Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 2000, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 327-S.F.No. 3005
An act relating to health and human services;
establishing the right to seek licensure for excluded
adult foster care providers; changing requirements to
background studies for licensed programs; establishing
tribal licensing agency access to criminal history
data; clarifying tort liability licensing exception
for county agencies; amending Minnesota Statutes 1998,
sections 245A.03, subdivision 2, and by adding a
subdivision; and 245A.04, subdivisions 3 and 3b;
Minnesota Statutes 1999 Supplement, section 245A.04,
subdivision 3d.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1998, section 245A.03,
subdivision 2, is amended to read:
Subd. 2. [EXCLUSION FROM LICENSURE.] Sections 245A.01 to
245A.16 do This chapter does not apply to:
(1) residential or nonresidential programs that are
provided to a person by an individual who is related unless the
residential program is a child foster care placement made by a
local social services agency or a licensed child-placing agency,
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 economic security;
(5) programs for children enrolled in kindergarten to the
12th grade and prekindergarten special education in a school as
defined in section 120A.22, subdivision 4, and programs serving
children in combined special education and regular
prekindergarten programs that are operated or assisted by the
commissioner of children, families, and learning;
(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 within another
building that is directly contiguous to the building in which
the nonresidential program is 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 or
programs operated by a park and recreation board of a city of
the first class whose primary purpose is to provide social and
recreational activities to school age children, provided the
program is approved by the park and recreation board;
(12) programs operated by a school as defined in section
120A.22, subdivision 4, whose primary purpose is to provide
child care to school-age children, provided the program 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 90 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;
(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;
(24) the placement of a child by a birth parent or legal
guardian in a preadoptive home for purposes of adoption as
authorized by section 259.47; or
(25) settings registered under chapter 144D which provide
home care services licensed by the commissioner of health to
fewer than seven adults.
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. 2. Minnesota Statutes 1998, section 245A.03, is
amended by adding a subdivision to read:
Subd. 5. [EXCLUDED HOUSING WITH SERVICES PROGRAMS; RIGHT
TO SEEK LICENSURE.] Nothing in this section shall prohibit a
housing with services program that is excluded from licensure
under subdivision 2, clause (25), from seeking a license under
this chapter. The commissioner shall ensure that any
application received from such an excluded provider is processed
in the same manner as all other applications for licensed adult
foster care.
Sec. 3. Minnesota Statutes 1998, section 245A.04,
subdivision 3, is amended to read:
Subd. 3. [BACKGROUND STUDY OF THE APPLICANT; DEFINITIONS.]
(a) Before the commissioner issues a license, the commissioner
shall conduct a study of the individuals specified in paragraph
(c), clauses (1) to (5), according to rules of the commissioner.
Beginning January 1, 1997, the commissioner shall also
conduct a study of employees providing direct contact services
for nonlicensed personal care provider organizations described
in paragraph (c), clause (5).
The commissioner shall recover the cost of these background
studies through a fee of no more than $12 per study charged to
the personal care provider organization.
Beginning August 1, 1997, the commissioner shall conduct
all background studies required under this chapter for adult
foster care providers who are licensed by the commissioner of
human services and registered under chapter 144D. The
commissioner shall conduct these background studies in
accordance with this chapter. The commissioner shall initiate a
pilot project to conduct up to 5,000 background studies under
this chapter in programs with joint licensure as home and
community-based services and adult foster care for people with
developmental disabilities when the license holder does not
reside in the foster care residence.
(b) Beginning July 1, 1998, the commissioner shall conduct
a background study on individuals specified in paragraph (c),
clauses (1) to (5), who perform direct contact services in a
nursing home or a home care agency licensed under chapter 144A
or a boarding care home licensed under sections 144.50 to
144.58, when the subject of the study resides outside Minnesota;
the study must be at least as comprehensive as that of a
Minnesota resident and include a search of information from the
criminal justice data communications network in the state where
the subject of the study resides.
(c) The applicant, license holder, the bureau of criminal
apprehension, the commissioner of health 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 the maltreatment of
adults 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 facility,
agency, or program;
(4) volunteers or student 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); and
(5) any person who, as an individual or as a member of an
organization, exclusively offers, provides, or arranges for
personal care assistant services under the medical assistance
program as authorized under sections 256B.04, subdivision 16,
and 256B.0625, subdivision 19.
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 section and Minnesota Rules, part
9543.3070, a finding that a delinquency petition is proven in
juvenile court shall be considered a conviction in state
district court.
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), (3), or (5) is within
sight or hearing of a volunteer to the extent that the
individual listed in clause (1), (3), or (5) 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 (5) shall be
conducted at least upon application for initial license and
reapplication for a license. The commissioner is not required
to conduct a study of an individual at the time of reapplication
for a license or if the individual has been continuously
affiliated with a foster care provider licensed by the
commissioner of human services and registered under chapter
144D, other than a family day care or foster care license, if:
(i) a study of the individual was conducted either at the time
of initial licensure or when the individual became affiliated
with the license holder; (ii) the individual has been
continuously affiliated with the license holder since the last
study was conducted; and (iii) the procedure described in
paragraph (d) has been implemented and was in effect
continuously since the last study was conducted. For the
purposes of this section, a physician licensed under chapter 147
is considered to be continuously affiliated upon the license
holder's receipt from the commissioner of health or human
services of the physician's background study results. For
individuals who are required to have background studies under
clauses (1) to (5) and who have been continuously affiliated
with a foster care provider that is licensed in more than one
county, criminal conviction data may be shared among those
counties in which the foster care programs are licensed. A
county agency's receipt of criminal conviction data from another
county agency shall meet the criminal data background study
requirements of this section.
The commissioner may also conduct studies on individuals
specified in clauses (3) and (4) when the studies are initiated
by:
(i) personnel pool agencies;
(ii) temporary personnel agencies;
(iii) educational programs that train persons by providing
direct contact services in licensed programs; and
(iv) professional services agencies that are not licensed
and which contract with licensed programs to provide direct
contact services or individuals who provide direct contact
services.
Studies on individuals in items (i) to (iv) must be
initiated annually by these agencies, programs, and
individuals. Except for personal care provider organizations,
no applicant, license holder, or individual who is the subject
of the study shall pay any fees required to conduct the study.
(1) At the option of the licensed facility, rather than
initiating another background study on an individual required to
be studied who has indicated to the licensed facility that a
background study by the commissioner was previously completed,
the facility may make a request to the commissioner for
documentation of the individual's background study status,
provided that:
(i) the facility makes this request using a form provided
by the commissioner;
(ii) in making the request the facility informs the
commissioner that either:
(A) the individual has been continuously affiliated with a
licensed facility since the individual's previous background
study was completed, or since October 1, 1995, whichever is
shorter; or
(B) the individual is affiliated only with a personnel pool
agency, a temporary personnel agency, an educational program
that trains persons by providing direct contact services in
licensed programs, or a professional services agency that is not
licensed and which contracts with licensed programs to provide
direct contact services or individuals who provide direct
contact services; and
(iii) the facility provides notices to the individual as
required in paragraphs (a) to (d), and that the facility is
requesting written notification of the individual's background
study status from the commissioner.
(2) The commissioner shall respond to each request under
paragraph (1) with a written or electronic notice to the
facility and the study subject. If the commissioner determines
that a background study is necessary, the study shall be
completed without further request from a licensed agency or
notifications to the study subject.
(3) When a background study is being initiated by a
licensed facility or a foster care provider that is also
registered under chapter 144D, a study subject affiliated with
multiple licensed facilities may attach to the background study
form a cover letter indicating the additional facilities' names,
addresses, and background study identification numbers. When
the commissioner receives such notices, each facility identified
by the background study subject shall be notified of the study
results. The background study notice sent to the subsequent
agencies shall satisfy those facilities' responsibilities for
initiating a background study on that individual.
(d) If an individual who is affiliated with a program or
facility regulated by the department of human services or
department of health or who is affiliated with a nonlicensed
personal care provider organization, is convicted of a crime
constituting a disqualification under subdivision 3d, the
probation officer or corrections agent shall notify the
commissioner of the conviction. The commissioner, in
consultation with the commissioner of corrections, shall develop
forms and information necessary to implement this paragraph and
shall provide the forms and information to the commissioner of
corrections for distribution to local probation officers and
corrections agents. The commissioner shall inform individuals
subject to a background study that criminal convictions for
disqualifying crimes will be reported to the commissioner by the
corrections system. A probation officer, corrections agent, or
corrections agency is not civilly or criminally liable for
disclosing or failing to disclose the information required by
this paragraph. Upon receipt of disqualifying information, the
commissioner shall provide the notifications required in
subdivision 3a, as appropriate to agencies on record as having
initiated a background study or making a request for
documentation of the background study status of the individual.
This paragraph does not apply to family day care and child
foster care programs.
(e) 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 for the past five years; 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 (c), clauses (1) to (5), on forms
prescribed by the commissioner. By January 1, 2000, for
background studies conducted by the department of human
services, the commissioner shall implement a system for the
electronic transmission of: (1) background study information to
the commissioner; and (2) background study results to the
license holder. 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.
(f) Except for child foster care, adult foster care, and
family day care homes, a study must include information related
to names of substantiated perpetrators of maltreatment of
vulnerable adults that has been received by the commissioner as
required under section 626.557, subdivision 9c, paragraph (i),
and the commissioner's records relating to the maltreatment of
minors in licensed programs, information from juvenile courts as
required in paragraph (c) for persons listed in paragraph (c),
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 maltreatment of
adults, and the maltreatment of minors, information from
juvenile courts as required in paragraph (c) for persons listed
in paragraph (c), 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, the commissioner of health, a county attorney,
county sheriff, county agency, local chief of police, other
states, the courts, or the Federal Bureau of Investigation if
the commissioner has reasonable cause to believe the information
is pertinent to the disqualification of an individual listed in
paragraph (c), clauses (1) to (5). The commissioner is not
required to conduct more than one review of a subject's records
from the Federal Bureau of Investigation if a review of the
subject's criminal history with the Federal Bureau of
Investigation has already been completed by the commissioner and
there has been no break in the subject's affiliation with the
license holder who initiated the background studies.
When the commissioner has reasonable cause to believe that
further pertinent information may exist on the subject, the
subject shall provide a set of classifiable fingerprints
obtained from an authorized law enforcement agency. For
purposes of requiring fingerprints, the commissioner shall be
considered to have reasonable cause under, but not limited to,
the following circumstances:
(1) information from the bureau of criminal apprehension
indicates that the subject is a multistate offender;
(2) information from the bureau of criminal apprehension
indicates that multistate offender status is undetermined; or
(3) the commissioner has received a report from the subject
or a third party indicating that the subject has a criminal
history in a jurisdiction other than Minnesota.
(g) An applicant's or license holder's failure or refusal
to cooperate with the commissioner is reasonable cause to
disqualify a subject, deny a license 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.
(h) 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.
(i) No person in paragraph (c), clause (1), (2), (3), (4),
or (5) 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.
(j) Termination of persons in paragraph (c), clause (1),
(2), (3), (4), or (5), 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.
(k) The commissioner may establish records to fulfill the
requirements of this section.
(l) 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.
(m) An individual subject to disqualification under this
subdivision has the applicable rights in subdivision 3a, 3b, or
3c.
(n) For the purposes of background studies completed by
tribal organizations performing licensing activities otherwise
required of the commissioner under this chapter, after obtaining
consent from the background study subject, tribal licensing
agencies shall have access to criminal history data in the same
manner as county licensing agencies and private licensing
agencies under this chapter.
Sec. 4. Minnesota Statutes 1998, section 245A.04,
subdivision 3b, is amended to read:
Subd. 3b. [RECONSIDERATION OF DISQUALIFICATION.] (a) The
individual who is the subject of the disqualification may
request a reconsideration of the disqualification.
The individual must submit the request for reconsideration
to the commissioner in writing. A request for reconsideration
for an individual who has been sent a notice of disqualification
under subdivision 3a, paragraph (b), clause (1) or (2), must be
submitted within 30 calendar days of the disqualified
individual's receipt of the notice of disqualification. A
request for reconsideration for an individual who has been sent
a notice of disqualification under subdivision 3a, paragraph
(b), clause (3), must be submitted within 15 calendar days of
the disqualified individual's receipt of the notice of
disqualification. Removal of a disqualified individual from
direct contact shall be ordered if the individual does not
request reconsideration within the prescribed time, and for an
individual who submits a timely request for reconsideration, if
the disqualification is not set aside. The individual must
present information showing that:
(1) the information the commissioner relied upon is
incorrect or inaccurate. If the basis of a reconsideration
request is that a maltreatment determination or disposition
under section 626.556 or 626.557 is incorrect, and the
commissioner has issued a final order in an appeal of that
determination or disposition under section 256.045, the
commissioner's order is conclusive on the issue of maltreatment;
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
under this section 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. In determining that an
individual does not pose a risk of harm, the commissioner shall
consider the consequences of the event or events that 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,
documentation of successful completion by the individual studied
of training or rehabilitation pertinent to the event, and any
other information relevant to reconsideration. In reviewing a
disqualification under this section, 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 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 sections
609.20 (manslaughter in the first degree), 609.205 (manslaughter
in the second degree), criminal vehicular homicide under 609.21
(criminal vehicular homicide and injury), 609.215 (aiding
suicide or aiding attempted suicide), felony violations under
609.221 to 609.2231 (assault in the first, second, third, or
fourth degree), 609.713 (terroristic threats), 609.235 (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), burglary in the first or
second degree under 609.582 (burglary), 609.66 (dangerous
weapon), 609.665 (spring guns), 609.67 (machine guns and
short-barreled shotguns), 609.749 (harassment; stalking),
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), 609.224,
subdivision 2, paragraph (c) (fifth-degree assault by a
caregiver against a vulnerable adult), 609.228 (great bodily
harm caused by distribution of drugs), 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), 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), a gross misdemeanor
offense under 609.324, subdivision 1 (other prohibited acts), a
gross misdemeanor offense under 609.378 (neglect or endangerment
of a child), a gross misdemeanor offense under 609.377
(malicious punishment of a child), 609.72, subdivision 3
(disorderly conduct against a vulnerable adult); 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), a felony offense under
609.377 (malicious punishment of a child), a felony offense
under 609.324, subdivision 1 (other prohibited acts), a felony
offense under 609.378 (neglect or endangerment of a child),
609.322 (solicitation, inducement, and promotion of
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), 617.246
(use of minors in a sexual performance), 617.247 (possession of
pictorial representations of a minor), 609.365 (incest), 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 an attempt or conspiracy to commit any of these
offenses as defined in Minnesota Statutes, 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 maltreatment 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 or by
electronic transmission to all reconsideration requests for
which the basis for the request is that the information relied
upon by the commissioner to disqualify is incorrect or
inaccurate within 30 working days of receipt of a request and
all relevant information. If the basis for the request is that
the individual does not pose a risk of harm, the commissioner
shall respond to the request within 15 working days after
receiving the request for reconsideration and all relevant
information. If the disqualification is set aside, the
commissioner shall notify the applicant or license holder in
writing or by electronic transmission of the decision.
(e) Except as provided in subdivision 3c, the
commissioner's decision to disqualify an individual, including
the decision to grant or deny a rescission or set aside a
disqualification under this section, is the final administrative
agency action and shall not be subject to further review in a
contested case under chapter 14 involving a negative licensing
appeal taken in response to the disqualification or involving an
accuracy and completeness appeal under section 13.04.
Sec. 5. Minnesota Statutes 1999 Supplement, section
245A.04, subdivision 3d, is amended to read:
Subd. 3d. [DISQUALIFICATION.] 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); a felony offense under 609.378 (neglect or
endangerment of a child); a felony offense under 609.324,
subdivision 1 (other prohibited acts); 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.
Sec. 6. [INSTRUCTION TO REVISOR.]
In the next edition of Minnesota Statutes, the revisor of
statutes shall replace any references to "sections 245A.01 to
245A.16" in chapter 245A with "this chapter."
Sec. 7. [EFFECTIVE DATES.]
Sections 1 to 6 are effective the day following final
enactment.
Presented to the governor March 31, 2000
Signed by the governor April 4, 2000, 3:35 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes