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Office of the Revisor of Statutes

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

  
    Laws of Minnesota 1993 

                        CHAPTER 338-S.F.No. 1077 
           An act relating to human services; regulating child 
          care programs; requiring an interpretive memoranda 
          study; providing for a vulnerable adult study; 
          amending Minnesota Statutes 1992, sections 245A.02, 
          subdivisions 6a and 14; 245A.03, subdivision 2, and by 
          adding a subdivision; 245A.04, subdivision 3; 245A.06, 
          subdivision 2; 245A.09, subdivision 7; 245A.14, 
          subdivision 6; and 245A.16, subdivision 6. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1992, section 245A.02, 
subdivision 6a, is amended to read: 
    Subd. 6a.  [DROP-IN CHILD CARE PROGRAM.] "Drop-in child 
care program" means a nonresidential program of child care in 
which children participate on a one-time only or occasional 
basis up to a maximum of 45 90 hours per child, per month.  A 
drop-in child care program must be licensed under Minnesota 
Rules governing child care centers.  A drop-in child care 
program must meet one of the following requirements to qualify 
for the rule exemptions specified in section 245A.14, 
subdivision 6: 
    (1) the drop-in child care program operates in a child care 
center which houses no child care program except the drop-in 
child care program; 
    (2) the drop-in child care program operates in the same 
child care center but not during the same hours as a regularly 
scheduled ongoing child care program with a stable enrollment; 
or 
    (3) the drop-in child care program operates in a child care 
center at the same time as a regularly scheduled ongoing child 
care program with a stable enrollment but the program's 
activities, except for bathroom use and outdoor play, are 
conducted separately from each other. 
    Sec. 2.  Minnesota Statutes 1992, section 245A.02, 
subdivision 14, is amended to read: 
    Subd. 14.  [RESIDENTIAL PROGRAM.] "Residential program" 
means a program that provides 24-hour-a-day care, supervision, 
food, lodging, rehabilitation, training, education, 
habilitation, or treatment outside a person's own home, 
including a nursing home or hospital that receives public funds, 
administered by the commissioner, to provide services for five 
or more persons whose primary diagnosis is mental retardation or 
a related condition or mental illness and who do not have a 
significant physical or medical problem that necessitates 
nursing home care; a program in an intermediate care facility 
for four or more persons with mental retardation or a related 
condition; a nursing home or hospital that was licensed by the 
commissioner on July 1, 1987, to provide a program for persons 
with a physical handicap that is not the result of the normal 
aging process and considered to be a chronic condition; and 
chemical dependency or chemical abuse programs that are located 
in a hospital or nursing home and receive public funds for 
providing chemical abuse or chemical dependency treatment 
services under chapter 254B.  Residential programs include home 
and community-based services and semi-independent living 
services for persons with mental retardation or a related 
condition that are provided in or outside of a person's own home.
    Sec. 3.  Minnesota Statutes 1992, 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, except as 
provided in subdivision 2a; 
    (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 in a school as 
defined in section 120.101, subdivision 4, and programs serving 
children in combined special education and regular 
prekindergarten programs that are operated or assisted by the 
commissioner of education; 
    (6) nonresidential programs primarily for children that 
provide care or supervision, without charge for ten or fewer 
days a year, and for periods of less than three hours a day 
while the child's parent or legal guardian is in the same 
building as the nonresidential program or present on property 
within another building that is directly contiguous with the 
physical facility where to the building in which the 
nonresidential program is provided located; 
    (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 five or more persons whose 
primary diagnosis is mental illness who have refused an 
appropriate residential program offered by a county agency.  
This exclusion expires on July 1, 1990; 
    (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 whose primary purpose is to provide, for 
adults or school-age children, including children who will be 
eligible to enter kindergarten within not more than four months, 
social and recreational activities, such as scouting, boys 
clubs, girls clubs, sports, or the arts; except that a program 
operating in a school building is not excluded unless it is 
approved by the district's school board; 
    (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) nonresidential programs for nonhandicapped children 
provided for a cumulative total of less than 30 days in any 
12-month period; 
     (16) residential programs for persons with mental illness, 
that are located in hospitals, until the commissioner adopts 
appropriate rules; 
     (17) the religious instruction of school-age children; 
Sabbath or Sunday schools; or the congregate care of children by 
a church, congregation, or religious society during the period 
used by the church, congregation, or religious society for its 
regular worship; 
     (18) camps licensed by the commissioner of health under 
Minnesota Rules, chapter 4630; 
     (19) mental health outpatient services for adults with 
mental illness or children with emotional disturbance; 
     (20) residential programs serving school-age children whose 
sole purpose is cultural or educational exchange, until the 
commissioner adopts appropriate rules; 
    (21) unrelated individuals who provide out-of-home respite 
care services to persons with mental retardation or related 
conditions from a single related family for no more than 30 days 
in a 12-month period and the respite care services are for the 
temporary relief of the person's family or legal representative; 
    (22) respite care services provided as a home- and 
community-based service to a person with mental retardation or a 
related condition, in the person's primary residence; or 
    (23) community support services programs as defined in 
section 245.462, subdivision 6, and family community support 
services as defined in section 245.4871, subdivision 17. 
     For purposes of clause (6), a building is directly 
contiguous to a building in which a nonresidential program is 
located if it shares a common wall with the building in which 
the nonresidential program is located or is attached to that 
building by skyway, tunnel, atrium, or common roof. 
    Sec. 4.  Minnesota Statutes 1992, section 245A.03, is 
amended by adding a subdivision to read: 
    Subd. 2a.  [LICENSING OF AN INDIVIDUAL RELATED TO A 
QUALIFYING CHILD.] Notwithstanding subdivision 2, clause (1), 
the commissioner may license an individual who is related to a 
qualifying child, as defined in title IV-E of the Social 
Security Act, to provide foster care for that qualifying child.  
The commissioner may issue such a license retroactive to the 
date the qualifying child was placed in the applicant's home, so 
long as no more than 90 days have elapsed since the placement.  
If more than 90 days have elapsed since the placement, the 
commissioner may issue the license retroactive 90 days. 
    Sec. 5.  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 upon application for 
initial license and reapplication for a license.  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. 6.  Minnesota Statutes 1992, section 245A.06, 
subdivision 2, is amended to read: 
    Subd. 2.  [RECONSIDERATION OF CORRECTION ORDERS.] If the 
applicant or license holder believes that the contents of the 
commissioner's correction order are in error, the applicant or 
license holder may ask the department of human services to 
reconsider the parts of the correction order that are alleged to 
be in error.  The request for reconsideration must be in 
writing, delivered by certified mail, and: 
    (1) specify the parts of the correction order that are 
alleged to be in error; 
    (2) explain why they are in error; and 
    (3) include documentation to support the allegation of 
error. 
    A request for reconsideration does not stay any provisions 
or requirements of the correction order.  The commissioner shall 
respond to requests made under this subdivision within 15 
working days after receipt of the request for reconsideration.  
The commissioner's disposition of a request for reconsideration 
is final and not subject to appeal under chapter 14. 
    Sec. 7.  Minnesota Statutes 1992, section 245A.09, 
subdivision 7, is amended to read: 
    Subd. 7.  [REGULATORY METHODS.] (a) Where appropriate and 
feasible the commissioner shall identify and implement 
alternative methods of regulation and enforcement to the extent 
authorized in this subdivision.  These methods shall include: 
    (1) expansion of the types and categories of licenses that 
may be granted; 
    (2) when the standards of an independent accreditation body 
have been shown to predict compliance with the rules, the 
commissioner shall consider compliance with the accreditation 
standards to be equivalent to partial compliance with the rules; 
and 
    (3) use of an abbreviated inspection that employs key 
standards that have been shown to predict full compliance with 
the rules. 
    For programs and services for people with developmental 
disabilities, the commissioner of human services shall develop 
demonstration projects to use the standards of the commission on 
accreditation of rehabilitation facilities and the standards of 
the accreditation council on services to persons with 
disabilities during the period of July 1, 1993 to December 31, 
1994, and incorporate the alternative use of these standards and 
methods in licensing rules where appropriate.  If the 
commissioner determines that the methods in clause (2) or (3) 
can be used in licensing a program, the commissioner may reduce 
any fee set under section 245A.10 by up to 50 percent.  The 
commissioner shall present a plan by January 31, 1995, to accept 
accreditation by either the accreditation council on services to 
people with disabilities or the commission on the accreditation 
of rehabilitation services as evidence of being in compliance 
where applicable with state licensing. 
    (b) The commissioner shall work with the commissioners of 
health, public safety, administration, and education in 
consolidating duplicative licensing and certification rules and 
standards if the commissioner determines that consolidation is 
administratively feasible, would significantly reduce the cost 
of licensing, and would not reduce the protection given to 
persons receiving services in licensed programs.  Where 
administratively feasible and appropriate, the commissioner 
shall work with the commissioners of health, public safety, 
administration, and education in conducting joint agency 
inspections of programs. 
     (c) The commissioner shall work with the commissioners of 
health, public safety, administration, and education in 
establishing a single point of application for applicants who 
are required to obtain concurrent licensure from more than one 
of the commissioners listed in this clause. 
     (d) The commissioner may specify in rule periods of 
licensure up to two years. 
    Sec. 8.  Minnesota Statutes 1992, section 245A.14, 
subdivision 6, is amended to read: 
    Subd. 6.  [DROP-IN CHILD CARE PROGRAMS.] (a) Except as 
expressly set forth in this subdivision, drop-in child care 
programs must be licensed as a drop-in program under the rules 
governing child care programs operated in a center.  
    (b) Drop-in child care programs are exempt from 
the requirements in following Minnesota Rules, parts: 
    (1) part 9503.0040; 
    (2) part 9503.0045, subpart 1, items F and G; 
    (3) part 9503.0050, subpart 6, except for children less 
than 2-1/2 years old; 
    (4) one-half the requirements of part 9503.0060, subpart 4, 
item A, subitems (2), (5), and (8), subpart 5, item A, subitems 
(2), (3), and (7), and subpart 6, item A, subitems (3) and (6); 
    (5) part 9503.0070; and 
    (6) part 9503.0090, subpart 2.  
    (c) A drop-in child care program must be operated under the 
supervision of a person qualified as a director and a teacher.  
    (d) A drop-in child care program must have at least two 
persons on staff whenever the program is operating, except that 
the commissioner may permit variances from this requirement 
under specified circumstances for parent cooperative programs, 
as long as all other staff-to-child ratios are met.  
    (e) Whenever the total number of children present to be 
cared for at a center is more than 20, children that are younger 
than age 2-1/2 must be in a separate group.  This group may 
contain children up to 60 months old.  This group must be cared 
for in an area that is physically separated from older children. 
    (f) A drop-in child care program must maintain a minimum 
staff ratio for children age 2-1/2 or greater of one staff 
person for each ten children.  
    (g) If the program has additional staff who are on call as 
a mandatory condition of their employment, the minimum 
child-to-staff ratio may be exceeded only for children age 2-1/2 
or greater, by a maximum of four children, for no more than 20 
minutes while additional staff are in transit.  
     (h) The minimum staff-to-child ratio for infants up to 16 
months of age is one staff person for every four infants.  The 
minimum staff-to-child ratio for children age 17 months to 30 
months is one staff for every seven children.  
    (i) In drop-in care programs that serve both infants and 
older children, children up to age 2-1/2 may be supervised by 
assistant teachers, as long as other staff are present in 
appropriate ratios.  
    (j) The minimum staff distribution pattern for a drop-in 
child care program serving children age 2-1/2 or greater is:  
the first staff member must be a teacher; the second, third, and 
fourth staff members must have at least the qualifications of a 
child care aide; the fifth staff member must have at least the 
qualifications of an assistant teacher; the sixth, seventh, and 
eighth staff members must have at least the qualifications of a 
child care aide; and the ninth staff person must have at least 
the qualifications of an assistant teacher.  The commissioner by 
rule may require that a drop-in child care program serving 
children less than 2-1/2 years of age serve these children in an 
area separated from older children and may permit children age 
2-1/2 and older to be cared for in the same child care group 
     (k) A drop-in child care program may care for siblings 16 
months or older together in any group.  For purposes of this 
subdivision, sibling is defined as sister or brother, 
half-sister or half-brother, or stepsister or stepbrother. 
    Sec. 9.  Minnesota Statutes 1992, section 245A.16, 
subdivision 6, is amended to read: 
    Subd. 6.  [CERTIFICATION BY THE COMMISSIONER.] The 
commissioner shall ensure that rules are uniformly enforced 
throughout the state by reviewing each county and private agency 
for compliance with this section and other applicable laws and 
rules at least biennially every four years.  County agencies 
that comply with this section shall be certified by the 
commissioner.  If a county agency fails to be certified by the 
commissioner, the commissioner shall certify a reduction of up 
to 20 percent of the county's community social services act 
funding or an equivalent amount from state administrative aids. 
     Sec. 10.  [INTERPRETIVE MEMORANDA STUDY.] 
    (a) The commissioner of human services shall study and 
report on the cost, feasibility, and means of implementing the 
publication and dissemination of written memoranda that provide 
interpretation, details, or supplementary information concerning 
the application of law or rules administered by the licensing 
division of the department of human services. 
    In preparing the report, the commissioner shall consult 
with the legislative commission to review administrative rules, 
legal advocates, consumer groups, providers of service, and 
county social service agencies. 
    The commissioner shall report the results of the study 
including the results of the pilot project authorized in 
paragraph (b) to the legislature by February 1, 1995.  
    (b) The commissioner of human services shall conduct a 
pilot project in conjunction with the study required by 
paragraph (a). 
    The purpose of the project is to allow the licensing 
division of the department of human services to gain the 
experience and information necessary to do this study and report 
by publishing and disseminating these memoranda concerning the 
application of the following rules governing developmental 
disabilities and child care center regulation:  Minnesota Rules, 
parts 9503.0005 to 9503.0175; 9525.0500 to 9525.0660; 9525.0215 
to 9525.0355; 9525.1500 to 9525.1690; and 9525.2000 to 9525.2140.
    The commissioner is exempt from the rulemaking provisions 
of Minnesota Statutes, chapter 14, in issuing these memoranda.  
The statements do not have the force and effect of law and have 
no precedential effect, but they may be relied on until modified 
or revoked. 
    Sec. 11.  [VULNERABLE ADULTS STUDY.] 
    The commissioners of health and human services shall 
establish an advisory committee including consumers and their 
advocates, providers, county officials, and state officials to 
make recommendations on the means of preventing maltreatment of 
vulnerable adults and for the provisions of protective services 
to vulnerable adults.  In making recommendations, the advisory 
committee shall review all services and protections available 
under existing state and federal laws with the focus on 
eliminating duplication of effort among various local, state, 
and federal agencies and minimizing possible conflicts of 
interest by establishing a statewide process of coordination of 
responsibilities.  A report with recommendations for state law 
changes and changes to Minnesota Rules, parts 9555.8000 to 
9555.8500, shall be made to the governor and legislature not 
later than February 1, 1994. 
     Sec. 12.  [EFFECTIVE DATE.] 
    Section 4 is effective the day immediately following final 
enactment. 
    Presented to the governor May 20, 1993 
    Signed by the governor May 24, 1993, 12:10 p.m.