Office of the Revisor of Statutes
Minnesota Session Laws - 1994, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 434-S.F.No. 2572
An act relating to human services; clarifying the
effect of a record of conviction of certain crimes on
disqualification in connection with certain human
services licenses; strengthening provisions concerning
residential treatment programs; modifying certain
child abuse reporting requirements; amending Minnesota
Statutes 1992, sections 245A.04, subdivision 3a;
245A.12, subdivision 8; 245A.13, subdivisions 1, 3c,
and by adding a subdivision; 626.556, subdivisions 3
and 7; Minnesota Statutes 1993 Supplement, sections
245A.04, subdivisions 3 and 3b; 626.556, subdivision
10; and Laws 1993, chapter 171, section 6.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1993 Supplement, 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 at least 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.
(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.
(j) An individual who is subject to an applicant background
study under this section and whose disqualification in
connection with a license would be subject to the limitations on
reconsideration set forth in subdivision 3b, paragraph (c),
shall be disqualified for conviction of the crimes specified in
the manner specified in subdivision 3b, paragraph (c). The
commissioner of human services shall amend Minnesota Rules, part
9543.3070, to conform to this section.
Sec. 2. Minnesota Statutes 1992, section 245A.04,
subdivision 3a, is amended to read:
Subd. 3a. [NOTIFICATION TO SUBJECT OF STUDY RESULTS.] The
commissioner shall notify the applicant or license holder and
the individual who is the subject of the study, in writing, of
the results of the study. When the study is completed, a notice
that the study was undertaken and completed shall be maintained
in the personnel files of the program.
The commissioner shall notify the individual studied if the
information in the study indicates the individual is
disqualified from direct contact with persons served by the
program. The commissioner shall disclose the information to the
individual studied. An applicant or license holder who is not
the subject of the study shall be informed that the commissioner
has found information that disqualifies the subject from direct
contact with persons served by the program. However, the
applicant or license holder shall not be told what that
information is unless the data practices act provides for
release of the information and or the individual studied
authorizes the release of the information.
Sec. 3. Minnesota Statutes 1993 Supplement, 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 in
connection with 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 any offense listed in 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 any offense listed in
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), 617.245 617.246 (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.
(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.
(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. 4. Minnesota Statutes 1992, section 245A.12,
subdivision 8, is amended to read:
Subd. 8. [PHYSICAL PLANT OF THE RESIDENTIAL PROGRAM.]
Occupation of the physical plant after commencement of the
receivership period shall be controlled by paragraphs (a) and
(b).
(a) If the physical plant of a residential program placed
in receivership is owned by a controlling individual or related
party, the physical plant may be used by the commissioner or the
managing agent for purposes of the receivership as long as the
receivership period continues. A fair monthly rental for the
physical plant shall be paid by the commissioner or managing
agent to the owner of the physical plant. This fair monthly
rental shall be determined by considering all relevant factors
necessary to meet required arms-length obligations of
controlling individuals such as the mortgage payments owed on
the physical plant, the real estate taxes, and special
assessments, and the conditions of the physical plant. This
rental shall not include any allowance for profit or be based on
any formula that includes an allowance for profit.
(b) If the owner of the physical plant of a residential
program placed in receivership is not a related party, the
controlling individual shall continue as the lessee of the
property. However, during the receivership period, rental
payments shall be made to the owner of the physical plant by the
commissioner or the managing agent on behalf of the controlling
individual. Neither the commissioner nor the managing agent
assumes the obligations of the lease unless expressly stated in
the receivership agreement. Should the lease expire during the
receivership, the commissioner or the managing agent may
negotiate a new lease for the term of the receivership period.
Sec. 5. Minnesota Statutes 1992, section 245A.13,
subdivision 1, is amended to read:
Subdivision 1. [APPLICATION.] In addition to any other
remedy provided by law, the commissioner may petition the
district court in the Ramsey county where the residential
program is located for an order directing the controlling
individuals of the residential program to show cause why the
commissioner should not be appointed receiver to operate the
residential program. The petition to the district court must
contain proof by affidavit: (1) that the commissioner has
either begun license suspension or revocation proceedings,
suspended or revoked a license, or has decided to deny an
application for licensure of the residential program; or (2) it
appears to the commissioner that the health, safety, or rights
of the residents may be in jeopardy because of the manner in
which the residential program may close, the residential
program's financial condition, or violations committed by the
residential program of federal or state laws or rules. If the
license holder, applicant, or controlling individual operates
more than one residential program, the commissioner's petition
must specify and be limited to the residential program for which
it seeks receivership. The affidavit submitted by the
commissioner must set forth alternatives to receivership that
have been considered, including rate adjustments. The order to
show cause is returnable not less than five days after service
is completed and must provide for personal service of a copy to
the residential program administrator and to the persons
designated as agents by the controlling individuals to accept
service on their behalf.
Sec. 6. Minnesota Statutes 1992, section 245A.13,
subdivision 3c, is amended to read:
Subd. 3c. [PHYSICAL PLANT OF THE RESIDENTIAL PROGRAM.]
Occupation of the physical plant under an involuntary
receivership shall be governed by paragraphs (a) and (b).
(a) The physical plant owned by a controlling individual of
the residential program or related party must be made available
for the use of the residential program throughout the
receivership period. The court shall determine a fair monthly
rental for the physical plant, taking into account all relevant
factors necessary to meet required arms-length obligations of
controlling individuals such as mortgage payments, real estate
taxes, and special assessments, and the conditions of the
physical plant. The rental fee must be paid by the receiver to
the appropriate controlling individuals or related parties for
each month that the receivership remains in effect. No payment
made to a controlling individual or related party by the
receiver or the managing agent or any state agency during a
period of the receivership shall include any allowance for
profit or be based on any formula that includes an allowance for
profit.
(b) If the owner of the physical plant of a residential
program is not a related party, the court shall order the
controlling individual to continue as the lessee of the property
during the receivership period. Rental payments during the
receivership period shall be made to the owner of the physical
plant by the commissioner or the managing agent on behalf of the
controlling individual.
Sec. 7. Minnesota Statutes 1992, section 245A.13, is
amended by adding a subdivision to read:
Subd. 11. [CONTROLLING INDIVIDUALS; RESTRICTIONS ON
LICENSURE.] No controlling individual of a residential program
placed into receivership under this section may apply for or
receive a license to operate a residential program for five
years from the commencement of the receivership period. This
subdivision does not apply to residential programs that are
owned or operated by controlling individuals that were in
existence before the date of the receivership agreement, and
that have not been placed into receivership.
Sec. 8. Minnesota Statutes 1992, section 626.556,
subdivision 3, is amended to read:
Subd. 3. [PERSONS MANDATED TO REPORT.] (a) A person who
knows or has reason to believe a child is being neglected or
physically or sexually abused, as defined in subdivision 2, or
has been neglected or physically or sexually abused within the
preceding three years, shall immediately report the information
to the local welfare agency, police department, or the county
sheriff if the person is:
(1) a professional or professional's delegate who is
engaged in the practice of the healing arts, social services,
hospital administration, psychological or psychiatric treatment,
child care, education, or law enforcement; or
(2) employed as a member of the clergy and received the
information while engaged in ministerial duties, provided that a
member of the clergy is not required by this subdivision to
report information that is otherwise privileged under section
595.02, subdivision 1, paragraph (c).
The police department or the county sheriff, upon receiving
a report, shall immediately notify the local welfare agency
orally and in writing. The local welfare agency, upon receiving
a report, shall immediately notify the local police department
or the county sheriff orally and in writing. The county sheriff
and the head of every local welfare agency and police department
shall each designate a person within their agency, department,
or office who is responsible for ensuring that the notification
duties of this paragraph and paragraph (b) are carried out.
Nothing in this subdivision shall be construed to require more
than one report from any institution, facility, school, or
agency.
(b) Any person may voluntarily report to the local welfare
agency, police department, or the county sheriff if the person
knows, has reason to believe, or suspects a child is being or
has been neglected or subjected to physical or sexual abuse.
The police department or the county sheriff, upon receiving a
report, shall immediately notify the local welfare agency orally
and in writing. The local welfare agency, upon receiving a
report, shall immediately notify the local police department or
the county sheriff orally and in writing.
(c) A person mandated to report physical or sexual child
abuse or neglect occurring within a licensed facility shall
report the information to the agency responsible for licensing
the facility. A health or corrections agency receiving a report
may request the local welfare agency to provide assistance
pursuant to subdivisions 10, 10a, and 10b.
(d) Any person mandated to report shall, upon request to
the local welfare agency, receive a summary of the disposition
of any report made by that reporter, unless release would be
detrimental to the best interests of the child. Any person who
is not mandated to report shall, upon request to the local
welfare agency, receive a concise summary of the disposition of
any report made by that reporter, unless release would be
detrimental to the best interests of the child.
(e) For purposes of this subdivision, "immediately" means
as soon as possible but in no event longer than 24 hours.
Sec. 9. Minnesota Statutes 1992, section 626.556,
subdivision 7, is amended to read:
Subd. 7. [REPORT.] An oral report shall be made
immediately by telephone or otherwise. An oral report made by a
person required under subdivision 3 to report shall be followed
within 72 hours, exclusive of weekends and holidays, by a report
in writing to the appropriate police department, the county
sheriff or local welfare agency, unless the appropriate agency
has informed the reporter that the oral information does not
constitute a report under subdivision 10. Any report shall be
of sufficient content to identify the child, any person believed
to be responsible for the abuse or neglect of the child if the
person is known, the nature and extent of the abuse or neglect
and the name and address of the reporter. Written reports
received by a police department or the county sheriff shall be
forwarded immediately to the local welfare agency. The police
department or the county sheriff may keep copies of reports
received by them. Copies of written reports received by a local
welfare department shall be forwarded immediately to the local
police department or the county sheriff.
A written copy of a report maintained by personnel of
agencies, other than welfare or law enforcement agencies, which
are subject to chapter 13 shall be confidential. An individual
subject of the report may obtain access to the original report
as provided by subdivision 11.
Sec. 10. Minnesota Statutes 1993 Supplement, 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.
If the report alleges a violation of a criminal statute
involving sexual abuse, physical abuse, or neglect or
endangerment, under section 609.378, the local law enforcement
agency and local welfare agency shall coordinate the planning
and execution of their respective investigation and assessment
efforts to avoid a duplication of fact-finding efforts and
multiple interviews. Each agency shall prepare a separate
report of the results of its investigation. In cases of alleged
child maltreatment resulting in death, the local agency may rely
on the fact-finding efforts of a law enforcement investigation
to make a determination of whether or not maltreatment
occurred. 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 client, as defined
in section 245.91, has been the subject of physical abuse,
sexual abuse, or neglect at an agency, facility, or program as
defined in section 245.91, it shall, in addition to its other
duties under this section, immediately inform the ombudsman
established under sections 245.91 to 245.97.
(c) Authority of the local welfare agency responsible for
assessing the child abuse or neglect report and of the local law
enforcement agency for investigating the alleged abuse or
neglect 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 or the child may be transported to, and
the interview conducted at, a place appropriate for the
interview of a child designated by the local welfare agency or
law enforcement agency. The interview may take place outside
the presence of the perpetrator or parent, legal custodian,
guardian, or school official. Except as provided in this
paragraph, 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 this paragraph, 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.
(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.
(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.
(f) Before making an order under paragraph (e), 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.
(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. Laws 1993, chapter 171, section 6, is amended to
read:
Sec. 6. [EFFECTIVE DATE; APPLICATION.]
(a) Sections 1, 3, and 4 are effective the day after final
enactment. Section 2 is effective June 1, 1994.
(b) 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.
(c) 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).
(d) For every existing license holder on May 14, 1993, who
reapplies for a license after the effective date of this
section, the commissioner must determine whether any person
subject to disqualification in connection with that license
under section 245A.04, subdivision 3b, paragraph (c):
(1) was convicted of a crime specified in paragraph (c),
clause (1); and
(2) less than ten years have passed between the time of
discharge of sentence for the offense and the date of the
license reapplication.
In cases involving such persons, the commissioner must review
the disqualification in the manner provided by paragraph (e) of
this section before either issuing or refusing to issue a new
license.
(e) 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.
Sec. 12. [EFFECTIVE DATE.]
Sections 1 to 7 and section 11 are effective the day
following final enactment.
Presented to the governor April 11, 1994
Signed by the governor April 13, 1994, 1:31 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes