Minnesota Session Laws - 1987, Regular Session

  

                         Laws of Minnesota 1987 

                        CHAPTER 352-S.F.No. 514 
           An act relating to human services; creating the office 
          of ombudsman for mental health and mental retardation; 
          providing for the powers and duties of the ombudsman; 
          creating a medical review board; requiring reporting 
          of abuse and neglect to the ombudsman for mental 
          health and mental retardation; appropriating money; 
          amending Minnesota Statutes 1986, sections 13.46, 
          subdivision 1; 626.556, subdivisions 9 and 10; and 
          626.557, subdivision 9; proposing coding for new law 
          in Minnesota Statutes, chapter 245. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1986, section 13.46, 
subdivision 1, is amended to read:  
    Subdivision 1.  [DEFINITIONS.] As used in this section: 
    (a) "Individual" means an individual pursuant to section 
13.02, subdivision 8, but does not include a vendor of services. 
    (b) "Program" includes all programs for which authority is 
vested in a component of the welfare system pursuant to statute 
or federal law.  
    (c) "Welfare system" includes the department of human 
services, county welfare boards, county welfare agencies, human 
services boards, community mental health center boards, state 
hospitals, state nursing homes, the ombudsman for mental health 
and mental retardation, and persons, agencies, institutions, 
organizations, and other entities under contract to any of the 
above agencies to the extent specified in the contract. 
    (d) "Mental health data" means data on individual clients 
and patients of community mental health centers, established 
under section 245.62, or mental health divisions of counties and 
other providers under contract to deliver mental health 
services, or the ombudsman for mental health and mental 
retardation. 
    Sec. 2.  [245.91] [DEFINITIONS.] 
    Subdivision 1.  [APPLICABILITY.] For the purposes of 
sections 2 to 8, the following terms have the meanings given 
them. 
    Subd. 2.  [MENTAL HEALTH OR MENTAL RETARDATION 
AGENCY.] "Mental health or mental retardation agency" or "agency"
means the divisions, officials, or employees of the state 
departments of human services and health, that are engaged in 
monitoring, providing, or regulating services to mental health 
or mental retardation clients.  It does not include a political 
subdivision of the state. 
    Subd. 3.  [MENTAL HEALTH OR MENTAL RETARDATION 
CLIENT.] "Mental health or mental retardation client" or "client"
means a patient, resident, or other person served by a mental 
health or mental retardation agency or facility, who is 
receiving residential treatment for mental illness, mental 
retardation, chemical dependency, or emotional disturbance. 
    Subd. 4.  [MENTAL HEALTH OR MENTAL RETARDATION 
FACILITY.] "Mental health or mental retardation facility" or 
"facility" means a regional center operated by the commissioner 
of human services, a residential facility as defined in section 
245.782, subdivision 6, that is required to be licensed by the 
commissioner of human services, and an acute care inpatient 
facility, that provides treatment for mental illness, mental 
retardation, chemical dependency, or emotional disturbance. 
    Subd. 5.  [REGIONAL CENTER.] "Regional center" means a 
regional center as defined in section 253B.02, subdivision 18. 
    Sec. 3.  [245.92] [OFFICE OF OMBUDSMAN; CREATION; 
QUALIFICATIONS; FUNCTION.] 
    The ombudsman for mental health and mental retardation 
shall promote the highest attainable standards of treatment, 
competence, efficiency, and justice for people receiving care or 
treatment for mental illness, mental retardation, chemical 
dependency, or emotional disturbance.  The ombudsman may gather 
information about decisions, acts, and other matters of an 
agency or facility.  The ombudsman serves at the pleasure of the 
governor in the unclassified service and is accountable to the 
governor.  The ombudsman must be selected without regard to 
political affiliation and must be a person who has knowledge and 
experience concerning the treatment, needs, and rights of mental 
health and mental retardation clients, and who is highly 
competent and qualified.  No person may serve as ombudsman while 
holding another public office. 
    Sec. 4.  [245.93] [ORGANIZATION OF OFFICE OF OMBUDSMAN.] 
    Subdivision 1.  [STAFF.] The ombudsman may appoint a deputy 
and a confidential secretary in the unclassified service and may 
appoint other employees as authorized by the legislature.  The 
ombudsman and the full-time staff are members of the Minnesota 
state retirement association. 
    Subd. 2.  [ADVOCACY.] The function of mental health and 
mental retardation client advocacy in the department of human 
services is transferred to the office of ombudsman according to 
section 15.039.  The ombudsman shall maintain at least one 
client advocate in each regional center. 
    Subd. 3.  [DELEGATION.] The ombudsman may delegate to 
members of the staff any authority or duties of the office 
except the duty of formally making recommendations to an agency 
or facility or reports to the governor or the legislature.  
    Sec. 5.  [245.94] [POWERS OF OMBUDSMAN; REVIEWS AND 
EVALUATIONS; RECOMMENDATIONS.] 
    Subdivision 1.  [POWERS.] (a) The ombudsman may prescribe 
the methods by which complaints to the office are to be made, 
reviewed, and acted upon.  The ombudsman may not levy a 
complaint fee. 
    (b) The ombudsman may mediate or advocate on behalf of a 
client.  
    (c) At the request of a client, or upon receiving a 
complaint or other information affording reasonable grounds to 
believe that the rights of a client who is not capable of 
requesting assistance have been adversely affected, the 
ombudsman may gather information about and analyze, on behalf of 
the client, the actions of an agency or facility. 
    (d) The ombudsman may examine, on behalf of a client, 
records of an agency or facility to which the client is entitled 
to access if the records relate to a matter that is within the 
scope of the ombudsman's authority.  If the records are private 
and confidential and the client is capable of providing consent, 
the ombudsman shall first obtain the client's consent.  
    (e) The ombudsman may, at reasonable times in the course of 
conducting a review, enter and view premises within the control 
of an agency or facility.  
    (f) The ombudsman may attend department of human services 
review board and special review board proceedings; proceedings 
regarding the transfer of patients or residents, as defined in 
section 246.50, subdivisions 4 and 4a, between institutions 
operated by the department of human services; and, subject to 
the consent of the affected patient or resident, other 
proceedings affecting the rights of residents or patients. 
    (g) To avoid duplication and preserve evidence, the 
ombudsman shall inform relevant licensing or regulatory 
officials before undertaking a review of an action of the 
facility. 
    (h) Sections 2 to 8 are in addition to other provisions of 
law under which any other remedy or right is provided. 
    Subd. 2.  [MATTERS APPROPRIATE FOR REVIEW.] (a) In 
selecting matters for review by the office, the ombudsman shall 
give particular attention to unusual deaths or injuries of a 
client served by an agency or facility, or actions of an agency 
or facility that: 
    (1) may be contrary to law or rule; 
    (2) may be unreasonable, unfair, oppressive, or 
inconsistent with a policy or order of an agency or facility; 
    (3) may be mistaken in law or arbitrary in the 
ascertainment of facts; 
    (4) may be unclear or inadequately explained, when reasons 
should have been revealed; 
    (5) may result in abuse or neglect of a person receiving 
treatment; or 
    (6) may disregard the rights of a client or other 
individual served by an agency or facility. 
    (b) The ombudsman shall, in selecting matters for review 
and in the course of the review, avoid duplicating other 
investigations or regulatory efforts. 
    Subd. 3.  [COMPLAINTS.] The ombudsman may receive a 
complaint from any source concerning an action of an agency or 
facility.  After completing a review, the ombudsman shall inform 
the complainant and the agency or facility.  No client may be 
punished nor may the general condition of the client's treatment 
be unfavorably altered as a result of a complaint by the client 
or by another person on the client's behalf. 
    Subd. 4.  [RECOMMENDATIONS TO AGENCY.] (a) If, after 
reviewing a complaint and considering the response of an agency 
or facility and any other pertinent material, the ombudsman 
determines that the complaint has merit, the ombudsman may 
recommend that the agency or facility: 
    (1) consider the matter further; 
    (2) modify or cancel its actions; 
    (3) alter a rule, order, or internal policy;  
    (4) explain more fully the action in question; or 
    (5) take any other action the ombudsman recommends to the 
agency or facility involved. 
    (b) At the ombudsman's request, the agency or facility 
shall, within a reasonable time, inform the ombudsman about the 
action taken on the recommendation or the reasons for not 
complying with it. 
    Sec. 6.  [245.95] [RECOMMENDATIONS AND REPORTS TO 
GOVERNOR.] 
    Subdivision 1.  [SPECIFIC REPORTS.] The ombudsman may send 
conclusions and suggestions concerning any matter reviewed to 
the governor.  Before making public a conclusion or 
recommendation that expressly or implicitly criticizes an agency 
or facility or any person, the ombudsman shall consult with the 
governor and the agency, facility, or person concerning the 
conclusion or recommendation.  When sending a conclusion or 
recommendation to the governor that is adverse to an agency or 
facility or any person, the ombudsman shall include any 
statement of reasonable length made by that agency, facility, or 
person in defense or mitigation of the office's conclusion or 
recommendation. 
    Subd. 2.  [GENERAL REPORTS.] In addition to whatever 
conclusions or recommendations the ombudsman may make to the 
governor on an ad hoc basis, the ombudsman shall at the end of 
each year report to the governor concerning the exercise of the 
ombudsman's functions during the preceding year. 
    Sec. 7.  [245.96] [CIVIL ACTIONS.] 
    The ombudsman and his designees are not civilly liable for 
any action taken under sections 2 to 8 if the action was taken 
in good faith, was within the scope of the ombudsman's 
authority, and did not constitute willful or reckless misconduct.
    Sec. 8.  [245.97] [OMBUDSMAN COMMITTEE.] 
    Subdivision 1.  [MEMBERSHIP.] The ombudsman committee 
consists of 15 members appointed by the governor to three-year 
terms.  Members shall be appointed on the basis of their 
knowledge of and interest in the health and human services 
system subject to the ombudsman's authority.  In making the 
appointments, the governor shall try to ensure that the overall 
membership of the committee adequately reflects the agencies, 
facilities, and programs within the ombudsman's authority and 
that members include consumer representatives, including 
clients, former clients, and relatives of present or former 
clients; representatives of advocacy organizations for clients 
and other individuals served by an agency or facility; human 
services and health care professionals, including specialists in 
psychiatry, psychology, internal medicine, and forensic 
pathology; and other providers of services to mental health or 
mental retardation clients or other individuals served by an 
agency or facility. 
    Subd. 2.  [COMPENSATION; CHAIR.] Members do not receive 
compensation, but are entitled to receive reimbursement for 
reasonable and necessary expenses incurred.  The governor shall 
designate one member of the committee to serve as its chair at 
the pleasure of the governor. 
    Subd. 3.  [MEETINGS.] The committee shall meet at least 
four times a year at the request of its chair or the ombudsman. 
    Subd. 4.  [DUTIES.] The committee shall advise and assist 
the ombudsman in selecting matters for attention; developing 
policies, plans, and programs to carry out the ombudsman's 
functions and powers; and making reports and recommendations for 
changes designed to improve standards of competence, efficiency, 
justice, and protection of rights.  The committee shall function 
as an advisory body. 
    Subd. 5.  [MEDICAL REVIEW SUBCOMMITTEE.] At least five 
members of the committee, including at least three physicians, 
one of whom is a psychiatrist, must be designated by the 
governor to serve as a medical review subcommittee.  Terms of 
service, vacancies, and compensation are governed by subdivision 
2.  The governor shall designate one of the members to serve as 
chair of the subcommittee.  The medical review subcommittee may: 
    (1) make a preliminary determination of whether the death 
of a client that has been brought to its attention is unusual or 
reasonably appears to have resulted from causes other than 
natural causes and warrants investigation; 
    (2) review the causes of and circumstances surrounding the 
death; 
    (3) request the county coroner or medical examiner to 
conduct an autopsy; 
    (4) assist an agency in its investigations of unusual 
deaths and deaths from causes other than natural causes; and 
    (5) submit a report regarding the death of a client to the 
committee, the ombudsman, the client's next-of-kin, and the 
facility where the death occurred and, where appropriate, make 
recommendations to prevent recurrence of similar deaths to the 
head of each affected agency or facility. 
    Subd. 6.  [TERMS, COMPENSATION, AND REMOVAL.] The 
membership terms, compensation, and removal of members of the 
committee and the filling of membership vacancies are governed 
by section 15.0575. 
    Sec. 9.  Minnesota Statutes 1986, section 626.556, 
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 knows or has reason to believe a child has died 
as a result of neglect or physical or sexual abuse, the person 
shall report that information to the appropriate medical 
examiner or coroner instead of the local welfare agency, police 
department or county sheriff.  Medical examiners or coroners 
shall notify the local welfare agency or police department or 
county sheriff in instances in which they believe that the child 
has died as a result of neglect or physical or sexual abuse.  
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.  If 
the child was receiving residential treatment for mental 
illness, mental retardation, chemical dependency, or emotional 
disturbance from a mental health or mental retardation agency or 
facility as defined in section 2, the medical examiner or 
coroner shall also notify and report findings to the ombudsman 
for mental health and mental retardation. 
    Sec. 10.  Minnesota Statutes 1986, section 626.556, 
subdivision 10, is amended to read: 
    Subd. 10.  [DUTIES OF LOCAL WELFARE AGENCY AND LOCAL LAW 
ENFORCEMENT AGENCY UPON RECEIPT OF A REPORT.] (a) If the report 
alleges neglect, physical abuse, or sexual abuse by a parent, 
guardian, or individual functioning within the family unit as a 
person responsible for the child's care, the local welfare 
agency shall immediately conduct an assessment and offer 
protective social services for purposes of preventing further 
abuses, safeguarding and enhancing the welfare of the abused or 
neglected minor, and preserving family life whenever possible.  
When necessary the local welfare agency shall seek authority to 
remove the child from the custody of a parent, guardian or adult 
with whom the child is living.  In performing any of these 
duties, the local welfare agency shall maintain appropriate 
records.  
    (b) When a local agency receives a report or otherwise has 
information indicating that a child who is a mental health or 
mental retardation client, as defined in section 2, has been the 
subject of physical abuse or neglect at a mental health or 
mental retardation agency or facility, as defined in section 2, 
it shall, in addition to its other duties under this section, 
immediately inform the ombudsman for mental health and mental 
retardation. 
    (c) Authority of the local welfare agency responsible for 
assessing the child abuse report and of the local law 
enforcement agency for investigating the alleged abuse includes, 
but is not limited to, authority to interview, without parental 
consent, the alleged victim and any other minors who currently 
reside with or who have resided with the alleged perpetrator.  
The interview may take place at school or at any facility or 
other place where the alleged victim or other minors might be 
found and may take place outside the presence of the perpetrator 
or parent, legal custodian, guardian, or school official.  
Except as provided in this clause, the parent, legal custodian, 
or guardian shall be notified by the responsible local welfare 
or law enforcement agency no later than the conclusion of the 
investigation or assessment that this interview has occurred.  
Notwithstanding rule 49.02 of the Minnesota rules of procedure 
for juvenile courts, the juvenile court may, after hearing on an 
ex parte motion by the local welfare agency, order that, where 
reasonable cause exists, the agency withhold notification of 
this interview from the parent, legal custodian, or guardian.  
If the interview took place or is to take place on school 
property, the order shall specify that school officials may not 
disclose to the parent, legal custodian, or guardian the 
contents of the notification of intent to interview the child on 
school property, as provided under paragraph (c), and any other 
related information regarding the interview that may be a part 
of the child's school record.  A copy of the order shall be sent 
by the local welfare or law enforcement agency to the 
appropriate school official. 
    (c) (d) When the local welfare or local law enforcement 
agency determines that an interview should take place on school 
property, written notification of intent to interview the child 
on school property must be received by school officials prior to 
the interview.  The notification shall include the name of the 
child to be interviewed, the purpose of the interview, and a 
reference to the statutory authority to conduct an interview on 
school property.  For interviews conducted by the local welfare 
agency, the notification shall be signed by the chair of the 
county welfare board or the chair's designee.  The notification 
shall be private data on individuals subject to the provisions 
of this paragraph.  School officials may not disclose to the 
parent, legal custodian, or guardian the contents of the 
notification or any other related information regarding the 
interview until notified in writing by the local welfare or law 
enforcement agency that the investigation or assessment has been 
concluded.  Until that time, the local welfare or law 
enforcement agency shall be solely responsible for any 
disclosures regarding the nature of the assessment or 
investigation.  
     Except where the alleged perpetrator is believed to be a 
school official or employee, the time and place, and manner of 
the interview on school premises shall be within the discretion 
of school officials, but the local welfare or law enforcement 
agency shall have the exclusive authority to determine who may 
attend the interview.  The conditions as to time, place, and 
manner of the interview set by the school officials shall be 
reasonable and the interview shall be conducted not more than 24 
hours after the receipt of the notification unless another time 
is considered necessary by agreement between the school 
officials and the local welfare or law enforcement agency.  
Where the school fails to comply with the provisions of this 
paragraph, the juvenile court may order the school to comply.  
Every effort must be made to reduce the disruption of the 
educational program of the child, other students, or school 
staff when an interview is conducted on school premises.  
    (d) (e) Where the perpetrator or a person responsible for 
the care of the alleged victim or other minor prevents access to 
the victim or other minor by the local welfare agency, the 
juvenile court may order the parents, legal custodian, or 
guardian to produce the alleged victim or other minor for 
questioning by the local welfare agency or the local law 
enforcement agency outside the presence of the perpetrator or 
any person responsible for the child's care at reasonable places 
and times as specified by court order.  
    (e) (f) Before making an order under paragraph (d), the 
court shall issue an order to show cause, either upon its own 
motion or upon a verified petition, specifying the basis for the 
requested interviews and fixing the time and place of the 
hearing.  The order to show cause shall be served personally and 
shall be heard in the same manner as provided in other cases in 
the juvenile court.  The court shall consider the need for 
appointment of a guardian ad litem to protect the best interests 
of the child.  If appointed, the guardian ad litem shall be 
present at the hearing on the order to show cause.  
    (f) (g) The commissioner, the ombudsman for mental health 
and mental retardation, the local welfare agencies responsible 
for investigating reports, and the local law enforcement 
agencies have the right to enter facilities as defined in 
subdivision 2 and to inspect and copy the facility's records, 
including medical records, as part of the investigation. 
Notwithstanding the provisions of chapter 13, they also have the 
right to inform the facility under investigation that they are 
conducting an investigation, to disclose to the facility the 
names of the individuals under investigation for abusing or 
neglecting a child, and to provide the facility with a copy of 
the report and the investigative findings. 
    Sec. 11.  Minnesota Statutes 1986, section 626.557, 
subdivision 9, is amended to read:  
    Subd. 9.  [MANDATORY REPORTING TO A MEDICAL EXAMINER OR 
CORONER.] 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 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, the local welfare agency, and, if applicable, each 
licensing agency.  A person or agency that receives a report 
under this subdivision concerning a vulnerable adult who was 
receiving residential treatment for mental illness, mental 
retardation, chemical dependency, or emotional disturbance from 
a mental health or mental retardation agency or facility as 
defined in section 2, shall also report the information and 
findings to the ombudsman for mental health and mental 
retardation. 
     Sec. 12.  [INITIAL APPOINTMENTS.] 
    Notwithstanding section 8, the governor shall appoint the 
initial members of the ombudsman committee as follows: 
    (1) five members to one-year terms; 
    (2) five members to two-year terms; and 
    (3) five members to three-year terms. 
     Sec. 13.  [APPROPRIATIONS.] 
    $39,000 is appropriated from the general fund to the 
ombudsman for mental health and mental retardation. 
    Approved June 2, 1987