Minnesota Session Laws - 1987, Regular Session

  

                         Laws of Minnesota 1987 

                        CHAPTER 110-S.F.No. 555 
           An act relating to human services; prohibiting the use 
          of faradic shock in certain facilities; including 
          certain aversive and deprivation procedures as abuse; 
          amending Minnesota Statutes 1986, sections 245.825, 
          subdivision 1; 626.556, subdivision 2; and 626.557, 
          subdivision 2. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1986, section 245.825, 
subdivision 1, is amended to read:  
    Subdivision 1.  [RULES GOVERNING USE OF AVERSIVE AND 
DEPRIVATION PROCEDURES.] The commissioner of human services 
shall by October, 1983 promulgate rules governing the use of 
aversive and deprivation procedures in all licensed 
facilities and licensed services serving persons with mental 
retardation or related conditions, as defined in section 252.27, 
subdivision 1.  No provision of these rules shall encourage or 
require the use of aversive and deprivation procedures.  The 
rules shall prohibit:  (a) the application of certain aversive 
or deprivation procedures in facilities except as authorized and 
monitored by the designated regional review committees; and (b) 
the use of aversive or deprivation procedures that restrict the 
consumers' normal access to nutritious diet, drinking water, 
adequate ventilation, necessary medical care, ordinary hygiene 
facilities, normal sleeping conditions, and necessary clothing; 
and (c) the use of faradic shock without a court order.  The 
rule shall further specify that consumers may not be denied 
ordinary access to legal counsel and next of kin.  In addition, 
the rule may specify other prohibited practices and the specific 
conditions under which permitted practices are to be carried 
out.  For any persons receiving faradic shock, a plan to reduce 
and eliminate the use of faradic shock shall be in effect upon 
implementation of the procedure.  
    Sec. 2.  Minnesota Statutes 1986, section 626.556, 
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 
content indicates otherwise: 
    (a) "Sexual abuse" means the subjection by a person 
responsible for the child's care, or by a person in a position 
of authority, as defined in section 609.341, subdivision 10, to 
any act which constitutes a violation of section 609.342, 
609.343, 609.344, or 609.345.  Sexual abuse also includes any 
act which involves a minor which constitutes a violation of 
sections 609.321 to 609.324 or 617.246.  
    (b) "Person responsible for the child's care" means (1) an 
individual functioning within the family unit and having 
responsibilities for the care of the child such as a parent, 
guardian, or other person having similar care responsibilities, 
or (2) an individual functioning outside the family unit and 
having responsibilities for the care of the child such as a 
teacher, school administrator, or other lawful custodian of a 
child having either full-time or short-term care 
responsibilities including, but not limited to, day care, 
babysitting whether paid or unpaid, counseling, teaching, and 
coaching.  
    (c) "Neglect" means failure by a person responsible for a 
child's care to supply a child with necessary food, clothing, 
shelter or medical care when reasonably able to do so or failure 
to protect a child from conditions or actions which imminently 
and seriously endanger the child's physical or mental health 
when reasonably able to do so.  Nothing in this section shall be 
construed to (1) mean that a child is neglected solely because 
the child's parent, guardian or other person responsible for the 
child's care in good faith selects and depends upon spiritual 
means or prayer for treatment or care of disease or remedial 
care of the child, or (2) impose upon persons, not otherwise 
legally responsible for providing a child with necessary food, 
clothing, shelter or medical care, a duty to provide that care.  
Neglect also means "medical neglect" as defined in section 
260.015, subdivision 10, clause (e). 
    (d) "Physical abuse" means any physical injury inflicted by 
a person responsible for the child's care on a child other than 
by accidental means, or any physical injury that cannot 
reasonably be explained by the child's history of injuries, or 
any aversive and deprivation procedures that have not been 
authorized under section 245.825.  
    (e) "Report" means any report received by the local welfare 
agency, police department or county sheriff pursuant to this 
section. 
    (f) "Facility" means a day care facility, residential 
facility, agency, hospital, sanitorium, or other facility or 
institution required to be licensed pursuant to sections 144.50 
to 144.58, 241.021, or 245.781 to 245.812.  
    (g) "Operator" means an operator or agency as defined in 
section 245.782.  
    (h) "Commissioner" means the commissioner of human services.
    (i) "Assessment" includes authority to interview the child, 
the person or persons responsible for the child's care, the 
alleged perpetrator, and any other person with knowledge of the 
abuse or neglect for the purpose of gathering the facts, 
assessing the risk to the child, and formulating a plan.  
    (j) "Practice of social services," for the purposes of 
subdivision 3, includes but is not limited to employee 
assistance counseling and the provision of guardian ad litem 
services.  
    Sec. 3.  Minnesota Statutes 1986, 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; 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, 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;  
    (2) 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; or 
    (5) any aversive and deprivation procedures that have not 
been authorized under section 245.825.  
    (e) "Neglect" means:  
    (1) failure by a caretaker to supply a vulnerable adult 
with necessary food, clothing, shelter, health care or 
supervision;  
    (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 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. 
    Approved May 14, 1987