Minnesota Session Laws - 1985, Regular Session

  

                         Laws of Minnesota 1985 

                        CHAPTER 293-H.F.No. 213 
           An act relating to the maltreatment of minors or 
          vulnerable adults in certain licensed facilities; 
          providing for notification of parents or guardians 
          after reports of alleged abuse; clarifying certain 
          provisions; amending Minnesota Statutes 1984, sections 
          13.46, subdivisions 3 and 4; 626.556, subdivisions 
          10b, 11, and by adding a subdivision; and 626.557, 
          subdivision 12, and by adding a subdivision. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1984, section 13.46, 
subdivision 3, is amended to read: 
    Subd. 3.  [INVESTIGATIVE DATA.] Data on persons, including 
data on vendors of services and data on licensees, that is 
collected, maintained, used, or disseminated by the welfare 
system in an investigation, authorized by statute and relating 
to the enforcement of rules or law, is confidential data on 
individuals pursuant to section 13.02, subdivision 3, or 
protected nonpublic data not on individuals pursuant to section 
13.02, subdivision 13, and shall not be disclosed except: 
    (a) pursuant to section 13.05; 
    (b) pursuant to statute or valid court order; 
    (c) to a party named in a civil or criminal proceeding, 
administrative or judicial, for preparation of defense; or 
    (d) to provide the notices required and permitted by 
sections 3, 4, and 6. 
    The data referred to in this subdivision shall be 
classified as public data upon its submission to an 
administrative law judge or court in an administrative or 
judicial proceeding. 
    Sec. 2.  Minnesota Statutes 1984, section 13.46, 
subdivision 4, is amended to read: 
    Subd. 4.  [LICENSING DATA.] All data collected, maintained, 
used, or disseminated by the welfare system pertaining to 
persons licensed or registered under the authority of the 
commissioner of human services, except for personal and personal 
financial data about applicants and licensees under the family 
day care program and the family foster care program and data 
generated in the course of licensing investigations that are in 
response to a complaint of a rule or statutory violation, are 
public data.  Personal and personal financial data on family day 
care program and family foster care program applicants and 
licensees are private data pursuant to section 13.02, 
subdivision 12.  Data generated in the course of licensing 
investigations that are in response to a complaint of a rule or 
statutory violation are investigative data pursuant to section 
13.46, subdivision 3. 
    Sec. 3.  Minnesota Statutes 1984, section 626.556, 
subdivision 10b, is amended to read: 
    Subd. 10b.  [DUTIES OF COMMISSIONER; NEGLECT OR ABUSE IN A 
FACILITY.] (a) If the report alleges that a child in the care of 
a facility as defined in subdivision 2 is neglected, physically 
abused, or sexually abused by an individual in that facility, 
the commissioner shall immediately investigate.  The 
commissioner shall arrange for the transmittal to him of reports 
received by local agencies and may delegate to a local welfare 
agency the duty to investigate reports.  In conducting an 
investigation under this section, the commissioner has the 
powers and duties specified for local welfare agencies under 
this section.  The commissioner or local welfare agency may 
interview any children who are or have been in the care of a 
facility under investigation and their parents, guardians, or 
legal custodians. 
    (b) Prior to any interview, the commissioner or local 
welfare agency shall provide the following information to the 
parent, guardian, or legal custodian of a child who will be 
interviewed:  the name of the facility; the fact that a report 
alleging neglect, physical abuse, or sexual abuse of a child in 
the facility has been received; the nature of the alleged 
neglect, physical abuse, or sexual abuse; that the agency is 
conducting an investigation; any protective or corrective 
measures being taken pending the outcome of the investigation; 
and that a written memorandum will be provided when the 
investigation is completed.  If reasonable efforts to reach the 
parent, guardian, or legal custodian of a child in an 
out-of-home placement have failed, the child may be interviewed 
if there is reason to believe the interview is necessary to 
protect the child or other children in the facility.  The 
commissioner or local agency must provide the information 
required in this subdivision to the parent, guardian, or legal 
custodian of a child interviewed without parental notification 
as soon as possible after the interview.  
    Sec. 4.  Minnesota Statutes 1984, section 626.556, is 
amended by adding a subdivision to read: 
    Subd. 10d.  [NOTIFICATION OF NEGLECT OR ABUSE IN A 
FACILITY.] (a) When a report is received that alleges neglect, 
physical abuse, or sexual abuse of a child while in the care of 
a facility required to be licensed pursuant to sections 245.781 
to 245.812, the commissioner or local welfare agency 
investigating the report shall provide the following information 
to the parent, guardian, or legal custodian of a child alleged 
to have been neglected, physically abused, or sexually abused: 
the name of the facility; the fact that a report alleging 
neglect, physical abuse, or sexual abuse of a child in the 
facility has been received; the nature of the alleged neglect, 
physical abuse, or sexual abuse; that the agency is conducting 
an investigation; any protective or corrective measures being 
taken pending the outcome of the investigation; and that a 
written memorandum will be provided when the investigation is 
completed.  
    (b) The commissioner or local welfare agency may also 
provide the information in paragraph (a) to the parent, 
guardian, or legal custodian of any other child in the facility 
if the investigative agency knows or has reason to believe the 
alleged neglect, physical abuse, or sexual abuse has occurred. 
In determining whether to exercise this authority, the 
commissioner or local welfare agency shall consider the 
seriousness of the alleged neglect, physical abuse, or sexual 
abuse; the number of children allegedly neglected, physically 
abused, or sexually abused; the number of alleged perpetrators; 
and the length of the investigation.  The facility shall be 
notified whenever this discretion is exercised. 
    (c) When the commissioner or local welfare agency has 
completed its investigation, every parent, guardian, or legal 
custodian notified of the investigation by the commissioner or 
local welfare agency shall be provided with the following 
information in a written memorandum:  the name of the facility 
investigated; the nature of the alleged neglect, physical abuse, 
or sexual abuse; the investigator's name; a summary of the 
investigation findings; a statement whether the report was found 
to be substantiated, inconclusive, or false; and the protective 
or corrective measures that are being or will be taken.  The 
memorandum shall be written in a manner that protects the 
identity of the reporter and the child and shall not contain the 
name, or to the extent possible, reveal the identity of the 
alleged perpetrator or of those interviewed during the 
investigation.  The commissioner or local welfare agency shall 
also provide the written memorandum to the parent, guardian, or 
legal custodian of each child in the facility if the report is 
substantiated.  The commissioner or local welfare agency may 
also provide the written memorandum to the parent, guardian, or 
legal custodian of any other child in the facility if the 
investigation is inconclusive.  The facility shall be notified 
whenever this discretionary authority is exercised. 
    Sec. 5.  Minnesota Statutes 1984, section 626.556, 
subdivision 11, is amended to read: 
    Subd. 11.  [RECORDS.] All records concerning individuals 
maintained by a local welfare agency under this section, 
including any written reports filed under subdivision 7, shall 
be private data on individuals, except insofar as copies of 
reports are required by subdivision 7 to be sent to the local 
police department or the county sheriff, and except as otherwise 
provided in sections 3 and 4.  Report records maintained by any 
police department or the county sheriff shall be private data on 
individuals except the reports shall be made available to the 
investigating, petitioning, or prosecuting authority.  The 
welfare board shall make available to the investigating, 
petitioning, or prosecuting authority any records which contain 
information relating to a specific incident of neglect or abuse 
which is under investigation, petition, or prosecution and 
information relating to any prior incidents of neglect or abuse 
involving any of the same persons.  The records shall be 
collected and maintained in accordance with the provisions of 
chapter 13.  An individual subject of a record shall have access 
to the record in accordance with those sections, except that the 
name of the reporter shall be confidential while the report is 
under assessment or investigation.  After the assessment or 
investigation is completed, the name of the reporter shall be 
confidential but shall be accessible to the individual subject 
of the record upon court order.  
    Notwithstanding section 138.163, records maintained by 
local welfare agencies, the police department or county sheriff 
under this section shall be destroyed as described in clauses 
(a) to (c): 
    (a) If upon assessment or investigation a report is found 
to be unsubstantiated false, notice of intent to destroy records 
of the report shall be mailed to the individual subject of the 
report.  At the subject's request the records shall be 
maintained as private data.  If no request from the subject is 
received within 30 days of mailing the notice of intent to 
destroy, the records shall be destroyed. 
    (b) All records relating to reports which, upon assessment 
or investigation, are found to be substantiated shall be 
destroyed seven years after the date of the final entry in the 
case record. 
    (c) All records of reports which, upon initial assessment 
or investigation, cannot be substantiated or disproved to the 
satisfaction of the local welfare agency, local police 
department or county sheriff may be kept for a period of one 
year.  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 in the manner 
provided by clause (a). 
    Sec. 6.  Minnesota Statutes 1984, section 626.557, is 
amended by adding a subdivision to read: 
    Subd. 10a.  [NOTIFICATION OF NEGLECT OR ABUSE IN A 
FACILITY.] (a) When a report is received that alleges neglect, 
physical abuse, or sexual abuse of a vulnerable adult while in 
the care of a facility required to be licensed under section 
144A.02 or sections 245.781 to 245.812, the local welfare agency 
investigating the report shall notify the guardian or 
conservator of the person of a vulnerable adult under 
guardianship or conservatorship of the person who is alleged to 
have been abused or neglected.  The local welfare agency shall 
notify the person, if any, designated to be notified in case of 
an emergency by a vulnerable adult not under guardianship or 
conservatorship of the person who is alleged to have been abused 
or neglected, unless consent is denied by the vulnerable adult.  
The notice shall contain the following information:  the name of 
the facility; the fact that a report of alleged abuse or neglect 
of a vulnerable adult in the facility has been received; the 
nature of the alleged abuse or neglect; that the agency is 
conducting an investigation; any protective or corrective 
measures being taken pending the outcome of the investigation; 
and that a written memorandum will be provided when the 
investigation is completed.  
     (b) In a case of alleged neglect, physical abuse, or sexual 
abuse of a vulnerable adult while in the care of a facility 
required to be licensed under sections 245.781 to 245.812, the 
local welfare agency may also provide the information in 
paragraph (a) to the guardian or conservator of the person of 
any other vulnerable adult in the facility who is under 
guardianship or conservatorship of the person, to any other 
vulnerable adult in the facility who is not under guardianship 
or conservatorship of the person, and to the person, if any, 
designated to be notified in case of an emergency by any other 
vulnerable adult in the facility who is not under guardianship 
or conservatorship of the person, unless consent is denied by 
the vulnerable adult, if the investigative agency knows or has 
reason to believe the alleged neglect, physical abuse, or sexual 
abuse has occurred. 
    (c) When the investigation required under subdivision 10 is 
completed, the local welfare agency shall provide a written 
memorandum containing the following information to every 
guardian or conservator of the person or other person notified 
by the agency of the investigation under paragraph (a) or (b):  
the name of the facility investigated; the nature of the alleged 
neglect, physical abuse, or sexual abuse; the investigator's 
name; a summary of the investigative findings; a statement of 
whether the report was found to be substantiated, inconclusive, 
or false; and the protective or corrective measures that are 
being or will be taken.  The memorandum shall be written in a 
manner that protects the identity of the reporter and the 
alleged victim and shall not contain the name or, to the extent 
possible, reveal the identity of the alleged perpetrator or of 
those interviewed during the investigation.  
     (d) In a case of neglect, physical abuse, or sexual abuse 
of a vulnerable adult while in the care of a facility required 
to be licensed under sections 245.781 to 245.812, the local 
welfare agency may also provide the written memorandum to the 
guardian or conservator of the person of any other vulnerable 
adult in the facility who is under guardianship or 
conservatorship of the person, to any other vulnerable adult in 
the facility who is not under guardianship or conservatorship of 
the person, and to the person, if any, designated to be notified 
in case of an emergency by any other vulnerable adult in the 
facility who is not under guardianship or conservatorship of the 
person, unless consent is denied by the vulnerable adult, if the 
report is substantiated or if the investigation is inconclusive 
and the report is a second or subsequent report of neglect, 
physical abuse, or sexual abuse of a vulnerable adult while in 
the care of the facility. 
    (e) In determining whether to exercise the discretionary 
authority granted under paragraphs (b) and (d), the local 
welfare agency shall consider the seriousness and extent of the 
alleged neglect, physical abuse, or sexual abuse and the impact 
of notification on the residents of the facility.  The facility 
shall be notified whenever this discretion is exercised. 
    (f) Where federal law specifically prohibits the disclosure 
of patient identifying information, the local welfare agency 
shall not provide any notice under paragraph (a) or (b) or any 
memorandum under paragraph (c) or (d) unless the vulnerable 
adult has consented to disclosure in a manner which conforms to 
federal requirements. 
    Sec. 7.  Minnesota Statutes 1984, section 626.557, 
subdivision 12, is amended to read: 
    Subd. 12.  [RECORDS.] (a) Each licensing agency shall 
maintain summary records of reports of suspected alleged abuse 
or neglect and suspected alleged violations of the requirements 
of this section with respect to facilities or persons licensed 
or credentialed by that agency.  As part of these records, the 
agency shall prepare an investigation 
memorandum.  Notwithstanding section 13.46, subdivision 3, the 
investigation memorandum shall be accessible to the public 
pursuant to section 13.03 and a copy shall be provided to any 
public agency which referred the matter to the licensing agency 
for investigation.  It shall contain a complete review of the 
agency's investigation, including but not limited to:  the 
facility's name of any facility investigated; , if any, a 
statement of the nature of the suspected alleged abuse or 
neglect or other violation of the requirements of this section,; 
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 whether the report was found to be substantiated, 
inconclusive, or false; and a statement of any action taken by 
the agency.  The investigation memorandum shall be written in a 
manner which protects the identity of the reporter and of the 
vulnerable adult 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 data collected pursuant to this 
section shall be 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 prosecuting authorities 
and law enforcement officials, local welfare agencies, and 
licensing agencies investigating the alleged abuse or neglect. 
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.  
    (b) Notwithstanding the provisions 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 are found 
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 are found 
to be unsubstantiated inconclusive 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 are found 
to be substantiated may be destroyed seven years after the 
finding was made. 
    Approved June 4, 1985