1st Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to human services; changing provisions for 1.3 licensing background studies; amending Minnesota 1.4 Statutes 2000, sections 13.46, subdivision 4; 144.057, 1.5 subdivision 3; 214.104; 245A.04, subdivisions 3a, 3b, 1.6 3c, 3d; 245A.05; 245A.06; 245A.07; 245A.08; 256.045, 1.7 subdivisions 3, 3b, 4; 626.556, subdivision 10i; 1.8 626.557, subdivisions 3, 9d; 626.5572, subdivision 17. 1.9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.10 Section 1. Minnesota Statutes 2000, section 13.46, 1.11 subdivision 4, is amended to read: 1.12 Subd. 4. [LICENSING DATA.] (a) As used in this subdivision: 1.13 (1) "licensing data" means all data collected, maintained, 1.14 used, or disseminated by the welfare system pertaining to 1.15 persons licensed or registered or who apply for licensure or 1.16 registration or who formerly were licensed or registered under 1.17 the authority of the commissioner of human services; 1.18 (2) "client" means a person who is receiving services from 1.19 a licensee or from an applicant for licensure; and 1.20 (3) "personal and personal financial data" means social 1.21 security numbers, identity of and letters of reference, 1.22 insurance information, reports from the bureau of criminal 1.23 apprehension, health examination reports, and social/home 1.24 studies. 1.25 (b)(1) Except as provided in paragraph (c), the following 1.26 data on current and former licensees are public: name, address, 1.27 telephone number of licensees, licensed capacity, type of client 2.1 preferred, variances granted, type of dwelling, name and 2.2 relationship of other family members, previous license history, 2.3 class of license, and the existence and status of complaints. 2.4 When disciplinary action has been taken against a licensee or 2.5 the complaint is resolved, the following data are public: the 2.6 substance of the complaint, the findings of the investigation of 2.7 the complaint, the record of informal resolution of a licensing 2.8 violation, orders of hearing, findings of fact, conclusions of 2.9 law, and specifications of the final disciplinary action 2.10 contained in the record of disciplinary action. 2.11 (2) The following data on persons subject to 2.12 disqualification under section 245A.04 in connection with a 2.13 license to provide family day care for children, child care 2.14 center services, foster care for children in the provider's 2.15 home, or foster care or day care services for adults in the 2.16 provider's home, are public: the nature of any disqualification 2.17 set aside under section 245A.04, subdivision 3b, and the reasons 2.18 for setting aside the disqualification; and the reasons for 2.19 granting any variance under section 245A.04, subdivision 9. 2.20 (3) When maltreatment is substantiated under section 2.21 626.556 or 626.557 and the victim and the substantiated 2.22 perpetrator are affiliated with a program licensed under chapter 2.23 245A, the commissioner of human services, local social services 2.24 agency, or county welfare agency may inform the license holder 2.25 where the maltreatment occurred of the identity of the 2.26 substantiated perpetrator and the victim. 2.27 (c) The following are private data on individuals under 2.28 section 13.02, subdivision 12, or nonpublic data under section 2.29 13.02, subdivision 9: personal and personal financial data on 2.30 family day care program and family foster care program 2.31 applicants and licensees and their family members who provide 2.32 services under the license. 2.33 (d) The following are private data on individuals: the 2.34 identity of persons who have made reports concerning licensees 2.35 or applicants that appear in inactive investigative data, and 2.36 the records of clients or employees of the licensee or applicant 3.1 for licensure whose records are received by the licensing agency 3.2 for purposes of review or in anticipation of a contested 3.3 matter. The names of reporters under sections 626.556 and 3.4 626.557 may be disclosed only as provided in section 626.556, 3.5 subdivision 11, or 626.557, subdivision 12b. 3.6 (e) Data classified as private, confidential, nonpublic, or 3.7 protected nonpublic under this subdivision become public data if 3.8 submitted to a court or administrative law judge as part of a 3.9 disciplinary proceeding in which there is a public hearing 3.10 concerning the disciplinary action. 3.11 (f) Data generated in the course of licensing 3.12 investigations that relate to an alleged violation of law are 3.13 investigative data under subdivision 3. 3.14 (g) Data that are not public data collected, maintained, 3.15 used, or disseminated under this subdivision that relate to or 3.16 are derived from a report as defined in section 626.556, 3.17 subdivision 2, are subject to the destruction provisions of 3.18 section 626.556, subdivision 11. 3.19 (h) Upon request, not public data collected, maintained, 3.20 used, or disseminated under this subdivision that relate to or 3.21 are derived from a report of substantiated maltreatment as 3.22 defined in section 626.556 or 626.557 may be exchanged with the 3.23 department of health for purposes of completing background 3.24 studies pursuant to section 144.057. 3.25 (i) Data on individuals collected according to licensing 3.26 activities under chapter 245A, and data on individuals collected 3.27 by the commissioner of human services according to maltreatment 3.28 investigations under sections 626.556 and 626.557, may be shared 3.29 with the department of human rights, the department of health, 3.30 the ombudsman for mental health and retardation, and the 3.31 individual's professional regulatory board when there is reason 3.32 to believe that laws or standards under the jurisdiction of 3.33 those agencies may have been violated. 3.34 Sec. 2. Minnesota Statutes 2000, section 144.057, 3.35 subdivision 3, is amended to read: 3.36 Subd. 3. [RECONSIDERATIONS.] Except for the provisions 4.1 under section 245A.04, subdivisions 3b, paragraphs (e) and (f); 4.2 and 3c, the commissioner of health shall review and decide 4.3 reconsideration requests, including the granting of variances, 4.4 in accordance with the procedures and criteria contained in 4.5 chapter 245A and Minnesota Rules, parts 9543.3000 to 9543.3090. 4.6 The commissioner's decision shall be provided to the individual 4.7 and to the department of human services. The commissioner's 4.8 decision to grant or deny a reconsideration of disqualification 4.9 is the final administrative agency action. 4.10 Sec. 3. Minnesota Statutes 2000, section 214.104, is 4.11 amended to read: 4.12 214.104 [HEALTH-RELATED LICENSING BOARDS; DETERMINATIONS 4.13 REGARDINGDISQUALIFICATIONS FORMALTREATMENT.] 4.14 (a) A health-related licensing board shall make 4.15 determinations as to whetherlicenseesregulated persons who are 4.16 under the board's jurisdiction should bedisqualified under4.17section 245A.04, subdivision 3d, from positions allowing direct4.18contact with persons receiving servicesthe subject of 4.19 disciplinary or corrective action because of substantiated 4.20 maltreatment under section 626.556 or 626.557.A determination4.21under this section may be done as part of an investigation under4.22section 214.103.The board shall make a determinationwithin 904.23days ofupon receipt, and after the review, of an investigation 4.24 memorandum or other notice of substantiated maltreatment under 4.25 section 626.556 or 626.557, or of a notice from the commissioner 4.26 of human services that a background study of alicensee4.27 regulated person shows substantiated maltreatment.The board4.28shall also make a determination under this section upon4.29consideration of the licensure of an individual who was subject4.30to disqualification before licensure because of substantiated4.31maltreatment.4.32(b) In making a determination under this section, the board4.33shall consider the nature and extent of any injury or harm4.34resulting from the conduct that would constitute grounds for4.35disqualification, the seriousness of the misconduct, the extent4.36that disqualification is necessary to protect persons receiving5.1services or the public, and other factors specified in section5.2245A.04, subdivision 3b, paragraph (b).5.3(c) The board shall determine the duration and extent of5.4the disqualification or may establish conditions under which the5.5licensee may hold a position allowing direct contact with5.6persons receiving services or in a licensed facility.5.7 (b) Upon completion of its review of a report of 5.8 substantiated maltreatment, the board shall notify the 5.9 commissioner of human servicesand the lead agency that5.10conducted an investigation under section 626.556 or 626.557, as5.11applicable,of its determination. The board shall notify the 5.12 commissioner of human services if, following a review of the 5.13 report of substantiated maltreatment, the board determines that 5.14 it does not have jurisdiction in the matter and the commissioner 5.15 shall make the appropriate disqualification decision regarding 5.16 the regulated person as otherwise provided in chapter 245A. The 5.17 board shall also notify the commissioner of health or the 5.18 commissioner of human services immediately upon receipt of 5.19 knowledge of a facility or program allowing a regulated person 5.20 to provide direct contact services at the facility or program 5.21 while not complying with requirements placed on the regulated 5.22 person. 5.23 (c) In addition to any other remedy provided by law, the 5.24 board may, through its designated board member, temporarily 5.25 suspend the license of a licensee; deny a credential to an 5.26 applicant; or require the regulated person to be continuously 5.27 supervised, if the board finds there is probable cause to 5.28 believe the regulated person referred to the board according to 5.29 paragraph (a) poses an immediate risk of harm to vulnerable 5.30 persons. The board shall consider all relevant information 5.31 available, which may include but is not limited to: 5.32 (1) the extent the action is needed to protect persons 5.33 receiving services or the public; 5.34 (2) the recency of the maltreatment; 5.35 (3) the number of incidents of maltreatment; 5.36 (4) the intrusiveness or violence of the maltreatment; and 6.1 (5) the vulnerability of the victim of maltreatment. 6.2 The action shall take effect upon written notice to the 6.3 regulated person, served by certified mail, specifying the 6.4 statute violated. The board shall notify the commissioner of 6.5 health or the commissioner of human services of the suspension 6.6 or denial of a credential. The action shall remain in effect 6.7 until the board issues a temporary stay or a final order in the 6.8 matter after a hearing or upon agreement between the board and 6.9 the regulated person. At the time the board issues the notice, 6.10 the regulated person shall inform the board of all settings in 6.11 which the regulated person is employed or practices. The board 6.12 shall inform all known employment and practice settings of the 6.13 board action and schedule a disciplinary hearing to be held 6.14 under chapter 14. The board shall provide the regulated person 6.15 with at least 30 days' notice of the hearing, unless the parties 6.16 agree to a hearing date that provides less than 30 days' notice, 6.17 and shall schedule the hearing to begin no later than 90 days 6.18 after issuance of the notice of hearing. 6.19 Sec. 4. Minnesota Statutes 2000, section 245A.04, 6.20 subdivision 3a, is amended to read: 6.21 Subd. 3a. [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF 6.22 STUDY RESULTS; DETERMINATION OF RISK OF HARM.] (a) The 6.23 commissioner shall notify the applicant or license holder and 6.24 the individual who is the subject of the study, in writing or by 6.25 electronic transmission, of the results of the study. When the 6.26 study is completed, a notice that the study was undertaken and 6.27 completed shall be maintained in the personnel files of the 6.28 program. For studies on individuals pertaining to a license to 6.29 provide family day care or group family day care, foster care 6.30 for children in the provider's own home, or foster care or day 6.31 care services for adults in the provider's own home, the 6.32 commissioner is not required to provide a separate notice of the 6.33 background study results to the individual who is the subject of 6.34 the study unless the study results in a disqualification of the 6.35 individual. 6.36 The commissioner shall notify the individual studied if the 7.1 information in the study indicates the individual is 7.2 disqualified from direct contact with persons served by the 7.3 program. The commissioner shall disclose the information 7.4 causing disqualification and instructions on how to request a 7.5 reconsideration of the disqualification to the individual 7.6 studied. An applicant or license holder who is not the subject 7.7 of the study shall be informed that the commissioner has found 7.8 information that disqualifies the subject from direct contact 7.9 with persons served by the program. However, only the 7.10 individual studied must be informed of the information contained 7.11 in the subject's background study unless theonlybasis for the 7.12 disqualification is failure to cooperate, substantiated 7.13 maltreatment under section 626.556 or 626.557, the Data 7.14 Practices Act provides for release of the information, or the 7.15 individual studied authorizes the release of the 7.16 information. When a disqualification is based on the subject's 7.17 failure to cooperate with the background study or substantiated 7.18 maltreatment under section 626.556 or 626.557, the agency that 7.19 initiated the study shall be informed by the commissioner of the 7.20 reason for the disqualification. 7.21 (b) Except as provided in subdivision 3d, paragraph (b), if 7.22 the commissioner determines that the individual studied has a 7.23 disqualifying characteristic, the commissioner shall review the 7.24 information immediately available and make a determination as to 7.25 the subject's immediate risk of harm to persons served by the 7.26 program where the individual studied will have direct contact. 7.27 The commissioner shall consider all relevant information 7.28 available, including the following factors in determining the 7.29 immediate risk of harm: the recency of the disqualifying 7.30 characteristic; the recency of discharge from probation for the 7.31 crimes; the number of disqualifying characteristics; the 7.32 intrusiveness or violence of the disqualifying characteristic; 7.33 the vulnerability of the victim involved in the disqualifying 7.34 characteristic; and the similarity of the victim to the persons 7.35 served by the program where the individual studied will have 7.36 direct contact. The commissioner may determine that the 8.1 evaluation of the information immediately available gives the 8.2 commissioner reason to believe one of the following: 8.3 (1) The individual poses an imminent risk of harm to 8.4 persons served by the program where the individual studied will 8.5 have direct contact. If the commissioner determines that an 8.6 individual studied poses an imminent risk of harm to persons 8.7 served by the program where the individual studied will have 8.8 direct contact, the individual and the license holder must be 8.9 sent a notice of disqualification. The commissioner shall order 8.10 the license holder to immediately remove the individual studied 8.11 from direct contact. The notice to the individual studied must 8.12 include an explanation of the basis of this determination. 8.13 (2) The individual poses a risk of harm requiring 8.14 continuous supervision while providing direct contact services 8.15 during the period in which the subject may request a 8.16 reconsideration. If the commissioner determines that an 8.17 individual studied poses a risk of harm that requires continuous 8.18 supervision, the individual and the license holder must be sent 8.19 a notice of disqualification. The commissioner shall order the 8.20 license holder to immediately remove the individual studied from 8.21 direct contact services or assure that the individual studied is 8.22 within sight or hearing of another staff person when providing 8.23 direct contact services during the period in which the 8.24 individual may request a reconsideration of the 8.25 disqualification. If the individual studied does not submit a 8.26 timely request for reconsideration, or the individual submits a 8.27 timely request for reconsideration, but the disqualification is 8.28 not set aside for that license holder, the license holder will 8.29 be notified of the disqualification and ordered to immediately 8.30 remove the individual from any position allowing direct contact 8.31 with persons receiving services from the license holder. 8.32 (3) The individual does not pose an imminent risk of harm 8.33 or a risk of harm requiring continuous supervision while 8.34 providing direct contact services during the period in which the 8.35 subject may request a reconsideration. If the commissioner 8.36 determines that an individual studied does not pose a risk of 9.1 harm that requires continuous supervision, only the individual 9.2 must be sent a notice of disqualification. The license holder 9.3 must be sent a notice that more time is needed to complete the 9.4 individual's background study. If the individual studied 9.5 submits a timely request for reconsideration, and if the 9.6 disqualification is set aside for that license holder, the 9.7 license holder will receive the same notification received by 9.8 license holders in cases where the individual studied has no 9.9 disqualifying characteristic. If the individual studied does 9.10 not submit a timely request for reconsideration, or the 9.11 individual submits a timely request for reconsideration, but the 9.12 disqualification is not set aside for that license holder, the 9.13 license holder will be notified of the disqualification and 9.14 ordered to immediately remove the individual from any position 9.15 allowing direct contact with persons receiving services from the 9.16 license holder. 9.17 (c) County licensing agencies performing duties under this 9.18 subdivision may develop an alternative system for determining 9.19 the subject's immediate risk of harm to persons served by the 9.20 program, providing the notices under paragraph (b), and 9.21 documenting the action taken by the county licensing agency. 9.22 Each county licensing agency's implementation of the alternative 9.23 system is subject to approval by the commissioner. 9.24 Notwithstanding this alternative system, county licensing 9.25 agencies shall complete the requirements of paragraph (a). 9.26 Sec. 5. Minnesota Statutes 2000, section 245A.04, 9.27 subdivision 3b, is amended to read: 9.28 Subd. 3b. [RECONSIDERATION OF DISQUALIFICATION.] (a) The 9.29 individual who is the subject of the disqualification may 9.30 request a reconsideration of the disqualification. 9.31 The individual must submit the request for reconsideration 9.32 to the commissioner in writing. A request for reconsideration 9.33 for an individual who has been sent a notice of disqualification 9.34 under subdivision 3a, paragraph (b), clause (1) or (2), must be 9.35 submitted within3015 calendar days of the disqualified 9.36 individual's receipt of the notice of disqualification.A10.1request for reconsideration for an individual who has been sent10.2a notice of disqualification under subdivision 3a, paragraph10.3(b), clause (3), must be submitted within 15 calendar days of10.4the disqualified individual's receipt of the notice of10.5disqualification.Removal of a disqualified individual from 10.6 direct contact shall be ordered if the individual does not 10.7 request reconsideration within the prescribed time, and for an 10.8 individual who submits a timely request for reconsideration, if 10.9 the disqualification is not set aside. The individual must 10.10 present information showing that: 10.11 (1) the information the commissioner relied upon is 10.12 incorrect or inaccurate. If the basis of a reconsideration 10.13 request is that a maltreatment determination or disposition 10.14 under section 626.556 or 626.557 is incorrect, and the 10.15 commissioner has issued a final order in an appeal of that 10.16 determination or disposition under section 256.045 or 245A.08, 10.17 subdivision 5, the commissioner's order is conclusive on the 10.18 issue of maltreatment. If the individual did not request 10.19 reconsideration of the maltreatment determination, the 10.20 maltreatment determination is deemed conclusive; or 10.21 (2) the subject of the study does not pose a risk of harm 10.22 to any person served by the applicant or license holder. 10.23 (b) The commissioner shall rescind the disqualification if 10.24 the commissioner finds that the information relied on to 10.25 disqualify the subject is incorrect. The commissioner may set 10.26 aside the disqualification under this section if the 10.27 commissioner finds that theinformation the commissioner relied10.28upon is incorrect or theindividual does not pose a risk of harm 10.29 to any person served by the applicant or license holder. In 10.30 determining that an individual does not pose a risk of harm, the 10.31 commissioner shall consider the consequences of the event or 10.32 events that lead to disqualification, whether there is more than 10.33 one disqualifying event, the vulnerability of the victim at the 10.34 time of the event, the time elapsed without a repeat of the same 10.35 or similar event, documentation of successful completion by the 10.36 individual studied of training or rehabilitation pertinent to 11.1 the event, and any other information relevant to 11.2 reconsideration. In reviewing a disqualification under this 11.3 section, the commissioner shall give preeminent weight to the 11.4 safety of each person to be served by the license holder or 11.5 applicant over the interests of the license holder or applicant. 11.6 (c) Unless the information the commissioner relied on in 11.7 disqualifying an individual is incorrect, the commissioner may 11.8 not set aside the disqualification of an individual in 11.9 connection with a license to provide family day care for 11.10 children, foster care for children in the provider's own home, 11.11 or foster care or day care services for adults in the provider's 11.12 own home if: 11.13 (1) less than ten years have passed since the discharge of 11.14 the sentence imposed for the offense; and the individual has 11.15 been convicted of a violation of any offense listed in sections 11.16 609.20 (manslaughter in the first degree), 609.205 (manslaughter 11.17 in the second degree), criminal vehicular homicide under 609.21 11.18 (criminal vehicular homicide and injury), 609.215 (aiding 11.19 suicide or aiding attempted suicide), felony violations under 11.20 609.221 to 609.2231 (assault in the first, second, third, or 11.21 fourth degree), 609.713 (terroristic threats), 609.235 (use of 11.22 drugs to injure or to facilitate crime), 609.24 (simple 11.23 robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 11.24 609.255 (false imprisonment), 609.561 or 609.562 (arson in the 11.25 first or second degree), 609.71 (riot), burglary in the first or 11.26 second degree under 609.582 (burglary), 609.66 (dangerous 11.27 weapon), 609.665 (spring guns), 609.67 (machine guns and 11.28 short-barreled shotguns), 609.749 (harassment; stalking), 11.29 152.021 or 152.022 (controlled substance crime in the first or 11.30 second degree), 152.023, subdivision 1, clause (3) or (4), or 11.31 subdivision 2, clause (4) (controlled substance crime in the 11.32 third degree), 152.024, subdivision 1, clause (2), (3), or (4) 11.33 (controlled substance crime in the fourth degree), 609.224, 11.34 subdivision 2, paragraph (c) (fifth-degree assault by a 11.35 caregiver against a vulnerable adult), 609.228 (great bodily 11.36 harm caused by distribution of drugs), 609.23 (mistreatment of 12.1 persons confined), 609.231 (mistreatment of residents or 12.2 patients), 609.2325 (criminal abuse of a vulnerable adult), 12.3 609.233 (criminal neglect of a vulnerable adult), 609.2335 12.4 (financial exploitation of a vulnerable adult), 609.234 (failure 12.5 to report), 609.265 (abduction), 609.2664 to 609.2665 12.6 (manslaughter of an unborn child in the first or second degree), 12.7 609.267 to 609.2672 (assault of an unborn child in the first, 12.8 second, or third degree), 609.268 (injury or death of an unborn 12.9 child in the commission of a crime), 617.293 (disseminating or 12.10 displaying harmful material to minors), a gross misdemeanor 12.11 offense under 609.324, subdivision 1 (other prohibited acts), a 12.12 gross misdemeanor offense under 609.378 (neglect or endangerment 12.13 of a child), a gross misdemeanor offense under 609.377 12.14 (malicious punishment of a child), 609.72, subdivision 3 12.15 (disorderly conduct against a vulnerable adult); or an attempt 12.16 or conspiracy to commit any of these offenses, as each of these 12.17 offenses is defined in Minnesota Statutes; or an offense in any 12.18 other state, the elements of which are substantially similar to 12.19 the elements of any of the foregoing offenses; 12.20 (2) regardless of how much time has passed since the 12.21 discharge of the sentence imposed for the offense, the 12.22 individual was convicted of a violation of any offense listed in 12.23 sections 609.185 to 609.195 (murder in the first, second, or 12.24 third degree), 609.2661 to 609.2663 (murder of an unborn child 12.25 in the first, second, or third degree), a felony offense under 12.26 609.377 (malicious punishment of a child), a felony offense 12.27 under 609.324, subdivision 1 (other prohibited acts), a felony 12.28 offense under 609.378 (neglect or endangerment of a child), 12.29 609.322 (solicitation, inducement, and promotion of 12.30 prostitution), 609.342 to 609.345 (criminal sexual conduct in 12.31 the first, second, third, or fourth degree), 609.352 12.32 (solicitation of children to engage in sexual conduct), 617.246 12.33 (use of minors in a sexual performance), 617.247 (possession of 12.34 pictorial representations of a minor), 609.365 (incest), a 12.35 felony offense under sections 609.2242 and 609.2243 (domestic 12.36 assault), a felony offense of spousal abuse, a felony offense of 13.1 child abuse or neglect, a felony offense of a crime against 13.2 children, or an attempt or conspiracy to commit any of these 13.3 offenses as defined in Minnesota Statutes, or an offense in any 13.4 other state, the elements of which are substantially similar to 13.5 any of the foregoing offenses; 13.6 (3) within the seven years preceding the study, the 13.7 individual committed an act that constitutes maltreatment of a 13.8 child under section 626.556, subdivision 10e, and that resulted 13.9 in substantial bodily harm as defined in section 609.02, 13.10 subdivision 7a, or substantial mental or emotional harm as 13.11 supported by competent psychological or psychiatric evidence; or 13.12 (4) within the seven years preceding the study, the 13.13 individual was determined under section 626.557 to be the 13.14 perpetrator of a substantiated incident of maltreatment of a 13.15 vulnerable adult that resulted in substantial bodily harm as 13.16 defined in section 609.02, subdivision 7a, or substantial mental 13.17 or emotional harm as supported by competent psychological or 13.18 psychiatric evidence. 13.19 In the case of any ground for disqualification under 13.20 clauses (1) to (4), if the act was committed by an individual 13.21 other than the applicant or license holder residing in the 13.22 applicant's or license holder's home, the applicant or license 13.23 holder may seek reconsideration when the individual who 13.24 committed the act no longer resides in the home. 13.25 The disqualification periods provided under clauses (1), 13.26 (3), and (4) are the minimum applicable disqualification 13.27 periods. The commissioner may determine that an individual 13.28 should continue to be disqualified from licensure because the 13.29 license holder or applicant poses a risk of harm to a person 13.30 served by that individual after the minimum disqualification 13.31 period has passed. 13.32 (d) The commissioner shall respond in writing or by 13.33 electronic transmission to all reconsideration requests for 13.34 which the basis for the request is that the information relied 13.35 upon by the commissioner to disqualify is incorrect or 13.36 inaccurate within 30 working days of receipt of a request and 14.1 all relevant information. If the basis for the request is that 14.2 the individual does not pose a risk of harm, the commissioner 14.3 shall respond to the request within 15 working days after 14.4 receiving the request for reconsideration and all relevant 14.5 information. If the request is based on both the correctness or 14.6 accuracy of the information relied on to disqualify the 14.7 individual and the risk of harm, the commissioner shall respond 14.8 to the request within 45 working days after receiving the 14.9 request for reconsideration and all relevant information. If 14.10 the disqualification is set aside, the commissioner shall notify 14.11 the applicant or license holder in writing or by electronic 14.12 transmission of the decision. 14.13 (e) Except as provided in subdivision 3c,the14.14commissioner's decision to disqualify an individual, including14.15the decision to grant or deny a rescission or set aside a14.16disqualification under this section, is the final administrative14.17agency action and shall not be subject to further review in a14.18contested case under chapter 14 involving a negative licensing14.19appeal taken in response to the disqualification or involving an14.20accuracy and completeness appeal under section 13.04if a 14.21 disqualification is not set aside, an individual who was 14.22 disqualified on the basis of a preponderance of evidence that 14.23 the individual committed an act or acts that meet the definition 14.24 of any of the crimes lists in subdivision 3d, clauses (1) to 14.25 (4); or for failure to make required reports under section 14.26 626.556, subdivision 3, or 626.557, subdivision 3, pursuant to 14.27 subdivision 3d, clause (4), may request a fair hearing under 14.28 section 256.045. 14.29 (f) Except as provided under subdivision 3c, if an 14.30 individual was disqualified on the basis of a determination of 14.31 maltreatment under section 626.556 or 626.557, which was serious 14.32 or recurring, and the individual has requested reconsideration 14.33 of the maltreatment determination under section 626.556, 14.34 subdivision 10i, or 626.557, subdivision 9d, and also requested 14.35 reconsideration of the disqualification under this subdivision, 14.36 reconsideration of the maltreatment determination and 15.1 reconsideration of the disqualification shall be consolidated 15.2 into a single reconsideration. For maltreatment and 15.3 disqualification determinations made by county agencies, the 15.4 consolidated reconsideration shall be conducted by the county 15.5 agency. Except as provided under subdivision 3c, if an 15.6 individual who was disqualified on the basis of serious 15.7 recurring maltreatment requests a fair hearing on the 15.8 maltreatment determination under section 626.556, subdivision 15.9 10i, or 626.557, subdivision 9d, the scope of the fair hearing 15.10 under section 256.045 shall include the maltreatment 15.11 determination and the disqualification. Except as provided 15.12 under subdivision 3c, the hearing for an individual under this 15.13 paragraph is conclusive on the issue of maltreatment and 15.14 disqualification, including for purposes of subsequent studies 15.15 conducted under section 245A.04, subdivision 3, and is the only 15.16 administrative appeal of the final agency determination, 15.17 specifically, including a challenge to the accuracy and 15.18 completeness of data under section 13.04. 15.19 Sec. 6. Minnesota Statutes 2000, section 245A.04, 15.20 subdivision 3c, is amended to read: 15.21 Subd. 3c. [CONTESTED CASE.]If a disqualification is not15.22set aside, a person who is an employee of an employer, as15.23defined in section 179A.03, subdivision 15, may request a15.24contested case hearing under chapter 14. Rules adopted under15.25this chapter may not preclude an employee in a contested case15.26hearing for disqualification from submitting evidence concerning15.27information gathered under subdivision 3, paragraph (e).(a) If 15.28 a disqualification for which reconsideration was requested and 15.29 which was not set aside under subdivision 3b, is the basis for a 15.30 denial of a license under section 245A.05 or a licensing 15.31 sanction under section 245A.07, the license holder has the right 15.32 to a contested case hearing under chapter 14 and Minnesota 15.33 Rules, parts 1400.8550 to 1400.8612. The appeal must be 15.34 submitted in accordance with section 245A.07, subdivision 3. As 15.35 provided for under section 245A.08, subdivision 2a, the scope of 15.36 the consolidated contested case hearing shall include the 16.1 disqualification and the licensing sanction. If the 16.2 disqualification was based on a determination of substantiated 16.3 serious or recurring maltreatment under section 626.556 or 16.4 626.557, the appeal must be submitted in accordance with 16.5 sections 245A.07, subdivision 3, and 626.556, subdivision 10i, 16.6 or 626.557, subdivision 9d. As provided for under section 16.7 245A.08, subdivision 2a, the scope of the contested case hearing 16.8 shall include the maltreatment determination, the 16.9 disqualification, and the licensing sanction. In such cases, a 16.10 fair hearing shall not be conducted under section 256.045. 16.11 (b) If a maltreatment determination or disqualification, 16.12 which was not set aside under subdivision 3b, is the basis for 16.13 licensing sanction under section 245A.07, and the disqualified 16.14 subject is an individual other than the license holder and upon 16.15 whom a background study must be conducted under subdivision 3, 16.16 the hearing of all parties may be consolidated into a single 16.17 contested case hearing upon consent of all parties and the 16.18 administrative law judge. 16.19 (c) The commissioner's final order under section 245A.08, 16.20 subdivision 5, is conclusive on the issue of maltreatment and 16.21 disqualification, including for purposes of subsequent 16.22 background studies. The contested case hearing under this 16.23 subdivision is the only administrative appeal of the final 16.24 agency determination, specifically, including a challenge to the 16.25 accuracy and completeness of data under section 13.04. 16.26 Sec. 7. Minnesota Statutes 2000, section 245A.04, 16.27 subdivision 3d, is amended to read: 16.28 Subd. 3d. [DISQUALIFICATION.] (a) Except as provided in 16.29 paragraph (b), when a background study completed under 16.30 subdivision 3 shows any of the following: a conviction of one 16.31 or more crimes listed in clauses (1) to (4); the individual has 16.32 admitted to or a preponderance of the evidence indicates the 16.33 individual has committed an act or acts that meet the definition 16.34 of any of the crimes listed in clauses (1) to (4); or an 16.35 investigation results in an administrative determination listed 16.36 under clause (4), the individual shall be disqualified from any 17.1 position allowing direct contact with persons receiving services 17.2 from the license holder: 17.3 (1) regardless of how much time has passed since the 17.4 discharge of the sentence imposed for the offense, and unless 17.5 otherwise specified, regardless of the level of the conviction, 17.6 the individual was convicted of any of the following offenses: 17.7 sections 609.185 (murder in the first degree); 609.19 (murder in 17.8 the second degree); 609.195 (murder in the third degree); 17.9 609.2661 (murder of an unborn child in the first degree); 17.10 609.2662 (murder of an unborn child in the second degree); 17.11 609.2663 (murder of an unborn child in the third degree); 17.12 609.322 (solicitation, inducement, and promotion of 17.13 prostitution); 609.342 (criminal sexual conduct in the first 17.14 degree); 609.343 (criminal sexual conduct in the second degree); 17.15 609.344 (criminal sexual conduct in the third degree); 609.345 17.16 (criminal sexual conduct in the fourth degree); 609.352 17.17 (solicitation of children to engage in sexual conduct); 609.365 17.18 (incest); felony offense under 609.377 (malicious punishment of 17.19 a child); a felony offense under 609.378 (neglect or 17.20 endangerment of a child); a felony offense under 609.324, 17.21 subdivision 1 (other prohibited acts); 617.246 (use of minors in 17.22 sexual performance prohibited); 617.247 (possession of pictorial 17.23 representations of minors); a felony offense under sections 17.24 609.2242 and 609.2243 (domestic assault), a felony offense of 17.25 spousal abuse, a felony offense of child abuse or neglect, a 17.26 felony offense of a crime against children; or attempt or 17.27 conspiracy to commit any of these offenses as defined in 17.28 Minnesota Statutes, or an offense in any other state or country, 17.29 where the elements are substantially similar to any of the 17.30 offenses listed in this clause; 17.31 (2) if less than 15 years have passed since the discharge 17.32 of the sentence imposed for the offense; and the individual has 17.33 received a felony conviction for a violation of any of these 17.34 offenses: sections 609.20 (manslaughter in the first degree); 17.35 609.205 (manslaughter in the second degree); 609.21 (criminal 17.36 vehicular homicide and injury); 609.215 (suicide); 609.221 to 18.1 609.2231 (assault in the first, second, third, or fourth 18.2 degree); repeat offenses under 609.224 (assault in the fifth 18.3 degree); repeat offenses under 609.3451 (criminal sexual conduct 18.4 in the fifth degree); 609.713 (terroristic threats); 609.235 18.5 (use of drugs to injure or facilitate crime); 609.24 (simple 18.6 robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 18.7 609.255 (false imprisonment); 609.561 (arson in the first 18.8 degree); 609.562 (arson in the second degree); 609.563 (arson in 18.9 the third degree); repeat offenses under 617.23 (indecent 18.10 exposure; penalties); repeat offenses under 617.241 (obscene 18.11 materials and performances; distribution and exhibition 18.12 prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 18.13 609.67 (machine guns and short-barreled shotguns); 609.749 18.14 (harassment; stalking; penalties); 609.228 (great bodily harm 18.15 caused by distribution of drugs); 609.2325 (criminal abuse of a 18.16 vulnerable adult); 609.2664 (manslaughter of an unborn child in 18.17 the first degree); 609.2665 (manslaughter of an unborn child in 18.18 the second degree); 609.267 (assault of an unborn child in the 18.19 first degree); 609.2671 (assault of an unborn child in the 18.20 second degree); 609.268 (injury or death of an unborn child in 18.21 the commission of a crime); 609.52 (theft); 609.2335 (financial 18.22 exploitation of a vulnerable adult); 609.521 (possession of 18.23 shoplifting gear); 609.582 (burglary); 609.625 (aggravated 18.24 forgery); 609.63 (forgery); 609.631 (check forgery; offering a 18.25 forged check); 609.635 (obtaining signature by false pretense); 18.26 609.27 (coercion); 609.275 (attempt to coerce); 609.687 18.27 (adulteration); 260C.301 (grounds for termination of parental 18.28 rights); and chapter 152 (drugs; controlled substance). An 18.29 attempt or conspiracy to commit any of these offenses, as each 18.30 of these offenses is defined in Minnesota Statutes; or an 18.31 offense in any other state or country, the elements of which are 18.32 substantially similar to the elements of the offenses in this 18.33 clause. If the individual studied is convicted of one of the 18.34 felonies listed in this clause, but the sentence is a gross 18.35 misdemeanor or misdemeanor disposition, the lookback period for 18.36 the conviction is the period applicable to the disposition, that 19.1 is the period for gross misdemeanors or misdemeanors; 19.2 (3) if less than ten years have passed since the discharge 19.3 of the sentence imposed for the offense; and the individual has 19.4 received a gross misdemeanor conviction for a violation of any 19.5 of the following offenses: sections 609.224 (assault in the 19.6 fifth degree); 609.2242 and 609.2243 (domestic assault); 19.7 violation of an order for protection under 518B.01, subdivision 19.8 14; 609.3451 (criminal sexual conduct in the fifth degree); 19.9 repeat offenses under 609.746 (interference with privacy); 19.10 repeat offenses under 617.23 (indecent exposure); 617.241 19.11 (obscene materials and performances); 617.243 (indecent 19.12 literature, distribution); 617.293 (harmful materials; 19.13 dissemination and display to minors prohibited); 609.71 (riot); 19.14 609.66 (dangerous weapons); 609.749 (harassment; stalking; 19.15 penalties); 609.224, subdivision 2, paragraph (c) (assault in 19.16 the fifth degree by a caregiver against a vulnerable adult); 19.17 609.23 (mistreatment of persons confined); 609.231 (mistreatment 19.18 of residents or patients); 609.2325 (criminal abuse of a 19.19 vulnerable adult); 609.233 (criminal neglect of a vulnerable 19.20 adult); 609.2335 (financial exploitation of a vulnerable adult); 19.21 609.234 (failure to report maltreatment of a vulnerable adult); 19.22 609.72, subdivision 3 (disorderly conduct against a vulnerable 19.23 adult); 609.265 (abduction); 609.378 (neglect or endangerment of 19.24 a child); 609.377 (malicious punishment of a child); 609.324, 19.25 subdivision 1a (other prohibited acts; minor engaged in 19.26 prostitution); 609.33 (disorderly house); 609.52 (theft); 19.27 609.582 (burglary); 609.631 (check forgery; offering a forged 19.28 check); 609.275 (attempt to coerce); or an attempt or conspiracy 19.29 to commit any of these offenses, as each of these offenses is 19.30 defined in Minnesota Statutes; or an offense in any other state 19.31 or country, the elements of which are substantially similar to 19.32 the elements of any of the offenses listed in this clause. If 19.33 the defendant is convicted of one of the gross misdemeanors 19.34 listed in this clause, but the sentence is a misdemeanor 19.35 disposition, the lookback period for the conviction is the 19.36 period applicable to misdemeanors; or 20.1 (4) if less than seven years have passed since the 20.2 discharge of the sentence imposed for the offense; and the 20.3 individual has received a misdemeanor conviction for a violation 20.4 of any of the following offenses: sections 609.224 (assault in 20.5 the fifth degree); 609.2242 (domestic assault); violation of an 20.6 order for protection under 518B.01 (Domestic Abuse Act); 20.7 violation of an order for protection under 609.3232 (protective 20.8 order authorized; procedures; penalties); 609.746 (interference 20.9 with privacy); 609.79 (obscene or harassing phone calls); 20.10 609.795 (letter, telegram, or package; opening; harassment); 20.11 617.23 (indecent exposure; penalties); 609.2672 (assault of an 20.12 unborn child in the third degree); 617.293 (harmful materials; 20.13 dissemination and display to minors prohibited); 609.66 20.14 (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 20.15 exploitation of a vulnerable adult); 609.234 (failure to report 20.16 maltreatment of a vulnerable adult); 609.52 (theft); 609.27 20.17 (coercion); or an attempt or conspiracy to commit any of these 20.18 offenses, as each of these offenses is defined in Minnesota 20.19 Statutes; or an offense in any other state or country, the 20.20 elements of which are substantially similar to the elements of 20.21 any of the offenses listed in this clause; failure to make 20.22 required reports under section 626.556, subdivision 3, or 20.23 626.557, subdivision 3, for incidents in which: (i) the final 20.24 disposition under section 626.556 or 626.557 was substantiated 20.25 maltreatment, and (ii) the maltreatment was recurring or 20.26 serious; or substantiated serious or recurring maltreatment of a 20.27 minor under section 626.556 or of a vulnerable adult under 20.28 section 626.557 for which there is a preponderance of evidence 20.29 that the maltreatment occurred, and that the subject was 20.30 responsible for the maltreatment. 20.31 For the purposes of this section, "serious maltreatment" 20.32 means sexual abuse; maltreatment resulting in death; or 20.33 maltreatment resulting in serious injury which reasonably 20.34 requires the care of a physician whether or not the care of a 20.35 physician was sought; or abuse resulting in serious injury. For 20.36 purposes of this section, "abuse resulting in serious injury" 21.1 means: bruises, bites, skin laceration or tissue damage; 21.2 fractures; dislocations; evidence of internal injuries; head 21.3 injuries with loss of consciousness; extensive second-degree or 21.4 third-degree burns and other burns for which complications are 21.5 present; extensive second-degree or third-degree frostbite, and 21.6 others for which complications are present; irreversible 21.7 mobility or avulsion of teeth; injuries to the eyeball; 21.8 ingestion of foreign substances and objects that are harmful; 21.9 near drowning; and heat exhaustion or sunstroke. For purposes 21.10 of this section, "care of a physician" is treatment received or 21.11 ordered by a physician, but does not include diagnostic testing, 21.12 assessment, or observation. For the purposes of this section, 21.13 "recurring maltreatment" means more than one incident of 21.14 maltreatment for which there is a preponderance of evidence that 21.15 the maltreatment occurred, and that the subject was responsible 21.16 for the maltreatment. 21.17 (b)IfExcept for background studies related to child 21.18 foster care, adult foster care, or family child care licensure, 21.19 when the subject of a background study islicensedregulated by 21.20 a health-related licensing board as defined in chapter 214, and 21.21 the regulated person has been determined to have been 21.22 responsible for substantiated maltreatment under section 626.556 21.23 or 626.557, instead of the commissioner making a decision 21.24 regarding disqualification, the board shall makethea 21.25 determinationregarding a disqualification under this21.26subdivision based on a finding of substantiated maltreatment21.27under section 626.556 or 626.557. The commissioner shall notify21.28the health-related licensing board if a background study shows21.29that a licensee would be disqualified because of substantiated21.30maltreatment and the board shall make a determination under21.31section 214.104.whether to impose disciplinary or corrective 21.32 action under chapter 214. 21.33 (1) The commissioner shall notify the health-related 21.34 licensing board: 21.35 (i) upon completion of a background study that produces a 21.36 record showing that the individual was determined to have been 22.1 responsible for substantiated maltreatment; 22.2 (ii) upon the commissioner's completion of an investigation 22.3 that determined the individual was responsible for substantiated 22.4 maltreatment; or 22.5 (iii) upon receipt from another agency of a finding of 22.6 substantiated maltreatment for which the individual was 22.7 responsible. 22.8 (2) The commissioner's notice shall indicate whether the 22.9 individual would have been disqualified by the commissioner for 22.10 the substantiated maltreatment if the individual were not 22.11 regulated by the board. 22.12 (3) Notwithstanding the exclusion from this subdivision for 22.13 individuals who provide child foster care, adult foster care, or 22.14 family child care, when the commissioner or a local agency has 22.15 reason to believe that the direct contact services provided by 22.16 the individual may fall within the jurisdiction of a 22.17 health-related licensing board, a referral shall be made to the 22.18 board as provided in this section. 22.19 (4) If, upon review of the information provided by the 22.20 commissioner, a health-related licensing board informs the 22.21 commissioner that the board does not have jurisdiction to take 22.22 disciplinary or corrective action, the commissioner shall make 22.23 the appropriate disqualification decision regarding the 22.24 individual as otherwise provided in this chapter. 22.25 (5) The commissioner has the authority to monitor the 22.26 facility's compliance with any requirements that the 22.27 health-related licensing board places on regulated persons 22.28 practicing in a facility either during the period pending a 22.29 final decision on a disciplinary or corrective action or as a 22.30 result of a disciplinary or corrective action. The commissioner 22.31 has the authority to order the immediate removal of a regulated 22.32 person from direct contact or access when a board issues an 22.33 order of temporary suspension based on a determination that the 22.34 regulated person poses an immediate risk of harm to persons 22.35 receiving services in a licensed facility. 22.36 (6) A facility that allows a regulated person to provide 23.1 direct contact services while not complying with the 23.2 requirements imposed by the health-related licensing board is 23.3 subject to action by the commissioner as specified under 23.4 sections 245A.06 and 245A.07. 23.5 (7) The commissioner shall notify a health-related 23.6 licensing board immediately upon receipt of knowledge of 23.7 noncompliance with requirements placed on a facility or upon a 23.8 person regulated by the board. 23.9 Sec. 8. Minnesota Statutes 2000, section 245A.05, is 23.10 amended to read: 23.11 245A.05 [DENIAL OF APPLICATION.] 23.12 The commissioner may deny a license if an applicant fails 23.13 to comply with applicable laws or rules, or knowingly withholds 23.14 relevant information from or gives false or misleading 23.15 information to the commissioner in connection with an 23.16 application for a license or during an investigation. An 23.17 applicant whose application has been denied by the commissioner 23.18 must be given notice of the denial. Notice must be given by 23.19 certified mail. The notice must state the reasons the 23.20 application was denied and must inform the applicant of the 23.21 right to a contested case hearing under chapter 14 and Minnesota 23.22 Rules, parts 1400.8550 to 1400.8612. The applicant may appeal 23.23 the denial by notifying the commissioner in writing by certified 23.24 mail within 20 calendar days after receiving notice that the 23.25 application was denied. Section 245A.08 applies to hearings 23.26 held to appeal the commissioner's denial of an application. 23.27 Sec. 9. Minnesota Statutes 2000, section 245A.06, is 23.28 amended to read: 23.29 245A.06 [CORRECTION ORDER ANDFINESCONDITIONAL LICENSE.] 23.30 Subdivision 1. [CONTENTS OF CORRECTION ORDERSOR FINESAND 23.31 CONDITIONAL LICENSES.] (a) If the commissioner finds that the 23.32 applicant or license holder has failed to comply with an 23.33 applicable law or rule and this failure does not imminently 23.34 endanger the health, safety, or rights of the persons served by 23.35 the program, the commissioner may issue a correction order and 23.36 an order of conditional license toor impose a fine onthe 24.1 applicant or license holder. When issuing a conditional 24.2 license, the commissioner shall consider the nature, chronicity, 24.3 or severity of the violation of law or rule and the effect of 24.4 the violation on the health, safety, or rights of persons served 24.5 by the program. The correction order orfineconditional 24.6 license must state: 24.7 (1) the conditions that constitute a violation of the law 24.8 or rule; 24.9 (2) the specific law or rule violated; 24.10 (3) the time allowed to correct each violation; and 24.11 (4) if afine is imposed, the amount of the finelicense is 24.12 made conditional, the length and terms of the conditional 24.13 license. 24.14 (b) Nothing in this section prohibits the commissioner from 24.15 proposing a sanction as specified in section 245A.07, prior to 24.16 issuing a correction order orfineconditional license. 24.17 Subd. 2. [RECONSIDERATION OF CORRECTION ORDERS.] If the 24.18 applicant or license holder believes that the contents of the 24.19 commissioner's correction order are in error, the applicant or 24.20 license holder may ask the department of human services to 24.21 reconsider the parts of the correction order that are alleged to 24.22 be in error. The request for reconsideration must be in writing 24.23 and received by the commissioner within 20 calendar days after 24.24 receipt of the correction order by the applicant or license 24.25 holder, and: 24.26 (1) specify the parts of the correction order that are 24.27 alleged to be in error; 24.28 (2) explain why they are in error; and 24.29 (3) include documentation to support the allegation of 24.30 error. 24.31 A request for reconsideration does not stay any provisions 24.32 or requirements of the correction order. The commissioner's 24.33 disposition of a request for reconsideration is final and not 24.34 subject to appeal under chapter 14. 24.35 Subd. 3. [FAILURE TO COMPLY.] If the commissioner finds 24.36 that the applicant or license holder has not corrected the 25.1 violations specified in the correction order or conditional 25.2 license, the commissioner may impose a fine and order other 25.3 licensing sanctions pursuant to section 245A.07.If a fine was25.4imposed and the violation was not corrected, the commissioner25.5may impose an additional fine. This section does not prohibit25.6the commissioner from seeking a court order, denying an25.7application, or suspending, revoking, or making conditional the25.8license in addition to imposing a fine.25.9 Subd. 4. [NOTICE OFFINECONDITIONAL LICENSE; 25.10 RECONSIDERATION OFFINECONDITIONAL LICENSE.]A license holder25.11who is ordered to pay a fineIf a license is made conditional, 25.12 the license holder must be notified of the order by certified 25.13 mail. The notice must be mailed to the address shown on the 25.14 application or the last known address of the license holder. 25.15 The notice must state the reasons thefineconditional license 25.16 was ordered and must inform the license holder of the 25.17responsibility for payment of fines in subdivision 7 and the25.18 right to request reconsideration of thefineconditional license 25.19 by the commissioner. The license holder may request 25.20 reconsideration of the orderto forfeit a fineof conditional 25.21 license by notifying the commissioner by certified mailwithin25.2220 calendar days after receiving the order. The request must be 25.23 in writing and must be received by the commissioner within ten 25.24 calendar days after the license holder received the order. The 25.25 license holder may submit with the request for reconsideration 25.26 written argument or evidence in support of the request for 25.27 reconsideration. A timely request for reconsideration shall 25.28 stayforfeiture of the fineimposition of the terms of the 25.29 conditional license until the commissioner issues a decision on 25.30 the request for reconsideration.The request for25.31reconsideration must be in writing and:25.32(1) specify the parts of the violation that are alleged to25.33be in error;25.34(2) explain why they are in error;25.35(3) include documentation to support the allegation of25.36error; and26.1(4) any other information relevant to the fine or the26.2amount of the fine.26.3 The commissioner's disposition of a request for 26.4 reconsideration is final and not subject to appeal under chapter 26.5 14. 26.6Subd. 5. [FORFEITURE OF FINES.] The license holder shall26.7pay the fines assessed on or before the payment date specified26.8in the commissioner's order. If the license holder fails to26.9fully comply with the order, the commissioner shall issue a26.10second fine or suspend the license until the license holder26.11complies. If the license holder receives state funds, the26.12state, county, or municipal agencies or departments responsible26.13for administering the funds shall withhold payments and recover26.14any payments made while the license is suspended for failure to26.15pay a fine.26.16Subd. 5a. [ACCRUAL OF FINES.] A license holder shall26.17promptly notify the commissioner of human services, in writing,26.18when a violation specified in an order to forfeit is corrected.26.19If upon reinspection the commissioner determines that a26.20violation has not been corrected as indicated by the order to26.21forfeit, the commissioner may issue a second fine. The26.22commissioner shall notify the license holder by certified mail26.23that a second fine has been assessed. The license holder may26.24request reconsideration of the second fine under the provisions26.25of subdivision 4.26.26Subd. 6. [AMOUNT OF FINES.] Fines shall be assessed as26.27follows:26.28(1) the license holder shall forfeit $1,000 for each26.29occurrence of violation of law or rule prohibiting the26.30maltreatment of children or the maltreatment of vulnerable26.31adults, including but not limited to corporal punishment,26.32illegal or unauthorized use of physical, mechanical, or chemical26.33restraints, and illegal or unauthorized use of aversive or26.34deprivation procedures;26.35(2) the license holder shall forfeit $200 for each26.36occurrence of a violation of law or rule governing matters of27.1health, safety, or supervision, including but not limited to the27.2provision of adequate staff to child or adult ratios; and27.3(3) the license holder shall forfeit $100 for each27.4occurrence of a violation of law or rule other than those27.5included in clauses (1) and (2).27.6For the purposes of this section, "occurrence" means each27.7violation identified in the commissioner's forfeiture order.27.8Subd. 7. [RESPONSIBILITY FOR PAYMENT OF FINES.] When a27.9fine has been assessed, the license holder may not avoid payment27.10by closing, selling, or otherwise transferring the licensed27.11program to a third party. In such an event, the license holder27.12will be personally liable for payment. In the case of a27.13corporation, each controlling individual is personally and27.14jointly liable for payment.27.15Fines for child care centers must be assessed according to27.16this section.27.17 Sec. 10. Minnesota Statutes 2000, section 245A.07, is 27.18 amended to read: 27.19 245A.07 [SANCTIONS.] 27.20 Subdivision 1. [SANCTIONS AVAILABLE.] In addition to 27.21ordering forfeiture of finesmaking a license conditional under 27.22 section 245A.06, the commissioner may propose to suspend,or 27.23 revoke, or make conditionalthe license, impose a fine, or 27.24 secure an injunction against the continuing operation of the 27.25 program of a license holder who does not comply with applicable 27.26 law or rule. When applying sanctions authorized under this 27.27 section, the commissioner shall consider the nature, chronicity, 27.28 or severity of the violation of law or rule and the effect of 27.29 the violation on the health, safety, or rights of persons served 27.30 by the program. 27.31 Subd. 2. [IMMEDIATE SUSPENSION IN CASES OF IMMINENT DANGER27.32TO HEALTH, SAFETY, OR RIGHTSTEMPORARY IMMEDIATE SUSPENSION.] If 27.33 the license holder's actions or failure to comply with 27.34 applicable law or rulehas placedposes an imminent risk of harm 27.35 to the health, safety, or rights of persons served by the 27.36 programin imminent danger, the commissioner shall act 28.1 immediately to temporarily suspend the license. No state funds 28.2 shall be made available or be expended by any agency or 28.3 department of state, county, or municipal government for use by 28.4 a license holder regulated under this chapter while a license is 28.5 under immediate suspension. A notice stating the reasons for 28.6 the immediate suspension and informing the license holder of the 28.7 right toa contested casean expedited hearing under chapter 28.8 14 and Minnesota Rules, parts 1400.8550 to 1400.8612, must be 28.9 delivered by personal service to the address shown on the 28.10 application or the last known address of the license holder. 28.11 The license holder may appeal an order immediately suspending a 28.12 license. The appeal of an order immediately suspending a 28.13 license must be made in writing by certified mail and must be 28.14 received by the commissioner within five calendar days after the 28.15 license holder receives notice that the license has been 28.16 immediately suspended. A license holder and any controlling 28.17 individual shall discontinue operation of the program upon 28.18 receipt of the commissioner's order to immediately suspend the 28.19 license. 28.20 Subd. 2a. [IMMEDIATE SUSPENSION EXPEDITED HEARING.] (a) 28.21 Within five working days of receipt of the license holder's 28.22 timely appeal, the commissioner shall request assignment of an 28.23 administrative law judge. The request must include a proposed 28.24 date, time, and place of a hearing. A hearing must be conducted 28.25 by an administrative law judge within 30 calendar days of the 28.26 request for assignment, unless an extension is requested by 28.27 either party and granted by the administrative law judge for 28.28 good cause. The commissioner shall issue a notice of hearing by 28.29 certified mail at least ten working days before the hearing. 28.30 The scope of the hearing shall be limited solely to the issue of 28.31 whether the temporary immediate suspension should remain in 28.32 effect pending the commissioner's final order under section 28.33 245A.08, regarding a licensing sanction issued under subdivision 28.34 3 following the immediate suspension. The burden of proof in 28.35 expedited hearings under this subdivision shall be limited to 28.36 the commissioner's demonstration that reasonable cause exists to 29.1 believe that the license holder's actions or failure to comply 29.2 with applicable law or rule poses an imminent risk of harm to 29.3 the health, safety, or rights of persons served by the program. 29.4 (b) The administrative law judge shall issue findings of 29.5 fact, conclusions, and a recommendation within ten working days 29.6 from the date of hearing. The commissioner's final order shall 29.7 be issued within ten working days from receipt of the 29.8 recommendation of the administrative law judge. Within 90 29.9 calendar days after a final order affirming an immediate 29.10 suspension, the commissioner shall make a determination 29.11 regarding whether a final licensing sanction shall be issued 29.12 under subdivision 3. The license holder shall continue to be 29.13 prohibited from operation of the program during this 90-day 29.14 period. 29.15 Subd. 3. [LICENSE SUSPENSION, REVOCATION,DENIALOR 29.16CONDITIONAL LICENSEFINE.] The commissioner may suspend,or 29.17 revoke, make conditional, or denya license, or impose a fine if 29.18an applicant ora license holder fails to comply fully with 29.19 applicable laws or rules, or knowingly withholds relevant 29.20 information from or gives false or misleading information to the 29.21 commissioner in connection with an application for a license or 29.22 during an investigation. A license holder who has had a license 29.23 suspended, revoked,or made conditionalor has been ordered to 29.24 pay a fine must be given notice of the action by certified 29.25 mail. The notice must be mailed to the address shown on the 29.26 application or the last known address of the license holder. 29.27 The notice must state the reasons the license was suspended, 29.28 revoked, ormade conditionala fine was ordered. 29.29 (a) If the license was suspended or revoked, the notice 29.30 must inform the license holder of the right to a contested case 29.31 hearing under chapter 14 and Minnesota Rules, parts 1400.8550 to 29.32 1400.8612. The license holder may appeal an order suspending or 29.33 revoking a license. The appeal of an order suspending or 29.34 revoking a license must be made in writing by certified mail and 29.35 must be received by the commissioner within ten calendar days 29.36 after the license holder receives notice that the license has 30.1 been suspended or revoked. 30.2 (b)If the license was made conditional, the notice must30.3inform the license holder of the right to request a30.4reconsideration by the commissioner. The request for30.5reconsideration must be made in writing by certified mail and30.6must be received by the commissioner within ten calendar days30.7after the license holder receives notice that the license has30.8been made conditional. The license holder may submit with the30.9request for reconsideration written argument or evidence in30.10support of the request for reconsideration. The commissioner's30.11disposition of a request for reconsideration is final and is not30.12subject to appeal under chapter 14(1) If the license holder was 30.13 ordered to pay a fine, the notice must inform the license holder 30.14 of the responsibility for payment of fines and the right to a 30.15 contested case hearing under chapter 14 and Minnesota Rules, 30.16 parts 1400.8550 to 1400.8612. The appeal of an order to pay a 30.17 fine must be made in writing by certified mail and must be 30.18 received by the commissioner within ten calendar days after the 30.19 license holder receives notice that the fine has been ordered. 30.20 (2) The license holder shall pay the fines assessed on or 30.21 before the payment date specified. If the license holder fails 30.22 to fully comply with the order, the commissioner may issue a 30.23 second fine or suspend the license until the license holder 30.24 complies. If the license holder receives state funds, the 30.25 state, county, or municipal agencies or departments responsible 30.26 for administering the funds shall withhold payments and recover 30.27 any payments made while the license is suspended for failure to 30.28 pay a fine. A timely appeal shall stay payment of the fine 30.29 until the commissioner issues a final order. 30.30 (3) A license holder shall promptly notify the commissioner 30.31 of human services, in writing, when a violation specified in the 30.32 order to forfeit a fine is corrected. If upon reinspection the 30.33 commissioner determines that a violation has not been corrected 30.34 as indicated by the order to forfeit a fine, the commissioner 30.35 may issue a second fine. The commissioner shall notify the 30.36 license holder by certified mail that a second fine has been 31.1 assessed. The license holder may appeal the second fine as 31.2 provided under this subdivision. 31.3 (4) Fines shall be assessed as follows: the license holder 31.4 shall forfeit $1,000 for each determination of maltreatment of a 31.5 child under section 626.556 or the maltreatment of a vulnerable 31.6 adult under section 626.557; the license holder shall forfeit 31.7 $200 for each occurrence of a violation of law or rule governing 31.8 matters of health, safety, or supervision, including failure to 31.9 submit a background study; and the license holder shall forfeit 31.10 $100 for each occurrence of a violation of law or rule other 31.11 than those subject to a $1,000 or $200 fine above. For purposes 31.12 of this section, "occurrence" means each violation identified in 31.13 the commissioner's fine order. 31.14 (5) When a fine has been assessed, the license holder may 31.15 not avoid payment by closing, selling, or otherwise transferring 31.16 the licensed program to a third party. In such an event, the 31.17 license holder will be personally liable for payment. In the 31.18 case of a corporation, each controlling individual is personally 31.19 and jointly liable for payment. 31.20 Subd. 4. [ADOPTION AGENCY VIOLATIONS.] If a license holder 31.21 licensed to place children for adoption fails to provide 31.22 services as described in the disclosure form required by section 31.23 259.37, subdivision 2, the sanctions under this section may be 31.24 imposed. 31.25 Sec. 11. Minnesota Statutes 2000, section 245A.08, is 31.26 amended to read: 31.27 245A.08 [HEARINGS.] 31.28 Subdivision 1. [RECEIPT OF APPEAL; CONDUCT OF HEARING.] 31.29 Upon receiving a timely appeal or petition pursuant to 31.30 section 245A.04, subdivision 3c, 245A.05, or 245A.07, 31.31 subdivision 3, the commissioner shall issue a notice of and 31.32 order for hearing to the appellant under chapter 14 and 31.33 Minnesota Rules, parts 1400.8550 to 1400.8612. 31.34 Subd. 2. [CONDUCT OF HEARINGS.] At any hearing provided 31.35 for by section 245A.04, subdivision 3c, 245A.05, or 245A.07, 31.36 subdivision 3, the appellant may be represented by counsel and 32.1 has the right to call, examine, and cross-examine witnesses. 32.2 The administrative law judge may require the presence of 32.3 witnesses and evidence by subpoena on behalf of any party. 32.4 Subd. 2a. [CONSOLIDATED CONTESTED CASE HEARINGS FOR 32.5 SANCTIONS BASED ON MALTREATMENT DETERMINATIONS AND 32.6 DISQUALIFICATIONS.] (a) When a licensing sanction under section 32.7 245A.07, subdivision 3, is based on a disqualification for which 32.8 reconsideration was requested and which was not set aside under 32.9 section 245A.04, subdivision 3b, the scope of the contested case 32.10 hearing shall include the disqualification and the licensing 32.11 sanction. When the licensing sanction is based on a 32.12 determination of maltreatment under section 626.556 or 626.557, 32.13 or a disqualification for serious or recurring maltreatment 32.14 which was not set aside, the scope of the contested case hearing 32.15 shall include the maltreatment determination, disqualification, 32.16 and the licensing sanction. In such cases, a fair hearing under 32.17 section 256.045 shall not be conducted as provided for in 32.18 sections 626.556, subdivision 10i, and 626.557, subdivision 9d. 32.19 (b) In consolidated contested case hearings regarding 32.20 sanctions issued in family child care, child foster care, and 32.21 adult foster care, the county attorney shall defend the 32.22 commissioner's orders in accordance with section 245A.16, 32.23 subdivision 4. 32.24 (c) The commissioner's final order under subdivision 5 is 32.25 conclusive on the issue of maltreatment and disqualification, 32.26 including for purposes of subsequent background studies under 32.27 section 245A.04, subdivision 3, and is the only administrative 32.28 appeal of the final agency determination, specifically, 32.29 including a challenge to the accuracy and completeness of data 32.30 under section 13.04. 32.31 (d) When consolidated hearings under this subdivision 32.32 involve a licensing sanction based on a previous maltreatment 32.33 determination for which the commissioner has issued a final 32.34 order in an appeal of that determination under section 256.045, 32.35 or the individual failed to exercise their right to appeal the 32.36 previous maltreatment determination under section 626.556, 33.1 subdivision 10i, or 626.557, subdivision 9d, the commissioner's 33.2 order is conclusive on the issue of maltreatment. In such 33.3 cases, the scope of the administrative law judge's review shall 33.4 be limited to the disqualification and the licensing sanction. 33.5 (e) If a maltreatment determination or disqualification, 33.6 which was not set aside under section 245A.04, subdivision 3b, 33.7 is the basis for a licensing sanction under section 245A.07, and 33.8 the disqualified subject is an individual other than the license 33.9 holder and upon whom a background study must be conducted under 33.10 section 245A.04, subdivision 3, the hearings of all parties may 33.11 be consolidated into a single contested case hearing upon 33.12 consent of all parties and the administrative law judge. 33.13 Subd. 3. [BURDEN OF PROOF.] (a) At a hearing regarding 33.14suspension, immediate suspension, or revocation of a license for33.15family day care or foster carea licensing sanction under 33.16 section 245.07, including consolidated hearings under 33.17 subdivision 2a, the commissioner may demonstrate reasonable 33.18 cause for action taken by submitting statements, reports, or 33.19 affidavits to substantiate the allegations that the license 33.20 holder failed to comply fully with applicable law or rule. If 33.21 the commissioner demonstrates that reasonable cause existed, the 33.22 burden of proofin hearings involving suspension, immediate33.23suspension, or revocation of a family day care or foster care33.24licenseshifts to the license holder to demonstrate by a 33.25 preponderance of the evidence that the license holder was in 33.26 full compliance with those laws or rules that the commissioner 33.27 alleges the license holder violated, at the time that the 33.28 commissioner alleges the violations of law or rules occurred. 33.29 (b) At a hearing on denial of an application, the applicant 33.30 bears the burden of proof to demonstrate by a preponderance of 33.31 the evidence that the appellant has complied fully withsections33.32245A.01 to 245A.15chapter 245A and other applicable law or rule 33.33 and that the application should be approved and a license 33.34 granted. 33.35(c) At all other hearings under this section, the33.36commissioner bears the burden of proof to demonstrate, by a34.1preponderance of the evidence, that the violations of law or34.2rule alleged by the commissioner occurred.34.3 Subd. 4. [RECOMMENDATION OF ADMINISTRATIVE LAW JUDGE.] The 34.4 administrative law judge shall recommend whether or not the 34.5 commissioner's order should be affirmed. The recommendations 34.6 must be consistent with this chapter and the rules of the 34.7 commissioner. The recommendations must be in writing and 34.8 accompanied by findings of fact and conclusions and must be 34.9 mailed to the parties by certified mail to their last known 34.10 addresses as shown on the license or application. 34.11 Subd. 5. [NOTICE OF THE COMMISSIONER'S FINAL ORDER.] After 34.12 considering the findings of fact, conclusions, and 34.13 recommendations of the administrative law judge, the 34.14 commissioner shall issue a final order. The commissioner shall 34.15 consider, but shall not be bound by, the recommendations of the 34.16 administrative law judge. The appellant must be notified of the 34.17 commissioner's final order as required by chapter 14 and 34.18 Minnesota Rules, parts 1400.8550 to 1400.8612. The notice must 34.19 also contain information about the appellant's rights under 34.20 chapter 14 and Minnesota Rules, parts 1400.8550 to 1400.8612. 34.21 The institution of proceedings for judicial review of the 34.22 commissioner's final order shall not stay the enforcement of the 34.23 final order except as provided in section 14.65. A license 34.24 holder and each controlling individual of a license holder whose 34.25 license has been revoked because of noncompliance with 34.26 applicable law or rule must not be granted a license for five 34.27 years following the revocation. An applicant whose application 34.28 was denied must not be granted a license for two years following 34.29 a denial, unless the applicant's subsequent application contains 34.30 new information which constitutes a substantial change in the 34.31 conditions that caused the previous denial. 34.32 Sec. 12. Minnesota Statutes 2000, section 256.045, 34.33 subdivision 3, is amended to read: 34.34 Subd. 3. [STATE AGENCY HEARINGS.] (a) State agency 34.35 hearings are available for the following: (1) any person 34.36 applying for, receiving or having received public assistance, 35.1 medical care, or a program of social services granted by the 35.2 state agency or a county agency or the federal Food Stamp Act 35.3 whose application for assistance is denied, not acted upon with 35.4 reasonable promptness, or whose assistance is suspended, 35.5 reduced, terminated, or claimed to have been incorrectly paid; 35.6 (2) any patient or relative aggrieved by an order of the 35.7 commissioner under section 252.27; (3) a party aggrieved by a 35.8 ruling of a prepaid health plan; (4) except as provided under 35.9 chapter 245A, any individual or facility determined by a lead 35.10 agency to have maltreated a vulnerable adult under section 35.11 626.557 after they have exercised their right to administrative 35.12 reconsideration under section 626.557; (5) any person whose 35.13 claim for foster care payment according to a placement of the 35.14 child resulting from a child protection assessment under section 35.15 626.556 is denied or not acted upon with reasonable promptness, 35.16 regardless of funding source; (6) any person to whom a right of 35.17 appeal according to this section is given by other provision of 35.18 law; (7) an applicant aggrieved by an adverse decision to an 35.19 application for a hardship waiver under section 35.20 256B.15;or(8) except as provided under chapter 245A, an 35.21 individual or facility determined to have maltreated a minor 35.22 under section 626.556, after the individual or facility has 35.23 exercised the right to administrative reconsideration under 35.24 section 626.556; or (9) except as provided under chapter 245A, 35.25 an individual disqualified under section 245A.04, subdivision 35.26 3d, on the basis of serious or recurring maltreatment; a 35.27 preponderance of the evidence that the individual has committed 35.28 an act or acts that meet the definition of any of the crimes 35.29 listed in clauses (1) to (4) of that subdivision; or for failing 35.30 to make reports required under section 626.556, subdivision 3, 35.31 or 626.557, subdivision 3. Hearings regarding a maltreatment 35.32 determination under clause (8) and a disqualification under 35.33 clause (9) in which the basis for a disqualification is serious 35.34 and recurring maltreatment, which has not been set aside under 35.35 section 245A.04, subdivision 3b, shall be consolidated into a 35.36 single fair hearing. In such cases, the scope of review by the 36.1 human services referee shall include both the maltreatment 36.2 determination and the disqualification. The failure to exercise 36.3 the right to an administrative reconsideration shall not be a 36.4 bar to a hearing under this section if federal law provides an 36.5 individual the right to a hearing to dispute a finding of 36.6 maltreatment. Individuals and organizations specified in this 36.7 section may contest the specified action, decision, or final 36.8 disposition before the state agency by submitting a written 36.9 request for a hearing to the state agency within 30 days after 36.10 receiving written notice of the action, decision, or final 36.11 disposition, or within 90 days of such written notice if the 36.12 applicant, recipient, patient, or relative shows good cause why 36.13 the request was not submitted within the 30-day time limit. 36.14 The hearing for an individual or facility under clause 36.15 (4)or, (8), or (9) is the only administrative appeal to the 36.16 final agency determination specifically, including a challenge 36.17 to the accuracy and completeness of data under section 13.04. 36.18 Hearings requested under clause (4) apply only to incidents of 36.19 maltreatment that occur on or after October 1, 1995. Hearings 36.20 requested by nursing assistants in nursing homes alleged to have 36.21 maltreated a resident prior to October 1, 1995, shall be held as 36.22 a contested case proceeding under the provisions of chapter 14. 36.23 Hearings requested underclauseclauses (8) and (9) apply only 36.24 to incidents of maltreatment that occur on or after July 1, 36.25 1997. A hearing for an individual or facility under clause (8) 36.26 is only available when there is no juvenile court or adult 36.27 criminal action pending. If such action is filed in either 36.28 court while an administrative review is pending, the 36.29 administrative review must be suspended until the judicial 36.30 actions are completed. If the juvenile court action or criminal 36.31 charge is dismissed or the criminal action overturned, the 36.32 matter may be considered in an administrative hearing. 36.33 For purposes of this section, bargaining unit grievance 36.34 procedures are not an administrative appeal. 36.35 The scope of hearings involving claims to foster care 36.36 payments under clause (5) shall be limited to the issue of 37.1 whether the county is legally responsible for a child's 37.2 placement under court order or voluntary placement agreement 37.3 and, if so, the correct amount of foster care payment to be made 37.4 on the child's behalf and shall not include review of the 37.5 propriety of the county's child protection determination or 37.6 child placement decision. 37.7 (b) A vendor of medical care as defined in section 256B.02, 37.8 subdivision 7, or a vendor under contract with a county agency 37.9 to provide social services under section 256E.08, subdivision 4, 37.10 is not a party and may not request a hearing under this section, 37.11 except if assisting a recipient as provided in subdivision 4. 37.12 (c) An applicant or recipient is not entitled to receive 37.13 social services beyond the services included in the amended 37.14 community social services plan developed under section 256E.081, 37.15 subdivision 3, if the county agency has met the requirements in 37.16 section 256E.081. 37.17 (d) The commissioner may summarily affirm the county or 37.18 state agency's proposed action without a hearing when the sole 37.19 issue is an automatic change due to a change in state or federal 37.20 law. 37.21 Sec. 13. Minnesota Statutes 2000, section 256.045, 37.22 subdivision 3b, is amended to read: 37.23 Subd. 3b. [STANDARD OF EVIDENCE FOR MALTREATMENT AND 37.24 DISQUALIFICATION HEARINGS.] The state human services referee 37.25 shall determine that maltreatment has occurred if a 37.26 preponderance of evidence exists to support the final 37.27 disposition under sections 626.556 and 626.557. For purposes of 37.28 hearings regarding disqualification, the state human services 37.29 referee shall affirm the proposed disqualification in an appeal 37.30 under subdivision 3, paragraph (a), clause (9), if a 37.31 preponderance of the evidence shows the individual has: 37.32 (1) committed maltreatment under section 626.556 or 37.33 626.557, which is serious or recurring; 37.34 (2) committed an act or acts meeting the definition of any 37.35 of the crimes listed in section 245A.04, subdivision 3d, clauses 37.36 (1) to (4); or 38.1 (3) failed to make required reports under section 626.556 38.2 or 626.557, for incidents in which: 38.3 (i) the final disposition under section 626.556 or 626.557 38.4 was substantiated maltreatment; and 38.5 (ii) the maltreatment was recurring or serious; or 38.6 substantiated serious or recurring maltreatment of a minor under 38.7 section 626.556 or of a vulnerable adult under section 626.557 38.8 for which there is a preponderance of evidence that the 38.9 maltreatment occurred, and that the subject was responsible for 38.10 the maltreatment. If the disqualification is affirmed, the 38.11 state human services referee shall determine whether the 38.12 individual poses a risk of harm in accordance with the 38.13 requirements of section 245A.04, subdivision 3b. 38.14 The state human services referee shall recommend an order 38.15 to the commissioner of health or human services, as applicable, 38.16 who shall issue a final order. The commissioner shall affirm, 38.17 reverse, or modify the final disposition. Any order of the 38.18 commissioner issued in accordance with this subdivision is 38.19 conclusive upon the parties unless appeal is taken in the manner 38.20 provided in subdivision 7. In any licensing appeal under 38.21 chapter 245A and sections 144.50 to 144.58 and 144A.02 to 38.22 144A.46, the commissioner's determination as to maltreatment is 38.23 conclusive. 38.24 Sec. 14. Minnesota Statutes 2000, section 256.045, 38.25 subdivision 4, is amended to read: 38.26 Subd. 4. [CONDUCT OF HEARINGS.] (a) All hearings held 38.27 pursuant to subdivision 3, 3a, 3b, or 4a shall be conducted 38.28 according to the provisions of the federal Social Security Act 38.29 and the regulations implemented in accordance with that act to 38.30 enable this state to qualify for federal grants-in-aid, and 38.31 according to the rules and written policies of the commissioner 38.32 of human services. County agencies shall install equipment 38.33 necessary to conduct telephone hearings. A state human services 38.34 referee may schedule a telephone conference hearing when the 38.35 distance or time required to travel to the county agency offices 38.36 will cause a delay in the issuance of an order, or to promote 39.1 efficiency, or at the mutual request of the parties. Hearings 39.2 may be conducted by telephone conferences unless the applicant, 39.3 recipient, former recipient, person, or facility contesting 39.4 maltreatment objects. The hearing shall not be held earlier 39.5 than five days after filing of the required notice with the 39.6 county or state agency. The state human services referee shall 39.7 notify all interested persons of the time, date, and location of 39.8 the hearing at least five days before the date of the hearing. 39.9 Interested persons may be represented by legal counsel or other 39.10 representative of their choice, including a provider of therapy 39.11 services, at the hearing and may appear personally, testify and 39.12 offer evidence, and examine and cross-examine witnesses. The 39.13 applicant, recipient, former recipient, person, or facility 39.14 contesting maltreatment shall have the opportunity to examine 39.15 the contents of the case file and all documents and records to 39.16 be used by the county or state agency at the hearing at a 39.17 reasonable time before the date of the hearing and during the 39.18 hearing. In hearings under subdivision 3, paragraph (a), 39.19 clauses (4)and, (8), and (9), either party may subpoena the 39.20 private data relating to the investigation prepared by the 39.21 agency under section 626.556 or 626.557 that is not otherwise 39.22 accessible under section 13.04, provided the identity of the 39.23 reporter may not be disclosed. 39.24 (b) The private data obtained by subpoena in a hearing 39.25 under subdivision 3, paragraph (a), clause (4)or, (8), or (9), 39.26 must be subject to a protective order which prohibits its 39.27 disclosure for any other purpose outside the hearing provided 39.28 for in this section without prior order of the district court. 39.29 Disclosure without court order is punishable by a sentence of 39.30 not more than 90 days imprisonment or a fine of not more than 39.31 $700, or both. These restrictions on the use of private data do 39.32 not prohibit access to the data under section 13.03, subdivision 39.33 6. Except for appeals under subdivision 3, paragraph (a), 39.34 clauses (4), (5),and(8), and (9), upon request, the county 39.35 agency shall provide reimbursement for transportation, child 39.36 care, photocopying, medical assessment, witness fee, and other 40.1 necessary and reasonable costs incurred by the applicant, 40.2 recipient, or former recipient in connection with the appeal. 40.3 All evidence, except that privileged by law, commonly accepted 40.4 by reasonable people in the conduct of their affairs as having 40.5 probative value with respect to the issues shall be submitted at 40.6 the hearing and such hearing shall not be "a contested case" 40.7 within the meaning of section 14.02, subdivision 3. The agency 40.8 must present its evidence prior to or at the hearing, and may 40.9 not submit evidence after the hearing except by agreement of the 40.10 parties at the hearing, provided the petitioner has the 40.11 opportunity to respond. 40.12 Sec. 15. Minnesota Statutes 2000, section 626.556, 40.13 subdivision 10i, is amended to read: 40.14 Subd. 10i. [ADMINISTRATIVE RECONSIDERATION OF FINAL 40.15 DETERMINATION OF MALTREATMENT AND DISQUALIFICATION BASED ON 40.16 SERIOUS OR RECURRING MALTREATMENT.] (a) Except as provided under 40.17 paragraph (e), an individual or facility that the commissioner 40.18 or a local social service agency determines has maltreated a 40.19 child, or the child's designee, regardless of the determination, 40.20 who contests the investigating agency's final determination 40.21 regarding maltreatment, may request the investigating agency to 40.22 reconsider its final determination regarding maltreatment. The 40.23 request for reconsideration must be submitted in writing to the 40.24 investigating agency within 15 calendar days after receipt of 40.25 notice of the final determination regarding maltreatment. 40.26 (b) Except as provided under paragraphs (e) and (f), if the 40.27 investigating agency denies the request or fails to act upon the 40.28 request within 15 calendar days after receiving the request for 40.29 reconsideration, the person or facility entitled to a fair 40.30 hearing under section 256.045 may submit to the commissioner of 40.31 human services a written request for a hearing under that 40.32 section. 40.33 (c) If, as a result of the reconsideration, the 40.34 investigating agency changes the final determination of 40.35 maltreatment, that agency shall notify the parties specified in 40.36 subdivisions 10b, 10d, and 10f. 41.1 (d) Except as provided under paragraph (f), if an 41.2 individual or facility contests the investigating agency's final 41.3 determination regarding maltreatment by requesting a fair 41.4 hearing under section 256.045, the commissioner of human 41.5 services shall assure that the hearing is conducted and a 41.6 decision is reached within 90 days of receipt of the request for 41.7 a hearing. The time for action on the decision may be extended 41.8 for as many days as the hearing is postponed or the record is 41.9 held open for the benefit of either party. 41.10 (e) If an individual was disqualified under section 41.11 245A.04, subdivision 3d, on the basis of a determination of 41.12 maltreatment, which was serious or recurring, and the individual 41.13 has requested reconsideration of the maltreatment determination 41.14 under paragraph (a) and requested reconsideration of the 41.15 disqualification under section 245A.04, subdivision 3b, 41.16 reconsideration of the maltreatment determination and 41.17 reconsideration of the disqualification shall be consolidated 41.18 into a single reconsideration. If an individual disqualified on 41.19 the basis of a determination of maltreatment, which was serious 41.20 or recurring requests a fair hearing under paragraph (b), the 41.21 scope of the fair hearing shall include the maltreatment 41.22 determination and the disqualification. 41.23 (f) If a maltreatment determination or a disqualification 41.24 based on serious or recurring maltreatment is the basis for a 41.25 licensing sanction under section 245A.07, the license holder has 41.26 the right to a contested case hearing under chapter 14 and 41.27 Minnesota Rules, parts 1400.8550 to 1400.8612. As provided for 41.28 under section 245A.08, subdivision 2a, the scope of the 41.29 contested case hearing shall include the maltreatment 41.30 determination, disqualification, and licensing sanction. In 41.31 such cases, a fair hearing regarding the maltreatment 41.32 determination shall not be conducted under paragraph (b). If 41.33 the disqualified subject is an individual other than the license 41.34 holder and upon whom a background study must be conducted under 41.35 section 245A.04, subdivision 3, the hearings of all parties may 41.36 be consolidated into a single contested case hearing upon 42.1 consent of all parties and the administrative law judge. 42.2 Sec. 16. Minnesota Statutes 2000, section 626.557, 42.3 subdivision 3, is amended to read: 42.4 Subd. 3. [TIMING OF REPORT.] (a) A mandated reporter who 42.5 has reason to believe that a vulnerable adult is being or has 42.6 been maltreated, or who has knowledge that a vulnerable adult 42.7 has sustained a physical injury which is not reasonably 42.8 explained shall immediately report the information to the common 42.9 entry point. If an individual is a vulnerable adult solely 42.10 because the individual is admitted to a facility, a mandated 42.11 reporter is not required to report suspected maltreatment of the 42.12 individual that occurred prior to admission, unless: 42.13 (1) the individual was admitted to the facility from 42.14 another facility and the reporter has reason to believe the 42.15 vulnerable adult was maltreated in the previous facility; or 42.16 (2) the reporter knows or has reason to believe that the 42.17 individual is a vulnerable adult as defined in section 626.5572, 42.18 subdivision 21, clause (4). 42.19 (b) A person not required to report under the provisions of 42.20 this section may voluntarily report as described above. 42.21 (c) Nothing in this section requires a report of known or 42.22 suspected maltreatment, if the reporter knows or has reason to 42.23 know that a report has been made to the common entry point. 42.24 (d) Nothing in this section shall preclude a reporter from 42.25 also reporting to a law enforcement agency. 42.26 (e) Notwithstanding section 626.5572, subdivision 17, 42.27 paragraph (c), clause (5), a mandated reporter who knows or has 42.28 reason to believe that an error in the provision of care or 42.29 services to a vulnerable adult resulted in injury or harm to the 42.30 vulnerable adult, which reasonably requires or required medical 42.31 or mental health care must make a report under this 42.32 subdivision. If the reporter believes that an investigation by 42.33 a lead agency will determine or should determine that the 42.34 reported error was not neglect according to the criteria under 42.35 section 626.5572, subdivision 17, paragraph (c), clause (5), the 42.36 report must include information explaining how the event meets 43.1 the criteria under section 626.557, subdivision 17, paragraph 43.2 (c), clause (5). The lead agency shall consider this 43.3 information when making an initial disposition of the report 43.4 under subdivision 9c. 43.5 Sec. 17. Minnesota Statutes 2000, section 626.557, 43.6 subdivision 9d, is amended to read: 43.7 Subd. 9d. [ADMINISTRATIVE RECONSIDERATION OF FINAL 43.8 DISPOSITION OF MALTREATMENT AND DISQUALIFICATION BASED ON 43.9 SERIOUS OR RECURRING MALTREATMENT; REVIEW PANEL.] (a) Except as 43.10 provided under paragraph (e), any individual or facility which a 43.11 lead agency determines has maltreated a vulnerable adult, or the 43.12 vulnerable adult or an interested person acting on behalf of the 43.13 vulnerable adult, regardless of the lead agency's determination, 43.14 who contests the lead agency's final disposition of an 43.15 allegation of maltreatment, may request the lead agency to 43.16 reconsider its final disposition. The request for 43.17 reconsideration must be submitted in writing to the lead agency 43.18 within 15 calendar days after receipt of notice of final 43.19 disposition or, if the request is made by an interested person 43.20 who is not entitled to notice, within 15 days after receipt of 43.21 the notice by the vulnerable adult or the vulnerable adult's 43.22 legal guardian. 43.23 (b) Except as provided under paragraphs (e) and (f), if the 43.24 lead agency denies the request or fails to act upon the request 43.25 within 15 calendar days after receiving the request for 43.26 reconsideration, the person or facility entitled to a fair 43.27 hearing under section 256.045, may submit to the commissioner of 43.28 human services a written request for a hearing under that 43.29 statute. The vulnerable adult, or an interested person acting 43.30 on behalf of the vulnerable adult, may request a review by the 43.31 vulnerable adult maltreatment review panel under section 256.021 43.32 if the lead agency denies the request or fails to act upon the 43.33 request, or if the vulnerable adult or interested person 43.34 contests a reconsidered disposition. The lead agency shall 43.35 notify persons who request reconsideration of their rights under 43.36 this paragraph. The request must be submitted in writing to the 44.1 review panel and a copy sent to the lead agency within 30 44.2 calendar days of receipt of notice of a denial of a request for 44.3 reconsideration or of a reconsidered disposition. The request 44.4 must specifically identify the aspects of the agency 44.5 determination with which the person is dissatisfied. 44.6 (c) If, as a result of a reconsideration or review, the 44.7 lead agency changes the final disposition, it shall notify the 44.8 parties specified in subdivision 9c, paragraph (d). 44.9 (d) For purposes of this subdivision, "interested person 44.10 acting on behalf of the vulnerable adult" means a person 44.11 designated in writing by the vulnerable adult to act on behalf 44.12 of the vulnerable adult, or a legal guardian or conservator or 44.13 other legal representative, a proxy or health care agent 44.14 appointed under chapter 145B or 145C, or an individual who is 44.15 related to the vulnerable adult, as defined in section 245A.02, 44.16 subdivision 13. 44.17 (e) If an individual was disqualified under section 44.18 245A.04, subdivision 3d, on the basis of a determination of 44.19 maltreatment, which was serious or recurring, and the individual 44.20 has requested reconsideration of the maltreatment determination 44.21 under paragraph (a) and reconsideration of the disqualification 44.22 under section 245A.04, subdivision 3b, reconsideration of the 44.23 maltreatment determination and requested reconsideration of the 44.24 disqualification shall be consolidated into a single 44.25 reconsideration. If an individual who was disqualified on the 44.26 basis of serious or recurring maltreatment requests a fair 44.27 hearing under paragraph (b), the scope of the fair hearing shall 44.28 include the maltreatment determination and the disqualification. 44.29 (f) If a maltreatment determination or a disqualification 44.30 based on serious or recurring maltreatment is the basis for a 44.31 licensing sanction under section 245A.07, the license holder has 44.32 the right to a contested case hearing under chapter 14 and 44.33 Minnesota Rules, parts 1400.8550 to 1400.8612. As provided for 44.34 under section 245A.08, the scope of the contested case hearing 44.35 shall include the maltreatment determination, disqualification, 44.36 and licensing sanction. In such cases, a fair hearing shall not 45.1 be conducted under paragraph (b). If the disqualified subject 45.2 is an individual other than the license holder and upon whom a 45.3 background study must be conducted under section 245A.04, 45.4 subdivision 3, the hearings of all parties may be consolidated 45.5 into a single contested case hearing upon consent of all parties 45.6 and the administrative law judge. 45.7 (g) An individual or facility that was determined by the 45.8 commissioner of human services or the commissioner of health to 45.9 be responsible for neglect under section 626.5572, subdivision 45.10 17, prior to August 1, 2001, that believes that the finding of 45.11 neglect does not meet an amended definition of neglect may 45.12 request a reconsideration of the determination of neglect. The 45.13 request for reconsideration must state how the established 45.14 findings no longer meet the elements of the definition of 45.15 neglect. The commissioner shall review the request for 45.16 reconsideration and make a determination within 15 calendar 45.17 days. The commissioner's decision on this reconsideration is 45.18 the final agency action. 45.19 (1) For purposes of compliance with the data destruction 45.20 schedule under section 626.557, subdivision 12b, paragraph (d), 45.21 when a finding of substantiated maltreatment has been changed as 45.22 a result of a reconsideration under this paragraph, the date of 45.23 the original finding of a substantiated maltreatment must be 45.24 used to calculate the destruction date. 45.25 (2) For purposes of any background studies under section 45.26 245A.04, when a determination of substantiated maltreatment has 45.27 been changed as a result of a reconsideration under this 45.28 paragraph, any prior disqualification of the individual under 45.29 section 245A.04 that was based on this determination of 45.30 maltreatment shall be rescinded, and for future background 45.31 studies under section 245A.04 the commissioner shall use the 45.32 previous determination of substantiated maltreatment as a basis 45.33 for disqualification or as a basis for referring the 45.34 individual's maltreatment history to a health-related licensing 45.35 board under section 245A.04, subdivision 3d, paragraph (b). 45.36 Sec. 18. Minnesota Statutes 2000, section 626.5572, 46.1 subdivision 17, is amended to read: 46.2 Subd. 17. [NEGLECT.] "Neglect" means: 46.3 (a) The failure or omission by a caregiver to supply a 46.4 vulnerable adult with care or services, including but not 46.5 limited to, food, clothing, shelter, health care, or supervision 46.6 which is: 46.7 (1) reasonable and necessary to obtain or maintain the 46.8 vulnerable adult's physical or mental health or safety, 46.9 considering the physical and mental capacity or dysfunction of 46.10 the vulnerable adult; and 46.11 (2) which is not the result of an accident or therapeutic 46.12 conduct. 46.13 (b) The absence or likelihood of absence of care or 46.14 services, including but not limited to, food, clothing, shelter, 46.15 health care, or supervision necessary to maintain the physical 46.16 and mental health of the vulnerable adult which a reasonable 46.17 person would deem essential to obtain or maintain the vulnerable 46.18 adult's health, safety, or comfort considering the physical or 46.19 mental capacity or dysfunction of the vulnerable adult. 46.20 (c) For purposes of this section, a vulnerable adult is not 46.21 neglected for the sole reason that: 46.22 (1) the vulnerable adult or a person with authority to make 46.23 health care decisions for the vulnerable adult under sections 46.24 144.651, 144A.44, chapter 145B, 145C, or 252A, or section 46.25 253B.03, or 525.539 to 525.6199, refuses consent or withdraws 46.26 consent, consistent with that authority and within the boundary 46.27 of reasonable medical practice, to any therapeutic conduct, 46.28 including any care, service, or procedure to diagnose, maintain, 46.29 or treat the physical or mental condition of the vulnerable 46.30 adult, or, where permitted under law, to provide nutrition and 46.31 hydration parenterally or through intubation; this paragraph 46.32 does not enlarge or diminish rights otherwise held under law by: 46.33 (i) a vulnerable adult or a person acting on behalf of a 46.34 vulnerable adult, including an involved family member, to 46.35 consent to or refuse consent for therapeutic conduct; or 46.36 (ii) a caregiver to offer or provide or refuse to offer or 47.1 provide therapeutic conduct; or 47.2 (2) the vulnerable adult, a person with authority to make 47.3 health care decisions for the vulnerable adult, or a caregiver 47.4 in good faith selects and depends upon spiritual means or prayer 47.5 for treatment or care of disease or remedial care of the 47.6 vulnerable adult in lieu of medical care, provided that this is 47.7 consistent with the prior practice or belief of the vulnerable 47.8 adult or with the expressed intentions of the vulnerable adult; 47.9 (3) the vulnerable adult, who is not impaired in judgment 47.10 or capacity by mental or emotional dysfunction or undue 47.11 influence, engages in sexual contact with: 47.12 (i) a person including a facility staff person when a 47.13 consensual sexual personal relationship existed prior to the 47.14 caregiving relationship; or 47.15 (ii) a personal care attendant, regardless of whether the 47.16 consensual sexual personal relationship existed prior to the 47.17 caregiving relationship; or 47.18 (4) an individual makes an error in the provision of 47.19 therapeutic conduct to a vulnerable adult which: (i)does not 47.20 result in injury or harm which reasonably requires medical or 47.21 mental health care; or, if it reasonably requires care,47.22 (5) an individual makes an error in the provision of 47.23 therapeutic conduct to a vulnerable adult that results in injury 47.24 or harm, which reasonably requires medical or mental health 47.25 care; and: 47.26 (i) the necessary care issought andprovided in a timely 47.27 fashion as dictated by the condition of the vulnerable adult; 47.28and the injury or harm that required care does not result in47.29substantial acute, or chronic injury or illness, or permanent47.30disability above and beyond the vulnerable adult's preexisting47.31condition; 47.32 (ii)isafter receiving care, the health status of the 47.33 vulnerable adult is restored to the vulnerable adult's 47.34 preexisting condition within 30 days; 47.35 (iii) the error is not part of a pattern of errors by the 47.36 individual; 48.1 (iv) if in a facility, the error is immediately reported as 48.2 required under section 626.557, subdivision 3, and recorded 48.3 internallyby the employee or person providing servicesin the 48.4 facilityin order to evaluate and identify corrective action; 48.5 (v) if in a facility, the facility identifies and takes 48.6 corrective action and implements measures designed to reduce the 48.7 risk of further occurrence of this error and similar errors; and 48.8(iii) is(vi) if in a facility, the actions required under 48.9 items (iv) and (v) are sufficiently documented for review and 48.10 evaluation by the facility and any applicable licensing, 48.11 certification, and ombudsman agency; and48.12(iv) is not part of a pattern of errors by the individual. 48.13 (d) Nothing in this definition requires a caregiver, if 48.14 regulated, to provide services in excess of those required by 48.15 the caregiver's license, certification, registration, or other 48.16 regulation. 48.17 (e) If the findings of an investigation by a lead agency 48.18 result in a determination of substantiated maltreatment for the 48.19 sole reason that the actions required of a facility under 48.20 paragraph (c), clause (5), item (iv), (v), or (vi), were not 48.21 taken, then notwithstanding the mitigating factors under section 48.22 626.557, subdivision 9c, paragraph (c), the facility, and not 48.23 the individual caregiver, shall be determined as the party 48.24 responsible for the maltreatment. 48.25 Sec. 19. [FEDERAL LAW CHANGE REQUEST OR WAIVER.] 48.26 The commissioner of health or human services, whichever is 48.27 appropriate, shall pursue changes to federal law necessary to 48.28 allow greater discretion on disciplinary activities of 48.29 unlicensed health care workers, and apply for necessary federal 48.30 waivers or approval that would allow for a set-aside process 48.31 related to disqualifications for nurse aides in nursing homes by 48.32 July 1, 2001.