Minnesota Session Laws - 1985, Regular Session

  

                         Laws of Minnesota 1985 

                        CHAPTER 150-S.F.No. 1049 
           An act relating to human services; refining the 
          vulnerable adults reporting act; clarifying 
          definitions; requiring reporting of financial 
          exploitation;  providing for local welfare agency 
          actions to protect vulnerable adults; amending 
          Minnesota Statutes 1984, section 626.557, subdivisions 
          2, 3a, 5, 9, and 10, and by adding a subdivision. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1984, 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 a home health agency certified 
for participation in Titles XVIII or XIX of the Social Security 
Act, 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 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;  
    (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 
a family relationship, or who has assumed responsibility for all 
or a portion of the care of a vulnerable adult voluntarily, or 
by contract, or by agreement. 
    (d) "Abuse" means: 
    (1) any act which constitutes a violation under sections 
609.221 to 609.223, 609.23 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 nontherapeutic 
conduct which produces or could reasonably be expected to 
produce pain or injury and is not accidental, or any repeated 
conduct which produces or could reasonably be expected to 
produce mental or emotional distress;  
    (3) any sexual contact between a facility staff person and 
a resident or client of that facility; or 
    (4) the illegal use of a vulnerable adult's person or 
property for another person's profit or advantage, or the breach 
of a fiduciary relationship through the use of a person or a 
person's property for any purpose not in the proper and lawful 
execution of a trust, including but not limited to situations 
where a person obtains money, property, or services from a 
vulnerable adult through the use of undue influence, harassment, 
duress, deception, or fraud. 
    (e) "Neglect" means:  
    (1) failure by a caretaker to supply the a 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; or 
    (3) the absence or likelihood of absence of necessary 
financial management to protect a vulnerable adult against abuse 
as defined in paragraph (d), clause (4).  Nothing in this 
section shall be construed to require a health care facility to 
provide financial management or supervise financial management 
for a vulnerable adult except as otherwise required by law. 
     (f) "Report" means any report received by the a 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 human services, 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 1984, section 626.557, 
subdivision 3a, is amended 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 Laws 1983, chapter 273, section 3, that 
person need not make a required report unless the vulnerable 
adult, or his the vulnerable adult's 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 of 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. 
    (c) Nothing in this section shall be construed to require a 
report of abuse, as defined in subdivision 2, paragraph (d), 
clause (4), solely on the basis of the transfer of money or 
property by gift or as compensation for services rendered. 
    Sec. 3.  Minnesota Statutes 1984, section 626.557, 
subdivision 5, is amended to read: 
    Subd. 5.  [IMMUNITY FROM LIABILITY.] (a) A person, 
including a person voluntarily making reports and a person 
required to make reports voluntary or mandated report under 
subdivision 3, or participating in good faith in making a report 
pursuant to an investigation under this section shall have 
immunity is immune from any civil or criminal liability that 
otherwise might result from making the report person's actions, 
if the person is acting in good faith.  
    (b) A person employed by a local welfare agency or a state 
licensing agency who is conducting or supervising an 
investigation or enforcing the law in compliance with 
subdivisions 10, 11, or 12 or any related rule or provision of 
law is immune from any civil or criminal liability that might 
otherwise result from the person's actions, if the person is 
acting in good faith and exercising due care. 
    Sec. 4.  Minnesota Statutes 1984, section 626.557, 
subdivision 9, is amended to read: 
    Subd. 9.  [MANDATORY REPORTING TO A MEDICAL EXAMINER OR 
CORONER.] When A person required to report under the provisions 
of subdivision 3 who has reasonable cause to believe that a 
vulnerable adult has died as a direct or indirect result of 
abuse or neglect, he shall report that information to the 
appropriate medical examiner or coroner in addition to the local 
welfare agency, police department, or county sheriff or 
appropriate licensing agency or agencies.  The medical examiner 
or coroner shall complete an investigation as soon as feasible 
and report the findings to the police department or county 
sheriff, and the local welfare agency, and, if applicable, each 
licensing agency.  
    Sec. 5.  Minnesota Statutes 1984, 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 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 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 each appropriate licensing 
agency or agencies, and provide the each licensing agency with a 
copy of the report and of its investigative findings.  
    (c) When necessary in order to protect a vulnerable adult 
from serious harm, the local agency shall immediately intervene 
on behalf of that adult to help the family, victim, or other 
interested person by seeking any of the following:  
    (1) a restraining order or a court order for removal of the 
perpetrator from the residence of the vulnerable adult pursuant 
to section 518B.01;  
    (2) the appointment of a guardian or conservator pursuant 
to sections 525.539 to 525.6198, or guardianship or 
conservatorship pursuant to chapter 252A;  
    (3) replacement of an abusive or neglectful guardian or 
conservator and appointment of a suitable person as guardian or 
conservator, pursuant to sections 525.539 to 525.6198; or 
    (4) a referral to the prosecuting attorney for possible 
criminal prosecution of the perpetrator under chapter 609.  
    The expenses of legal intervention must be paid by the 
county in the case of indigent persons, under section 525.703 
and chapter 563.  
    In proceedings under sections 525.539 to 525.6198, if a 
suitable relative or other person is not available to petition 
for guardianship or conservatorship, a county employee shall 
present the petition with representation by the county 
attorney.  The county shall contract with or arrange for a 
suitable person or nonprofit organization to provide ongoing 
guardianship services.  If the county presents evidence to the 
probate court that it has made a diligent effort and no other 
suitable person can be found, a county employee may serve as 
guardian or conservator.  The county shall not retaliate against 
the employee for any action taken on behalf of the ward or 
conservatee even if the action is adverse to the county's 
interest.  Any person retaliated against in violation of this 
subdivision shall have a cause of action against the county and 
shall be entitled to reasonable attorney fees and costs of the 
action if the action is upheld by the court. 
    Sec. 6.  Minnesota Statutes 1984, section 626.557, is 
amended by adding a subdivision to read: 
    Subd. 11a.  [DUTIES OF PROSECUTING AUTHORITIES.] Upon 
receipt of a report from a social service or licensing agency, 
the prosecuting authority shall immediately investigate, 
prosecute when warranted, and transmit its findings and 
disposition to the referring agency. 
    Approved May 20, 1985