not required to provide a separate 
 25.10  notice of the background study results to the individual who is 
 25.11  the subject of the study unless the study results in a 
 25.12  disqualification of the individual. 
 25.13     Sec. 18.  [245C.18] [OBLIGATION TO REMOVE DISQUALIFIED 
 25.14  INDIVIDUAL FROM DIRECT CONTACT.] 
 25.15     The license holder must remove a disqualified individual 
 25.16  from direct contact with persons served by the licensed program 
 25.17  if the individual does not request reconsideration under section 
 25.18  245C.21 within the prescribed time, or if the individual submits 
 25.19  a timely request for reconsideration, and the commissioner does 
 25.20  not set aside the disqualification under section 245C.22, 
 25.21  subdivision 4. 
 25.22     Sec. 19.  [245C.19] [TERMINATION OF AFFILIATION BASED ON 
 25.23  DISQUALIFICATION NOTICE.] 
 25.24     An applicant or license holder that terminates affiliation 
 25.25  with persons studied under section 245C.03, when the termination 
 25.26  is made in good faith reliance on a notice of disqualification 
 25.27  provided by the commissioner, shall not be subject to civil 
 25.28  liability. 
 25.29     Sec. 20.  [245C.20] [LICENSE HOLDER RECORD KEEPING.] 
 25.30     When a background study is completed under this chapter, a 
 25.31  licensed program shall maintain a notice that the study was 
 25.32  undertaken and completed in the program's personnel files. 
 25.33     Sec. 21.  [245C.21] [REQUESTING RECONSIDERATION OF 
 25.34  DISQUALIFICATION.] 
 25.35     Subdivision 1.  [WHO MAY REQUEST RECONSIDERATION.] An 
 25.36  individual who is the subject of a disqualification may request 
 26.1   a reconsideration of the disqualification.  The individual must 
 26.2   submit the request for reconsideration to the commissioner in 
 26.3   writing. 
 26.4      Subd. 2.  [TIME FRAME FOR REQUESTING RECONSIDERATION OF A 
 26.5   DISQUALIFICATION.] (a) When the commissioner sends an individual 
 26.6   a notice of disqualification based on a finding under section 
 26.7   245C.16, subdivision 2, paragraph (a), clause (1) or (2), the 
 26.8   disqualified individual must submit the request for a 
 26.9   reconsideration within 30 calendar days of the individual's 
 26.10  receipt of the notice of disqualification.  Upon showing that 
 26.11  the information under subdivision 3 cannot be obtained within 30 
 26.12  days, the disqualified individual may request additional time, 
 26.13  not to exceed 30 days, to obtain the information. 
 26.14     (b) When the commissioner sends an individual a notice of 
 26.15  disqualification based on a finding under section 245C.16, 
 26.16  subdivision 2, paragraph (a), clause (3), the disqualified 
 26.17  individual must submit the request for reconsideration within 15 
 26.18  calendar days of the individual's receipt of the notice of 
 26.19  disqualification. 
 26.20     (c) An individual who was determined to have maltreated a 
 26.21  child under section 626.556 or a vulnerable adult under section 
 26.22  626.557, and who is disqualified on the basis of serious or 
 26.23  recurring maltreatment, may request a reconsideration of both 
 26.24  the maltreatment and the disqualification determinations.  The 
 26.25  request must be submitted within 30 calendar days of the 
 26.26  individual's receipt of the notice of disqualification. 
 26.27     Subd. 3.  [INFORMATION THE DISQUALIFIED INDIVIDUAL MUST 
 26.28  PROVIDE TO THE COMMISSIONER WHEN REQUESTING 
 26.29  RECONSIDERATION.] The disqualified individual must submit 
 26.30  information showing that: 
 26.31     (1) the information the commissioner relied upon in 
 26.32  determining the underlying conduct that gave rise to the 
 26.33  disqualification is incorrect; 
 26.34     (2) for maltreatment, the information the commissioner 
 26.35  relied upon in determining that maltreatment was serious or 
 26.36  recurring is incorrect; or 
 27.1      (3) the subject of the study does not pose a risk of harm 
 27.2   to any person served by the applicant, license holder, or 
 27.3   registrant. 
 27.4      Sec. 22.  [245C.22] [REVIEW AND ACTION BY THE COMMISSIONER 
 27.5   ON A RECONSIDERATION REQUEST.] 
 27.6      Subdivision 1.  [COMMISSIONER'S TIME FRAME FOR RESPONDING 
 27.7   TO DISQUALIFICATION RECONSIDERATION REQUESTS.] (a) The 
 27.8   commissioner shall respond in writing or by electronic 
 27.9   transmission to all reconsideration requests for which the basis 
 27.10  for the request is that the information the commissioner relied 
 27.11  upon to disqualify is incorrect or inaccurate within 30 working 
 27.12  days of receipt of a request and all relevant information. 
 27.13     (b) If the basis for a disqualified individual's 
 27.14  reconsideration request is that the individual does not pose a 
 27.15  risk of harm, the commissioner shall respond to the request 
 27.16  within 15 working days after receiving the request for 
 27.17  reconsideration and all relevant information. 
 27.18     (c) If the disqualified individual's reconsideration 
 27.19  request is based on both the correctness or accuracy of the 
 27.20  information the commissioner relied upon to disqualify the 
 27.21  individual and the individual's risk of harm, the commissioner 
 27.22  shall respond to the request within 45 working days after 
 27.23  receiving the request for reconsideration and all relevant 
 27.24  information. 
 27.25     Subd. 2.  [INCORRECT INFORMATION; RESCISSION.] The 
 27.26  commissioner shall rescind the disqualification if the 
 27.27  commissioner finds that the information relied upon to 
 27.28  disqualify the subject is incorrect. 
 27.29     Subd. 3.  [PREEMINENT WEIGHT TO THE SAFETY OF PERSONS BEING 
 27.30  SERVED.] In reviewing a request for reconsideration of a 
 27.31  disqualification, the commissioner shall give preeminent weight 
 27.32  to the safety of each person served by the license holder, 
 27.33  applicant, or registrant over the interests of the license 
 27.34  holder, applicant, or registrant. 
 27.35     Subd. 4.  [RISK OF HARM; SET ASIDE.] (a) The commissioner 
 27.36  may set aside the disqualification if the commissioner finds 
 28.1   that the individual does not pose a risk of harm to any person 
 28.2   served by the applicant, license holder, or registrant. 
 28.3      (b) In determining if the individual does not pose a risk 
 28.4   of harm, the commissioner shall consider: 
 28.5      (1) the nature, severity, and consequences of the event or 
 28.6   events that led to the disqualification; 
 28.7      (2) whether there is more than one disqualifying event; 
 28.8      (3) the age and vulnerability of the victim at the time of 
 28.9   the event; 
 28.10     (4) the harm suffered by the victim; 
 28.11     (5) the similarity between the victim and persons served by 
 28.12  the program; 
 28.13     (6) the time elapsed without a repeat of the same or 
 28.14  similar event; 
 28.15     (7) documentation of successful completion by the 
 28.16  individual studied of training or rehabilitation pertinent to 
 28.17  the event; and 
 28.18     (8) any other information relevant to reconsideration. 
 28.19     Sec. 23.  [245C.23] [COMMISSIONER'S RECONSIDERATION 
 28.20  NOTICE.] 
 28.21     Subdivision 1.  [COMMISSIONER'S NOTICE OF DISQUALIFICATION 
 28.22  THAT IS SET ASIDE.] (a) If the commissioner sets aside a 
 28.23  disqualification, the commissioner shall notify the applicant or 
 28.24  license holder in writing or by electronic transmission of the 
 28.25  decision.  In the notice from the commissioner that a 
 28.26  disqualification has been set aside, the commissioner must 
 28.27  inform the license holder that information about the nature of 
 28.28  the disqualification and which factors under section 245C.22, 
 28.29  subdivision 4, were the basis of the decision to set aside the 
 28.30  disqualification are available to the license holder upon 
 28.31  request without the consent of the background study subject. 
 28.32     (b) With the written consent of the background study 
 28.33  subject, the commissioner may release to the license holder 
 28.34  copies of all information related to the background study 
 28.35  subject's disqualification and the commissioner's decision to 
 28.36  set aside the disqualification as specified in the written 
 29.1   consent. 
 29.2      (c) If the individual studied submits a timely request for 
 29.3   reconsideration under section 245C.21, and if the commissioner 
 29.4   sets aside the disqualification for that license holder under 
 29.5   section 245C.22, the commissioner shall send the license holder 
 29.6   the same notification received by license holders in cases where 
 29.7   the individual studied has no disqualifying characteristic. 
 29.8      Subd. 2.  [COMMISSIONER'S NOTICE OF DISQUALIFICATION THAT 
 29.9   IS NOT SET ASIDE.] If the individual studied does not submit a 
 29.10  timely request for reconsideration under section 245C.21, or the 
 29.11  individual submits a timely request for reconsideration, but the 
 29.12  commissioner does not set aside the disqualification for that 
 29.13  license holder under section 245C.22, the commissioner shall 
 29.14  notify the license holder of the disqualification and order the 
 29.15  license holder to immediately remove the individual from any 
 29.16  position allowing direct contact with persons receiving services 
 29.17  from the license holder. 
 29.18     Sec. 24.  [245C.24] [BARS TO SETTING ASIDE A 
 29.19  DISQUALIFICATION; FAMILY CHILD CARE AND FOSTER CARE.] 
 29.20     Subdivision 1.  [MINIMUM DISQUALIFICATION PERIODS.] The 
 29.21  disqualification periods under subdivisions 3 and 4 are the 
 29.22  minimum applicable disqualification periods.  The commissioner 
 29.23  may determine that an individual should continue to be 
 29.24  disqualified from licensure because the individual continues to 
 29.25  pose a risk of harm to persons served by that individual, even 
 29.26  after the minimum disqualification period has passed. 
 29.27     Subd. 2.  [PERMANENT BAR TO SET ASIDE OF DISQUALIFICATION.] 
 29.28  The commissioner may not set aside the disqualification of an 
 29.29  individual in connection with a license to provide family child 
 29.30  care for children, foster care for children in the provider's 
 29.31  home, or foster care or day care services for adults in the 
 29.32  provider's home, regardless of how much time has passed, if the 
 29.33  provider was disqualified for a crime or conduct listed in 
 29.34  section 245C.15, subdivision 1. 
 29.35     Subd. 3.  [TEN-YEAR BAR TO SET ASIDE OF 
 29.36  DISQUALIFICATION.] (a) The commissioner may not set aside the 
 30.1   disqualification of an individual in connection with a license 
 30.2   to provide family child care for children, foster care for 
 30.3   children in the provider's home, or foster care or day care 
 30.4   services for adults in the provider's home if:  (1) less than 
 30.5   ten years have passed since the discharge of the sentence 
 30.6   imposed for the offense; and (2) the individual has been 
 30.7   convicted of a violation of any of the following offenses: 
 30.8   sections 609.165 (felon ineligible to possess firearm); criminal 
 30.9   vehicular homicide under 609.21 (criminal vehicular homicide and 
 30.10  injury); 609.215 (aiding suicide or aiding attempted suicide); 
 30.11  felony violations under 609.223 or 609.2231 (assault in the 
 30.12  third or fourth degree); 609.713 (terroristic threats); 609.235 
 30.13  (use of drugs to injure or to facilitate crime); 609.24 (simple 
 30.14  robbery); 609.255 (false imprisonment); 609.562 (arson in the 
 30.15  second degree); 609.71 (riot); 609.498, subdivision 1 or 1b 
 30.16  (aggravated first degree or first degree tampering with a 
 30.17  witness); burglary in the first or second degree under 609.582 
 30.18  (burglary); 609.66 (dangerous weapon); 609.665 (spring guns); 
 30.19  609.67 (machine guns and short-barreled shotguns); 609.749, 
 30.20  subdivision 2 (gross misdemeanor harassment; stalking); 152.021 
 30.21  or 152.022 (controlled substance crime in the first or second 
 30.22  degree); 152.023, subdivision 1, clause (3) or (4) or 
 30.23  subdivision 2, clause (4) (controlled substance crime in the 
 30.24  third degree); 152.024, subdivision 1, clause (2), (3), or (4) 
 30.25  (controlled substance crime in the fourth degree); 609.224, 
 30.26  subdivision 2, paragraph (c) (fifth-degree assault by a 
 30.27  caregiver against a vulnerable adult); 609.23 (mistreatment of 
 30.28  persons confined); 609.231 (mistreatment of residents or 
 30.29  patients); 609.2325 (criminal abuse of a vulnerable adult); 
 30.30  609.233 (criminal neglect of a vulnerable adult); 609.2335 
 30.31  (financial exploitation of a vulnerable adult); 609.234 (failure 
 30.32  to report); 609.265 (abduction); 609.2664 to 609.2665 
 30.33  (manslaughter of an unborn child in the first or second degree); 
 30.34  609.267 to 609.2672 (assault of an unborn child in the first, 
 30.35  second, or third degree); 609.268 (injury or death of an unborn 
 30.36  child in the commission of a crime); 617.293 (disseminating or 
 31.1   displaying harmful material to minors); a felony level 
 31.2   conviction involving alcohol or drug use, a gross misdemeanor 
 31.3   offense under 609.324, subdivision 1 (other prohibited acts); a 
 31.4   gross misdemeanor offense under 609.378 (neglect or endangerment 
 31.5   of a child); a gross misdemeanor offense under 609.377 
 31.6   (malicious punishment of a child); or 609.72, subdivision 3 
 31.7   (disorderly conduct against a vulnerable adult). 
 31.8      (b) The commissioner may not set aside the disqualification 
 31.9   of an individual if less than ten years have passed since the 
 31.10  individual's attempt or conspiracy to commit any of the offenses 
 31.11  listed in paragraph (a) as each of these offenses is defined in 
 31.12  Minnesota Statutes. 
 31.13     (c) The commissioner may not set aside the disqualification 
 31.14  of an individual if less than ten years have passed since the 
 31.15  discharge of the sentence imposed for an offense in any other 
 31.16  state or country, the elements of which are substantially 
 31.17  similar to the elements of any of the offenses listed in 
 31.18  paragraph (a). 
 31.19     Subd. 4.  [SEVEN-YEAR BAR TO SET ASIDE 
 31.20  DISQUALIFICATION.] The commissioner may not set aside the 
 31.21  disqualification of an individual in connection with a license 
 31.22  to provide family child care for children, foster care for 
 31.23  children in the provider's home, or foster care or day care 
 31.24  services for adults in the provider's home if within seven years 
 31.25  preceding the study: 
 31.26     (1) the individual committed an act that constitutes 
 31.27  maltreatment of a child under section 626.556, subdivision 10e, 
 31.28  and the maltreatment resulted in substantial bodily harm as 
 31.29  defined in section 609.02, subdivision 7a, or substantial mental 
 31.30  or emotional harm as supported by competent psychological or 
 31.31  psychiatric evidence; or 
 31.32     (2) the individual was determined under section 626.557 to 
 31.33  be the perpetrator of a substantiated incident of maltreatment 
 31.34  of a vulnerable adult that resulted in substantial bodily harm 
 31.35  as defined in section 609.02, subdivision 7a, or substantial 
 31.36  mental or emotional harm as supported by competent psychological 
 32.1   or psychiatric evidence. 
 32.2      Sec. 25.  [245C.25] [CONSOLIDATED RECONSIDERATION OF 
 32.3   MALTREATMENT DETERMINATION AND DISQUALIFICATION.] 
 32.4      If an individual is disqualified on the basis of a 
 32.5   determination of maltreatment under section 626.556 or 626.557, 
 32.6   which was serious or recurring, and the individual requests 
 32.7   reconsideration of the maltreatment determination under section 
 32.8   626.556, subdivision 10i, or 626.557, subdivision 9d, and also 
 32.9   requests reconsideration of the disqualification under section 
 32.10  245C.21, the commissioner shall consolidate the reconsideration 
 32.11  of the maltreatment determination and the disqualification into 
 32.12  a single reconsideration. 
 32.13     For maltreatment and disqualification determinations made 
 32.14  by county agencies, the county agency shall conduct the 
 32.15  consolidated reconsideration.  If the county agency has 
 32.16  disqualified an individual on multiple bases, one of which is a 
 32.17  county maltreatment determination for which the individual has a 
 32.18  right to request reconsideration, the county shall conduct the 
 32.19  reconsideration of all disqualifications. 
 32.20     Sec. 26.  [245C.26] [RECONSIDERATION OF A DISQUALIFICATION 
 32.21  FOR AN INDIVIDUAL LIVING IN A LICENSED HOME.] 
 32.22     In the case of any ground for disqualification under this 
 32.23  chapter, if the act was committed by an individual other than 
 32.24  the applicant, license holder, or registrant residing in the 
 32.25  applicant's, license holder's, or registrant's home, the 
 32.26  applicant, license holder, or registrant may seek 
 32.27  reconsideration when the individual who committed the act no 
 32.28  longer resides in the home. 
 32.29     Sec. 27.  [245C.27] [FAIR HEARING RIGHTS.] 
 32.30     Subdivision 1.  [FAIR HEARING WHEN DISQUALIFICATION IS NOT 
 32.31  SET ASIDE.] (a) If the commissioner does not set aside or 
 32.32  rescind a disqualification of an individual under section 
 32.33  245C.22 who is disqualified on the basis of a preponderance of 
 32.34  evidence that the individual committed an act or acts that meet 
 32.35  the definition of any of the crimes listed in section 245C.15; 
 32.36  or for failure to make required reports under section 626.556, 
 33.1   subdivision 3; or 626.557, subdivision 3, pursuant to section 
 33.2   245C.15, subdivision 4, paragraph (b), clause (1), the 
 33.3   individual may request a fair hearing under section 256.045. 
 33.4      (b) The fair hearing is the only administrative appeal of 
 33.5   the final agency determination.  The disqualified individual 
 33.6   does not have the right to challenge the accuracy and 
 33.7   completeness of data under section 13.04. 
 33.8      (c) This section does not apply to a public employee's 
 33.9   appeal of a disqualification under section 245C.28, subdivision 
 33.10  3. 
 33.11     Subd. 2.  [CONSOLIDATED FAIR HEARING FOR MALTREATMENT 
 33.12  DETERMINATION AND DISQUALIFICATION NOT SET ASIDE.] (a) If an 
 33.13  individual who is disqualified on the bases of serious or 
 33.14  recurring maltreatment requests a fair hearing on the 
 33.15  maltreatment determination under section 626.556, subdivision 
 33.16  10i, or 626.557, subdivision 9d, and requests a fair hearing 
 33.17  under this section on the disqualification, which has not been 
 33.18  set aside or rescinded, the scope of the fair hearing under 
 33.19  section 256.045 shall include the maltreatment determination and 
 33.20  the disqualification. 
 33.21     (b) A fair hearing is the only administrative appeal of the 
 33.22  final agency determination.  The disqualified individual does 
 33.23  not have the right to challenge the accuracy and completeness of 
 33.24  data under section 13.04. 
 33.25     (c) This section does not apply to a public employee's 
 33.26  appeal of a disqualification under section 245C.28, subdivision 
 33.27  3. 
 33.28     Sec. 28. [245C.28] [CONTESTED CASE HEARING RIGHTS.] 
 33.29     Subdivision 1.  [LICENSE HOLDER.] (a) If a maltreatment 
 33.30  determination or a disqualification for which reconsideration 
 33.31  was requested and which was not set aside or rescinded is the 
 33.32  basis for a denial of a license under section 245A.05 or a 
 33.33  licensing sanction under 245A.07, the license holder has the 
 33.34  right to a contested case hearing under chapter 14 and Minnesota 
 33.35  Rules, parts 1400.8505 to 1400.8612. 
 33.36     (b) The license holder must submit the appeal in accordance 
 34.1   with section 245A.05 or 245A.07, subdivision 3.  As provided 
 34.2   under section 245A.08, subdivision 2a, the scope of the 
 34.3   consolidated contested case hearing must include the 
 34.4   disqualification and the licensing sanction or denial of a 
 34.5   license. 
 34.6      (c) If the disqualification was based on a determination of 
 34.7   substantiated serious or recurring maltreatment under section 
 34.8   626.556 or 626.557, the appeal must be submitted in accordance 
 34.9   with sections 245A.07, subdivision 3, and 626.556, subdivision 
 34.10  10i, or 626.557, subdivision 9d.  As provided for under section 
 34.11  245A.08, subdivision 2a, the scope of the contested case hearing 
 34.12  must include the maltreatment determination, the 
 34.13  disqualification, and the licensing sanction or denial of a 
 34.14  license.  In such cases, a fair hearing must not be conducted 
 34.15  under section 256.045. 
 34.16     Subd. 2.  [INDIVIDUAL OTHER THAN THE LICENSE HOLDER.] If 
 34.17  the basis for the commissioner's denial of a license under 
 34.18  section 245A.05 or a licensing sanction under section 245A.07 is 
 34.19  a maltreatment determination or disqualification that was not 
 34.20  set aside or rescinded under section 245C.22, and the 
 34.21  disqualified subject is an individual other than the license 
 34.22  holder and upon whom a background study must be conducted under 
 34.23  section 245C.03, the hearing of all parties may be consolidated 
 34.24  into a single contested case hearing upon consent of all parties 
 34.25  and the administrative law judge. 
 34.26     Subd. 3.  [EMPLOYEES OF PUBLIC EMPLOYER.] (a) If the 
 34.27  commissioner does not set aside the disqualification of an 
 34.28  individual who is an employee of an employer, as defined in 
 34.29  section 179A.03, subdivision 15, the individual may request a 
 34.30  contested case hearing under chapter 14. 
 34.31     (b) If the commissioner does not set aside or rescind a 
 34.32  disqualification that is based on a maltreatment determination, 
 34.33  the scope of the contested case hearing must include the 
 34.34  maltreatment determination and the disqualification.  In such 
 34.35  cases, a fair hearing must not be conducted under section 
 34.36  256.045. 
 35.1      (c) Rules adopted under this chapter may not preclude an 
 35.2   employee in a contested case hearing for a disqualification from 
 35.3   submitting evidence concerning information gathered under this 
 35.4   chapter. 
 35.5      Subd. 4.  [FINAL AGENCY ORDER.] The commissioner's final 
 35.6   order under section 245A.08, subdivision 5, is conclusive on the 
 35.7   issue of maltreatment and disqualification, including for 
 35.8   purposes of subsequent background studies.  The contested case 
 35.9   hearing under this section is the only administrative appeal of 
 35.10  the final agency determination, specifically, including a 
 35.11  challenge to the accuracy and completeness of data under section 
 35.12  13.04. 
 35.13     Sec. 29.  [245C.29] [CONCLUSIVE DETERMINATIONS OR 
 35.14  DISPOSITIONS.] 
 35.15     Subdivision 1.  [CONCLUSIVE MALTREATMENT DETERMINATION OR 
 35.16  DISPOSITION.] Unless otherwise specified in statute, a 
 35.17  maltreatment determination or disposition under section 626.556 
 35.18  or 626.557 is conclusive, if: 
 35.19     (1) the commissioner has issued a final order in an appeal 
 35.20  of that determination or disposition under section 245A.08, 
 35.21  subdivision 5, or 256.045; 
 35.22     (2) the individual did not request reconsideration of the 
 35.23  maltreatment determination or disposition under section 626.556 
 35.24  or 626.557; or 
 35.25     (3) the individual did not request a hearing of the 
 35.26  maltreatment determination or disposition under section 256.045. 
 35.27     Subd. 2.  [CONCLUSIVE DISQUALIFICATION 
 35.28  DETERMINATION.] Unless otherwise specified in statute, a 
 35.29  determination that: 
 35.30     (1) the information the commissioner relied upon to 
 35.31  disqualify an individual under section 245C.14 was correct based 
 35.32  on serious or recurring maltreatment; 
 35.33     (2) a preponderance of the evidence shows that the 
 35.34  individual committed an act or acts that meet the definition of 
 35.35  any of the crimes listed in section 245C.15; or 
 35.36     (3) the individual failed to make required reports under 
 36.1   section 626.556, subdivision 3, or 626.557, subdivision 3, is 
 36.2   conclusive if: 
 36.3      (i) the commissioner has issued a final order in an appeal 
 36.4   of that determination under section 245A.08, subdivision 5, or 
 36.5   256.045, or a court has issued a final decision; 
 36.6      (ii) the individual did not request reconsideration of the 
 36.7   disqualification under section 245C.21; or 
 36.8      (iii) the individual did not request a hearing on the 
 36.9   disqualification under section 256.045. 
 36.10     Sec. 30.  [245C.30] [VARIANCE FOR A DISQUALIFIED 
 36.11  INDIVIDUAL.] 
 36.12     Subdivision 1.  [LICENSE HOLDER VARIANCE.] (a) When the 
 36.13  commissioner has not set aside a background study subject's 
 36.14  disqualification, and there are conditions under which the 
 36.15  disqualified individual may provide direct contact services or 
 36.16  have access to people receiving services that minimize the risk 
 36.17  of harm to people receiving services, the commissioner may grant 
 36.18  a time-limited variance to a license holder. 
 36.19     (b) The variance shall state the reason for the 
 36.20  disqualification, the services that may be provided by the 
 36.21  disqualified individual, and the conditions with which the 
 36.22  license holder or applicant must comply for the variance to 
 36.23  remain in effect. 
 36.24     Subd. 2.  [DISCLOSURE OF REASON FOR DISQUALIFICATION.] (a) 
 36.25  The commissioner may not grant a variance for a disqualified 
 36.26  individual unless the applicant or license holder requests the 
 36.27  variance and the disqualified individual provides written 
 36.28  consent for the commissioner to disclose to the applicant or 
 36.29  license holder the reason for the disqualification. 
 36.30     (b) This subdivision does not apply to programs licensed to 
 36.31  provide family child care for children, foster care for children 
 36.32  in the provider's own home, or foster care or day care services 
 36.33  for adults in the provider's own home. 
 36.34     Subd. 3.  [CONSEQUENCES FOR FAILING TO COMPLY WITH 
 36.35  CONDITIONS OF VARIANCE.] When a license holder permits a 
 36.36  disqualified individual to provide any services for which the 
 37.1   subject is disqualified without complying with the conditions of 
 37.2   the variance, the commissioner may terminate the variance 
 37.3   effective immediately and subject the license holder to a 
 37.4   licensing action under sections 245A.06 and 245A.07. 
 37.5      Subd. 4.  [TERMINATION OF A VARIANCE.] The commissioner may 
 37.6   terminate a variance for a disqualified individual at any time 
 37.7   for cause. 
 37.8      Subd. 5.  [FINAL DECISION.] The commissioner's decision to 
 37.9   grant or deny a variance is final and not subject to appeal 
 37.10  under the provisions of chapter 14. 
 37.11     Sec. 31.  [245C.31] [DISQUALIFICATION OF INDIVIDUAL 
 37.12  REGULATED BY A HEALTH-RELATED LICENSING BOARD WHEN 
 37.13  DISQUALIFICATION BASED ON SUBSTANTIATED MALTREATMENT.] 
 37.14     Subdivision 1.  [BOARD DETERMINES DISCIPLINARY OR 
 37.15  CORRECTIVE ACTION.] (a) When the subject of a background study 
 37.16  is regulated by a health-related licensing board as defined in 
 37.17  chapter 214, and the commissioner determines that the regulated 
 37.18  individual is responsible for substantiated maltreatment under 
 37.19  section 626.556 or 626.557, instead of the commissioner making a 
 37.20  decision regarding disqualification, the board shall make a 
 37.21  determination whether to impose disciplinary or corrective 
 37.22  action under chapter 214. 
 37.23     (b) This section does not apply to a background study of an 
 37.24  individual regulated by a health-related licensing board if the 
 37.25  individual's study is related to child foster care, adult foster 
 37.26  care, or family child care licensure. 
 37.27     Subd. 2.  [COMMISSIONER'S NOTICE TO THE BOARD.] (a) The 
 37.28  commissioner shall notify the health-related licensing board: 
 37.29     (1) upon completion of a background study that produces a 
 37.30  record showing that the individual was determined to have been 
 37.31  responsible for substantiated maltreatment; 
 37.32     (2) upon the commissioner's completion of an investigation 
 37.33  that determined the individual was responsible for substantiated 
 37.34  maltreatment; or 
 37.35     (3) upon receipt from another agency of a finding of 
 37.36  substantiated maltreatment for which the individual was 
 38.1   responsible. 
 38.2      (b) The commissioner's notice to the health-related 
 38.3   licensing board shall indicate whether the commissioner would 
 38.4   have disqualified the individual for the substantiated 
 38.5   maltreatment if the individual were not regulated by the board. 
 38.6      (c) The commissioner shall concurrently send the notice 
 38.7   under this subdivision to the individual who is the subject of 
 38.8   the background study. 
 38.9      Subd. 3.  [COMMISSIONER'S OR LOCAL AGENCY'S REFERRAL TO 
 38.10  BOARD.] (a) When the commissioner or a local agency has reason 
 38.11  to believe that the direct contact services provided by an 
 38.12  individual may fall within the jurisdiction of a health-related 
 38.13  licensing board, the commissioner or local agency shall refer 
 38.14  the matter to the board as provided in this section. 
 38.15     (b) If, upon review of the information provided by the 
 38.16  commissioner, a health-related licensing board informs the 
 38.17  commissioner that the board does not have jurisdiction to take 
 38.18  disciplinary or corrective action, the commissioner shall make 
 38.19  the appropriate disqualification decision regarding the 
 38.20  individual as otherwise provided in this chapter. 
 38.21     Subd. 4.  [FACILITY MONITORING.] (a) The commissioner has 
 38.22  the authority to monitor the facility's compliance with any 
 38.23  requirements that the health-related licensing board places on 
 38.24  regulated individuals practicing in a facility either during the 
 38.25  period pending a final decision on a disciplinary or corrective 
 38.26  action or as a result of a disciplinary or corrective action.  
 38.27  The commissioner has the authority to order the immediate 
 38.28  removal of a regulated individual from direct contact or access 
 38.29  when a board issues an order of temporary suspension based on a 
 38.30  determination that the regulated individual poses an immediate 
 38.31  risk of harm to persons receiving services in a licensed 
 38.32  facility. 
 38.33     (b) A facility that allows a regulated individual to 
 38.34  provide direct contact services while not complying with the 
 38.35  requirements imposed by the health-related licensing board is 
 38.36  subject to action by the commissioner as specified under 
 39.1   sections 245A.06 and 245A.07. 
 39.2      (c) The commissioner shall notify a health-related 
 39.3   licensing board immediately upon receipt of knowledge of a 
 39.4   facility's or individual's noncompliance with requirements the 
 39.5   board placed on a facility or upon an individual regulated by 
 39.6   the board. 
 39.7      Sec. 32.  [245C.32] [SYSTEMS AND RECORDS.] 
 39.8      Subdivision 1.  [ESTABLISHMENT.] The commissioner may 
 39.9   establish systems and records to fulfill the requirements of 
 39.10  this chapter. 
 39.11     Subd. 2.  [USE.] (a) The commissioner may also use these 
 39.12  systems and records to obtain and provide criminal history data 
 39.13  from the bureau of criminal apprehension and data about 
 39.14  substantiated maltreatment under section 626.556 or 626.557, for 
 39.15  other purposes, provided that: 
 39.16     (1) the background study is specifically authorized in 
 39.17  statute; or 
 39.18     (2) the request is made with the informed consent of the 
 39.19  subject of the study as provided in section 13.05, subdivision 4.
 39.20     (b) An individual making a request under paragraph (a), 
 39.21  clause (2), must agree in writing not to disclose the data to 
 39.22  any other individual without the consent of the subject of the 
 39.23  data. 
 39.24     (c) The commissioner may recover the cost of obtaining and 
 39.25  providing background study data by charging the individual 
 39.26  requesting the study a fee of no more than $12 per study.  The 
 39.27  fees collected under this paragraph are appropriated to the 
 39.28  commissioner for the purpose of conducting background studies. 
 39.29     Subd. 3.  [NATIONAL RECORDS SEARCH.] (a) When specifically 
 39.30  required by statute, the commissioner shall also obtain criminal 
 39.31  history data from the National Criminal Records Repository. 
 39.32     (b) To obtain criminal history data from the National 
 39.33  Criminal Records Repository, the commissioner shall require 
 39.34  classifiable fingerprints of the data subject and must submit 
 39.35  these fingerprint requests through the bureau of criminal 
 39.36  apprehension. 
 40.1      (c) The commissioner may require the background study 
 40.2   subject to submit fingerprint images electronically.  The 
 40.3   commissioner may not require electronic fingerprint images until 
 40.4   the electronic recording and transfer system is available for 
 40.5   noncriminal justice purposes and the necessary equipment is in 
 40.6   use in the law enforcement agency in the background study 
 40.7   subject's local community. 
 40.8      (d) The commissioner may recover the cost of obtaining and 
 40.9   providing criminal history data from the National Criminal 
 40.10  Records Repository by charging the individual requesting the 
 40.11  study a fee of no more than $30 per study.  The fees collected 
 40.12  under this subdivision are appropriated to the commissioner for 
 40.13  the purpose of obtaining criminal history data from the National 
 40.14  Criminal Records Repository. 
 40.15     Sec. 33.  [REVISOR'S INSTRUCTION.] 
 40.16     (a) The revisor of statutes shall correct internal 
 40.17  cross-references to sections that are now in Minnesota Statutes, 
 40.18  chapter 245C, throughout Minnesota Statutes and Minnesota Rules. 
 40.19     (b) If a provision of a section of Minnesota Statutes 
 40.20  amended or recodified by this act is amended by the 2003 regular 
 40.21  legislative session or 2003 special legislative session, if any, 
 40.22  the revisor shall codify the amendment consistent with the 
 40.23  recodification of the affected section by this act, 
 40.24  notwithstanding any law to the contrary.  In sections affected 
 40.25  by this instruction, the revisor may make changes necessary to 
 40.26  correct the punctuation, grammar, or structure of the remaining 
 40.27  text and preserve its meaning. 
 40.28     Sec. 34.  [EFFECTIVE DATE.] 
 40.29     Sections 1 to 33 are effective the day following final 
 40.30  enactment. 
 40.31                             ARTICLE 2 
 40.32                       CONFORMING AMENDMENTS 
 40.33     Section 1.  Minnesota Statutes 2002, section 245A.04, 
 40.34  subdivision 1, is amended to read: 
 40.35     Subdivision 1.  [APPLICATION FOR LICENSURE.] (a) An 
 40.36  individual, corporation, partnership, voluntary association, 
 41.1   other organization or controlling individual that is subject to 
 41.2   licensure under section 245A.03 must apply for a license.  The 
 41.3   application must be made on the forms and in the manner 
 41.4   prescribed by the commissioner.  The commissioner shall provide 
 41.5   the applicant with instruction in completing the application and 
 41.6   provide information about the rules and requirements of other 
 41.7   state agencies that affect the applicant.  
 41.8      The commissioner shall act on the application within 90 
 41.9   working days after a complete application and any required 
 41.10  reports have been received from other state agencies or 
 41.11  departments, counties, municipalities, or other political 
 41.12  subdivisions.  The commissioner shall not consider an 
 41.13  application to be complete until the commissioner receives all 
 41.14  of the information required under section 245C.05. 
 41.15     (b) An application for licensure must specify one or more 
 41.16  controlling individuals as an agent who is responsible for 
 41.17  dealing with the commissioner of human services on all matters 
 41.18  provided for in this chapter and on whom service of all notices 
 41.19  and orders must be made.  The agent must be authorized to accept 
 41.20  service on behalf of all of the controlling individuals of the 
 41.21  program.  Service on the agent is service on all of the 
 41.22  controlling individuals of the program.  It is not a defense to 
 41.23  any action arising under this chapter that service was not made 
 41.24  on each controlling individual of the program.  The designation 
 41.25  of one or more controlling individuals as agents under this 
 41.26  paragraph does not affect the legal responsibility of any other 
 41.27  controlling individual under this chapter. 
 41.28     Sec. 2.  Minnesota Statutes 2002, section 245A.04, 
 41.29  subdivision 3, is amended to read: 
 41.30     Subd. 3.  [BACKGROUND STUDY OF THE APPLICANT; 
 41.31  DEFINITIONS.] (a) Individuals and organizations that are 
 41.32  required in statute under section 245C.03 to have or initiate 
 41.33  background studies under this section shall comply with the 
 41.34  following requirements: in chapter 245C. 
 41.35     (1) Applicants for licensure, license holders, and other 
 41.36  entities as provided in this section must submit completed 
 42.1   background study forms to the commissioner before individuals 
 42.2   specified in paragraph (c), clauses (1) to (4), (6), and (7), 
 42.3   begin positions allowing direct contact in any licensed program. 
 42.4      (2) Applicants and license holders under the jurisdiction 
 42.5   of other state agencies who are required in other statutory 
 42.6   sections to initiate background studies under this section must 
 42.7   submit completed background study forms to the commissioner 
 42.8   prior to the background study subject beginning in a position 
 42.9   allowing direct contact in the licensed program, or where 
 42.10  applicable, prior to being employed. 
 42.11     (3) Organizations required to initiate background studies 
 42.12  under section 256B.0627 for individuals described in paragraph 
 42.13  (c), clause (5), must submit a completed background study form 
 42.14  to the commissioner before those individuals begin a position 
 42.15  allowing direct contact with persons served by the 
 42.16  organization.  The commissioner shall recover the cost of these 
 42.17  background studies through a fee of no more than $12 per study 
 42.18  charged to the organization responsible for submitting the 
 42.19  background study form.  The fees collected under this paragraph 
 42.20  are appropriated to the commissioner for the purpose of 
 42.21  conducting background studies.  
 42.22     Upon receipt of the background study forms from the 
 42.23  entities in clauses (1) to (3), the commissioner shall complete 
 42.24  the background study as specified under this section and provide 
 42.25  notices required in subdivision 3a.  Unless otherwise specified, 
 42.26  the subject of a background study may have direct contact with 
 42.27  persons served by a program after the background study form is 
 42.28  mailed or submitted to the commissioner pending notification of 
 42.29  the study results under subdivision 3a.  A county agency may 
 42.30  accept a background study completed by the commissioner under 
 42.31  this section in place of the background study required under 
 42.32  section 245A.16, subdivision 3, in programs with joint licensure 
 42.33  as home and community-based services and adult foster care for 
 42.34  people with developmental disabilities when the license holder 
 42.35  does not reside in the foster care residence and the subject of 
 42.36  the study has been continuously affiliated with the license 
 43.1   holder since the date of the commissioner's study. 
 43.2      (b) The definitions in this paragraph apply only to 
 43.3   subdivisions 3 to 3e. 
 43.4      (1) "Background study" means the review of records 
 43.5   conducted by the commissioner to determine whether a subject is 
 43.6   disqualified from direct contact with persons served by a 
 43.7   program, and where specifically provided in statutes, whether a 
 43.8   subject is disqualified from having access to persons served by 
 43.9   a program. 
 43.10     (2) "Continuous, direct supervision" means an individual is 
 43.11  within sight or hearing of the supervising person to the extent 
 43.12  that supervising person is capable at all times of intervening 
 43.13  to protect the health and safety of the persons served by the 
 43.14  program. 
 43.15     (3) "Contractor" means any person, regardless of employer, 
 43.16  who is providing program services for hire under the control of 
 43.17  the provider. 
 43.18     (4) "Direct contact" means providing face-to-face care, 
 43.19  training, supervision, counseling, consultation, or medication 
 43.20  assistance to persons served by the program. 
 43.21     (5) "Reasonable cause" means information or circumstances 
 43.22  exist which provide the commissioner with articulable suspicion 
 43.23  that further pertinent information may exist concerning a 
 43.24  subject.  The commissioner has reasonable cause when, but not 
 43.25  limited to, the commissioner has received a report from the 
 43.26  subject, the license holder, or a third party indicating that 
 43.27  the subject has a history that would disqualify the person or 
 43.28  that may pose a risk to the health or safety of persons 
 43.29  receiving services. 
 43.30     (6) "Subject of a background study" means an individual on 
 43.31  whom a background study is required or completed. 
 43.32     (c) The applicant, license holder, registrant under section 
 43.33  144A.71, subdivision 1, bureau of criminal apprehension, 
 43.34  commissioner of health, and county agencies, after written 
 43.35  notice to the individual who is the subject of the study, shall 
 43.36  help with the study by giving the commissioner criminal 
 44.1   conviction data and reports about the maltreatment of adults 
 44.2   substantiated under section 626.557 and the maltreatment of 
 44.3   minors in licensed programs substantiated under section 
 44.4   626.556.  If a background study is initiated by an applicant or 
 44.5   license holder and the applicant or license holder receives 
 44.6   information about the possible criminal or maltreatment history 
 44.7   of an individual who is the subject of the background study, the 
 44.8   applicant or license holder must immediately provide the 
 44.9   information to the commissioner.  The individuals to be studied 
 44.10  shall include: 
 44.11     (1) the applicant; 
 44.12     (2) persons age 13 and over living in the household where 
 44.13  the licensed program will be provided; 
 44.14     (3) current employees or contractors of the applicant who 
 44.15  will have direct contact with persons served by the facility, 
 44.16  agency, or program; 
 44.17     (4) volunteers or student volunteers who have direct 
 44.18  contact with persons served by the program to provide program 
 44.19  services, if the contact is not under the continuous, direct 
 44.20  supervision by an individual listed in clause (1) or (3); 
 44.21     (5) any person required under section 256B.0627 to have a 
 44.22  background study completed under this section; 
 44.23     (6) persons ages 10 to 12 living in the household where the 
 44.24  licensed services will be provided when the commissioner has 
 44.25  reasonable cause; and 
 44.26     (7) persons who, without providing direct contact services 
 44.27  at a licensed program, may have unsupervised access to children 
 44.28  or vulnerable adults receiving services from the program 
 44.29  licensed to provide family child care for children, foster care 
 44.30  for children in the provider's own home, or foster care or day 
 44.31  care services for adults in the provider's own home when the 
 44.32  commissioner has reasonable cause. 
 44.33     (d) According to paragraph (c), clauses (2) and (6), the 
 44.34  commissioner shall review records from the juvenile courts.  For 
 44.35  persons under paragraph (c), clauses (1), (3), (4), (5), and 
 44.36  (7), who are ages 13 to 17, the commissioner shall review 
 45.1   records from the juvenile courts when the commissioner has 
 45.2   reasonable cause.  The juvenile courts shall help with the study 
 45.3   by giving the commissioner existing juvenile court records on 
 45.4   individuals described in paragraph (c), clauses (2), (6), and 
 45.5   (7), relating to delinquency proceedings held within either the 
 45.6   five years immediately preceding the background study or the 
 45.7   five years immediately preceding the individual's 18th birthday, 
 45.8   whichever time period is longer.  The commissioner shall destroy 
 45.9   juvenile records obtained pursuant to this subdivision when the 
 45.10  subject of the records reaches age 23. 
 45.11     (e) Beginning August 1, 2001, the commissioner shall 
 45.12  conduct all background studies required under this chapter and 
 45.13  initiated by supplemental nursing services agencies registered 
 45.14  under section 144A.71, subdivision 1.  Studies for the agencies 
 45.15  must be initiated annually by each agency.  The commissioner 
 45.16  shall conduct the background studies according to this chapter.  
 45.17  The commissioner shall recover the cost of the background 
 45.18  studies through a fee of no more than $8 per study, charged to 
 45.19  the supplemental nursing services agency.  The fees collected 
 45.20  under this paragraph are appropriated to the commissioner for 
 45.21  the purpose of conducting background studies. 
 45.22     (f) For purposes of this section, a finding that a 
 45.23  delinquency petition is proven in juvenile court shall be 
 45.24  considered a conviction in state district court. 
 45.25     (g) A study of an individual in paragraph (c), clauses (1) 
 45.26  to (7), shall be conducted at least upon application for initial 
 45.27  license for all license types or registration under section 
 45.28  144A.71, subdivision 1, and at reapplication for a license for 
 45.29  family child care, child foster care, and adult foster care.  
 45.30  The commissioner is not required to conduct a study of an 
 45.31  individual at the time of reapplication for a license or if the 
 45.32  individual has been continuously affiliated with a foster care 
 45.33  provider licensed by the commissioner of human services and 
 45.34  registered under chapter 144D, other than a family day care or 
 45.35  foster care license, if:  (i) a study of the individual was 
 45.36  conducted either at the time of initial licensure or when the 
 46.1   individual became affiliated with the license holder; (ii) the 
 46.2   individual has been continuously affiliated with the license 
 46.3   holder since the last study was conducted; and (iii) the 
 46.4   procedure described in paragraph (j) has been implemented and 
 46.5   was in effect continuously since the last study was conducted.  
 46.6   For the purposes of this section, a physician licensed under 
 46.7   chapter 147 is considered to be continuously affiliated upon the 
 46.8   license holder's receipt from the commissioner of health or 
 46.9   human services of the physician's background study results.  For 
 46.10  individuals who are required to have background studies under 
 46.11  paragraph (c) and who have been continuously affiliated with a 
 46.12  foster care provider that is licensed in more than one county, 
 46.13  criminal conviction data may be shared among those counties in 
 46.14  which the foster care programs are licensed.  A county agency's 
 46.15  receipt of criminal conviction data from another county agency 
 46.16  shall meet the criminal data background study requirements of 
 46.17  this section. 
 46.18     (h) The commissioner may also conduct studies on 
 46.19  individuals specified in paragraph (c), clauses (3) and (4), 
 46.20  when the studies are initiated by: 
 46.21     (i) personnel pool agencies; 
 46.22     (ii) temporary personnel agencies; 
 46.23     (iii) educational programs that train persons by providing 
 46.24  direct contact services in licensed programs; and 
 46.25     (iv) professional services agencies that are not licensed 
 46.26  and which contract with licensed programs to provide direct 
 46.27  contact services or individuals who provide direct contact 
 46.28  services. 
 46.29     (i) Studies on individuals in paragraph (h), items (i) to 
 46.30  (iv), must be initiated annually by these agencies, programs, 
 46.31  and individuals.  Except as provided in paragraph (a), clause 
 46.32  (3), no applicant, license holder, or individual who is the 
 46.33  subject of the study shall pay any fees required to conduct the 
 46.34  study. 
 46.35     (1) At the option of the licensed facility, rather than 
 46.36  initiating another background study on an individual required to 
 47.1   be studied who has indicated to the licensed facility that a 
 47.2   background study by the commissioner was previously completed, 
 47.3   the facility may make a request to the commissioner for 
 47.4   documentation of the individual's background study status, 
 47.5   provided that: 
 47.6      (i) the facility makes this request using a form provided 
 47.7   by the commissioner; 
 47.8      (ii) in making the request the facility informs the 
 47.9   commissioner that either: 
 47.10     (A) the individual has been continuously affiliated with a 
 47.11  licensed facility since the individual's previous background 
 47.12  study was completed, or since October 1, 1995, whichever is 
 47.13  shorter; or 
 47.14     (B) the individual is affiliated only with a personnel pool 
 47.15  agency, a temporary personnel agency, an educational program 
 47.16  that trains persons by providing direct contact services in 
 47.17  licensed programs, or a professional services agency that is not 
 47.18  licensed and which contracts with licensed programs to provide 
 47.19  direct contact services or individuals who provide direct 
 47.20  contact services; and 
 47.21     (iii) the facility provides notices to the individual as 
 47.22  required in paragraphs (a) to (j), and that the facility is 
 47.23  requesting written notification of the individual's background 
 47.24  study status from the commissioner.  
 47.25     (2) The commissioner shall respond to each request under 
 47.26  paragraph (1) with a written or electronic notice to the 
 47.27  facility and the study subject.  If the commissioner determines 
 47.28  that a background study is necessary, the study shall be 
 47.29  completed without further request from a licensed agency or 
 47.30  notifications to the study subject.  
 47.31     (3) When a background study is being initiated by a 
 47.32  licensed facility or a foster care provider that is also 
 47.33  registered under chapter 144D, a study subject affiliated with 
 47.34  multiple licensed facilities may attach to the background study 
 47.35  form a cover letter indicating the additional facilities' names, 
 47.36  addresses, and background study identification numbers.  When 
 48.1   the commissioner receives such notices, each facility identified 
 48.2   by the background study subject shall be notified of the study 
 48.3   results.  The background study notice sent to the subsequent 
 48.4   agencies shall satisfy those facilities' responsibilities for 
 48.5   initiating a background study on that individual. 
 48.6      (j) If an individual who is affiliated with a program or 
 48.7   facility regulated by the department of human services or 
 48.8   department of health or who is affiliated with any type of home 
 48.9   care agency or provider of personal care assistance services, is 
 48.10  convicted of a crime constituting a disqualification under 
 48.11  subdivision 3d, the probation officer or corrections agent shall 
 48.12  notify the commissioner of the conviction.  For the purpose of 
 48.13  this paragraph, "conviction" has the meaning given it in section 
 48.14  609.02, subdivision 5.  The commissioner, in consultation with 
 48.15  the commissioner of corrections, shall develop forms and 
 48.16  information necessary to implement this paragraph and shall 
 48.17  provide the forms and information to the commissioner of 
 48.18  corrections for distribution to local probation officers and 
 48.19  corrections agents.  The commissioner shall inform individuals 
 48.20  subject to a background study that criminal convictions for 
 48.21  disqualifying crimes will be reported to the commissioner by the 
 48.22  corrections system.  A probation officer, corrections agent, or 
 48.23  corrections agency is not civilly or criminally liable for 
 48.24  disclosing or failing to disclose the information required by 
 48.25  this paragraph.  Upon receipt of disqualifying information, the 
 48.26  commissioner shall provide the notifications required in 
 48.27  subdivision 3a, as appropriate to agencies on record as having 
 48.28  initiated a background study or making a request for 
 48.29  documentation of the background study status of the individual.  
 48.30  This paragraph does not apply to family day care and child 
 48.31  foster care programs. 
 48.32     (k) The individual who is the subject of the study must 
 48.33  provide the applicant or license holder with sufficient 
 48.34  information to ensure an accurate study including the 
 48.35  individual's first, middle, and last name and all other names by 
 48.36  which the individual has been known; home address, city, county, 
 49.1   and state of residence for the past five years; zip code; sex; 
 49.2   date of birth; and driver's license number or state 
 49.3   identification number.  The applicant or license holder shall 
 49.4   provide this information about an individual in paragraph (c), 
 49.5   clauses (1) to (7), on forms prescribed by the commissioner.  By 
 49.6   January 1, 2000, for background studies conducted by the 
 49.7   department of human services, the commissioner shall implement a 
 49.8   system for the electronic transmission of:  (1) background study 
 49.9   information to the commissioner; and (2) background study 
 49.10  results to the license holder.  The commissioner may request 
 49.11  additional information of the individual, which shall be 
 49.12  optional for the individual to provide, such as the individual's 
 49.13  social security number or race. 
 49.14     (l) For programs directly licensed by the commissioner, a 
 49.15  study must include information related to names of substantiated 
 49.16  perpetrators of maltreatment of vulnerable adults that has been 
 49.17  received by the commissioner as required under section 626.557, 
 49.18  subdivision 9c, paragraph (i), and the commissioner's records 
 49.19  relating to the maltreatment of minors in licensed programs, 
 49.20  information from juvenile courts as required in paragraph (c) 
 49.21  for persons listed in paragraph (c), clauses (2), (6), and (7), 
 49.22  and information from the bureau of criminal apprehension.  For 
 49.23  child foster care, adult foster care, and family day care homes, 
 49.24  the study must include information from the county agency's 
 49.25  record of substantiated maltreatment of adults, and the 
 49.26  maltreatment of minors, information from juvenile courts as 
 49.27  required in paragraph (c) for persons listed in paragraph (c), 
 49.28  clauses (2), (6), and (7), and information from the bureau of 
 49.29  criminal apprehension.  The commissioner may also review arrest 
 49.30  and investigative information from the bureau of criminal 
 49.31  apprehension, the commissioner of health, a county attorney, 
 49.32  county sheriff, county agency, local chief of police, other 
 49.33  states, the courts, or the Federal Bureau of Investigation if 
 49.34  the commissioner has reasonable cause to believe the information 
 49.35  is pertinent to the disqualification of an individual listed in 
 49.36  paragraph (c), clauses (1) to (7).  The commissioner is not 
 50.1   required to conduct more than one review of a subject's records 
 50.2   from the Federal Bureau of Investigation if a review of the 
 50.3   subject's criminal history with the Federal Bureau of 
 50.4   Investigation has already been completed by the commissioner and 
 50.5   there has been no break in the subject's affiliation with the 
 50.6   license holder who initiated the background study. 
 50.7      (m) When the commissioner has reasonable cause to believe 
 50.8   that further pertinent information may exist on the subject, the 
 50.9   subject shall provide a set of classifiable fingerprints 
 50.10  obtained from an authorized law enforcement agency.  For 
 50.11  purposes of requiring fingerprints, the commissioner shall be 
 50.12  considered to have reasonable cause under, but not limited to, 
 50.13  the following circumstances: 
 50.14     (1) information from the bureau of criminal apprehension 
 50.15  indicates that the subject is a multistate offender; 
 50.16     (2) information from the bureau of criminal apprehension 
 50.17  indicates that multistate offender status is undetermined; or 
 50.18     (3) the commissioner has received a report from the subject 
 50.19  or a third party indicating that the subject has a criminal 
 50.20  history in a jurisdiction other than Minnesota. 
 50.21     (n) The failure or refusal of an applicant, license holder, 
 50.22  or registrant under section 144A.71, subdivision 1, to cooperate 
 50.23  with the commissioner is reasonable cause to disqualify a 
 50.24  subject, deny a license application or immediately suspend, 
 50.25  suspend, or revoke a license or registration.  Failure or 
 50.26  refusal of an individual to cooperate with the study is just 
 50.27  cause for denying or terminating employment of the individual if 
 50.28  the individual's failure or refusal to cooperate could cause the 
 50.29  applicant's application to be denied or the license holder's 
 50.30  license to be immediately suspended, suspended, or revoked. 
 50.31     (o) The commissioner shall not consider an application to 
 50.32  be complete until all of the information required to be provided 
 50.33  under this subdivision has been received.  
 50.34     (p) No person in paragraph (c), clauses (1) to (7), who is 
 50.35  disqualified as a result of this section may be retained by the 
 50.36  agency in a position involving direct contact with persons 
 51.1   served by the program and no person in paragraph (c), clauses 
 51.2   (2), (6), and (7), or as provided elsewhere in statute who is 
 51.3   disqualified as a result of this section may be allowed access 
 51.4   to persons served by the program, unless the commissioner has 
 51.5   provided written notice to the agency stating that: 
 51.6      (1) the individual may remain in direct contact during the 
 51.7   period in which the individual may request reconsideration as 
 51.8   provided in subdivision 3a, paragraph (b), clause (2) or (3); 
 51.9      (2) the individual's disqualification has been set aside 
 51.10  for that agency as provided in subdivision 3b, paragraph (b); or 
 51.11     (3) the license holder has been granted a variance for the 
 51.12  disqualified individual under subdivision 3e. 
 51.13     (q) Termination of affiliation with persons in paragraph 
 51.14  (c), clauses (1) to (7), made in good faith reliance on a notice 
 51.15  of disqualification provided by the commissioner shall not 
 51.16  subject the applicant or license holder to civil liability. 
 51.17     (r) The commissioner may establish records to fulfill the 
 51.18  requirements of this section. 
 51.19     (s) The commissioner may not disqualify an individual 
 51.20  subject to a study under this section because that person has, 
 51.21  or has had, a mental illness as defined in section 245.462, 
 51.22  subdivision 20. 
 51.23     (t) An individual subject to disqualification under this 
 51.24  subdivision has the applicable rights in subdivision 3a, 3b, or 
 51.25  3c. 
 51.26     (u) For the purposes of background studies completed by 
 51.27  tribal organizations performing licensing activities otherwise 
 51.28  required of the commissioner under this chapter, after obtaining 
 51.29  consent from the background study subject, tribal licensing 
 51.30  agencies shall have access to criminal history data in the same 
 51.31  manner as county licensing agencies and private licensing 
 51.32  agencies under this chapter. 
 51.33     (v) County agencies shall have access to the criminal 
 51.34  history data in the same manner as county licensing agencies 
 51.35  under this chapter for purposes of background studies completed 
 51.36  by county agencies on legal nonlicensed child care providers to 
 52.1   determine eligibility for child care funds under chapter 119B. 
 52.2      Sec. 3.  Minnesota Statutes 2002, section 245A.04, 
 52.3   subdivision 3a, is amended to read: 
 52.4      Subd. 3a.  [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF 
 52.5   NOTICE OF BACKGROUND STUDY RESULTS; COMMISSIONER'S DETERMINATION 
 52.6   OF RISK OF HARM.] (a) Within 15 working days, the commissioner 
 52.7   shall notify the applicant, license holder, or registrant under 
 52.8   section 144A.71, subdivision 1, and the individual who is the 
 52.9   subject of the study, in writing or by electronic transmission, 
 52.10  of the results of the study or that more time is needed to 
 52.11  complete the study.  When the study is completed, a notice that 
 52.12  the study was undertaken and completed shall be maintained in 
 52.13  the personnel files of the program.  For studies on individuals 
 52.14  pertaining to a license to provide family day care or group 
 52.15  family day care, foster care for children in the provider's own 
 52.16  home, or foster care or day care services for adults in the 
 52.17  provider's own home, the commissioner is not required to provide 
 52.18  a separate notice of the background study results to the 
 52.19  individual who is the subject of the study unless the study 
 52.20  results in a disqualification of the individual. 
 52.21     The commissioner shall notify the individual studied if the 
 52.22  information in the study indicates the individual is 
 52.23  disqualified from direct contact with persons served by the 
 52.24  program.  The commissioner shall disclose the information 
 52.25  causing disqualification and instructions on how to request a 
 52.26  reconsideration of the disqualification to the individual 
 52.27  studied.  An applicant or license holder who is not the subject 
 52.28  of the study shall be informed that the commissioner has found 
 52.29  information that disqualifies the subject from direct contact 
 52.30  with persons served by the program.  However, only the 
 52.31  individual studied must be informed of the information contained 
 52.32  in the subject's background study unless the basis for the 
 52.33  disqualification is failure to cooperate, substantiated 
 52.34  maltreatment under section 626.556 or 626.557, the Data 
 52.35  Practices Act provides for release of the information, or the 
 52.36  individual studied authorizes the release of the information.  
 53.1   When a disqualification is based on the subject's failure to 
 53.2   cooperate with the background study or substantiated 
 53.3   maltreatment under section 626.556 or 626.557, the agency that 
 53.4   initiated the study shall be informed by the commissioner of the 
 53.5   reason for the disqualification. 
 53.6      (b) Except as provided in subdivision 3d, paragraph (b), if 
 53.7   the commissioner determines that the individual studied has a 
 53.8   disqualifying characteristic, the commissioner shall review the 
 53.9   information immediately available and make a determination as to 
 53.10  the subject's immediate risk of harm to persons served by the 
 53.11  program where the individual studied will have direct contact.  
 53.12  The commissioner shall consider all relevant information 
 53.13  available, including the following factors in determining the 
 53.14  immediate risk of harm:  the recency of the disqualifying 
 53.15  characteristic; the recency of discharge from probation for the 
 53.16  crimes; the number of disqualifying characteristics; the 
 53.17  intrusiveness or violence of the disqualifying characteristic; 
 53.18  the vulnerability of the victim involved in the disqualifying 
 53.19  characteristic; and the similarity of the victim to the persons 
 53.20  served by the program where the individual studied will have 
 53.21  direct contact.  The commissioner may determine that the 
 53.22  evaluation of the information immediately available gives the 
 53.23  commissioner reason to believe one of the following: 
 53.24     (1) The individual poses an imminent risk of harm to 
 53.25  persons served by the program where the individual studied will 
 53.26  have direct contact.  If the commissioner determines that an 
 53.27  individual studied poses an imminent risk of harm to persons 
 53.28  served by the program where the individual studied will have 
 53.29  direct contact, the individual and the license holder must be 
 53.30  sent a notice of disqualification.  The commissioner shall order 
 53.31  the license holder to immediately remove the individual studied 
 53.32  from direct contact.  The notice to the individual studied must 
 53.33  include an explanation of the basis of this determination. 
 53.34     (2) The individual poses a risk of harm requiring 
 53.35  continuous, direct supervision while providing direct contact 
 53.36  services during the period in which the subject may request a 
 54.1   reconsideration.  If the commissioner determines that an 
 54.2   individual studied poses a risk of harm that requires 
 54.3   continuous, direct supervision, the individual and the license 
 54.4   holder must be sent a notice of disqualification.  The 
 54.5   commissioner shall order the license holder to immediately 
 54.6   remove the individual studied from direct contact services or 
 54.7   assure that the individual studied is under the continuous, 
 54.8   direct supervision of another staff person when providing direct 
 54.9   contact services during the period in which the individual may 
 54.10  request a reconsideration of the disqualification.  If the 
 54.11  individual studied does not submit a timely request for 
 54.12  reconsideration, or the individual submits a timely request for 
 54.13  reconsideration, but the disqualification is not set aside for 
 54.14  that license holder, the license holder will be notified of the 
 54.15  disqualification and ordered to immediately remove the 
 54.16  individual from any position allowing direct contact with 
 54.17  persons receiving services from the license holder. 
 54.18     (3) The individual does not pose an imminent risk of harm 
 54.19  or a risk of harm requiring continuous, direct supervision while 
 54.20  providing direct contact services during the period in which the 
 54.21  subject may request a reconsideration.  If the commissioner 
 54.22  determines that an individual studied does not pose a risk of 
 54.23  harm that requires continuous, direct supervision, only the 
 54.24  individual must be sent a notice of disqualification.  The 
 54.25  license holder must be sent a notice that more time is needed to 
 54.26  complete the individual's background study.  If the individual 
 54.27  studied submits a timely request for reconsideration, and if the 
 54.28  disqualification is set aside for that license holder, the 
 54.29  license holder will receive the same notification received by 
 54.30  license holders in cases where the individual studied has no 
 54.31  disqualifying characteristic.  If the individual studied does 
 54.32  not submit a timely request for reconsideration, or the 
 54.33  individual submits a timely request for reconsideration, but the 
 54.34  disqualification is not set aside for that license holder, the 
 54.35  license holder will be notified of the disqualification and 
 54.36  ordered to immediately remove the individual from any position 
 55.1   allowing direct contact with persons receiving services from the 
 55.2   license holder.  
 55.3      (c) County licensing agencies performing duties under this 
 55.4   subdivision may develop an alternative system for determining 
 55.5   the subject's immediate risk of harm to persons served by the 
 55.6   program, providing the notices under paragraph (b), and 
 55.7   documenting the action taken by the county licensing agency.  
 55.8   Each county licensing agency's implementation of the alternative 
 55.9   system is subject to approval by the commissioner.  
 55.10  Notwithstanding this alternative system, county licensing 
 55.11  agencies shall complete the requirements of paragraph (a)  The 
 55.12  notice of background study results and the commissioner's 
 55.13  determination of the background subject's risk of harm shall be 
 55.14  governed according to sections 245C.16 and 245C.17. 
 55.15     Sec. 4.  Minnesota Statutes 2002, section 245A.04, 
 55.16  subdivision 3b, is amended to read: 
 55.17     Subd. 3b.  [RECONSIDERATION OF DISQUALIFICATION.] (a) The 
 55.18  individual who is the subject of the disqualification may 
 55.19  request a reconsideration of the disqualification.  
 55.20     The individual must submit the request for reconsideration 
 55.21  to the commissioner in writing.  A request for reconsideration 
 55.22  for an individual who has been sent a notice of disqualification 
 55.23  under subdivision 3a, paragraph (b), clause (1) or (2), must be 
 55.24  submitted within 30 calendar days of the disqualified 
 55.25  individual's receipt of the notice of disqualification.  Upon 
 55.26  showing that the information in clause (1) or (2) cannot be 
 55.27  obtained within 30 days, the disqualified individual may request 
 55.28  additional time, not to exceed 30 days, to obtain that 
 55.29  information.  A request for reconsideration for an individual 
 55.30  who has been sent a notice of disqualification under subdivision 
 55.31  3a, paragraph (b), clause (3), must be submitted within 15 
 55.32  calendar days of the disqualified individual's receipt of the 
 55.33  notice of disqualification.  An individual who was determined to 
 55.34  have maltreated a child under section 626.556 or a vulnerable 
 55.35  adult under section 626.557, and who was disqualified under this 
 55.36  section on the basis of serious or recurring maltreatment, may 
 56.1   request reconsideration of both the maltreatment and the 
 56.2   disqualification determinations.  The request for 
 56.3   reconsideration of the maltreatment determination and the 
 56.4   disqualification must be submitted within 30 calendar days of 
 56.5   the individual's receipt of the notice of disqualification.  
 56.6   Removal of a disqualified individual from direct contact shall 
 56.7   be ordered if the individual does not request reconsideration 
 56.8   within the prescribed time, and for an individual who submits a 
 56.9   timely request for reconsideration, if the disqualification is 
 56.10  not set aside.  The individual must present information showing 
 56.11  that: 
 56.12     (1) the information the commissioner relied upon in 
 56.13  determining that the underlying conduct giving rise to the 
 56.14  disqualification occurred, and for maltreatment, that the 
 56.15  maltreatment was serious or recurring, is incorrect; or 
 56.16     (2) the subject of the study does not pose a risk of harm 
 56.17  to any person served by the applicant, license holder, or 
 56.18  registrant under section 144A.71, subdivision 1. 
 56.19     (b) The commissioner shall rescind the disqualification if 
 56.20  the commissioner finds that the information relied on to 
 56.21  disqualify the subject is incorrect.  The commissioner may set 
 56.22  aside the disqualification under this section if the 
 56.23  commissioner finds that the individual does not pose a risk of 
 56.24  harm to any person served by the applicant, license holder, or 
 56.25  registrant under section 144A.71, subdivision 1.  In determining 
 56.26  that an individual does not pose a risk of harm, the 
 56.27  commissioner shall consider the nature, severity, and 
 56.28  consequences of the event or events that lead to 
 56.29  disqualification, whether there is more than one disqualifying 
 56.30  event, the age and vulnerability of the victim at the time of 
 56.31  the event, the harm suffered by the victim, the similarity 
 56.32  between the victim and persons served by the program, the time 
 56.33  elapsed without a repeat of the same or similar event, 
 56.34  documentation of successful completion by the individual studied 
 56.35  of training or rehabilitation pertinent to the event, and any 
 56.36  other information relevant to reconsideration.  In reviewing a 
 57.1   disqualification under this section, the commissioner shall give 
 57.2   preeminent weight to the safety of each person to be served by 
 57.3   the license holder, applicant, or registrant under section 
 57.4   144A.71, subdivision 1, over the interests of the license 
 57.5   holder, applicant, or registrant under section 144A.71, 
 57.6   subdivision 1. 
 57.7      (c) Unless the information the commissioner relied on in 
 57.8   disqualifying an individual is incorrect, the commissioner may 
 57.9   not set aside the disqualification of an individual in 
 57.10  connection with a license to provide family day care for 
 57.11  children, foster care for children in the provider's own home, 
 57.12  or foster care or day care services for adults in the provider's 
 57.13  own home if: 
 57.14     (1) less than ten years have passed since the discharge of 
 57.15  the sentence imposed for the offense; and the individual has 
 57.16  been convicted of a violation of any offense listed in sections 
 57.17  609.165 (felon ineligible to possess firearm), criminal 
 57.18  vehicular homicide under 609.21 (criminal vehicular homicide and 
 57.19  injury), 609.215 (aiding suicide or aiding attempted suicide), 
 57.20  felony violations under 609.223 or 609.2231 (assault in the 
 57.21  third or fourth degree), 609.713 (terroristic threats), 609.235 
 57.22  (use of drugs to injure or to facilitate crime), 609.24 (simple 
 57.23  robbery), 609.255 (false imprisonment), 609.562 (arson in the 
 57.24  second degree), 609.71 (riot), 609.498, subdivision 1 or 1a 
 57.25  (aggravated first degree or first degree tampering with a 
 57.26  witness), burglary in the first or second degree under 609.582 
 57.27  (burglary), 609.66 (dangerous weapon), 609.665 (spring guns), 
 57.28  609.67 (machine guns and short-barreled shotguns), 609.749, 
 57.29  subdivision 2 (gross misdemeanor harassment; stalking), 152.021 
 57.30  or 152.022 (controlled substance crime in the first or second 
 57.31  degree), 152.023, subdivision 1, clause (3) or (4), or 
 57.32  subdivision 2, clause (4) (controlled substance crime in the 
 57.33  third degree), 152.024, subdivision 1, clause (2), (3), or (4) 
 57.34  (controlled substance crime in the fourth degree), 609.224, 
 57.35  subdivision 2, paragraph (c) (fifth-degree assault by a 
 57.36  caregiver against a vulnerable adult), 609.23 (mistreatment of 
 58.1   persons confined), 609.231 (mistreatment of residents or 
 58.2   patients), 609.2325 (criminal abuse of a vulnerable adult), 
 58.3   609.233 (criminal neglect of a vulnerable adult), 609.2335 
 58.4   (financial exploitation of a vulnerable adult), 609.234 (failure 
 58.5   to report), 609.265 (abduction), 609.2664 to 609.2665 
 58.6   (manslaughter of an unborn child in the first or second degree), 
 58.7   609.267 to 609.2672 (assault of an unborn child in the first, 
 58.8   second, or third degree), 609.268 (injury or death of an unborn 
 58.9   child in the commission of a crime), 617.293 (disseminating or 
 58.10  displaying harmful material to minors), a felony level 
 58.11  conviction involving alcohol or drug use, a gross misdemeanor 
 58.12  offense under 609.324, subdivision 1 (other prohibited acts), a 
 58.13  gross misdemeanor offense under 609.378 (neglect or endangerment 
 58.14  of a child), a gross misdemeanor offense under 609.377 
 58.15  (malicious punishment of a child), 609.72, subdivision 3 
 58.16  (disorderly conduct against a vulnerable adult); or an attempt 
 58.17  or conspiracy to commit any of these offenses, as each of these 
 58.18  offenses is defined in Minnesota Statutes; or an offense in any 
 58.19  other state, the elements of which are substantially similar to 
 58.20  the elements of any of the foregoing offenses; 
 58.21     (2) regardless of how much time has passed since the 
 58.22  involuntary termination of parental rights under section 
 58.23  260C.301 or the discharge of the sentence imposed for the 
 58.24  offense, the individual was convicted of a violation of any 
 58.25  offense listed in sections 609.185 to 609.195 (murder in the 
 58.26  first, second, or third degree), 609.20 (manslaughter in the 
 58.27  first degree), 609.205 (manslaughter in the second degree), 
 58.28  609.245 (aggravated robbery), 609.25 (kidnapping), 609.561 
 58.29  (arson in the first degree), 609.749, subdivision 3, 4, or 5 
 58.30  (felony-level harassment; stalking), 609.228 (great bodily harm 
 58.31  caused by distribution of drugs), 609.221 or 609.222 (assault in 
 58.32  the first or second degree), 609.66, subdivision 1e (drive-by 
 58.33  shooting), 609.855, subdivision 5 (shooting in or at a public 
 58.34  transit vehicle or facility), 609.2661 to 609.2663 (murder of an 
 58.35  unborn child in the first, second, or third degree), a felony 
 58.36  offense under 609.377 (malicious punishment of a child), a 
 59.1   felony offense under 609.324, subdivision 1 (other prohibited 
 59.2   acts), a felony offense under 609.378 (neglect or endangerment 
 59.3   of a child), 609.322 (solicitation, inducement, and promotion of 
 59.4   prostitution), 609.342 to 609.345 (criminal sexual conduct in 
 59.5   the first, second, third, or fourth degree), 609.352 
 59.6   (solicitation of children to engage in sexual conduct), 617.246 
 59.7   (use of minors in a sexual performance), 617.247 (possession of 
 59.8   pictorial representations of a minor), 609.365 (incest), a 
 59.9   felony offense under sections 609.2242 and 609.2243 (domestic 
 59.10  assault), a felony offense of spousal abuse, a felony offense of 
 59.11  child abuse or neglect, a felony offense of a crime against 
 59.12  children, or an attempt or conspiracy to commit any of these 
 59.13  offenses as defined in Minnesota Statutes, or an offense in any 
 59.14  other state, the elements of which are substantially similar to 
 59.15  any of the foregoing offenses; 
 59.16     (3) within the seven years preceding the study, the 
 59.17  individual committed an act that constitutes maltreatment of a 
 59.18  child under section 626.556, subdivision 10e, and that resulted 
 59.19  in substantial bodily harm as defined in section 609.02, 
 59.20  subdivision 7a, or substantial mental or emotional harm as 
 59.21  supported by competent psychological or psychiatric evidence; or 
 59.22     (4) within the seven years preceding the study, the 
 59.23  individual was determined under section 626.557 to be the 
 59.24  perpetrator of a substantiated incident of maltreatment of a 
 59.25  vulnerable adult that resulted in substantial bodily harm as 
 59.26  defined in section 609.02, subdivision 7a, or substantial mental 
 59.27  or emotional harm as supported by competent psychological or 
 59.28  psychiatric evidence. 
 59.29     In the case of any ground for disqualification under 
 59.30  clauses (1) to (4), if the act was committed by an individual 
 59.31  other than the applicant, license holder, or registrant under 
 59.32  section 144A.71, subdivision 1, residing in the applicant's or 
 59.33  license holder's home, or the home of a registrant under section 
 59.34  144A.71, subdivision 1, the applicant, license holder, or 
 59.35  registrant under section 144A.71, subdivision 1, may seek 
 59.36  reconsideration when the individual who committed the act no 
 60.1   longer resides in the home.  
 60.2      The disqualification periods provided under clauses (1), 
 60.3   (3), and (4) are the minimum applicable disqualification 
 60.4   periods.  The commissioner may determine that an individual 
 60.5   should continue to be disqualified from licensure or 
 60.6   registration under section 144A.71, subdivision 1, because the 
 60.7   license holder, applicant, or registrant under section 144A.71, 
 60.8   subdivision 1, poses a risk of harm to a person served by that 
 60.9   individual after the minimum disqualification period has passed. 
 60.10     (d) The commissioner shall respond in writing or by 
 60.11  electronic transmission to all reconsideration requests for 
 60.12  which the basis for the request is that the information relied 
 60.13  upon by the commissioner to disqualify is incorrect or 
 60.14  inaccurate within 30 working days of receipt of a request and 
 60.15  all relevant information.  If the basis for the request is that 
 60.16  the individual does not pose a risk of harm, the commissioner 
 60.17  shall respond to the request within 15 working days after 
 60.18  receiving the request for reconsideration and all relevant 
 60.19  information.  If the request is based on both the correctness or 
 60.20  accuracy of the information relied on to disqualify the 
 60.21  individual and the risk of harm, the commissioner shall respond 
 60.22  to the request within 45 working days after receiving the 
 60.23  request for reconsideration and all relevant information.  If 
 60.24  the disqualification is set aside, the commissioner shall notify 
 60.25  the applicant or license holder in writing or by electronic 
 60.26  transmission of the decision. 
 60.27     (e) Except as provided in subdivision 3c, if a 
 60.28  disqualification for which reconsideration was requested is not 
 60.29  set aside or is not rescinded, an individual who was 
 60.30  disqualified on the basis of a preponderance of evidence that 
 60.31  the individual committed an act or acts that meet the definition 
 60.32  of any of the crimes listed in subdivision 3d, paragraph (a), 
 60.33  clauses (1) to (4); or for failure to make required reports 
 60.34  under section 626.556, subdivision 3, or 626.557, subdivision 3, 
 60.35  pursuant to subdivision 3d, paragraph (a), clause (4), may 
 60.36  request a fair hearing under section 256.045.  Except as 
 61.1   provided under subdivision 3c, the fair hearing is the only 
 61.2   administrative appeal of the final agency determination, 
 61.3   specifically, including a challenge to the accuracy and 
 61.4   completeness of data under section 13.04.  
 61.5      (f) Except as provided under subdivision 3c, if an 
 61.6   individual was disqualified on the basis of a determination of 
 61.7   maltreatment under section 626.556 or 626.557, which was serious 
 61.8   or recurring, and the individual has requested reconsideration 
 61.9   of the maltreatment determination under section 626.556, 
 61.10  subdivision 10i, or 626.557, subdivision 9d, and also requested 
 61.11  reconsideration of the disqualification under this subdivision, 
 61.12  reconsideration of the maltreatment determination and 
 61.13  reconsideration of the disqualification shall be consolidated 
 61.14  into a single reconsideration.  For maltreatment and 
 61.15  disqualification determinations made by county agencies, the 
 61.16  consolidated reconsideration shall be conducted by the county 
 61.17  agency.  If the county agency has disqualified an individual on 
 61.18  multiple bases, one of which is a county maltreatment 
 61.19  determination for which the individual has a right to request 
 61.20  reconsideration, the county shall conduct the reconsideration of 
 61.21  all disqualifications.  Except as provided under subdivision 3c, 
 61.22  if an individual who was disqualified on the basis of serious or 
 61.23  recurring maltreatment requests a fair hearing on the 
 61.24  maltreatment determination under section 626.556, subdivision 
 61.25  10i, or 626.557, subdivision 9d, and requests a fair hearing on 
 61.26  the disqualification, which has not been set aside or rescinded 
 61.27  under this subdivision, the scope of the fair hearing under 
 61.28  section 256.045 shall include the maltreatment determination and 
 61.29  the disqualification.  Except as provided under subdivision 3c, 
 61.30  a fair hearing is the only administrative appeal of the final 
 61.31  agency determination, specifically, including a challenge to the 
 61.32  accuracy and completeness of data under section 13.04. 
 61.33     (g) In the notice from the commissioner that a 
 61.34  disqualification has been set aside, the license holder must be 
 61.35  informed that information about the nature of the 
 61.36  disqualification and which factors under paragraph (b) were the 
 62.1   bases of the decision to set aside the disqualification is 
 62.2   available to the license holder upon request without consent of 
 62.3   the background study subject.  With the written consent of a 
 62.4   background study subject, the commissioner may release to the 
 62.5   license holder copies of all information related to the 
 62.6   background study subject's disqualification and the 
 62.7   commissioner's decision to set aside the disqualification as 
 62.8   specified in the written consent Reconsideration of a 
 62.9   disqualification shall be governed according to sections 245C.21 
 62.10  to 245C.27. 
 62.11     Sec. 5.  Minnesota Statutes 2002, section 245A.04, 
 62.12  subdivision 3c, is amended to read: 
 62.13     Subd. 3c.  [CONTESTED CASE.] (a) Notwithstanding 
 62.14  subdivision 3b, paragraphs (e) and (f), if a disqualification is 
 62.15  not set aside, a person who is an employee of an employer, as 
 62.16  defined in section 179A.03, subdivision 15, may request a 
 62.17  contested case hearing under chapter 14.  If the 
 62.18  disqualification which was not set aside or was not rescinded 
 62.19  was based on a maltreatment determination, the scope of the 
 62.20  contested case hearing shall include the maltreatment 
 62.21  determination and the disqualification.  In such cases, a fair 
 62.22  hearing shall not be conducted under section 256.045.  Rules 
 62.23  adopted under this chapter may not preclude an employee in a 
 62.24  contested case hearing for disqualification from submitting 
 62.25  evidence concerning information gathered under subdivision 3, 
 62.26  paragraph (e). 
 62.27     (b) If a disqualification for which reconsideration was 
 62.28  requested and which was not set aside or was not rescinded under 
 62.29  subdivision 3b is the basis for a denial of a license under 
 62.30  section 245A.05 or a licensing sanction under section 245A.07, 
 62.31  the license holder has the right to a contested case hearing 
 62.32  under chapter 14 and Minnesota Rules, parts 1400.8510 to 
 62.33  1400.8612 and successor rules.  The appeal must be submitted in 
 62.34  accordance with section 245A.05 or 245A.07, subdivision 3.  As 
 62.35  provided for under section 245A.08, subdivision 2a, the scope of 
 62.36  the consolidated contested case hearing shall include the 
 63.1   disqualification and the licensing sanction or denial of a 
 63.2   license.  If the disqualification was based on a determination 
 63.3   of substantiated serious or recurring maltreatment under section 
 63.4   626.556 or 626.557, the appeal must be submitted in accordance 
 63.5   with sections 245A.07, subdivision 3, and 626.556, subdivision 
 63.6   10i, or 626.557, subdivision 9d.  As provided for under section 
 63.7   245A.08, subdivision 2a, the scope of the contested case hearing 
 63.8   shall include the maltreatment determination, the 
 63.9   disqualification, and the licensing sanction or denial of a 
 63.10  license.  In such cases, a fair hearing shall not be conducted 
 63.11  under section 256.045. 
 63.12     (c) If a maltreatment determination or disqualification, 
 63.13  which was not set aside or was not rescinded under subdivision 
 63.14  3b, is the basis for a denial of a license under section 245A.05 
 63.15  or a licensing sanction under section 245A.07, and the 
 63.16  disqualified subject is an individual other than the license 
 63.17  holder and upon whom a background study must be conducted under 
 63.18  subdivision 3, the hearing of all parties may be consolidated 
 63.19  into a single contested case hearing upon consent of all parties 
 63.20  and the administrative law judge.  
 63.21     (d) The commissioner's final order under section 245A.08, 
 63.22  subdivision 5, is conclusive on the issue of maltreatment and 
 63.23  disqualification, including for purposes of subsequent 
 63.24  background studies.  The contested case hearing under this 
 63.25  subdivision is the only administrative appeal of the final 
 63.26  agency determination, specifically, including a challenge to the 
 63.27  accuracy and completeness of data under section 13.04 Contested 
 63.28  case hearing rights related to a disqualification shall be 
 63.29  governed according to section 245C.28. 
 63.30     Sec. 6.  Minnesota Statutes 2002, section 245A.04, 
 63.31  subdivision 3d, is amended to read: 
 63.32     Subd. 3d.  [DISQUALIFICATION.] (a) Upon receipt of 
 63.33  information showing, or when a background study completed under 
 63.34  subdivision 3 shows any of the following:  a conviction of one 
 63.35  or more crimes listed in clauses (1) to (4); the individual has 
 63.36  admitted to or a preponderance of the evidence indicates the 
 64.1   individual has committed an act or acts that meet the definition 
 64.2   of any of the crimes listed in clauses (1) to (4); or an 
 64.3   investigation results in an administrative determination listed 
 64.4   under clause (4), the individual shall be disqualified from any 
 64.5   position allowing direct contact with persons receiving services 
 64.6   from the license holder, entity identified in subdivision 3, 
 64.7   paragraph (a), or registrant under section 144A.71, subdivision 
 64.8   1, and for individuals studied under section 245A.04, 
 64.9   subdivision 3, paragraph (c), clauses (2), (6), and (7), the 
 64.10  individual shall also be disqualified from access to a person 
 64.11  receiving services from the license holder: 
 64.12     (1) regardless of how much time has passed since the 
 64.13  involuntary termination of parental rights under section 
 64.14  260C.301 or the discharge of the sentence imposed for the 
 64.15  offense, and unless otherwise specified, regardless of the level 
 64.16  of the conviction, the individual was convicted of any of the 
 64.17  following offenses:  sections 609.185 (murder in the first 
 64.18  degree); 609.19 (murder in the second degree); 609.195 (murder 
 64.19  in the third degree); 609.2661 (murder of an unborn child in the 
 64.20  first degree); 609.2662 (murder of an unborn child in the second 
 64.21  degree); 609.2663 (murder of an unborn child in the third 
 64.22  degree); 609.20 (manslaughter in the first degree); 609.205 
 64.23  (manslaughter in the second degree); 609.221 or 609.222 (assault 
 64.24  in the first or second degree); 609.228 (great bodily harm 
 64.25  caused by distribution of drugs); 609.245 (aggravated robbery); 
 64.26  609.25 (kidnapping); 609.561 (arson in the first degree); 
 64.27  609.749, subdivision 3, 4, or 5 (felony-level harassment; 
 64.28  stalking); 609.66, subdivision 1e (drive-by shooting); 609.855, 
 64.29  subdivision 5 (shooting at or in a public transit vehicle or 
 64.30  facility); 609.322 (solicitation, inducement, and promotion of 
 64.31  prostitution); 609.342 (criminal sexual conduct in the first 
 64.32  degree); 609.343 (criminal sexual conduct in the second degree); 
 64.33  609.344 (criminal sexual conduct in the third degree); 609.345 
 64.34  (criminal sexual conduct in the fourth degree); 609.352 
 64.35  (solicitation of children to engage in sexual conduct); 609.365 
 64.36  (incest); felony offense under 609.377 (malicious punishment of 
 65.1   a child); a felony offense under 609.378 (neglect or 
 65.2   endangerment of a child); a felony offense under 609.324, 
 65.3   subdivision 1 (other prohibited acts); 617.246 (use of minors in 
 65.4   sexual performance prohibited); 617.247 (possession of pictorial 
 65.5   representations of minors); a felony offense under sections 
 65.6   609.2242 and 609.2243 (domestic assault), a felony offense of 
 65.7   spousal abuse, a felony offense of child abuse or neglect, a 
 65.8   felony offense of a crime against children; or attempt or 
 65.9   conspiracy to commit any of these offenses as defined in 
 65.10  Minnesota Statutes, or an offense in any other state or country, 
 65.11  where the elements are substantially similar to any of the 
 65.12  offenses listed in this clause; 
 65.13     (2) if less than 15 years have passed since the discharge 
 65.14  of the sentence imposed for the offense; and the individual has 
 65.15  received a felony conviction for a violation of any of these 
 65.16  offenses:  sections 609.21 (criminal vehicular homicide and 
 65.17  injury); 609.165 (felon ineligible to possess firearm); 609.215 
 65.18  (suicide); 609.223 or 609.2231 (assault in the third or fourth 
 65.19  degree); repeat offenses under 609.224 (assault in the fifth 
 65.20  degree); repeat offenses under 609.3451 (criminal sexual conduct 
 65.21  in the fifth degree); 609.498, subdivision 1 or 1a (aggravated 
 65.22  first degree or first degree tampering with a witness); 609.713 
 65.23  (terroristic threats); 609.235 (use of drugs to injure or 
 65.24  facilitate crime); 609.24 (simple robbery); 609.255 (false 
 65.25  imprisonment); 609.562 (arson in the second degree); 609.563 
 65.26  (arson in the third degree); repeat offenses under 617.23 
 65.27  (indecent exposure; penalties); repeat offenses under 617.241 
 65.28  (obscene materials and performances; distribution and exhibition 
 65.29  prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 
 65.30  609.67 (machine guns and short-barreled shotguns); 609.2325 
 65.31  (criminal abuse of a vulnerable adult); 609.2664 (manslaughter 
 65.32  of an unborn child in the first degree); 609.2665 (manslaughter 
 65.33  of an unborn child in the second degree); 609.267 (assault of an 
 65.34  unborn child in the first degree); 609.2671 (assault of an 
 65.35  unborn child in the second degree); 609.268 (injury or death of 
 65.36  an unborn child in the commission of a crime); 609.52 (theft); 
 66.1   609.2335 (financial exploitation of a vulnerable adult); 609.521 
 66.2   (possession of shoplifting gear); 609.582 (burglary); 609.625 
 66.3   (aggravated forgery); 609.63 (forgery); 609.631 (check forgery; 
 66.4   offering a forged check); 609.635 (obtaining signature by false 
 66.5   pretense); 609.27 (coercion); 609.275 (attempt to coerce); 
 66.6   609.687 (adulteration); 260C.301 (grounds for termination of 
 66.7   parental rights); chapter 152 (drugs; controlled substance); and 
 66.8   a felony level conviction involving alcohol or drug use.  An 
 66.9   attempt or conspiracy to commit any of these offenses, as each 
 66.10  of these offenses is defined in Minnesota Statutes; or an 
 66.11  offense in any other state or country, the elements of which are 
 66.12  substantially similar to the elements of the offenses in this 
 66.13  clause.  If the individual studied is convicted of one of the 
 66.14  felonies listed in this clause, but the sentence is a gross 
 66.15  misdemeanor or misdemeanor disposition, the lookback period for 
 66.16  the conviction is the period applicable to the disposition, that 
 66.17  is the period for gross misdemeanors or misdemeanors; 
 66.18     (3) if less than ten years have passed since the discharge 
 66.19  of the sentence imposed for the offense; and the individual has 
 66.20  received a gross misdemeanor conviction for a violation of any 
 66.21  of the following offenses:  sections 609.224 (assault in the 
 66.22  fifth degree); 609.2242 and 609.2243 (domestic assault); 
 66.23  violation of an order for protection under 518B.01, subdivision 
 66.24  14; 609.3451 (criminal sexual conduct in the fifth degree); 
 66.25  repeat offenses under 609.746 (interference with privacy); 
 66.26  repeat offenses under 617.23 (indecent exposure); 617.241 
 66.27  (obscene materials and performances); 617.243 (indecent 
 66.28  literature, distribution); 617.293 (harmful materials; 
 66.29  dissemination and display to minors prohibited); 609.71 (riot); 
 66.30  609.66 (dangerous weapons); 609.749, subdivision 2 (harassment; 
 66.31  stalking); 609.224, subdivision 2, paragraph (c) (assault in the 
 66.32  fifth degree by a caregiver against a vulnerable adult); 609.23 
 66.33  (mistreatment of persons confined); 609.231 (mistreatment of 
 66.34  residents or patients); 609.2325 (criminal abuse of a vulnerable 
 66.35  adult); 609.233 (criminal neglect of a vulnerable adult); 
 66.36  609.2335 (financial exploitation of a vulnerable adult); 609.234 
 67.1   (failure to report maltreatment of a vulnerable adult); 609.72, 
 67.2   subdivision 3 (disorderly conduct against a vulnerable adult); 
 67.3   609.265 (abduction); 609.378 (neglect or endangerment of a 
 67.4   child); 609.377 (malicious punishment of a child); 609.324, 
 67.5   subdivision 1a (other prohibited acts; minor engaged in 
 67.6   prostitution); 609.33 (disorderly house); 609.52 (theft); 
 67.7   609.582 (burglary); 609.631 (check forgery; offering a forged 
 67.8   check); 609.275 (attempt to coerce); or an attempt or conspiracy 
 67.9   to commit any of these offenses, as each of these offenses is 
 67.10  defined in Minnesota Statutes; or an offense in any other state 
 67.11  or country, the elements of which are substantially similar to 
 67.12  the elements of any of the offenses listed in this clause.  If 
 67.13  the defendant is convicted of one of the gross misdemeanors 
 67.14  listed in this clause, but the sentence is a misdemeanor 
 67.15  disposition, the lookback period for the conviction is the 
 67.16  period applicable to misdemeanors; or 
 67.17     (4) if less than seven years have passed since the 
 67.18  discharge of the sentence imposed for the offense; and the 
 67.19  individual has received a misdemeanor conviction for a violation 
 67.20  of any of the following offenses:  sections 609.224 (assault in 
 67.21  the fifth degree); 609.2242 (domestic assault); violation of an 
 67.22  order for protection under 518B.01 (Domestic Abuse Act); 
 67.23  violation of an order for protection under 609.3232 (protective 
 67.24  order authorized; procedures; penalties); 609.746 (interference 
 67.25  with privacy); 609.79 (obscene or harassing phone calls); 
 67.26  609.795 (letter, telegram, or package; opening; harassment); 
 67.27  617.23 (indecent exposure; penalties); 609.2672 (assault of an 
 67.28  unborn child in the third degree); 617.293 (harmful materials; 
 67.29  dissemination and display to minors prohibited); 609.66 
 67.30  (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
 67.31  exploitation of a vulnerable adult); 609.234 (failure to report 
 67.32  maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
 67.33  (coercion); or an attempt or conspiracy to commit any of these 
 67.34  offenses, as each of these offenses is defined in Minnesota 
 67.35  Statutes; or an offense in any other state or country, the 
 67.36  elements of which are substantially similar to the elements of 
 68.1   any of the offenses listed in this clause; a determination or 
 68.2   disposition of failure to make required reports under section 
 68.3   626.556, subdivision 3, or 626.557, subdivision 3, for incidents 
 68.4   in which:  (i) the final disposition under section 626.556 or 
 68.5   626.557 was substantiated maltreatment, and (ii) the 
 68.6   maltreatment was recurring or serious; or a determination or 
 68.7   disposition of substantiated serious or recurring maltreatment 
 68.8   of a minor under section 626.556 or of a vulnerable adult under 
 68.9   section 626.557 for which there is a preponderance of evidence 
 68.10  that the maltreatment occurred, and that the subject was 
 68.11  responsible for the maltreatment. 
 68.12     For the purposes of this section, "serious maltreatment" 
 68.13  means sexual abuse; maltreatment resulting in death; or 
 68.14  maltreatment resulting in serious injury which reasonably 
 68.15  requires the care of a physician whether or not the care of a 
 68.16  physician was sought; or abuse resulting in serious injury.  For 
 68.17  purposes of this section, "abuse resulting in serious injury" 
 68.18  means:  bruises, bites, skin laceration or tissue damage; 
 68.19  fractures; dislocations; evidence of internal injuries; head 
 68.20  injuries with loss of consciousness; extensive second-degree or 
 68.21  third-degree burns and other burns for which complications are 
 68.22  present; extensive second-degree or third-degree frostbite, and 
 68.23  others for which complications are present; irreversible 
 68.24  mobility or avulsion of teeth; injuries to the eyeball; 
 68.25  ingestion of foreign substances and objects that are harmful; 
 68.26  near drowning; and heat exhaustion or sunstroke.  For purposes 
 68.27  of this section, "care of a physician" is treatment received or 
 68.28  ordered by a physician, but does not include diagnostic testing, 
 68.29  assessment, or observation.  For the purposes of this section, 
 68.30  "recurring maltreatment" means more than one incident of 
 68.31  maltreatment for which there is a preponderance of evidence that 
 68.32  the maltreatment occurred, and that the subject was responsible 
 68.33  for the maltreatment.  For purposes of this section, "access" 
 68.34  means physical access to an individual receiving services or the 
 68.35  individual's personal property without continuous, direct 
 68.36  supervision as defined in section 245A.04, subdivision 3.  
 69.1      (b) Except for background studies related to child foster 
 69.2   care, adult foster care, or family child care licensure, when 
 69.3   the subject of a background study is regulated by a 
 69.4   health-related licensing board as defined in chapter 214, and 
 69.5   the regulated person has been determined to have been 
 69.6   responsible for substantiated maltreatment under section 626.556 
 69.7   or 626.557, instead of the commissioner making a decision 
 69.8   regarding disqualification, the board shall make a determination 
 69.9   whether to impose disciplinary or corrective action under 
 69.10  chapter 214. 
 69.11     (1) The commissioner shall notify the health-related 
 69.12  licensing board: 
 69.13     (i) upon completion of a background study that produces a 
 69.14  record showing that the individual was determined to have been 
 69.15  responsible for substantiated maltreatment; 
 69.16     (ii) upon the commissioner's completion of an investigation 
 69.17  that determined the individual was responsible for substantiated 
 69.18  maltreatment; or 
 69.19     (iii) upon receipt from another agency of a finding of 
 69.20  substantiated maltreatment for which the individual was 
 69.21  responsible. 
 69.22     (2) The commissioner's notice shall indicate whether the 
 69.23  individual would have been disqualified by the commissioner for 
 69.24  the substantiated maltreatment if the individual were not 
 69.25  regulated by the board.  The commissioner shall concurrently 
 69.26  send this notice to the individual. 
 69.27     (3) Notwithstanding the exclusion from this subdivision for 
 69.28  individuals who provide child foster care, adult foster care, or 
 69.29  family child care, when the commissioner or a local agency has 
 69.30  reason to believe that the direct contact services provided by 
 69.31  the individual may fall within the jurisdiction of a 
 69.32  health-related licensing board, a referral shall be made to the 
 69.33  board as provided in this section. 
 69.34     (4) If, upon review of the information provided by the 
 69.35  commissioner, a health-related licensing board informs the 
 69.36  commissioner that the board does not have jurisdiction to take 
 70.1   disciplinary or corrective action, the commissioner shall make 
 70.2   the appropriate disqualification decision regarding the 
 70.3   individual as otherwise provided in this chapter. 
 70.4      (5) The commissioner has the authority to monitor the 
 70.5   facility's compliance with any requirements that the 
 70.6   health-related licensing board places on regulated persons 
 70.7   practicing in a facility either during the period pending a 
 70.8   final decision on a disciplinary or corrective action or as a 
 70.9   result of a disciplinary or corrective action.  The commissioner 
 70.10  has the authority to order the immediate removal of a regulated 
 70.11  person from direct contact or access when a board issues an 
 70.12  order of temporary suspension based on a determination that the 
 70.13  regulated person poses an immediate risk of harm to persons 
 70.14  receiving services in a licensed facility. 
 70.15     (6) A facility that allows a regulated person to provide 
 70.16  direct contact services while not complying with the 
 70.17  requirements imposed by the health-related licensing board is 
 70.18  subject to action by the commissioner as specified under 
 70.19  sections 245A.06 and 245A.07. 
 70.20     (7) The commissioner shall notify a health-related 
 70.21  licensing board immediately upon receipt of knowledge of 
 70.22  noncompliance with requirements placed on a facility or upon a 
 70.23  person regulated by the board Disqualification shall be governed 
 70.24  according to sections 245C.14 and 245C.15. 
 70.25     Sec. 7.  Minnesota Statutes 2002, section 245A.04, 
 70.26  subdivision 3e, is amended to read: 
 70.27     Subd. 3e.  [VARIANCE FOR A DISQUALIFIED PERSON 
 70.28  INDIVIDUAL.] (a) When a background study subject's 
 70.29  disqualification has not been set aside by the commissioner, and 
 70.30  there are conditions under which the disqualified individual may 
 70.31  provide direct contact services or have access to people 
 70.32  receiving services that minimize the risk of harm to people 
 70.33  receiving services, the commissioner may grant a time-limited 
 70.34  variance to a license holder that states the reason for the 
 70.35  disqualification, the services that may be provided by the 
 70.36  disqualified individual, and the conditions with which the 
 71.1   license holder or applicant must comply for the variance to be 
 71.2   effective. 
 71.3      (b) Except for programs licensed to provide family day care 
 71.4   for children, foster care for children in the provider's own 
 71.5   home, or foster care or day care services for adults in the 
 71.6   provider's own home, the commissioner may not grant a variance 
 71.7   for a disqualified person unless the applicant or license holder 
 71.8   has requested the variance and the disqualified individual has 
 71.9   provided written consent for the commissioner to disclose to the 
 71.10  applicant or license holder the reason for the disqualification. 
 71.11     (c) When a license holder permits a disqualified individual 
 71.12  to provide any services for which the subject is disqualified 
 71.13  without complying with the conditions of the variance, 
 71.14  termination of the variance is immediate and the license holder 
 71.15  may be subject to fines or sanctions under sections 245A.06 and 
 71.16  245A.07. 
 71.17     (d) The commissioner may terminate a variance for a 
 71.18  disqualified person at any time for cause. 
 71.19     (e) The commissioner's decision to grant or deny a variance 
 71.20  request is final and not subject to appeal under the provisions 
 71.21  of chapter 14 A variance for a disqualified individual shall be 
 71.22  governed according to section 245C.30. 
 71.23     Sec. 8.  Minnesota Statutes 2002, section 245A.04, 
 71.24  subdivision 3f, is amended to read: 
 71.25     Subd. 3f.  [CONCLUSIVE DETERMINATIONS OR DISPOSITIONS.] 
 71.26  Unless otherwise specified in statute, the following 
 71.27  determinations or dispositions are deemed conclusive: 
 71.28     (1) a maltreatment determination or disposition under 
 71.29  section 626.556 or 626.557, if: 
 71.30     (i) the commissioner has issued a final order in an appeal 
 71.31  of that determination or disposition under section 245A.08, 
 71.32  subdivision 5, or 256.045; 
 71.33     (ii) the individual did not request reconsideration of the 
 71.34  maltreatment determination or disposition under section 626.556 
 71.35  or 626.557; or 
 71.36     (iii) the individual did not request a hearing of the 
 72.1   maltreatment determination or disposition under section 256.045; 
 72.2   and 
 72.3      (2) a determination that the information relied upon to 
 72.4   disqualify an individual under subdivision 3d was correct based 
 72.5   on serious or recurring maltreatment; or 
 72.6      (3) a preponderance of evidence shows that the individual 
 72.7   committed an act or acts that meet the definition of any of the 
 72.8   crimes listed in subdivision 3d, paragraph (a), clauses (1) to 
 72.9   (4); or the individual's failure to make required reports under 
 72.10  section 626.556, subdivision 3, or 626.557, subdivision 3, if: 
 72.11     (i) the commissioner has issued a final order in an appeal 
 72.12  of that determination under section 245A.08, subdivision 5, or 
 72.13  256.045, or a court has issued a final decision; 
 72.14     (ii) the individual did not request reconsideration of the 
 72.15  disqualification under this section; or 
 72.16     (iii) the individual did not request a hearing on the 
 72.17  disqualification under section 256.045 Whether a 
 72.18  disqualification determination or maltreatment determination or 
 72.19  disposition is deemed conclusive shall be governed according to 
 72.20  section 245C.29. 
 72.21     Sec. 9.  Minnesota Statutes 2002, section 245A.041, is 
 72.22  amended to read: 
 72.23     245A.041 [SYSTEMS AND RECORDS.] 
 72.24     Subdivision 1.  [ESTABLISHMENT; USE.] (a) The commissioner 
 72.25  may establish systems and records to fulfill the requirements of 
 72.26  section 245A.04.  The commissioner may also use these systems 
 72.27  and records to obtain and provide criminal history data from the 
 72.28  bureau of criminal apprehension and data about substantiated 
 72.29  maltreatment under section 626.556 or 626.557, for other 
 72.30  purposes, provided that: 
 72.31     (1) the background study is specifically authorized in 
 72.32  statute; or 
 72.33     (2) the request is made with the informed consent of the 
 72.34  subject of the study as provided in section 13.05, subdivision 4.
 72.35     A person making a request under clause (2) must agree in 
 72.36  writing not to disclose the data to any other person without the 
 73.1   consent of the subject of the data. 
 73.2      (b) The commissioner may recover the cost of obtaining and 
 73.3   providing background study data by charging the person 
 73.4   requesting the study a fee of no more than $12 per study.  The 
 73.5   fees collected under this paragraph are appropriated to the 
 73.6   commissioner for the purpose of conducting background 
 73.7   studies The commissioner's establishment and use of systems and 
 73.8   records to fulfill the requirements under chapter 245C shall be 
 73.9   governed according to section 245C.32, subdivisions 1 and 2. 
 73.10     Subd. 2.  [NATIONAL RECORDS SEARCH.] (a) When specifically 
 73.11  required by statute, the commissioner shall also obtain criminal 
 73.12  history data from the National Criminal Records Repository.  To 
 73.13  obtain criminal history data from the National Criminal Records 
 73.14  Repository, the commissioner shall require classifiable 
 73.15  fingerprints of the data subject and must submit these 
 73.16  fingerprint requests through the bureau of criminal 
 73.17  apprehension.  The commissioner may recover the cost of 
 73.18  obtaining and providing criminal history data from the National 
 73.19  Criminal Records Repository by charging the person requesting 
 73.20  the study a fee of no more than $30 per study.  The fees 
 73.21  collected under this subdivision are appropriated to the 
 73.22  commissioner for the purpose of obtaining criminal history data 
 73.23  from the National Criminal Records Repository. 
 73.24     (b) To obtain criminal history data from the National 
 73.25  Criminal Records Repository under this chapter, the commissioner 
 73.26  may require the background study subject to submit fingerprint 
 73.27  images electronically.  The commissioner may not require 
 73.28  electronic fingerprint images until the electronic recording and 
 73.29  transfer system is available for non-criminal-justice purposes 
 73.30  and the necessary equipment is in use in the law enforcement 
 73.31  agency in the background study subject's local 
 73.32  community National records searches shall be governed according 
 73.33  to section 245C.32, subdivision 3. 
 73.34     Sec. 10.  [EFFECTIVE DATE.] 
 73.35     Sections 1 to 9 are effective the day following final 
 73.36  enactment.