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Office of the Revisor of Statutes

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.