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Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

  
    Laws of Minnesota 1993 

                        CHAPTER 171-S.F.No. 190 
           An act relating to background checks; providing that 
          certain criminal conviction data are public; providing 
          that a record of conviction of certain crimes and 
          other determinations disqualify an individual from 
          obtaining certain human services licenses; providing 
          for access to certain data on day care and foster care 
          licensees; amending Minnesota Statutes 1992, sections 
          13.46, subdivision 4; 13.87, subdivision 2; and 
          245A.04, subdivisions 3 and 3b. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1992, section 13.46, 
subdivision 4, is amended to read: 
    Subd. 4.  [LICENSING DATA.] (a) As used in this subdivision:
    (1) "licensing data" means all data collected, maintained, 
used, or disseminated by the welfare system pertaining to 
persons licensed or registered or who apply for licensure or 
registration or who formerly were licensed or registered under 
the authority of the commissioner of human services; 
    (2) "client" means a person who is receiving services from 
a licensee or from an applicant for licensure; and 
    (3) "personal and personal financial data" means social 
security numbers, identity of and letters of reference, 
insurance information, reports from the bureau of criminal 
apprehension, health examination reports, and social/home 
studies. 
    (b) Except as provided in paragraph (c), the following data 
are public:  name, address, telephone number of licensees, 
licensed capacity, type of client preferred, variances granted, 
type of dwelling, name and relationship of other family members, 
previous license history, class of license, and the existence 
and status of complaints.  When disciplinary action has been 
taken against a licensee or the complaint is resolved, the 
following data are public:  the substance of the complaint, the 
findings of the investigation of the complaint, the record of 
informal resolution of a licensing violation, orders of hearing, 
findings of fact, conclusions of law, and specifications of the 
final disciplinary action contained in the record of 
disciplinary action.  
    The following data on persons licensed under section 
245A.04 to provide family day care for children, child care 
center services, foster care for children in the provider's 
home, or foster care or day care services for adults in the 
provider's home, are public:  the nature of any disqualification 
set aside under section 245A.04, subdivision 3b, and the reasons 
for setting aside the disqualification; and the reasons for 
granting any variance under section 245A.04, subdivision 9. 
    (c) The following are private data on individuals under 
section 13.02, subdivision 12, or nonpublic data under section 
13.02, subdivision 9:  personal and personal financial data on 
family day care program and family foster care program 
applicants and licensees and their family members who provide 
services under the license. 
    (d) The following are private data on individuals:  the 
identity of persons who have made reports concerning licensees 
or applicants that appear in inactive investigative data, and 
the records of clients or employees of the licensee or applicant 
for licensure whose records are received by the licensing agency 
for purposes of review or in anticipation of a contested 
matter.  The names of reporters under sections 626.556 and 
626.557 may be disclosed only as provided in section 626.556, 
subdivision 11, or 626.557, subdivision 12. 
    (e) Data classified as private, confidential, nonpublic, or 
protected nonpublic under this subdivision become public data if 
submitted to a court or administrative law judge as part of a 
disciplinary proceeding in which there is a public hearing 
concerning the disciplinary action. 
    (f) Data generated in the course of licensing 
investigations that relate to an alleged violation of law are 
investigative data under subdivision 3. 
     (g) Data that are not public data collected, maintained, 
used, or disseminated under this subdivision that relate to or 
are derived from a report as defined in section 626.556, 
subdivision 2, are subject to the destruction provisions of 
section 626.556, subdivision 11. 
    Sec. 2.  Minnesota Statutes 1992, section 13.87, 
subdivision 2, is amended to read: 
    Subd. 2.  [CLASSIFICATION.] Criminal history data 
maintained by agencies, political subdivisions and statewide 
systems are classified as private, pursuant to section 13.02, 
subdivision 12, except that data created, collected, or 
maintained by the bureau of criminal apprehension that identify 
an individual who was convicted of a crime and the offense of 
which the individual was convicted are public data for 15 years 
following the discharge of the sentence imposed for the offense. 
     Sec. 3.  Minnesota Statutes 1992, section 245A.04, 
subdivision 3, is amended to read: 
    Subd. 3.  [STUDY OF THE APPLICANT.] (a) Before the 
commissioner issues a license, the commissioner shall conduct a 
study of the individuals specified in clauses (1) to (4) 
according to rules of the commissioner.  The applicant, license 
holder, the bureau of criminal apprehension, and county 
agencies, after written notice to the individual who is the 
subject of the study, shall help with the study by giving the 
commissioner criminal conviction data and reports about abuse or 
neglect of adults in licensed programs substantiated under 
section 626.557 and the maltreatment of minors in licensed 
programs substantiated under section 626.556.  The individuals 
to be studied shall include: 
    (1) the applicant; 
    (2) persons over the age of 13 living in the household 
where the licensed program will be provided; 
    (3) current 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 to provide program services, if the contact is 
not directly supervised by the individuals listed in clause (1) 
or (3). 
    The juvenile courts shall also help with the study by 
giving the commissioner existing juvenile court records on 
individuals described in clause (2) relating to delinquency 
proceedings held within either the five years immediately 
preceding the application or the five years immediately 
preceding the individual's 18th birthday, whichever time period 
is longer.  The commissioner shall destroy juvenile records 
obtained pursuant to this subdivision when the subject of the 
records reaches age 23.  
       For purposes of this subdivision, "direct contact" means 
providing face-to-face care, training, supervision, counseling, 
consultation, or medication assistance to persons served by a 
program.  For purposes of this subdivision, "directly supervised"
means an individual listed in clause (1) or (3) is within sight 
or hearing of a volunteer to the extent that the individual 
listed in clause (1) or (3) is capable at all times of 
intervening to protect the health and safety of the persons 
served by the program who have direct contact with the volunteer.
       A study of an individual in clauses (1) to (4) shall be 
conducted on at least an annual basis.  No applicant, license 
holder, or individual who is the subject of the study shall pay 
any fees required to conduct the study.  
       (b) The individual who is the subject of the study must 
provide the applicant or license holder with sufficient 
information to ensure an accurate study including the 
individual's first, middle, and last name; home address, city, 
county, and state of residence; zip code; sex; date of birth; 
and driver's license number.  The applicant or license holder 
shall provide this information about an individual in paragraph 
(a), clauses (1) to (4), on forms prescribed by the 
commissioner.  The commissioner may request additional 
information of the individual, which shall be optional for the 
individual to provide, such as the individual's social security 
number or race. 
       (c) Except for child foster care, adult foster care, and 
family day care homes, a study must include information from the 
county agency's record of substantiated abuse or neglect of 
adults in licensed programs, and the maltreatment of minors in 
licensed programs, information from juvenile courts as required 
in paragraph (a) for persons listed in paragraph (a), clause 
(2), and information from the bureau of criminal apprehension.  
For child foster care, adult foster care, and family day care 
homes, the study must include information from the county 
agency's record of substantiated abuse or neglect of adults, and 
the maltreatment of minors, information from juvenile courts as 
required in paragraph (a) for persons listed in paragraph (a), 
clause (2), and information from the bureau of criminal 
apprehension.  The commissioner may also review arrest and 
investigative information from the bureau of criminal 
apprehension, a county attorney, county sheriff, county agency, 
local chief of police, other states, the courts, or a national 
criminal record repository if the commissioner has reasonable 
cause to believe the information is pertinent to the 
disqualification of an individual listed in paragraph (a), 
clauses (1) to (4). 
    (d) An applicant's or license holder's failure or refusal 
to cooperate with the commissioner is reasonable cause to deny 
an application or immediately suspend, suspend, or revoke 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. 
    (e) 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.  
    (f) No person in paragraph (a), clause (1), (2), (3), or 
(4) who is disqualified as a result of this section may be 
retained by the agency in a position involving direct contact 
with persons served by the program. 
    (g) Termination of persons in paragraph (a), clause (1), 
(2), (3), or (4) made in good faith reliance on a notice of 
disqualification provided by the commissioner shall not subject 
the applicant or license holder to civil liability. 
    (h) The commissioner may establish records to fulfill the 
requirements of this section.  The information contained in the 
records is only available to the commissioner for the purpose 
authorized in this section.  
    (i) The commissioner may not disqualify an individual 
subject to a study under this section because that person has, 
or has had, a mental illness as defined in section 245.462, 
subdivision 20. 
    Sec. 4.  Minnesota Statutes 1992, section 245A.04, 
subdivision 3b, is amended to read: 
    Subd. 3b.  [RECONSIDERATION OF DISQUALIFICATION.] (a) 
Within 30 days after receiving notice of disqualification under 
subdivision 3a, the individual who is the subject of the study 
may request reconsideration of the notice of disqualification.  
The individual must submit the request for reconsideration to 
the commissioner in writing.  The individual must present 
information to show that: 
    (1) the information the commissioner relied upon is 
incorrect; or 
    (2) the subject of the study does not pose a risk of harm 
to any person served by the applicant or license holder. 
    (b) The commissioner may set aside the disqualification if 
the commissioner finds that the information the commissioner 
relied upon is incorrect or the individual does not pose a risk 
of harm to any person served by the applicant or license 
holder.  The commissioner shall review the consequences of the 
event or events that could lead to disqualification, whether 
there is more than one disqualifying event, the vulnerability of 
the victim at the time of the event, the time elapsed without a 
repeat of the same or similar event, and documentation of 
successful completion by the individual studied of training or 
rehabilitation pertinent to the event.  In reviewing a 
disqualification, the commissioner shall give preeminent weight 
to the safety of each person to be served by the license holder 
or applicant over the interests of the license holder or 
applicant.  
    (c) Unless the information the commissioner relied on in 
disqualifying an individual is incorrect, the commissioner may 
not set aside the disqualification of an individual who seeks a 
license to provide family day care for children, foster care for 
children in the provider's own home, or foster care or day care 
services for adults in the provider's own home if: 
    (1) less than ten years have passed since the discharge of 
the sentence imposed for the offense; and the individual has 
been convicted of a violation of section 609.20 (manslaughter in 
the first degree), 609.205 (manslaughter in the second degree), 
609.21 (criminal vehicular homicide), 609.215 (aiding suicide or 
aiding attempted suicide), 609.221 to 609.2231 (felony 
violations of assault in the first, second, third, or fourth 
degree), 609.713 (terroristic threats), 609.285 (use of drugs to 
injure or to facilitate crime), 609.24 (simple robbery), 609.245 
(aggravated robbery), 609.25 (kidnapping), 609.255 (false 
imprisonment), 609.561 or 609.562 (arson in the first or second 
degree), 609.71 (riot), 609.582 (burglary in the first or second 
degree), 609.66 (reckless use of a gun or dangerous weapon or 
intentionally pointing a gun at or towards a human being), 
609.665 (setting a spring gun), 609.67 (unlawfully owning, 
possessing, or operating a machine gun), 152.021 or 152.022 
(controlled substance crime in the first or second degree), 
152.023, subdivision 1, clause (3) or (4), or subdivision 2, 
clause (4) (controlled substance crime in the third degree), 
152.024, subdivision 1, clause (2), (3), or (4) (controlled 
substance crime in the fourth degree), 609.228 (great bodily 
harm caused by distribution of drugs), 609.23 (mistreatment of 
persons confined), 609.231 (mistreatment of residents or 
patients), 609.265 (abduction), 609.2664 to 609.2665 
(manslaughter of an unborn child in the first or second degree), 
609.267 to 609.2672 (assault of an unborn child in the first, 
second, or third degree), 609.268 (injury or death of an unborn 
child in the commission of a crime), 617.293 (disseminating or 
displaying harmful material to minors), 609.378 (neglect or 
endangerment of a child), 609.377 (a gross misdemeanor offense 
of malicious punishment of a child); or an attempt or conspiracy 
to commit any of these offenses, as each of these offenses is 
defined in Minnesota Statutes; or an offense in any other state, 
the elements of which are substantially similar to the elements 
of any of the foregoing offenses; 
    (2) regardless of how much time has passed since the 
discharge of the sentence imposed for the offense, the 
individual was convicted of a violation of sections 609.185 to 
609.195 (murder in the first, second, or third degree), 609.2661 
to 609.2663 (murder of an unborn child in the first, second, or 
third degree), 609.377 (a felony offense of malicious punishment 
of a child), 609.322 (soliciting, inducement, or promotion of 
prostitution), 609.323 (receiving profit derived from 
prostitution), 609.342 to 609.345 (criminal sexual conduct in 
the first, second, third, or fourth degree), 609.352 
(solicitation of children to engage in sexual conduct), 617.245 
(use of minors in a sexual performance), 617.247 (possession of 
pictorial representations of a minor), 609.365 (incest), or an 
offense in any other state, the elements of which are 
substantially similar to any of the foregoing offenses; 
    (3) within the seven years preceding the study, the 
individual committed an act that constitutes maltreatment of a 
child under section 626.556, subdivision 10e, and that resulted 
in substantial bodily harm as defined in section 609.02, 
subdivision 7a, or substantial mental or emotional harm as 
supported by competent psychological or psychiatric evidence; or 
    (4) within the seven years preceding the study, the 
individual was determined under section 626.557 to be the 
perpetrator of a substantiated incident of abuse of a vulnerable 
adult that resulted in substantial bodily harm as defined in 
section 609.02, subdivision 7a, or substantial mental or 
emotional harm as supported by competent psychological or 
psychiatric evidence. 
    In the case of any ground for disqualification under 
clauses (1) to (4), if the act was committed by an individual 
other than the applicant or license holder residing in the 
applicant's or license holder's home, the applicant or license 
holder may seek reconsideration when the individual who 
committed the act no longer resides in the home.  
    The disqualification periods provided under clauses (1), 
(3), and (4) are the minimum applicable disqualification 
periods.  The commissioner may determine that an individual 
should continue to be disqualified from licensure because the 
license holder or applicant poses a risk of harm to a person 
served by that individual after the minimum disqualification 
period has passed. 
    (c) (d) The commissioner shall respond in writing to all 
reconsideration requests within 15 working days after receiving 
the request for reconsideration.  If the disqualification is set 
aside, the commissioner shall notify the applicant or license 
holder in writing of the decision. 
    (d) (e) Except as provided in subdivision 3c, the 
commissioner's decision to grant or deny a reconsideration of 
disqualification under this subdivision, or to set aside or 
uphold the results of the study under subdivision 3, is the 
final administrative agency action.  
     Sec. 5.  [REPORT; ACCESS TO CRIMINAL CONVICTION DATA.] 
    The bureau of criminal apprehension shall study, make 
recommendations, and where appropriate, implement procedures 
regarding the following issues involved in public access to 
criminal conviction data maintained by the bureau: 
    (1) methods to ensure that when data is requested on an 
individual, any data provided relates to that individual; 
    (2) appropriate charges to impose for inspection or copies 
of criminal conviction data; 
    (3) procedures for correcting inaccurate data at the 
request of the data subject; and 
    (4) with the assistance of the supreme court, make 
recommendations for implementing uniform procedures and grounds 
for conviction expungement orders and a uniform conviction 
expungement order. 
    The recommendations shall be made to the chair of the 
judiciary committee in the house and the chairs of the judiciary 
and crime prevention committees in the senate by January 1, 1994.
    Sec. 6.  [EFFECTIVE DATE; APPLICATION.] 
    Sections 1, 3, and 4 are effective the day after final 
enactment.  Section 2 is effective June 1, 1994. 
    Section 4, paragraph (c), clause (2) applies to existing 
license holders on the effective date of section 4 and to 
initial license applications made on or after that date.  
Section 4, paragraph (c), clause (1) in the case of a conviction 
for neglect or endangerment of a child, applies to existing 
license holders on the effective date of section 4 and in all 
other cases applies to initial license applications made on or 
after the effective date. 
    However, as soon as practicable but not later than one year 
after the effective date of this section, the commissioner shall 
review and reconsider all disqualifications which were set aside 
under Minnesota Statutes, section 245A.04, subdivision 3b, and 
all variances which were granted under Minnesota Statutes, 
section 245A.04, subdivision 9, before the effective date of 
this section in the case of: 
    (1) a license holder who holds a type of license listed in 
Minnesota Statutes, section 245A.04, subdivision 3b, paragraph 
(c); 
    (2) a license holder who obtained such a license before the 
effective date of this section; and 
    (3) a license holder, an individual residing in the license 
holder's home, or an employee of the license holder who: 
    (i) was convicted of a crime listed in Minnesota Statutes, 
section 245A.04, subdivision 3b, paragraph (c), clause (1), 
other than neglect or endangerment of a child; or 
    (ii) was the perpetrator of substantiated maltreatment or 
abuse under Minnesota Statutes, section 245A.04, subdivision 3b, 
paragraph (c), clause (3) or (4). 
    The purpose of the review is to determine whether the 
license holder or anyone residing in the license holder's home 
poses any risk of harm to any person served by the license 
holder.  In conducting this review the commissioner must give 
preeminent weight to the safety of each person served by the 
license holder over the interests of the license holder. 
    Presented to the governor May 11, 1993 
    Signed by the governor May 14, 1993, 1:26 p.m.