Minnesota Session Laws - 1988, Regular Session

  

                         Laws of Minnesota 1988 

                        CHAPTER 411-S.F.No. 1594 
           An act relating to human services; providing for 
          definitions, exclusions, access to records, and period 
          of receivership under the human services licensing act;
          liability of the state for municipal inspection 
          functions; amending Minnesota Statutes 1986, section 
          466.132; and Minnesota Statutes 1987 Supplement, 
          sections 245A.02, subdivision 13; 245A.03, subdivision 
          2; 245A.04, subdivisions 3 and 5; 245A.095, 
          subdivision 1; 245A.11, subdivision 5; and 245A.13, 
          subdivision 5; repealing Minnesota Statutes 1987 
          Supplement, sections 256D.01, subdivision 1d; and 
          256D.37, subdivision 5.  
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1987 Supplement, section 
245A.02, subdivision 13, is amended to read:  
    Subd. 13.  [INDIVIDUAL WHO IS RELATED.] "Individual who is 
related" means a spouse, a parent, a natural or adopted child or 
stepchild, a stepparent, a stepbrother, a stepsister, a niece, a 
nephew, an adoptive parent, a grandparent, a sibling, an aunt, 
an uncle, or a legal guardian. 
    Sec. 2.  Minnesota Statutes 1987 Supplement, section 
245A.03, subdivision 2, is amended to read:  
    Subd. 2.  [EXCLUSION FROM LICENSURE.] Sections 245A.01 to 
245A.16 do not apply to: 
    (1) residential or nonresidential programs that are 
provided to a person by an individual who is related; 
    (2) nonresidential programs that are provided by an 
unrelated individual to persons from a single related family; 
    (3) residential or nonresidential programs that are 
provided to adults who do not abuse chemicals or who do not have 
a chemical dependency, a mental illness, mental retardation or a 
related condition, a functional impairment, or a physical 
handicap;  
    (4) sheltered workshops or work activity programs that are 
certified by the commissioner of jobs and training; 
    (5) programs for children enrolled in kindergarten to the 
12th grade and prekindergarten special education programs that 
are operated by the commissioner of education or a legally 
constituted local school board, or private schools that have 
been approved under the rules of the commissioner of 
education school as defined in section 120.101, subdivision 4; 
    (6) nonresidential programs for children that provide care 
or supervision for periods of less than three hours a day while 
the child's parent or legal guardian is in the same building or 
present on property that is contiguous with the physical 
facility where the nonresidential program is provided; 
    (7) nursing homes or hospitals licensed by the commissioner 
of health except as specified under section 245A.02; 
    (8) board and lodge facilities licensed by the commissioner 
of health that provide services for more than five or more 
persons whose primary diagnosis is mental illness or mental 
retardation who have refused services in a an appropriate 
residential program offered by a county agency.  This exclusion 
expires on July 1, 1989; 
    (9) homes providing programs for persons placed there by a 
licensed agency for legal adoption, unless the adoption is not 
completed within two years; 
    (10) programs licensed by the commissioner of corrections; 
    (11) recreation programs for children or adults that 
operate for fewer than 40 calendar days in a calendar year; 
    (12) programs not located in family or group family day 
care homes whose primary purpose is to provide activities 
outside of the regular school day for children age five and 
older, until such time as appropriate rules have been adopted by 
the commissioner; 
    (13) head start nonresidential programs which operate for 
less than 31 days in each calendar year; 
    (14) noncertified boarding care homes unless they provide 
services for five or more persons whose primary diagnosis is 
mental illness or mental retardation; 
    (15) family day care nonresidential programs for 
nonhandicapped children provided for a cumulative total of less 
than 30 days in any 12-month period; or 
    (16) residential programs for persons with mental illness, 
that are located in hospitals, until the commissioner adopts 
appropriate rules.  
    Sec. 3.  Minnesota Statutes 1987 Supplement, section 
245A.04, subdivision 3, is amended to read:  
    Subd. 3.  [STUDY OF THE APPLICANT.] (a) Before issuing a 
license, the commissioner shall conduct a study of the 
applicant.  The applicant, the bureau of criminal apprehension, 
county attorneys, county sheriffs, county agencies, and local 
chiefs of police, after notice to the subject of the data, shall 
help with the study by giving the commissioner criminal 
conviction data, arrest information, reports about abuse or 
neglect of children or adults, and investigation results 
available from local, state, and national criminal record 
repositories, including the criminal justice data communications 
network, about: 
    (1) the applicant; 
    (2) persons living in the household where the licensed 
program will be provided; 
    (3) employees or contractors of the applicant who will have 
direct contact with persons served by the program; and 
    (4) volunteers who have direct contact with persons served 
by the program, if the contact is not directly supervised by the 
individuals listed in clause (1) or (3). 
    The commissioner and agencies required to help conduct the 
study may charge the applicant or the subject of the data a 
reasonable fee for conducting the study. 
    (b) A study must meet the following minimum criteria: 
    (1) if the subject of the data has resided in the same 
county for at least the past five years, the study must include 
information from the county sheriff, the local chief of police, 
and the county attorney agency; 
    (2) if the subject of the data has resided in the state, 
but not in the same county, for the past five years, the study 
must include information from the agencies listed in clause (1) 
and the bureau of criminal apprehension; and 
    (3) if the subject of the data has not resided in the state 
for at least five years, the study must include information from 
the agencies listed in clauses (1) and (2) and the national 
criminal records repository and the state law enforcement 
agencies in the states where the subject of the data has 
maintained a residence during the past five years. 
    (c) An applicant's failure or refusal to cooperate with the 
commissioner is reasonable cause to deny an application or 
revoke or suspend a license.  Failure or refusal of an 
individual to cooperate with the study is just cause for denying 
or terminating employment of the individual if the individual's 
failure or refusal to cooperate could cause the applicant's 
application to be denied or the license holder's license to be 
immediately suspended, suspended, or revoked. 
    (d) The commissioner shall not consider an application to 
be complete until all of the information required to be provided 
under this subdivision has been received. 
    Sec. 4.  Minnesota Statutes 1987 Supplement, section 
245A.04, subdivision 5, is amended to read:  
    Subd. 5.  [COMMISSIONER'S RIGHT OF ACCESS.] When the 
commissioner is exercising the powers conferred by sections 
245A.01 to 245A.15, the commissioner must be given access to the 
physical plant and grounds where the program is provided, 
documents, persons served by the program, and staff whenever the 
program is in operation and the information is relevant to 
inspections or investigations conducted by the commissioner.  
The commissioner must be given access without prior notice and 
as often as the commissioner considers necessary if the 
commissioner is conducting an investigation of allegations of 
abuse, neglect, or other violation of applicable laws or rules.  
In conducting inspections, the commissioner may request and 
shall receive assistance from other state, county, and municipal 
governmental agencies and departments.  The applicant or license 
holder shall allow the commissioner to photocopy, photograph, 
and make audio and video tape recordings during the inspection 
of the program at the commissioner's expense.  The commissioner 
shall obtain a court order or the consent of the subject of the 
records or the parents or legal guardian of the subject before 
photocopying hospital medical records.  
    Persons served by the program have the right to refuse to 
consent to be interviewed, photographed, or audio or videotaped. 
Failure or refusal of an applicant or license holder to fully 
comply with this subdivision is reasonable cause for the 
commissioner to deny the application or immediately suspend or 
revoke the license. 
    Sec. 5.  Minnesota Statutes 1987 Supplement, section 
245A.095, subdivision 1, is amended to read:  
    Subdivision 1.  Residential programs for five or more 
persons with a mental illness must be licensed under sections 
245A.01 to 245A.16.  To assure that this requirement is met, the 
commissioner of health, in cooperation with the commissioner of 
human services, shall monitor licensed boarding care homes, 
board and lodging houses, and supervised living facilities. 
    By January 1, 1989, the commissioner of health shall 
recommend to the legislature an appropriate method for enforcing 
this requirement. 
     Sec. 6.  Minnesota Statutes 1987 Supplement, section 
245A.11, subdivision 5, is amended to read: 
    Subd. 5.  [OVERCONCENTRATION AND DISPERSAL.] (a) Before 
January 1, 1985, each county having two or more group 
residential programs within 1,320 feet of each other shall 
submit to the department of human services a plan to promote 
dispersal of group residential programs.  In formulating its 
plan, the county shall solicit the participation of affected 
persons, programs, municipalities having highly concentrated 
residential program populations, and advocacy groups.  For the 
purposes of this subdivision, "highly concentrated" means having 
a population in residential programs serving seven or more 
persons that exceeds one-half of one percent of the population 
of a recognized planning district or other administrative 
subdivision. 
    (b) Within 45 days after the county submits the plan, the 
commissioner shall certify whether the plan fulfills the 
purposes and requirements of this subdivision including the 
following requirements: 
    (1) a new program serving seven or more persons must not be 
located in any recognized planning district or other 
administrative subdivision where the population in residential 
programs is highly concentrated; 
     (2) the county plan must promote dispersal of highly 
concentrated residential program populations; 
     (3) the county plan shall promote the development of 
residential programs in areas that are not highly concentrated; 
    (4) no person in a residential program shall be displaced 
as a result of this section until a relocation plan has been 
implemented that provides for an acceptable alternative 
placement; 
    (5) if the plan provides for the relocation of residential 
programs, the relocation must be completed by January 1, 1990.  
If the commissioner certifies that the plan does not do so, the 
commissioner shall state the reasons, and the county has 30 days 
to submit a plan amended to comply with the requirements of the 
commissioner. 
    (c) After July 1, 1985, the commissioner may reduce grants 
under section 245.73 to a county required to have an approved 
plan under paragraph (a) if the county does not have a plan 
approved by the commissioner or if the county acts in 
substantial disregard of its approved plan.  The county board 
has the right to be provided with advance notice and to appeal 
the commissioner's decision.  If the county requests a hearing 
within 30 days of the notification of intent to reduce grants, 
the commissioner shall not certify any reduction in grants until 
a hearing is conducted and a decision made in accordance with 
the contested case provisions of chapter 14. 
    Sec. 7.  Minnesota Statutes 1987 Supplement, section 
245A.13, subdivision 5, is amended to read:  
    Subd. 5.  [TERMINATION.] An involuntary receivership 
terminates 18 12 months after the date on which it was ordered 
or at any other time designated by the court or when any of the 
following events occurs: 
    (1) the commissioner determines that the residential 
program's license application should be granted or should not be 
suspended or revoked; 
    (2) a new license is granted to the residential program; or 
    (3) the commissioner determines that all persons residing 
in the residential program have been provided with alternative 
residential programs. 
    Sec. 8.  Minnesota Statutes 1986, section 466.132, is 
amended to read:  
    466.132 [INDEMNIFICATION BY STATE.] 
    Municipalities, when performing, as required or mandated by 
state law, inspections or investigations of persons prior to the 
issuance of state licenses, are employees of the state for 
purposes of the indemnification provisions of section 3.736, 
subdivision 9.  A municipality is not, however, an employee of 
the state for purposes of this section if in hiring, 
supervising, or continuing to employ the person performing an 
inspection or investigation for the municipality, the 
municipality was clearly negligent.  In no event shall the state 
be obligated to defend or indemnify a municipality for 
inspections or investigations relating to licensing to the 
extent of insurance purchased by the municipality covering 
liability therefor.  The municipality's right to indemnity shall 
not be considered a waiver of the limitations, defenses, and 
immunities available to the municipality and state by law. 
    Sec. 9.  [REPEALER.] 
    Minnesota Statutes 1987 Supplement, sections 256D.01, 
subdivision 1d; and 256D.37, subdivision 5, are repealed. 
    Approved March 22, 1988