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Minnesota Legislature

Office of the Revisor of Statutes

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

                            CHAPTER 319-S.F.No. 2941 
                  An act relating to vulnerable adults; modifying 
                  provisions concerning medical errors and neglect; 
                  requiring health licensing boards to make 
                  determinations regarding employment disqualifications; 
                  amending Minnesota Statutes 1998, section 626.5572, 
                  subdivision 17; Minnesota Statutes 1999 Supplement, 
                  section 245A.04, subdivision 3d; proposing coding for 
                  new law in Minnesota Statutes, chapter 214. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1999 Supplement, section 
        245A.04, subdivision 3d, is amended to read: 
           Subd. 3d.  [DISQUALIFICATION.] (a) Except as provided in 
        paragraph (b), when a background study completed under 
        subdivision 3 shows any of the following:  a conviction of one 
        or more crimes listed in clauses (1) to (4); the individual has 
        admitted to or a preponderance of the evidence indicates the 
        individual has committed an act or acts that meet the definition 
        of any of the crimes listed in clauses (1) to (4); or an 
        administrative determination listed under clause (4), the 
        individual shall be disqualified from any position allowing 
        direct contact with persons receiving services from the license 
        holder: 
           (1) regardless of how much time has passed since the 
        discharge of the sentence imposed for the offense, and unless 
        otherwise specified, regardless of the level of the conviction, 
        the individual was convicted of any of the following offenses:  
        sections 609.185 (murder in the first degree); 609.19 (murder in 
        the second degree); 609.195 (murder in the third degree); 
        609.2661 (murder of an unborn child in the first degree); 
        609.2662 (murder of an unborn child in the second degree); 
        609.2663 (murder of an unborn child in the third degree); 
        609.322 (solicitation, inducement, and promotion of 
        prostitution); 609.342 (criminal sexual conduct in the first 
        degree); 609.343 (criminal sexual conduct in the second degree); 
        609.344 (criminal sexual conduct in the third degree); 609.345 
        (criminal sexual conduct in the fourth degree); 609.352 
        (solicitation of children to engage in sexual conduct); 609.365 
        (incest); felony offense under 609.377 (malicious punishment of 
        a child); 617.246 (use of minors in sexual performance 
        prohibited); 617.247 (possession of pictorial representations of 
        minors); a felony offense under sections 609.2242 and 609.2243 
        (domestic assault), a felony offense of spousal abuse, a felony 
        offense of child abuse or neglect, a felony offense of a crime 
        against children; or attempt or conspiracy to commit any of 
        these offenses as defined in Minnesota Statutes, or an offense 
        in any other state or country, where the elements are 
        substantially similar to any of the offenses listed in this 
        clause; 
           (2) if less than 15 years have passed since the discharge 
        of the sentence imposed for the offense; and the individual has 
        received a felony conviction for a violation of any of these 
        offenses:  sections 609.20 (manslaughter in the first degree); 
        609.205 (manslaughter in the second degree); 609.21 (criminal 
        vehicular homicide and injury); 609.215 (suicide); 609.221 to 
        609.2231 (assault in the first, second, third, or fourth 
        degree); repeat offenses under 609.224 (assault in the fifth 
        degree); repeat offenses under 609.3451 (criminal sexual conduct 
        in the fifth degree); 609.713 (terroristic threats); 609.235 
        (use of drugs to injure or facilitate crime); 609.24 (simple 
        robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 
        609.255 (false imprisonment); 609.561 (arson in the first 
        degree); 609.562 (arson in the second degree); 609.563 (arson in 
        the third degree); repeat offenses under 617.23 (indecent 
        exposure; penalties); repeat offenses under 617.241 (obscene 
        materials and performances; distribution and exhibition 
        prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 
        609.67 (machine guns and short-barreled shotguns); 609.749 
        (harassment; stalking; penalties); 609.228 (great bodily harm 
        caused by distribution of drugs); 609.2325 (criminal abuse of a 
        vulnerable adult); 609.2664 (manslaughter of an unborn child in 
        the first degree); 609.2665 (manslaughter of an unborn child in 
        the second degree); 609.267 (assault of an unborn child in the 
        first degree); 609.2671 (assault of an unborn child in the 
        second degree); 609.268 (injury or death of an unborn child in 
        the commission of a crime); 609.378 (neglect or endangerment of 
        a child); 609.324, subdivision 1 (other prohibited acts); 609.52 
        (theft); 609.2335 (financial exploitation of a vulnerable 
        adult); 609.521 (possession of shoplifting gear); 609.582 
        (burglary); 609.625 (aggravated forgery); 609.63 (forgery); 
        609.631 (check forgery; offering a forged check); 609.635 
        (obtaining signature by false pretense); 609.27 (coercion); 
        609.275 (attempt to coerce); 609.687 (adulteration); 260C.301 
        (grounds for termination of parental rights); and chapter 152 
        (drugs; controlled substance).  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 
        or country, the elements of which are substantially similar to 
        the elements of the offenses in this clause.  If the individual 
        studied is convicted of one of the felonies listed in this 
        clause, but the sentence is a gross misdemeanor or misdemeanor 
        disposition, the lookback period for the conviction is the 
        period applicable to the disposition, that is the period for 
        gross misdemeanors or misdemeanors; 
           (3) if less than ten years have passed since the discharge 
        of the sentence imposed for the offense; and the individual has 
        received a gross misdemeanor conviction for a violation of any 
        of the following offenses:  sections 609.224 (assault in the 
        fifth degree); 609.2242 and 609.2243 (domestic assault); 
        violation of an order for protection under 518B.01, subdivision 
        14; 609.3451 (criminal sexual conduct in the fifth degree); 
        repeat offenses under 609.746 (interference with privacy); 
        repeat offenses under 617.23 (indecent exposure); 617.241 
        (obscene materials and performances); 617.243 (indecent 
        literature, distribution); 617.293 (harmful materials; 
        dissemination and display to minors prohibited); 609.71 (riot); 
        609.66 (dangerous weapons); 609.749 (harassment; stalking; 
        penalties); 609.224, subdivision 2, paragraph (c) (assault in 
        the fifth degree by a caregiver against a vulnerable adult); 
        609.23 (mistreatment of persons confined); 609.231 (mistreatment 
        of residents or patients); 609.2325 (criminal abuse of a 
        vulnerable adult); 609.233 (criminal neglect of a vulnerable 
        adult); 609.2335 (financial exploitation of a vulnerable adult); 
        609.234 (failure to report maltreatment of a vulnerable adult); 
        609.72, subdivision 3 (disorderly conduct against a vulnerable 
        adult); 609.265 (abduction); 609.378 (neglect or endangerment of 
        a child); 609.377 (malicious punishment of a child); 609.324, 
        subdivision 1a (other prohibited acts; minor engaged in 
        prostitution); 609.33 (disorderly house); 609.52 (theft); 
        609.582 (burglary); 609.631 (check forgery; offering a forged 
        check); 609.275 (attempt to coerce); 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 
        or country, the elements of which are substantially similar to 
        the elements of any of the offenses listed in this clause.  If 
        the defendant is convicted of one of the gross misdemeanors 
        listed in this clause, but the sentence is a misdemeanor 
        disposition, the lookback period for the conviction is the 
        period applicable to misdemeanors; or 
           (4) if less than seven years have passed since the 
        discharge of the sentence imposed for the offense; and the 
        individual has received a misdemeanor conviction for a violation 
        of any of the following offenses:  sections 609.224 (assault in 
        the fifth degree); 609.2242 (domestic assault); violation of an 
        order for protection under 518B.01 (Domestic Abuse Act); 
        violation of an order for protection under 609.3232 (protective 
        order authorized; procedures; penalties); 609.746 (interference 
        with privacy); 609.79 (obscene or harassing phone calls); 
        609.795 (letter, telegram, or package; opening; harassment); 
        617.23 (indecent exposure; penalties); 609.2672 (assault of an 
        unborn child in the third degree); 617.293 (harmful materials; 
        dissemination and display to minors prohibited); 609.66 
        (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
        exploitation of a vulnerable adult); 609.234 (failure to report 
        maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
        (coercion); 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 or country, the 
        elements of which are substantially similar to the elements of 
        any of the offenses listed in this clause; failure to make 
        required reports under section 626.556, subdivision 3, or 
        626.557, subdivision 3, for incidents in which:  (i) the final 
        disposition under section 626.556 or 626.557 was substantiated 
        maltreatment, and (ii) the maltreatment was recurring or 
        serious; or substantiated serious or recurring maltreatment of a 
        minor under section 626.556 or of a vulnerable adult under 
        section 626.557 for which there is a preponderance of evidence 
        that the maltreatment occurred, and that the subject was 
        responsible for the maltreatment. 
           For the purposes of this section, "serious maltreatment" 
        means sexual abuse; maltreatment resulting in death; or 
        maltreatment resulting in serious injury or harm which 
        reasonably requires the care of a physician whether or not the 
        care of a physician was sought; or abuse resulting in serious 
        injury.  For purposes of this section, "abuse resulting in 
        serious injury" means:  bruises, bites, skin laceration or 
        tissue damage; fractures; dislocations; evidence of internal 
        injuries; head injuries with loss of consciousness; extensive 
        second-degree or third-degree burns and other burns for which 
        complications are present; extensive second-degree or 
        third-degree frostbite, and others for which complications are 
        present; irreversible mobility or avulsion of teeth; injuries to 
        the eyeball; ingestion of foreign substances and objects that 
        are harmful; near drowning; and heat exhaustion or sunstroke.  
        For purposes of this section, "care of a physician" is treatment 
        received or ordered by a physician, but does not include 
        diagnostic testing, assessment, or observation.  For the 
        purposes of this section, "recurring maltreatment" means more 
        than one incident of maltreatment for which there is a 
        preponderance of evidence that the maltreatment occurred, and 
        that the subject was responsible for the maltreatment. 
           (b) If the subject of a background study is licensed by a 
        health-related licensing board, the board shall make the 
        determination regarding a disqualification under this 
        subdivision based on a finding of substantiated maltreatment 
        under section 626.556 or 626.557.  The commissioner shall notify 
        the health-related licensing board if a background study shows 
        that a licensee would be disqualified because of substantiated 
        maltreatment and the board shall make a determination under 
        section 2. 
           Sec. 2.  [214.104] [HEALTH-RELATED LICENSING BOARDS; 
        DETERMINATIONS REGARDING DISQUALIFICATIONS FOR MALTREATMENT.] 
           (a) A health-related licensing board shall make 
        determinations as to whether licensees who are under the board's 
        jurisdiction should be disqualified under section 245A.04, 
        subdivision 3d, from positions allowing direct contact with 
        persons receiving services because of substantiated maltreatment 
        under section 626.556 or 626.557.  A determination under this 
        section may be done as part of an investigation under section 
        214.103.  The board shall make a determination within 90 days of 
        receipt of an investigation memorandum or other notice of 
        substantiated maltreatment under section 626.556 or 626.557, or 
        of a notice from the commissioner of human services that a 
        background study of a licensee shows substantiated 
        maltreatment.  The board shall also make a determination under 
        this section upon consideration of the licensure of an 
        individual who was subject to disqualification before licensure 
        because of substantiated maltreatment. 
           (b) In making a determination under this section, the board 
        shall consider the nature and extent of any injury or harm 
        resulting from the conduct that would constitute grounds for 
        disqualification, the seriousness of the misconduct, the extent 
        that disqualification is necessary to protect persons receiving 
        services or the public, and other factors specified in section 
        245A.04, subdivision 3b, paragraph (b). 
           (c) The board shall determine the duration and extent of 
        the disqualification or may establish conditions under which the 
        licensee may hold a position allowing direct contact with 
        persons receiving services or in a licensed facility.  The board 
        shall notify the commissioner of human services and the lead 
        agency that conducted an investigation under section 626.556 or 
        626.557, as applicable, of its determination.  
           Sec. 3.  Minnesota Statutes 1998, section 626.5572, 
        subdivision 17, is amended to read: 
           Subd. 17.  [NEGLECT.] "Neglect" means:  
           (a) The failure or omission by a caregiver to supply a 
        vulnerable adult with care or services, including but not 
        limited to, food, clothing, shelter, health care, or supervision 
        which is: 
           (1) reasonable and necessary to obtain or maintain the 
        vulnerable adult's physical or mental health or safety, 
        considering the physical and mental capacity or dysfunction of 
        the vulnerable adult; and 
           (2) which is not the result of an accident or therapeutic 
        conduct. 
           (b) The absence or likelihood of absence of care or 
        services, including but not limited to, food, clothing, shelter, 
        health care, or supervision necessary to maintain the physical 
        and mental health of the vulnerable adult which a reasonable 
        person would deem essential to obtain or maintain the vulnerable 
        adult's health, safety, or comfort considering the physical or 
        mental capacity or dysfunction of the vulnerable adult. 
           (c) For purposes of this section, a vulnerable adult is not 
        neglected for the sole reason that: 
           (1) the vulnerable adult or a person with authority to make 
        health care decisions for the vulnerable adult under sections 
        144.651, 144A.44, chapter 145B, 145C, or 252A, or section 
        253B.03, or 525.539 to 525.6199, refuses consent or withdraws 
        consent, consistent with that authority and within the boundary 
        of reasonable medical practice, to any therapeutic conduct, 
        including any care, service, or procedure to diagnose, maintain, 
        or treat the physical or mental condition of the vulnerable 
        adult, or, where permitted under law, to provide nutrition and 
        hydration parenterally or through intubation; this paragraph 
        does not enlarge or diminish rights otherwise held under law by: 
           (i) a vulnerable adult or a person acting on behalf of a 
        vulnerable adult, including an involved family member, to 
        consent to or refuse consent for therapeutic conduct; or 
           (ii) a caregiver to offer or provide or refuse to offer or 
        provide therapeutic conduct; or 
           (2) the vulnerable adult, a person with authority to make 
        health care decisions for the vulnerable adult, or a caregiver 
        in good faith selects and depends upon spiritual means or prayer 
        for treatment or care of disease or remedial care of the 
        vulnerable adult in lieu of medical care, provided that this is 
        consistent with the prior practice or belief of the vulnerable 
        adult or with the expressed intentions of the vulnerable adult; 
           (3) the vulnerable adult, who is not impaired in judgment 
        or capacity by mental or emotional dysfunction or undue 
        influence, engages in sexual contact with:  
           (i) a person including a facility staff person when a 
        consensual sexual personal relationship existed prior to the 
        caregiving relationship; or 
           (ii) a personal care attendant, regardless of whether the 
        consensual sexual personal relationship existed prior to the 
        caregiving relationship; or 
           (4) an individual makes a single mistake an error in the 
        provision of therapeutic conduct to a vulnerable adult which:  
           (i) does not result in injury or harm which reasonably 
        requires the medical or mental health care of a physician or 
        mental health professional, whether or not the care was 
        sought or, if it reasonably requires care, the care is sought 
        and provided in a timely fashion as dictated by the condition of 
        the vulnerable adult; and the injury or harm that required care 
        does not result in substantial acute, or chronic injury or 
        illness, or permanent disability above and beyond the vulnerable 
        adult's preexisting condition; 
           (ii) is immediately reported and recorded internally by the 
        employee or person providing services in the facility in order 
        to evaluate and identify corrective action; and 
           (iii) is sufficiently documented for review and evaluation 
        by the facility and any applicable licensing and, certification, 
        and ombudsman agency; and 
           (iv) is not part of a pattern of errors by the individual. 
           (d) Nothing in this definition requires a caregiver, if 
        regulated, to provide services in excess of those required by 
        the caregiver's license, certification, registration, or other 
        regulation. 
           Sec. 4.  [RIGHT TO PETITION FOR LICENSING BOARD REVIEW.] 
           Until August 1, 2001, a licensed health professional who 
        was disqualified under Minnesota Statutes, section 245A.04, 
        subdivision 3d, before the effective date of this act, for 
        substantiated maltreatment under Minnesota Statutes, section 
        626.556 or 626.557, that occurred on or after October 1, 1995, 
        may petition the licensing board for review of the 
        disqualification, as provided in section 2.  The commissioner of 
        human services shall notify individuals who are eligible to 
        petition under this section of this right.  
           Sec. 5.  [COORDINATION OF ACTIVITY REGARDING LICENSED 
        PROFESSIONALS.] 
           The commissioner of human services, the commissioner of 
        health, the health-related licensing boards, and representatives 
        of licensed and nonlicensed health professionals, shall study 
        and make recommendations regarding the coordination of 
        investigatory and disciplinary activity relating to the 
        disqualification of licensed and nonlicensed health 
        professionals under Minnesota Statutes, section 245A.04, 
        subdivision 3d, for purposes of efficiency and avoiding 
        duplication of actions affecting health professionals, 
        consistent with due process for the health professionals.  The 
        commissioner shall report recommendations to the legislature by 
        January 15, 2001. 
           Presented to the governor March 30, 2000 
           Signed by the governor April 3, 2000, 2:22 p.m.