Minnesota Session Laws - 1983, Regular Session

  

                         Laws of Minnesota 1983 

                        CHAPTER 273--S.F.No. 398
           An act relating to vulnerable adults; refining the 
          Vulnerable Adults Reporting Act; specifying reporting 
          requirements; specifying access to reports; preventing 
          record destruction; amending Minnesota Statutes 1982, 
          section 626.557, subdivisions 2, 3, 4, 10, 12, 14, and 
          by adding a subdivision; repealing Minnesota Statutes 
          1982, section 626.557, subdivision 12a. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1982, section 626.557, 
subdivision 2, is amended to read: 
    Subd. 2.  [DEFINITIONS.] As used in this section, the 
following terms have the meanings given them unless the specific 
context indicates otherwise. 
    (a) "Facility" means a hospital or other entity required to 
be licensed pursuant to sections 144.50 to 144.58; a nursing 
home required to be licensed to serve adults pursuant to section 
144A.02; an agency, day care facility, or residential facility 
required to be licensed to serve adults pursuant to sections 
245.781 to 245.812; a mental health program receiving funds 
pursuant to section 245.61; or any entity required to be a home 
health agency certified for participation in Titles XVIII or XIX 
of the Social Security Act, 42 U.S.C. United States Code, title 
42, sections 1395 et seq. 
    (b) "Vulnerable adult" means any person 18 years of age or 
older: 
    (1) Who is a resident or patient inpatient of a facility; 
    (2) Who receives services at or from a facility required to 
be licensed to serve adults pursuant to sections 245.781 to 
245.812, except a person receiving outpatient services for 
treatment of chemical dependency or mental illness; or 
    (3) Who receives services from a home health agency 
certified for participation under Titles XVIII or XIX of the 
Social Security Act, United States Code, title 42, sections 1395 
et seq and 1396 et seq; or 
    (4) Who, regardless of residence or type of service 
received, is unable or unlikely to report abuse or neglect 
without assistance because of impairment of mental or physical 
function or emotional status. 
    (c) "Caretaker" means an individual or facility who has 
responsibility for the care of a vulnerable adult as a result of 
family relationship, or who has assumed responsibility for all 
or a portion of the care of a vulnerable adult voluntarily, or 
by contract, or agreement. 
    (d) "Abuse" means: 
    (1) Any act which constitutes a violation of under sections 
609.221 to 609.235, 609.322, 609.342, 609.343, 609.344, or 
609.345; or 
    (2) The intentional and nontherapeutic infliction of 
physical pain or injury, or any persistent course of conduct 
intended to produce mental or emotional distress. 
    (e) "Neglect" means:  
     (1) Failure by a caretaker to supply the vulnerable adult 
with necessary food, clothing, shelter, health care or 
supervision; or 
     (2) The absence or likelihood of absence of necessary food, 
clothing, shelter, health care, or supervision for a vulnerable 
adult. 
    (f) "Report" means any report received by the local welfare 
agency, police department, county sheriff, or licensing agency 
pursuant to this section. 
    (g) "Licensing agency" means: 
    (1) The commissioner of health, for facilities as defined 
in clause (a) which are required to be licensed or certified by 
the department of health; 
     (2) The commissioner of public welfare, for facilities 
required by sections 245.781 to 245.813 to be licensed; 
     (3) Any licensing board which regulates persons pursuant to 
section 214.01, subdivision 2; and 
     (4) Any agency responsible for credentialing human services 
occupations. 
     Sec. 2.  Minnesota Statutes 1982, section 626.557, 
subdivision 3, is amended to read: 
    Subd. 3.  [PERSONS MANDATED TO REPORT.] A professional or 
his delegate who is engaged in the care of vulnerable adults, 
education, social services, law enforcement, or any of the 
regulated occupations referenced in subdivision 2, clause (g)(3) 
and (4), or an employee of a rehabilitation facility certified 
by the commissioner of economic security for vocational 
rehabilitation, or an employee of or person providing services 
in a facility who has knowledge of the abuse or neglect of a 
vulnerable adult, has reasonable cause to believe that a 
vulnerable adult is being or has been abused or neglected, or 
who has knowledge that a vulnerable adult has sustained a 
physical injury which is not reasonably explained by the history 
of injuries provided by the caretaker or caretakers of the 
vulnerable adult shall immediately report the information to the 
local police department, county sheriff, local welfare agency, 
or appropriate licensing or certifying agency.  The police 
department or the county sheriff, upon receiving a report, shall 
immediately notify the local welfare agency.  The local welfare 
agency, upon receiving a report, shall immediately notify the 
local police department or the county sheriff and the 
appropriate licensing agency or agencies.  
             A person not required to report under the provisions of 
this subdivision may voluntarily report as described above.  
Medical examiners or coroners shall notify the police department 
or county sheriff and the local welfare department in instances 
in which they believe that a vulnerable adult has died as a 
result of abuse or neglect.  
             Nothing in this subdivision shall be construed to require 
the reporting or transmittal of information regarding an 
incident of abuse or neglect or suspected abuse or neglect if 
the incident has been reported or transmitted to the appropriate 
person or entity.  
     Sec. 3.  Minnesota Statutes 1982, section 626.557, is 
amended by adding a subdivision to read: 
    Subd. 3a.  [REPORT NOT REQUIRED.] (a) Where federal law 
specifically prohibits a person from disclosing patient 
identifying information in connection with a report of suspected 
abuse or neglect under this act, that person need not make a 
required report unless the vulnerable adult, or his guardian, 
conservator, or legal representative, has consented to 
disclosure in a manner which conforms to federal requirements. 
Facilities whose patients or residents are covered by such a 
federal law shall seek consent to the disclosure or suspected 
abuse or neglect from each patient or resident, or his guardian, 
conservator, or legal representative, upon his admission to the 
facility.  Persons who are prohibited by federal law from 
reporting an incident of suspected abuse or neglect shall 
promptly seek consent to make a report.  
    (b) Except as defined in subdivision 2, paragraph (d), 
clause (1), verbal or physical aggression occurring between 
patients, residents, or clients of a facility, or self-abusive 
behavior of these persons does not constitute "abuse" for the 
purposes of subdivision 3 unless it causes serious harm.  The 
operator of the facility or a designee shall record incidents of 
aggression and self-abusive behavior in a manner that 
facilitates periodic review by licensing agencies and county and 
local welfare agencies. 
     Sec. 4.  Minnesota Statutes 1982, section 626.557, 
subdivision 4, is amended to read: 
             Subd. 4.  [REPORT.] A person required to report under 
subdivision 3 shall make an oral report immediately by telephone 
or otherwise.  A person required to report under subdivision 3 
shall also make a report as soon as possible in writing to the 
appropriate police department, the county sheriff, local welfare 
agency, or appropriate licensing agency.  The written report 
shall be of sufficient content to identify the vulnerable adult, 
the caretaker, the nature and extent of the suspected abuse or 
neglect, any evidence of previous abuse or neglect, name and 
address of the reporter, and any other information that the 
reporter believes might be helpful in investigating the 
suspected abuse or neglect.  Written reports received by a 
police department or a county sheriff shall be forwarded 
immediately to the local welfare agency.  The police department 
or the county sheriff may keep copies of reports received by 
them.  Copies of written reports received by a local welfare 
department shall be forwarded immediately to the local police 
department or the county sheriff and the appropriate licensing 
agency or agencies.  
    Unless the local welfare agency has notified a licensing 
agency, records maintained by local welfare agencies, local 
police departments, or county sheriffs under this section shall 
be destroyed as follows:  
    (a) All records relating to reports which, upon 
investigation, are found to be false shall be destroyed, but 
only after notice of intent to destroy has been mailed to the 
alleged abuser.  At that party's request the records shall be 
maintained as confidential.  The request must be mailed within 
30 days of the mailing date of the original notice or the 
records will be destroyed;  
    (b) All records relating to reports which, upon 
investigation, are found to be substantiated shall be destroyed 
seven years after the date of the final entry in the case 
record; and 
    (c) All records of reports which, upon initial 
investigation, cannot be substantiated or disproved to the 
satisfaction of the local welfare agency, local police 
department or county sheriff shall be kept for a period of two 
years.  If the local welfare agency, local police department or 
county sheriff is unable to substantiate the report within that 
period, each agency unable to substantiate the report shall 
destroy its records relating to the report.  
    If a licensing agency has been notified, records maintained 
by local welfare agencies, local police departments, or county 
sheriffs shall be destroyed upon receiving notice of record 
destruction from all licensing agencies notified about the 
report.  
     Sec. 5.  Minnesota Statutes 1982, section 626.557, 
subdivision 10, is amended to read: 
    Subd. 10.  [DUTIES OF LOCAL WELFARE AGENCY UPON A RECEIPT 
OF A REPORT.] (a) The local welfare agency shall immediately 
investigate and offer emergency and continuing protective social 
services for purposes of preventing further abuse or neglect and 
for safeguarding and enhancing the welfare of the abused or 
neglected vulnerable adult.  Local welfare agencies shall have 
the right to may enter facilities and inspect and copy records 
as part of investigations.  In cases of suspected sexual abuse, 
the local welfare agency shall immediately arrange for and make 
available to the victim appropriate medical examination and 
treatment.  The investigation shall not be limited to the 
written records of the facility, but shall include every other 
available source of information.  When necessary in order to 
protect the vulnerable adult from further harm, the local 
welfare agency shall seek authority to remove the vulnerable 
adult from the caretaker in whose care situation in which the 
neglect or abuse occurred.  The local welfare agency shall also 
investigate to determine whether the conditions which resulted 
in the reported abuse or neglect place other vulnerable adults 
in jeopardy of being abused or neglected and offer protective 
social services that are called for by its determination.  In 
performing any of these duties, the local welfare agency shall 
maintain appropriate records.  
             (b) If the report indicates, or if the local welfare 
agency finds that the suspected abuse or neglect occurred at a 
facility, or while the vulnerable adult was or should have been 
under the care of or receiving services from a facility, or that 
the suspected abuse or neglect involved a person licensed by a 
licensing agency to provide care or services, the local welfare 
agency shall immediately notify the appropriate licensing agency 
or agencies, and provide the licensing agency with a copy of the 
report and of its investigative findings.  
     Sec. 6.  Minnesota Statutes 1982, section 626.557, 
subdivision 12, is amended to read: 
    Subd. 12.  [RECORDS.] Each licensing agency shall maintain 
summary records of reports of suspected abuse or neglect and 
suspected violations of the requirements of this section with 
respect to facilities or persons licensed or credentialed by 
that agency.  These records shall state As part of these 
records, the agency shall prepare an investigation memorandum. 
The investigation memorandum shall be accessible to the public 
pursuant to section 13.03.  It shall contain a complete review 
of the agency's investigation, including but not limited to the 
facility's name, if any, a statement of the nature of the 
suspected abuse or neglect or violation of the requirements of 
this section and the results of the agency's investigation, 
pertinent information obtained from medical or other records 
reviewed, the investigator's name, a summary of the 
investigation's findings, and a statement of any determination 
made or action taken by the agency.  These records, which The 
investigation memorandum shall not contain the name be written 
in a manner which protects the identity of the person making the 
report or reporter and of the vulnerable adult, shall be public 
and may not contain the name or, to the extent possible, the 
identity of the alleged perpetrator or of those interviewed 
during the investigation.  During the licensing agency's 
investigation, all other records maintained data collected 
pursuant to this section shall be private data on individuals, 
except that the records classified as investigative data 
pursuant to section 13.39.  After the licensing agency's 
investigation is complete, the data on individuals collected and 
maintained shall be private data on individuals.  All data 
collected pursuant to this section shall be made available to a 
prosecuting authority authorities and law enforcement officials, 
local welfare agencies, and other licensing agencies in 
investigating the alleged abuse or neglect.  The records shall 
be collected and maintained in accordance with the provisions of 
chapter 13, and an individual subject of a record shall have 
access to the record in accordance with those sections, except 
that Notwithstanding any law to the contrary, the name of the 
reporter shall be disclosed only upon a finding by the court 
that the report was false and made in bad faith.  
    Records maintained by licensing agencies under this section 
shall be destroyed as follows:  
    (a) All records relating to reports which, upon 
investigation, the licensing agency finds to be false shall be 
destroyed in accordance with provisions of subdivision 4, clause 
(a);  
    (b) All records relating to reports which, upon 
investigation, the licensing agency finds are substantiated 
shall be destroyed seven years after the date of the final entry 
in the case record; and 
    (c) All records of reports which, upon initial 
investigation, cannot be substantiated or disproved to the 
satisfaction of the licensing agency shall be kept for two 
years.  If the licensing agency is unable to substantiate the 
report within that period, the agency shall destroy the 
records.  The licensing agency shall notify the appropriate 
local welfare agency, local police department, or county sheriff 
of the agency's destruction of records relating to reports made 
pursuant to this section and the reasons for the destruction.  
    Notwithstanding the provisons of section 138.163:  
    (1) All data maintained by licensing agencies, treatment 
facilities, or other public agencies which relate to reports 
which, upon investigation, the licensing agency finds to be 
false may be destroyed two years after the finding was made;  
    (2) All data maintained by licensing agencies, treatment 
facilities, or other public agencies which relate to reports 
which, upon investigation, the licensing agency finds to be 
unsubstantiated may be destroyed four years after the finding 
was made;  
    (3) All data maintained by licensing agencies, treatment 
facilities, or other public agencies which relate to reports 
which, upon investigation, the licensing agency finds to be 
substantiated may be destroyed seven years after the finding was 
made.  
     Sec. 7.  Minnesota Statutes 1982, section 626.557, 
subdivision 14, is amended to read: 
    Subd. 14.  [ABUSE PREVENTION PLANS.] (a) Each facility, 
except home health agencies, shall establish and enforce an 
ongoing written abuse prevention plan.  The plan shall contain 
an assessment of the physical plant, its environment, and its 
population identifying factors which may encourage or permit 
abuse, and a statement of specific measures to be taken to 
minimize the risk of abuse.  The plan shall comply with any 
rules governing the plan as are promulgated by the licensing 
agency.  
    (b) Each facility shall develop an individual abuse 
prevention plan for each vulnerable adult residing there.  
Facilities designated in subdivision 2, clause (b)(2) or clause 
(b)(3) shall develop plans for any vulnerable adults receiving 
services from them.  The plan shall contain an individualized 
assessment of the person's susceptibility to abuse, and a 
statement of the specific measures to be taken to minimize the 
risk of abuse to that person.  For the purposes of this clause, 
the term "abuse" includes self-abuse.  
     Sec. 8.  [REPEALER.] 
     Minnesota Statutes 1982, section 626.557, subdivision 12a 
is repealed. 
    Approved June 6, 1983