Office of the Revisor of Statutes
Minnesota Session Laws - 2000, Regular Session
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.
Official Publication of the State of Minnesota
Revisor of Statutes