Office of the Revisor of Statutes
Minnesota Session Laws - 2000, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 465-S.F.No. 3028
An act relating to human services; specifying rights
for reconsideration and review of determinations
regarding maltreatment of vulnerable adults; modifying
provisions governing the Southern Cities Community
Health Clinic; amending Minnesota Statutes 1998,
section 626.557, subdivisions 9c, 9d, and 12b;
Minnesota Statutes 1999 Supplement, section 13.99, by
adding a subdivision; Laws 1995, chapter 207, article
8, section 37; proposing coding for new law in
Minnesota Statutes, chapter 256.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1999 Supplement, section
13.99, is amended by adding a subdivision to read:
Subd. 74d. [VULNERABLE ADULT MALTREATMENT REVIEW
PANEL.] Data of the vulnerable adult maltreatment review panel
are classified under section 2.
Sec. 2. [256.021] [VULNERABLE ADULT MALTREATMENT REVIEW
PANEL.]
Subdivision 1. [CREATION.] (a) The commissioner of human
services shall establish a review panel for purposes of
reviewing lead agency determinations regarding maltreatment of a
vulnerable adult in response to requests received under section
626.557, subdivision 9d, paragraph (b). The panel shall hold
quarterly meetings for purposes of conducting reviews under this
section.
(b) The review panel consists of:
(1) the commissioners of health and human services or their
designees;
(2) the ombudsperson for older Minnesotans and ombudsperson
for mental health and mental retardation, or their designees;
and
(3) a member of the board on aging, appointed by the board.
Subd. 2. [REVIEW PROCEDURE.] (a) If a vulnerable adult or
an interested person acting on behalf of the vulnerable adult
requests a review under this section, the panel shall review the
request at its next quarterly meeting. If the next quarterly
meeting is within ten days of the panel's receipt of the request
for review, the review may be delayed until the next subsequent
meeting. The panel shall review the request and the
investigation memorandum and may review any other data on the
investigation maintained by the lead agency that are pertinent
and necessary to its review of the final disposition. If more
than one person requests a review under this section with
respect to the same final disposition, the review panel shall
combine the requests into one review.
(b) Within 30 days of the review under this section, the
panel shall notify the lead agency and the vulnerable adult or
interested person who requested the review as to whether the
panel agrees with the final disposition or whether the lead
agency must reconsider the final disposition. If the panel
determines that the lead agency must reconsider the final
disposition, the panel must make specific investigative
recommendations to the agency. Within 30 days the lead agency
shall conduct a review and report back to the panel with its
determination and the specific rationale for its final
disposition.
Subd. 3. [REPORT.] By January 15 of each year, the panel
shall submit a report to the committees of the legislature with
jurisdiction over section 626.557 regarding the number of
requests for review it receives under this section, the number
of cases where the panel requires the lead agency to reconsider
its final disposition, and the number of cases where the final
disposition is changed, and any recommendations to improve the
review or investigative process.
Subd. 4. [DATA.] Data of the review panel created as part
of a review under this section are private data on individuals
as defined in section 13.02.
Sec. 3. Minnesota Statutes 1998, section 626.557,
subdivision 9c, is amended to read:
Subd. 9c. [LEAD AGENCY; NOTIFICATIONS, DISPOSITIONS, AND
DETERMINATIONS.] (a) Upon request of the reporter, the lead
agency shall notify the reporter that it has received the
report, and provide information on the initial disposition of
the report within five business days of receipt of the report,
provided that the notification will not endanger the vulnerable
adult or hamper the investigation.
(b) Upon conclusion of every investigation it conducts, the
lead agency shall make a final disposition as defined in section
626.5572, subdivision 8.
(c) When determining whether the facility or individual is
the responsible party for substantiated maltreatment, the lead
agency shall consider at least the following mitigating factors:
(1) whether the actions of the facility or the individual
caregivers were in accordance with, and followed the terms of,
an erroneous physician order, prescription, resident care plan,
or directive. This is not a mitigating factor when the facility
or caregiver is responsible for the issuance of the erroneous
order, prescription, plan, or directive or knows or should have
known of the errors and took no reasonable measures to correct
the defect before administering care;
(2) the comparative responsibility between the facility,
other caregivers, and requirements placed upon the employee,
including but not limited to, the facility's compliance with
related regulatory standards and factors such as the adequacy of
facility policies and procedures, the adequacy of facility
training, the adequacy of an individual's participation in the
training, the adequacy of caregiver supervision, the adequacy of
facility staffing levels, and a consideration of the scope of
the individual employee's authority; and
(3) whether the facility or individual followed
professional standards in exercising professional judgment.
(d) The lead agency shall complete its final disposition
within 60 calendar days. If the lead agency is unable to
complete its final disposition within 60 calendar days, the lead
agency shall notify the following persons provided that the
notification will not endanger the vulnerable adult or hamper
the investigation: (1) the vulnerable adult or the vulnerable
adult's legal guardian, when known, if the lead agency knows
them to be aware of the investigation and (2) the facility,
where applicable. The notice shall contain the reason for the
delay and the projected completion date. If the lead agency is
unable to complete its final disposition by a subsequent
projected completion date, the lead agency shall again notify
the vulnerable adult or the vulnerable adult's legal guardian,
when known if the lead agency knows them to be aware of the
investigation, and the facility, where applicable, of the reason
for the delay and the revised projected completion date provided
that the notification will not endanger the vulnerable adult or
hamper the investigation. A lead agency's inability to complete
the final disposition within 60 calendar days or by any
projected completion date does not invalidate the final
disposition.
(e) Within ten calendar days of completing the final
disposition, the lead agency shall provide a copy of the public
investigation memorandum under subdivision 12b, paragraph (b),
clause (1), when required to be completed under this section, to
the following persons: (1) the vulnerable adult, or the
vulnerable adult's legal guardian, if known unless the lead
agency knows that the notification would endanger the well-being
of the vulnerable adult; (2) the reporter, if the reporter
requested notification when making the report, provided this
notification would not endanger the well-being of the vulnerable
adult; (3) the alleged perpetrator, if known; (4) the facility;
and (5) the ombudsman for older Minnesotans, or the ombudsman
for mental health and mental retardation, as appropriate.
(f) The lead agency shall notify the vulnerable adult who
is the subject of the report or the vulnerable adult's legal
guardian, if known, and any person or facility determined to
have maltreated a vulnerable adult, of their appeal or review
rights under this section or section 2.
(g) The lead agency shall routinely provide investigation
memoranda for substantiated reports to the appropriate licensing
boards. These reports must include the names of substantiated
perpetrators. The lead agency may not provide investigative
memoranda for inconclusive or false reports to the appropriate
licensing boards unless the lead agency's investigation gives
reason to believe that there may have been a violation of the
applicable professional practice laws. If the investigation
memorandum is provided to a licensing board, the subject of the
investigation memorandum shall be notified and receive a summary
of the investigative findings.
(h) In order to avoid duplication, licensing boards shall
consider the findings of the lead agency in their investigations
if they choose to investigate. This does not preclude licensing
boards from considering other information.
(i) The lead agency must provide to the commissioner of
human services its final dispositions, including the names of
all substantiated perpetrators. The commissioner of human
services shall establish records to retain the names of
substantiated perpetrators.
Sec. 4. Minnesota Statutes 1998, section 626.557,
subdivision 9d, is amended to read:
Subd. 9d. [ADMINISTRATIVE RECONSIDERATION OF FINAL
DISPOSITION; REVIEW PANEL.] (a) Any individual or facility which
a lead agency determines has maltreated a vulnerable adult, or
the vulnerable adult or vulnerable adult's designee an
interested person acting on behalf of the vulnerable adult,
regardless of the lead agency's determination, who contests the
lead agency's final disposition of an allegation of
maltreatment, may request the lead agency to reconsider its
final disposition. The request for reconsideration must be
submitted in writing to the lead agency within 15 calendar days
after receipt of notice of final disposition or, if the request
is made by an interested person who is not entitled to notice,
within 15 days after receipt of the notice by the vulnerable
adult or the vulnerable adult's legal guardian.
(b) If the lead agency denies the request or fails to act
upon the request within 15 calendar days after receiving the
request for reconsideration, the person or facility entitled to
a fair hearing under section 256.045, may submit to the
commissioner of human services a written request for a hearing
under that statute. The vulnerable adult, or an interested
person acting on behalf of the vulnerable adult, may request a
review by the vulnerable adult maltreatment review panel under
section 2 if the lead agency denies the request or fails to act
upon the request, or if the vulnerable adult or interested
person contests a reconsidered disposition. The lead agency
shall notify persons who request reconsideration of their rights
under this paragraph. The request must be submitted in writing
to the review panel and a copy sent to the lead agency within 30
calendar days of receipt of notice of a denial of a request for
reconsideration or of a reconsidered disposition. The request
must specifically identify the aspects of the agency
determination with which the person is dissatisfied.
(c) If, as a result of the a reconsideration or review, the
lead agency changes the final disposition, it shall notify the
parties specified in subdivision 9c, paragraph (d).
(d) For purposes of this subdivision, "interested person
acting on behalf of the vulnerable adult" means a person
designated in writing by the vulnerable adult to act on behalf
of the vulnerable adult, or a legal guardian or conservator or
other legal representative, a proxy or health care agent
appointed under chapter 145B or 145C, or an individual who is
related to the vulnerable adult, as defined in section 245A.02,
subdivision 13.
Sec. 5. Minnesota Statutes 1998, section 626.557,
subdivision 12b, is amended to read:
Subd. 12b. [DATA MANAGEMENT.] (a) [COUNTY DATA.] In
performing any of the duties of this section as a lead agency,
the county social service agency shall maintain appropriate
records. Data collected by the county social service agency
under this section are welfare data under section 13.46.
Notwithstanding section 13.46, subdivision 1, paragraph (a),
data under this paragraph that are inactive investigative data
on an individual who is a vendor of services are private data on
individuals, as defined in section 13.02. The identity of the
reporter may only be disclosed as provided in paragraph (c).
Data maintained by the common entry point are confidential
data on individuals or protected nonpublic data as defined in
section 13.02. Notwithstanding section 138.163, the common
entry point shall destroy data three calendar years after date
of receipt.
(b) [LEAD AGENCY DATA.] The commissioners of health and
human services shall prepare an investigation memorandum for
each report alleging maltreatment investigated under this
section. During an investigation by the commissioner of health
or the commissioner of human services, data collected under this
section are confidential data on individuals or protected
nonpublic data as defined in section 13.02. Upon completion of
the investigation, the data are classified as provided in
clauses (1) to (3) and paragraph (c).
(1) The investigation memorandum must contain the following
data, which are public:
(i) the name of the facility investigated;
(ii) a statement of the nature of the alleged maltreatment;
(iii) pertinent information obtained from medical or other
records reviewed;
(iv) the identity of the investigator;
(v) a summary of the investigation's findings;
(vi) statement of whether the report was found to be
substantiated, inconclusive, false, or that no determination
will be made;
(vii) a statement of any action taken by the facility;
(viii) a statement of any action taken by the lead agency;
and
(ix) when a lead agency's determination has substantiated
maltreatment, a statement of whether an individual, individuals,
or a facility were responsible for the substantiated
maltreatment, if known.
The investigation memorandum must be written in a manner
which protects the identity of the reporter and of the
vulnerable adult and may not contain the names or, to the extent
possible, data on individuals or private data listed in clause
(2).
(2) Data on individuals collected and maintained in the
investigation memorandum are private data, including:
(i) the name of the vulnerable adult;
(ii) the identity of the individual alleged to be the
perpetrator;
(iii) the identity of the individual substantiated as the
perpetrator; and
(iv) the identity of all individuals interviewed as part of
the investigation.
(3) Other data on individuals maintained as part of an
investigation under this section are private data on individuals
upon completion of the investigation.
(c) [IDENTITY OF REPORTER.] The subject of the report may
compel disclosure of the name of the reporter only with the
consent of the reporter or upon a written finding by a court
that the report was false and there is evidence that the report
was made in bad faith. This subdivision does not alter
disclosure responsibilities or obligations under the rules of
criminal procedure, except that where the identity of the
reporter is relevant to a criminal prosecution, the district
court shall do an in-camera review prior to determining whether
to order disclosure of the identity of the reporter.
(d) [DESTRUCTION OF DATA.] Notwithstanding section
138.163, data maintained under this section by the commissioners
of health and human services must be destroyed under the
following schedule:
(1) data from reports determined to be false, two years
after the finding was made;
(2) data from reports determined to be inconclusive, four
years after the finding was made;
(3) data from reports determined to be substantiated, seven
years after the finding was made; and
(4) data from reports which were not investigated by a lead
agency and for which there is no final disposition, two years
from the date of the report.
(e) [SUMMARY OF REPORTS.] The commissioners of health and
human services shall each annually prepare a summary of the
number and type of reports of alleged maltreatment involving
licensed facilities reported under this section.
(f) [RECORD RETENTION POLICY.] Each lead agency must have
a record retention policy.
(g) [EXCHANGE OF INFORMATION.] Lead agencies, prosecuting
authorities, and law enforcement agencies may exchange not
public data, as defined in section 13.02, if the agency or
authority requesting the data determines that the data are
pertinent and necessary to the requesting agency in initiating,
furthering, or completing an investigation under this section.
Data collected under this section must be made available to
prosecuting authorities and law enforcement officials, local
county agencies, and licensing agencies investigating the
alleged maltreatment under this section. The lead agency shall
exchange not public data with the vulnerable adult maltreatment
review panel established in section 2 if the data are pertinent
and necessary for a review requested under that section. Upon
completion of the review, not public data received by the review
panel must be returned to the lead agency.
(h) [COMPLETION TIME.] Each lead agency shall keep records
of the length of time it takes to complete its investigations.
(i) [NOTIFICATION OF OTHER AFFECTED PARTIES.] A lead
agency may notify other affected parties and their authorized
representative if the agency has reason to believe maltreatment
has occurred and determines the information will safeguard the
well-being of the affected parties or dispel widespread rumor or
unrest in the affected facility.
(j) [FEDERAL REQUIREMENTS.] Under any notification
provision of this section, where federal law specifically
prohibits the disclosure of patient identifying information, a
lead agency may not provide any notice unless the vulnerable
adult has consented to disclosure in a manner which conforms to
federal requirements.
Sec. 6. Laws 1995, chapter 207, article 8, section 37, is
amended to read:
Sec. 37. [256.0121] [SOUTHERN CITIES COMMUNITY HEALTH
CLINIC.]
Subdivision 1. [SERVICE PROVISION.] The commissioner of
human services shall offer medically necessary psychiatric and
dental services to developmentally disabled clients in the
Faribault service area through the Southern Cities Community
Health Clinic. For purposes of this requirement, the Faribault
service area is expanded to also include geographic areas of the
state within 100 miles of Faribault.
Subd. 2. [CONSULTATION REQUIRED.] The commissioner of
human services shall consult with the Faribault community task
force providers of psychiatric and dental services to
developmentally disabled clients, family members of
developmentally disabled clients, the chairs of the house and
senate committees with jurisdiction over health and human
services fiscal issues, and the exclusive representatives before
making any decisions about when considering policy changes
related to:
(1) the future of the Southern Cities Community Health
Clinic;
(2) the services currently provided by that clinic to
developmentally disabled clients in the Faribault regional
center catchment area; and
(3) changes in the model for providing those services.
Subd. 3. [GUARANTEE OF SERVICE AVAILABILITY; LEGISLATIVE
NOTICE.] (a) The department of human services shall guarantee
the provision of medically necessary psychiatric and dental
services to developmentally disabled clients in the Faribault
service area through the Southern Cities Community Health Clinic
until or unless other appropriate arrangements have been made to
provide those clients with those services and the requirements
of paragraph (b) are met.
(b) The commissioner shall notify the chairs of the house
and senate committees with jurisdiction over health and human
services fiscal issues of plans to use other arrangements to
provide medically necessary psychiatric and dental services to
developmentally disabled clients in the Faribault service area.
The commissioner must not implement these arrangements unless a
regular legislative session has convened and adjourned since the
date notice was given under this paragraph.
Presented to the governor May 11, 2000
Signed by the governor May 15, 2000, 10:26 a.m.
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Revisor of Statutes