Office of the Revisor of Statutes
Minnesota Session Laws - 2003, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 15-S.F.No. 790
An act relating to human services; recodifying and
reorganizing the background study provisions in the
Human Services Licensing Act; making conforming
changes; amending Minnesota Statutes 2002, sections
245A.04, subdivisions 1, 3, 3a, 3b, 3c, 3d, 3e, 3f;
245A.041; proposing coding for new law as Minnesota
Statutes, chapter 245C.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
ARTICLE 1
BACKGROUND STUDIES
Section 1. [245C.01] [TITLE.]
This chapter may be cited as the "Department of Human
Services Background Studies Act."
Sec. 2. [245C.02] [DEFINITIONS.]
Subdivision 1. [SCOPE.] The definitions in this section
apply to this chapter.
Subd. 2. [ACCESS TO PERSONS SERVED BY A PROGRAM.] "Access
to persons served by a program" means physical access to persons
receiving services or the persons' personal property without
continuous, direct supervision, as defined in subdivision 8.
Subd. 3. [ANNUAL OR ANNUALLY.] "Annual" or "annually" has
the meaning given in section 245A.02, subdivision 2b.
Subd. 4. [APPLICANT.] "Applicant" has the meaning given in
section 245A.02, subdivision 3.
Subd. 5. [BACKGROUND STUDY.] "Background study" means the
review of records conducted by the commissioner to determine
whether a subject is disqualified from direct contact with
persons served by a program and, where specifically provided in
statutes, whether a subject is disqualified from having access
to persons served by a program.
Subd. 6. [CHILD.] "Child" has the meaning given in section
245A.02, subdivision 4.
Subd. 7. [COMMISSIONER.] "Commissioner" has the meaning
given in section 245A.02, subdivision 5.
Subd. 8. [CONTINUOUS, DIRECT SUPERVISION.] "Continuous,
direct supervision" means an individual is within sight or
hearing of the program's supervising individual to the extent
that the program's supervising individual is capable at all
times of intervening to protect the health and safety of the
persons served by the program.
Subd. 9. [CONTRACTOR.] "Contractor" means any individual,
regardless of employer, who is providing program services for
hire under the control of the provider.
Subd. 10. [COUNTY AGENCY.] "County agency" has the meaning
given in section 245A.02, subdivision 6.
Subd. 11. [DIRECT CONTACT.] "Direct contact" means
providing face-to-face care, training, supervision, counseling,
consultation, or medication assistance to persons served by the
program.
Subd. 12. [LICENSE.] "License" has the meaning given in
section 245A.02, subdivision 8.
Subd. 13. [LICENSE HOLDER.] "License holder" has the
meaning given in section 245A.02, subdivision 9.
Subd. 14. [PERSON.] "Person" means a child as defined in
subdivision 6 or an adult as defined in section 245A.02,
subdivision 2.
Subd. 15. [REASONABLE CAUSE.] "Reasonable cause" means
information or circumstances exist which provide the
commissioner with articulable suspicion that further pertinent
information may exist concerning a subject. The commissioner
has reasonable cause when, but not limited to, the commissioner
has received a report from the subject, the license holder, or a
third party indicating that the subject has a history that would
disqualify the individual or that may pose a risk to the health
or safety of persons receiving services.
Subd. 16. [RECURRING MALTREATMENT.] "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.
Subd. 17. [REGISTRANT.] "Registrant" means an individual
who operates a supplemental nursing services agency and who
registers the agency with the commissioner of health under
section 144A.71, subdivision 1.
Subd. 18. [SERIOUS MALTREATMENT.] (a) "Serious
maltreatment" means sexual abuse, maltreatment resulting in
death, maltreatment resulting in serious injury which reasonably
requires the care of a physician whether or not the care of a
physician was sought, or abuse resulting in serious injury.
(b) For purposes of this definition, "care of a physician"
is treatment received or ordered by a physician but does not
include diagnostic testing, assessment, or observation.
(c) For purposes of this definition, "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 other frostbite for which
complications are present; irreversible mobility or avulsion of
teeth; injuries to the eyes; ingestion of foreign substances and
objects that are harmful; near drowning; and heat exhaustion or
sunstroke.
Subd. 19. [SUBJECT OF A BACKGROUND STUDY.] "Subject of a
background study" means an individual on whom a background study
is required or completed.
Sec. 3. [245C.03] [BACKGROUND STUDY; INDIVIDUALS TO BE
STUDIED.]
Subdivision 1. [LICENSED PROGRAMS.] The commissioner shall
conduct a background study on:
(1) the applicant;
(2) an individual age 13 and over 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 will have direct
contact with persons served by the program to provide program
services if the contact is not under the continuous, direct
supervision by an individual listed in clause (1) or (3);
(5) an individual age ten to 12 living in the household
where the licensed services will be provided when the
commissioner has reasonable cause; and
(6) an individual who, without providing direct contact
services at a licensed program, may have unsupervised access to
children or vulnerable adults receiving services from a program
licensed to provide:
(i) family child care for children;
(ii) foster care for children in the provider's own home;
or
(iii) foster care or day care services for adults in the
provider's own home.
The commissioner must have reasonable cause to study an
individual under this clause.
Subd. 2. [PERSONAL CARE PROVIDER ORGANIZATIONS.] The
commissioner shall conduct background studies on any individual
required under section 256B.0627 to have a background study
completed under this chapter.
Subd. 3. [SUPPLEMENTAL NURSING SERVICES AGENCIES.] The
commissioner shall conduct all background studies required under
this chapter and initiated by supplemental nursing services
agencies registered under section 144A.71, subdivision 1.
Subd. 4. [PERSONNEL AGENCIES; EDUCATIONAL PROGRAMS;
PROFESSIONAL SERVICES AGENCIES.] The commissioner also may
conduct studies on individuals specified in subdivision 1,
clauses (3) and (4), when the studies are initiated by:
(1) personnel pool agencies;
(2) temporary personnel agencies;
(3) educational programs that train individuals by
providing direct contact services in licensed programs; and
(4) 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.
Sec. 4. [245C.04] [WHEN BACKGROUND STUDY MUST OCCUR.]
Subdivision 1. [LICENSED PROGRAMS.] (a) The commissioner
shall conduct a background study of an individual required to be
studied under section 245C.03, subdivision 1, at least upon
application for initial license for all license types.
(b) The commissioner shall conduct a background study of an
individual required to be studied under section 245C.03,
subdivision 1, at reapplication for a license for family child
care, child foster care, and adult foster care.
(c) The commissioner is not required to conduct a study of
an individual at the time of reapplication for a license if the
individual's background study was completed by the commissioner
of human services for an adult foster care license holder that
is also:
(1) registered under chapter 144D; or
(2) licensed to provide home and community-based services
to people with disabilities at the foster care location and the
license holder does not reside in the foster care residence; and
(3) the following conditions are met:
(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 last study of the individual was conducted on or
after October 1, 1995.
(d) Applicants for licensure, license holders, and other
entities as provided in this chapter must submit completed
background study forms to the commissioner before individuals
specified in section 245C.03, subdivision 1, begin positions
allowing direct contact in any licensed program.
(e) For 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.
Subd. 2. [OTHER STATE AGENCIES.] Applicants and license
holders under the jurisdiction of other state agencies who are
required in other statutory sections to initiate background
studies under this chapter must submit completed background
study forms to the commissioner before the background study
subject begins in a position allowing direct contact in the
licensed program or, where applicable, prior to being employed.
Subd. 3. [PERSONAL CARE PROVIDER ORGANIZATIONS.] (a) The
commissioner shall conduct a background study of an individual
required to be studied under section 245C.03, subdivision 2, at
least upon application for initial enrollment under section
256B.0627.
(b) Organizations required to initiate background studies
under section 256B.0627 for individuals described in section
245C.03, subdivision 2, must submit a completed background study
form to the commissioner before those individuals begin a
position allowing direct contact with persons served by the
organization.
Subd. 4. [SUPPLEMENTAL NURSING SERVICES AGENCIES.] (a) The
commissioner shall conduct a background study of an individual
required to be studied under section 245C.03, subdivision 3, at
least upon application for registration under section 144A.71,
subdivision 1.
(b) Each supplemental nursing services agency must initiate
background studies before an individual begins a position
allowing direct contact with persons served by the agency and
annually thereafter.
Subd. 5. [PERSONNEL AGENCIES; EDUCATIONAL PROGRAMS;
PROFESSIONAL SERVICES AGENCIES.] Agencies, programs, and
individuals who initiate background studies under section
245C.03, subdivision 4, must initiate the studies annually.
Sec. 5. [245C.05] [BACKGROUND STUDY; INFORMATION AND DATA
PROVIDED TO COMMISSIONER.]
Subdivision 1. [INDIVIDUAL STUDIED.] The individual who is
the subject of the background study must provide the applicant,
license holder, or other entity under section 245C.04 with
sufficient information to ensure an accurate study, including:
(1) the individual's first, middle, and last name and all
other names by which the individual has been known;
(2) home address, city, county, and state of residence for
the past five years;
(3) zip code;
(4) sex;
(5) date of birth; and
(6) driver's license number or state identification number.
Subd. 2. [APPLICANT, LICENSE HOLDER, OR OTHER ENTITY.] The
applicant, license holder, or other entity under section 245C.04
shall provide the information collected under subdivision 1
about an individual who is the subject of the background study
on forms prescribed by the commissioner.
Subd. 3. [ADDITIONAL INFORMATION FROM INDIVIDUAL STUDIED.]
The commissioner may request additional information of the
individual, such as the individual's social security number or
race. The individual is not required to provide this
information to the commissioner.
Subd. 4. [ELECTRONIC TRANSMISSION.] 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.
Subd. 5. [FINGERPRINTS.] (a) When the commissioner has
reasonable cause to believe that further pertinent information
may exist on the subject of the background study, the subject
shall provide the commissioner with a set of classifiable
fingerprints obtained from an authorized law enforcement agency.
(b) For purposes of requiring fingerprints, the
commissioner has reasonable cause when, but not limited to, the:
(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) 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.
Subd. 6. [APPLICANT, LICENSE HOLDER, REGISTRANT, AND
AGENCIES.] (a) The applicant, license holder, registrant, bureau
of criminal apprehension, commissioner of health, and county
agencies 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.
(b) If a background study is initiated by an applicant or
license holder and the applicant or license holder receives
information about the possible criminal or maltreatment history
of an individual who is the subject of the background study, the
applicant or license holder must immediately provide the
information to the commissioner.
(c) The program or county or other agency must provide
written notice to the individual who is the subject of the
background study of the requirements under this subdivision.
Subd. 7. [PROBATION OFFICER AND CORRECTIONS AGENT.] (a) A
probation officer or corrections agent shall notify the
commissioner of an individual's conviction if the individual is:
(1) affiliated with a program or facility regulated by the
department of human services or department of health, or any
type of home care agency or provider of personal care assistance
services; and
(2) convicted of a crime constituting a disqualification
under section 245C.14.
(b) For the purpose of this subdivision, "conviction" has
the meaning given it in section 609.02, subdivision 5.
(c) The commissioner, in consultation with the commissioner
of corrections, shall develop forms and information necessary to
implement this subdivision and shall provide the forms and
information to the commissioner of corrections for distribution
to local probation officers and corrections agents.
(d) 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.
(e) 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 subdivision.
(f) Upon receipt of disqualifying information, the
commissioner shall provide the notice required under section
245C.17, 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.
(g) This subdivision does not apply to family child care
and child foster care programs.
Sec. 6. [245C.06] [INDIVIDUAL PREVIOUSLY STUDIED.]
Subdivision 1. [FACILITY REQUEST.] 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:
(1) the facility makes this request using a form provided
by the commissioner;
(2) in making the request, the facility informs the
commissioner that either:
(i) 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
(ii) the individual is affiliated only with a personnel
pool agency, a temporary personnel agency, an educational
program that trains individuals 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
(3) the facility provides notices to the individual as
required under section 245C.05, subdivision 6, paragraph (c),
and that the facility is requesting written notification of the
individual's background study status from the commissioner.
Subd. 2. [COMMISSIONER'S RESPONSE.] The commissioner shall
respond to each request under subdivision 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 commissioner shall complete the study without further
request from a licensed agency or notifications to the study
subject.
Sec. 7. [245C.07] [STUDY SUBJECT AFFILIATED WITH MULTIPLE
LICENSED FACILITIES.]
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 a notice, the commissioner
shall notify each facility identified by the background study
subject of the study results.
The background study notice the commissioner sends to the
subsequent agencies shall satisfy those facilities'
responsibilities for initiating a background study on that
individual.
Sec. 8. [245C.08] [BACKGROUND STUDY; INFORMATION
COMMISSIONER REVIEWS.]
Subdivision 1. [BACKGROUND STUDIES CONDUCTED BY THE
COMMISSIONER OF HUMAN SERVICES.] For a background study
conducted by the commissioner, the commissioner shall review:
(1) 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);
(2) the commissioner's records relating to the maltreatment
of minors in licensed programs;
(3) information from juvenile courts as required in
subdivision 4 for individuals listed in section 245C.03,
subdivision 1, clauses (2), (5), and (6); and
(4) information from the bureau of criminal apprehension.
Subd. 2. [BACKGROUND STUDIES CONDUCTED BY A COUNTY OR
PRIVATE AGENCY; FOSTER CARE AND FAMILY CHILD CARE.] For a
background study conducted by a county or private agency for
child foster care, adult foster care, and family child care
homes, the commissioner shall review:
(1) information from the county agency's record of
substantiated maltreatment of adults and the maltreatment of
minors;
(2) information from juvenile courts as required in
subdivision 4 for individuals listed in section 245C.03,
subdivision 1, clauses (2), (5), and (6); and
(3) information from the bureau of criminal apprehension.
Subd. 3. [ARREST AND INVESTIGATIVE INFORMATION.] (a) If
the commissioner has reasonable cause to believe the information
is pertinent to the disqualification of an individual listed in
section 245C.03, subdivisions 1 and 2, the commissioner also may
review arrest and investigative information from:
(1) the bureau of criminal apprehension;
(2) the commissioner of health;
(3) a county attorney;
(4) a county sheriff;
(5) a county agency;
(6) a local chief of police;
(7) other states;
(8) the courts; or
(9) the Federal Bureau of Investigation.
(b) 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
study.
Subd. 4. [JUVENILE COURT RECORDS.] (a) The commissioner
shall review records from the juvenile courts for an individual
studied under section 245C.03, subdivision 1, clauses (2) and
(5).
(b) For individuals studied under section 245C.03,
subdivision 1, clauses (1), (3), (4), and (6), and subdivision
2, who are ages 13 to 17, the commissioner shall review records
from the juvenile courts when the commissioner has reasonable
cause.
(c) The juvenile courts shall help with the study by giving
the commissioner existing juvenile court records on individuals
described in section 245C.03, subdivision 1, clauses (2), (5),
and (6), relating to delinquency proceedings held within either
the five years immediately preceding the background study or the
five years immediately preceding the individual's 18th birthday,
whichever time period is longer.
(d) For purposes of this chapter, a finding that a
delinquency petition is proven in juvenile court shall be
considered a conviction in state district court.
(e) The commissioner shall destroy juvenile records
obtained under this subdivision when the subject of the records
reaches age 23.
Sec. 9. [245C.09] [FAILURE OR REFUSAL TO COOPERATE WITH
BACKGROUND STUDY.]
Subdivision 1. [DISQUALIFICATION; LICENSING ACTION.] An
applicant's, license holder's, or registrant's failure or
refusal to cooperate with the commissioner is reasonable cause
to disqualify a subject, deny a license application, or
immediately suspend or revoke a license or registration.
Subd. 2. [EMPLOYMENT ACTION.] An individual's failure or
refusal to cooperate with the background 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 or revoked.
Sec. 10. [245C.10] [BACKGROUND STUDY; FEES.]
Subdivision 1. [SUBJECT OF A BACKGROUND STUDY.] No
applicant, license holder, or individual who is the subject of a
background study shall pay any fees required to conduct the
study.
Subd. 2. [SUPPLEMENTAL NURSING SERVICES AGENCIES.] The
commissioner shall recover the cost of the background studies
initiated by supplemental nursing services agencies registered
under section 144A.71, subdivision 1, through a fee of no more
than $8 per study charged to the agency. The fees collected
under this subdivision are appropriated to the commissioner for
the purpose of conducting background studies.
Subd. 3. [PERSONAL CARE PROVIDER ORGANIZATIONS.] The
commissioner shall recover the cost of background studies
initiated by a personal care provider organization under section
256B.0627 through a fee of no more than $12 per study charged to
the organization responsible for submitting the background study
form. The fees collected under this subdivision are
appropriated to the commissioner for the purpose of conducting
background studies.
Sec. 11. [245C.11] [BACKGROUND STUDY; COUNTY AGENCIES.]
Subdivision 1. [FOSTER CARE; CRIMINAL CONVICTION
DATA.] For individuals who are required to have background
studies under section 245C.03, subdivisions 1 and 2, 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 chapter.
Subd. 2. [JOINTLY LICENSED PROGRAMS.] A county agency may
accept a background study completed by the commissioner under
this chapter in place of the background study required under
section 245A.16, subdivision 3, 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 and the subject of
the study has been continuously affiliated with the license
holder since the date of the commissioner's study.
Subd. 3. [CRIMINAL HISTORY DATA.] County agencies shall
have access to the criminal history data in the same manner as
county licensing agencies under this chapter for purposes of
background studies completed by county agencies on legal
nonlicensed child care providers to determine eligibility for
child care funds under chapter 119B.
Sec. 12. [245C.12] [BACKGROUND STUDY; TRIBAL
ORGANIZATIONS.]
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. 13. [245C.13] [PROCESSING THE BACKGROUND STUDY FORM.]
Subdivision 1. [TIMING.] Upon receipt of the background
study forms from an applicant, license holder, registrant,
agency, organization, program, or entity required to initiate a
background study under section 245C.04, the commissioner shall
complete the background study and provide the notice required
under section 245C.17, subdivision 1, within 15 working days.
Subd. 2. [DIRECT CONTACT PENDING COMPLETION OF BACKGROUND
STUDY.] Unless otherwise specified, the subject of a background
study may have direct contact with persons served by a program
after the background study form is mailed or submitted to the
commissioner pending notification of the study results under
section 245C.17.
Sec. 14. [245C.14] [DISQUALIFICATION.]
Subdivision 1. [DISQUALIFICATION FROM DIRECT CONTACT.] (a)
The commissioner shall disqualify an individual who is the
subject of a background study from any position allowing direct
contact with persons receiving services from the license holder
or entity identified in section 245C.03, upon receipt of
information showing, or when a background study completed under
this chapter shows any of the following:
(1) a conviction of or admission to one or more crimes
listed in section 245C.15;
(2) 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 section 245C.15; or
(3) an investigation results in an administrative
determination listed under section 245C.15, subdivision 4,
paragraph (b).
(b) No individual who is disqualified following a
background study under section 245C.03, subdivisions 1 and 2,
may be retained in a position involving direct contact with
persons served by a program or entity identified in section
245C.03, unless the commissioner has provided written notice
under section 245C.17 stating that:
(1) the individual may remain in direct contact during the
period in which the individual may request reconsideration as
provided in section 245C.21, subdivision 2;
(2) the commissioner has set aside the individual's
disqualification for that program or entity identified in
section 245C.03, as provided in section 245C.22, subdivision 4;
or
(3) the license holder has been granted a variance for the
disqualified individual under section 245C.30.
Subd. 2. [DISQUALIFICATION FROM ACCESS.] (a) If an
individual who is studied under section 245C.03, subdivision 1,
clauses (2), (5), and (6), is disqualified from direct contact
under subdivision 1, the commissioner shall also disqualify the
individual from access to a person receiving services from the
license holder.
(b) No individual who is disqualified following a
background study under section 245C.03, subdivision 1, clauses
(2), (5), and (6), or as provided elsewhere in statute who is
disqualified as a result of this section, may be allowed access
to persons served by the program unless the commissioner has
provided written notice under section 245C.17 stating that:
(1) the individual may remain in direct contact during the
period in which the individual may request reconsideration as
provided in section 245C.21, subdivision 2;
(2) the commissioner has set aside the individual's
disqualification for that licensed program or entity identified
in section 245C.03 as provided in section 245C.22, subdivision
4; or
(3) the license holder has been granted a variance for the
disqualified individual under section 245C.30.
Sec. 15. [245C.15] [DISQUALIFYING CRIMES OR CONDUCT.]
Subdivision 1. [PERMANENT DISQUALIFICATION.] (a) An
individual is disqualified under section 245C.14 if: (1)
regardless of how much time has passed since the discharge of
the sentence imposed for the offense; and (2) unless otherwise
specified, regardless of the level of the conviction, the
individual is 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); 609.20
(manslaughter in the first degree); 609.205 (manslaughter in the
second degree); 609.221 or 609.222 (assault in the first or
second degree); a felony offense under sections 609.2242 and
609.2243 (domestic assault), spousal abuse, child abuse or
neglect, or a crime against children; 609.228 (great bodily harm
caused by distribution of drugs); 609.245 (aggravated robbery);
609.25 (kidnapping); 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); a felony offense under 609.324, subdivision 1
(other prohibited acts); 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); a felony offense under 609.377 (malicious punishment
of a child); a felony offense under 609.378 (neglect or
endangerment of a child); 609.561 (arson in the first degree);
609.66, subdivision 1e (drive-by shooting); 609.749, subdivision
3, 4, or 5 (felony-level harassment; stalking); 609.855,
subdivision 5 (shooting at or in a public transit vehicle or
facility); 617.246 (use of minors in sexual performance
prohibited); or 617.247 (possession of pictorial representations
of minors). An individual also is disqualified under section
245C.14 regardless of how much time has passed since the
involuntary termination of the individual's parental rights
under section 260C.301.
(b) An individual's attempt or conspiracy to commit any of
the offenses listed in paragraph (a), as each of these offenses
is defined in Minnesota Statutes, permanently disqualifies the
individual under section 245C.14.
(c) An individual's offense in any other state or country,
where the elements of the offense are substantially similar to
any of the offenses listed in paragraph (a), permanently
disqualifies the individual under section 245C.14.
Subd. 2. [15-YEAR DISQUALIFICATION.] (a) An individual is
disqualified under section 245C.14 if: (1) less than 15 years
have passed since the discharge of the sentence imposed for the
offense; and (2) the individual has received a felony conviction
for a violation of any of the following offenses: sections
260C.301 (grounds for termination of parental rights); 609.165
(felon ineligible to possess firearm); 609.21 (criminal
vehicular homicide and injury); 609.215 (suicide); 609.223 or
609.2231 (assault in the third or fourth degree); repeat
offenses under 609.224 (assault in the fifth degree); 609.2325
(criminal abuse of a vulnerable adult); 609.2335 (financial
exploitation of a vulnerable adult); 609.235 (use of drugs to
injure or facilitate crime); 609.24 (simple robbery); 609.255
(false imprisonment); 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); 609.27 (coercion); 609.275 (attempt
to coerce); repeat offenses under 609.3451 (criminal sexual
conduct in the fifth degree); 609.498, subdivision 1 or 1b
(aggravated first degree or first degree tampering with a
witness); 609.52 (theft); 609.521 (possession of shoplifting
gear); 609.562 (arson in the second degree); 609.563 (arson in
the third degree); 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);
609.66 (dangerous weapons); 609.67 (machine guns and
short-barreled shotguns); 609.687 (adulteration); 609.71 (riot);
609.713 (terroristic threats); repeat offenses under 617.23
(indecent exposure; penalties); repeat offenses under 617.241
(obscene materials and performances; distribution and exhibition
prohibited; penalty); chapter 152 (drugs; controlled substance);
or a felony level conviction involving alcohol or drug use.
(b) An individual is disqualified under section 245C.14 if
less than 15 years has passed since the individual's attempt or
conspiracy to commit any of the offenses listed in paragraph
(a), as each of these offenses is defined in Minnesota Statutes.
(c) An individual is disqualified under section 245C.14 if
less than 15 years has passed since the discharge of the
sentence imposed for an offense in any other state or country,
the elements of which are substantially similar to the elements
of the offenses listed in paragraph (a).
(d) If the individual studied is convicted of one of the
felonies listed in paragraph (a), but the sentence is a gross
misdemeanor or misdemeanor disposition, the lookback period for
the conviction is the period applicable to the gross misdemeanor
or misdemeanor disposition.
Subd. 3. [TEN-YEAR DISQUALIFICATION.] (a) An individual is
disqualified under section 245C.14 if: (1) less than ten years
have passed since the discharge of the sentence imposed for the
offense; and (2) 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); 609.224,
subdivision 2, paragraph (c) (assault in the fifth degree by a
caregiver against a vulnerable adult); 609.2242 and 609.2243
(domestic assault); 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); 609.265 (abduction); 609.275 (attempt to
coerce); 609.324, subdivision 1a (other prohibited acts; minor
engaged in prostitution); 609.33 (disorderly house); 609.3451
(criminal sexual conduct in the fifth degree); 609.377
(malicious punishment of a child); 609.378 (neglect or
endangerment of a child); 609.52 (theft); 609.582 (burglary);
609.631 (check forgery; offering a forged check); 609.66
(dangerous weapons); 609.71 (riot); 609.72, subdivision 3
(disorderly conduct against a vulnerable adult); repeat offenses
under 609.746 (interference with privacy); 609.749, subdivision
2 (harassment; stalking); 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); or violation of
an order for protection under 518B.01, subdivision 14.
(b) An individual is disqualified under section 245C.14 if
less than ten years has passed since the individual's attempt or
conspiracy to commit any of the offenses listed in paragraph
(a), as each of these offenses is defined in Minnesota Statutes.
(c) An individual is disqualified under section 245C.14 if
less than ten years has passed since the discharge of the
sentence imposed for 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 paragraph (a).
(d) If the defendant is convicted of one of the gross
misdemeanors listed in paragraph (a), but the sentence is a
misdemeanor disposition, the lookback period for the conviction
is the period applicable to misdemeanors.
Subd. 4. [SEVEN-YEAR DISQUALIFICATION.] (a) An individual
is disqualified under section 245C.14 if: (1) less than seven
years have passed since the discharge of the sentence imposed
for the offense; and (2) 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); 609.2335 (financial exploitation of
a vulnerable adult); 609.234 (failure to report maltreatment of
a vulnerable adult); 609.2672 (assault of an unborn child in the
third degree); 609.27 (coercion); violation of an order for
protection under 609.3232 (protective order authorized;
procedures; penalties); 609.52 (theft); 609.66 (dangerous
weapons); 609.665 (spring guns); 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); 617.293 (harmful materials;
dissemination and display to minors prohibited); or violation of
an order for protection under 518B.01 (Domestic Abuse Act).
(b) An individual is disqualified under section 245C.14 if
less than seven years has passed since a determination or
disposition of the individual's:
(1) 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
(2) substantiated serious or recurring maltreatment of a
minor under section 626.556 or of a vulnerable adult under
section 626.557 for which: (i) there is a preponderance of
evidence that the maltreatment occurred, and (ii) the subject
was responsible for the maltreatment.
(c) An individual is disqualified under section 245C.14 if
less than seven years has passed since the individual's attempt
or conspiracy to commit any of the offenses listed in paragraphs
(a) and (b), as each of these offenses is defined in Minnesota
Statutes.
(d) An individual is disqualified under section 245C.14 if
less than seven years has passed since the discharge of the
sentence imposed for 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 paragraphs (a) and (b).
Subd. 5. [MENTAL ILLNESS.] The commissioner may not
disqualify an individual subject to a background study under
this chapter because that individual has, or has had, a mental
illness as defined in section 245.462, subdivision 20.
Sec. 16. [245C.16] [DISQUALIFIED INDIVIDUAL'S RISK OF
HARM.]
Subdivision 1. [DETERMINING IMMEDIATE RISK OF HARM.] (a)
If the commissioner determines that the individual studied has a
disqualifying characteristic, the commissioner shall review the
information immediately available and make a determination as to
the subject's immediate risk of harm to persons served by the
program where the individual studied will have direct contact.
(b) The commissioner shall consider all relevant
information available, including the following factors in
determining the immediate risk of harm:
(1) the recency of the disqualifying characteristic;
(2) the recency of discharge from probation for the crimes;
(3) the number of disqualifying characteristics;
(4) the intrusiveness or violence of the disqualifying
characteristic;
(5) the vulnerability of the victim involved in the
disqualifying characteristic; and
(6) the similarity of the victim to the persons served by
the program where the individual studied will have direct
contact.
(c) This section does not apply when the subject of a
background study is regulated by a health-related licensing
board as defined in chapter 214, and the subject is determined
to be responsible for substantiated maltreatment under section
626.556 or 626.557.
Subd. 2. [FINDINGS.] (a) After evaluating the information
immediately available under subdivision 1, the commissioner may
have reason to believe one of the following:
(1) the individual poses an imminent risk of harm to
persons served by the program where the individual studied will
have direct contact;
(2) the individual poses a risk of harm requiring
continuous, direct supervision while providing direct contact
services during the period in which the subject may request a
reconsideration; or
(3) the individual does not pose an imminent risk of harm
or a risk of harm requiring continuous, direct supervision while
providing direct contact services during the period in which the
subject may request a reconsideration.
(b) After determining an individual's risk of harm under
this section, the commissioner must notify the subject of the
background study and the applicant or license holder as required
under section 245C.17.
Subd. 3. [COUNTY AGENCY.] (a) County licensing agencies
performing duties under this section may develop an alternative
system for determining the subject's immediate risk of harm to
persons served by the program, providing the notices under
subdivision 2, paragraph (b), and documenting the action taken
by the county licensing agency.
(b) Each county licensing agency's implementation of the
alternative system is subject to approval by the commissioner.
(c) Notwithstanding this alternative system, county
licensing agencies shall complete the requirements of section
245C.17.
Sec. 17. [245C.17] [NOTICE OF BACKGROUND STUDY RESULTS.]
Subdivision 1. [TIME FRAME FOR NOTICE OF STUDY
RESULTS.] (a) Within 15 working days after the commissioner's
receipt of the background study form, the commissioner shall
notify the individual who is the subject of the study in writing
or by electronic transmission of the results of the study or
that more time is needed to complete the study.
(b) Within 15 working days after the commissioner's receipt
of the background study form, the commissioner shall notify the
applicant, license holder, or registrant in writing or by
electronic transmission of the results of the study or that more
time is needed to complete the study.
Subd. 2. [DISQUALIFICATION NOTICE SENT TO SUBJECT.] (a) If
the information in the study indicates the individual is
disqualified from direct contact with, or from access to,
persons served by the program, the commissioner shall disclose
to the individual studied:
(1) the information causing disqualification;
(2) instructions on how to request a reconsideration of the
disqualification; and
(3) the commissioner's determination of the individual's
risk of harm under section 245C.16.
(b) If the commissioner determines under section 245C.16
that an individual poses an imminent risk of harm to persons
served by the program where the individual will have direct
contact, the commissioner's notice must include an explanation
of the basis of this determination.
(c) If the commissioner determines under section 245C.16
that an individual studied does not pose a risk of harm that
requires continuous, direct supervision, the commissioner shall
only notify the individual of the disqualification.
Subd. 3. [DISQUALIFICATION NOTICE SENT TO APPLICANT,
LICENSE HOLDER, OR REGISTRANT.] (a) The commissioner shall
notify an applicant, license holder, or registrant who is not
the subject of the study:
(1) that the commissioner has found information that
disqualifies the individual studied from direct contact with, or
from access to, persons served by the program; and
(2) the commissioner's determination of the individual's
risk of harm under section 245C.16.
(b) If the commissioner determines under section 245C.16
that an individual studied poses an imminent risk of harm to
persons served by the program where the individual studied will
have direct contact, the commissioner shall order the license
holder to immediately remove the individual studied from direct
contact.
(c) If the commissioner determines under section 245C.16
that an individual studied poses a risk of harm that requires
continuous, direct supervision, the commissioner shall order the
license holder to:
(1) immediately remove the individual studied from direct
contact services; or
(2) assure that the individual studied is under continuous,
direct supervision when providing direct contact services during
the period in which the individual may request a reconsideration
of the disqualification under section 245C.21.
(d) If the commissioner determines under section 245C.16
that an individual studied does not pose a risk of harm that
requires continuous, direct supervision, the commissioner shall
send the license holder a notice that more time is needed to
complete the individual's background study.
(e) The commissioner shall not notify the applicant,
license holder, or registrant of the information contained in
the subject's background study unless:
(1) the basis for the disqualification is failure to
cooperate with the background study or substantiated
maltreatment under section 626.556 or 626.557;
(2) the Data Practices Act under chapter 13 provides for
release of the information; or
(3) the individual studied authorizes the release of the
information.
Subd. 4. [DISQUALIFICATION NOTICE TO FAMILY CHILD CARE OR
FOSTER CARE PROVIDER.] For studies on individuals pertaining to
a license to provide family child care or group family child
care, 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, the commissioner is not required to provide a separate
notice of the background study results to the individual who is
the subject of the study unless the study results in a
disqualification of the individual.
Sec. 18. [245C.18] [OBLIGATION TO REMOVE DISQUALIFIED
INDIVIDUAL FROM DIRECT CONTACT.]
The license holder must remove a disqualified individual
from direct contact with persons served by the licensed program
if the individual does not request reconsideration under section
245C.21 within the prescribed time, or if the individual submits
a timely request for reconsideration, and the commissioner does
not set aside the disqualification under section 245C.22,
subdivision 4.
Sec. 19. [245C.19] [TERMINATION OF AFFILIATION BASED ON
DISQUALIFICATION NOTICE.]
An applicant or license holder that terminates affiliation
with persons studied under section 245C.03, when the termination
is made in good faith reliance on a notice of disqualification
provided by the commissioner, shall not be subject to civil
liability.
Sec. 20. [245C.20] [LICENSE HOLDER RECORD KEEPING.]
When a background study is completed under this chapter, a
licensed program shall maintain a notice that the study was
undertaken and completed in the program's personnel files.
Sec. 21. [245C.21] [REQUESTING RECONSIDERATION OF
DISQUALIFICATION.]
Subdivision 1. [WHO MAY REQUEST RECONSIDERATION.] An
individual who is the subject of a disqualification may request
a reconsideration of the disqualification. The individual must
submit the request for reconsideration to the commissioner in
writing.
Subd. 2. [TIME FRAME FOR REQUESTING RECONSIDERATION OF A
DISQUALIFICATION.] (a) When the commissioner sends an individual
a notice of disqualification based on a finding under section
245C.16, subdivision 2, paragraph (a), clause (1) or (2), the
disqualified individual must submit the request for a
reconsideration within 30 calendar days of the individual's
receipt of the notice of disqualification. Upon showing that
the information under subdivision 3 cannot be obtained within 30
days, the disqualified individual may request additional time,
not to exceed 30 days, to obtain the information.
(b) When the commissioner sends an individual a notice of
disqualification based on a finding under section 245C.16,
subdivision 2, paragraph (a), clause (3), the disqualified
individual must submit the request for reconsideration within 15
calendar days of the individual's receipt of the notice of
disqualification.
(c) An individual who was determined to have maltreated a
child under section 626.556 or a vulnerable adult under section
626.557, and who is disqualified on the basis of serious or
recurring maltreatment, may request a reconsideration of both
the maltreatment and the disqualification determinations. The
request must be submitted within 30 calendar days of the
individual's receipt of the notice of disqualification.
Subd. 3. [INFORMATION THE DISQUALIFIED INDIVIDUAL MUST
PROVIDE TO THE COMMISSIONER WHEN REQUESTING
RECONSIDERATION.] The disqualified individual must submit
information showing that:
(1) the information the commissioner relied upon in
determining the underlying conduct that gave rise to the
disqualification is incorrect;
(2) for maltreatment, the information the commissioner
relied upon in determining that maltreatment was serious or
recurring is incorrect; or
(3) the subject of the study does not pose a risk of harm
to any person served by the applicant, license holder, or
registrant.
Sec. 22. [245C.22] [REVIEW AND ACTION BY THE COMMISSIONER
ON A RECONSIDERATION REQUEST.]
Subdivision 1. [COMMISSIONER'S TIME FRAME FOR RESPONDING
TO DISQUALIFICATION RECONSIDERATION REQUESTS.] (a) 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 the commissioner relied
upon to disqualify is incorrect or inaccurate within 30 working
days of receipt of a request and all relevant information.
(b) If the basis for a disqualified individual's
reconsideration 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.
(c) If the disqualified individual's reconsideration
request is based on both the correctness or accuracy of the
information the commissioner relied upon to disqualify the
individual and the individual's risk of harm, the commissioner
shall respond to the request within 45 working days after
receiving the request for reconsideration and all relevant
information.
Subd. 2. [INCORRECT INFORMATION; RESCISSION.] The
commissioner shall rescind the disqualification if the
commissioner finds that the information relied upon to
disqualify the subject is incorrect.
Subd. 3. [PREEMINENT WEIGHT TO THE SAFETY OF PERSONS BEING
SERVED.] In reviewing a request for reconsideration of a
disqualification, the commissioner shall give preeminent weight
to the safety of each person served by the license holder,
applicant, or registrant over the interests of the license
holder, applicant, or registrant.
Subd. 4. [RISK OF HARM; SET ASIDE.] (a) The commissioner
may set aside the disqualification if the commissioner finds
that the individual does not pose a risk of harm to any person
served by the applicant, license holder, or registrant.
(b) In determining if the individual does not pose a risk
of harm, the commissioner shall consider:
(1) the nature, severity, and consequences of the event or
events that led to the disqualification;
(2) whether there is more than one disqualifying event;
(3) the age and vulnerability of the victim at the time of
the event;
(4) the harm suffered by the victim;
(5) the similarity between the victim and persons served by
the program;
(6) the time elapsed without a repeat of the same or
similar event;
(7) documentation of successful completion by the
individual studied of training or rehabilitation pertinent to
the event; and
(8) any other information relevant to reconsideration.
Sec. 23. [245C.23] [COMMISSIONER'S RECONSIDERATION
NOTICE.]
Subdivision 1. [COMMISSIONER'S NOTICE OF DISQUALIFICATION
THAT IS SET ASIDE.] (a) If the commissioner sets aside a
disqualification, the commissioner shall notify the applicant or
license holder in writing or by electronic transmission of the
decision. In the notice from the commissioner that a
disqualification has been set aside, the commissioner must
inform the license holder that information about the nature of
the disqualification and which factors under section 245C.22,
subdivision 4, were the basis of the decision to set aside the
disqualification are available to the license holder upon
request without the consent of the background study subject.
(b) With the written consent of the background study
subject, the commissioner may release to the license holder
copies of all information related to the background study
subject's disqualification and the commissioner's decision to
set aside the disqualification as specified in the written
consent.
(c) If the individual studied submits a timely request for
reconsideration under section 245C.21, and if the commissioner
sets aside the disqualification for that license holder under
section 245C.22, the commissioner shall send the license holder
the same notification received by license holders in cases where
the individual studied has no disqualifying characteristic.
Subd. 2. [COMMISSIONER'S NOTICE OF DISQUALIFICATION THAT
IS NOT SET ASIDE.] If the individual studied does not submit a
timely request for reconsideration under section 245C.21, or the
individual submits a timely request for reconsideration, but the
commissioner does not set aside the disqualification for that
license holder under section 245C.22, the commissioner shall
notify the license holder of the disqualification and order the
license holder to immediately remove the individual from any
position allowing direct contact with persons receiving services
from the license holder.
Sec. 24. [245C.24] [BARS TO SETTING ASIDE A
DISQUALIFICATION; FAMILY CHILD CARE AND FOSTER CARE.]
Subdivision 1. [MINIMUM DISQUALIFICATION PERIODS.] The
disqualification periods under subdivisions 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 individual continues to
pose a risk of harm to persons served by that individual, even
after the minimum disqualification period has passed.
Subd. 2. [PERMANENT BAR TO SET ASIDE OF DISQUALIFICATION.]
The commissioner may not set aside the disqualification of an
individual in connection with a license to provide family child
care for children, foster care for children in the provider's
home, or foster care or day care services for adults in the
provider's home, regardless of how much time has passed, if the
provider was disqualified for a crime or conduct listed in
section 245C.15, subdivision 1.
Subd. 3. [TEN-YEAR BAR TO SET ASIDE OF
DISQUALIFICATION.] (a) The commissioner may not set aside the
disqualification of an individual in connection with a license
to provide family child care for children, foster care for
children in the provider's home, or foster care or day care
services for adults in the provider's home if: (1) less than
ten years have passed since the discharge of the sentence
imposed for the offense; and (2) the individual has been
convicted of a violation of any of the following offenses:
sections 609.165 (felon ineligible to possess firearm); criminal
vehicular homicide under 609.21 (criminal vehicular homicide and
injury); 609.215 (aiding suicide or aiding attempted suicide);
felony violations under 609.223 or 609.2231 (assault in the
third or fourth degree); 609.713 (terroristic threats); 609.235
(use of drugs to injure or to facilitate crime); 609.24 (simple
robbery); 609.255 (false imprisonment); 609.562 (arson in the
second degree); 609.71 (riot); 609.498, subdivision 1 or 1b
(aggravated first degree or first degree tampering with a
witness); 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,
subdivision 2 (gross misdemeanor 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); 609.23 (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 felony level
conviction involving alcohol or drug use, 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); or 609.72, subdivision 3
(disorderly conduct against a vulnerable adult).
(b) The commissioner may not set aside the disqualification
of an individual if less than ten years have passed since the
individual's attempt or conspiracy to commit any of the offenses
listed in paragraph (a) as each of these offenses is defined in
Minnesota Statutes.
(c) The commissioner may not set aside the disqualification
of an individual if less than ten years have passed since the
discharge of the sentence imposed for 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
paragraph (a).
Subd. 4. [SEVEN-YEAR BAR TO SET ASIDE
DISQUALIFICATION.] The commissioner may not set aside the
disqualification of an individual in connection with a license
to provide family child care for children, foster care for
children in the provider's home, or foster care or day care
services for adults in the provider's home if within seven years
preceding the study:
(1) the individual committed an act that constitutes
maltreatment of a child under section 626.556, subdivision 10e,
and the maltreatment 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
(2) 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.
Sec. 25. [245C.25] [CONSOLIDATED RECONSIDERATION OF
MALTREATMENT DETERMINATION AND DISQUALIFICATION.]
If an individual is disqualified on the basis of a
determination of maltreatment under section 626.556 or 626.557,
which was serious or recurring, and the individual requests
reconsideration of the maltreatment determination under section
626.556, subdivision 10i, or 626.557, subdivision 9d, and also
requests reconsideration of the disqualification under section
245C.21, the commissioner shall consolidate the reconsideration
of the maltreatment determination and the disqualification into
a single reconsideration.
For maltreatment and disqualification determinations made
by county agencies, the county agency shall conduct the
consolidated reconsideration. If the county agency has
disqualified an individual on multiple bases, one of which is a
county maltreatment determination for which the individual has a
right to request reconsideration, the county shall conduct the
reconsideration of all disqualifications.
Sec. 26. [245C.26] [RECONSIDERATION OF A DISQUALIFICATION
FOR AN INDIVIDUAL LIVING IN A LICENSED HOME.]
In the case of any ground for disqualification under this
chapter, if the act was committed by an individual other than
the applicant, license holder, or registrant residing in the
applicant's, license holder's, or registrant's home, the
applicant, license holder, or registrant may seek
reconsideration when the individual who committed the act no
longer resides in the home.
Sec. 27. [245C.27] [FAIR HEARING RIGHTS.]
Subdivision 1. [FAIR HEARING WHEN DISQUALIFICATION IS NOT
SET ASIDE.] (a) If the commissioner does not set aside or
rescind a disqualification of an individual under section
245C.22 who is disqualified on the basis of a preponderance of
evidence that the individual committed an act or acts that meet
the definition of any of the crimes listed in section 245C.15;
or for failure to make required reports under section 626.556,
subdivision 3; or 626.557, subdivision 3, pursuant to section
245C.15, subdivision 4, paragraph (b), clause (1), the
individual may request a fair hearing under section 256.045.
(b) The fair hearing is the only administrative appeal of
the final agency determination. The disqualified individual
does not have the right to challenge the accuracy and
completeness of data under section 13.04.
(c) This section does not apply to a public employee's
appeal of a disqualification under section 245C.28, subdivision
3.
Subd. 2. [CONSOLIDATED FAIR HEARING FOR MALTREATMENT
DETERMINATION AND DISQUALIFICATION NOT SET ASIDE.] (a) If an
individual who is disqualified on the bases of serious or
recurring maltreatment requests a fair hearing on the
maltreatment determination under section 626.556, subdivision
10i, or 626.557, subdivision 9d, and requests a fair hearing
under this section on the disqualification, which has not been
set aside or rescinded, the scope of the fair hearing under
section 256.045 shall include the maltreatment determination and
the disqualification.
(b) A fair hearing is the only administrative appeal of the
final agency determination. The disqualified individual does
not have the right to challenge the accuracy and completeness of
data under section 13.04.
(c) This section does not apply to a public employee's
appeal of a disqualification under section 245C.28, subdivision
3.
Sec. 28. [245C.28] [CONTESTED CASE HEARING RIGHTS.]
Subdivision 1. [LICENSE HOLDER.] (a) If a maltreatment
determination or a disqualification for which reconsideration
was requested and which was not set aside or rescinded is the
basis for a denial of a license under section 245A.05 or a
licensing sanction under 245A.07, the license holder has the
right to a contested case hearing under chapter 14 and Minnesota
Rules, parts 1400.8505 to 1400.8612.
(b) The license holder must submit the appeal in accordance
with section 245A.05 or 245A.07, subdivision 3. As provided
under section 245A.08, subdivision 2a, the scope of the
consolidated contested case hearing must include the
disqualification and the licensing sanction or denial of a
license.
(c) If the disqualification was based on a determination of
substantiated serious or recurring maltreatment under section
626.556 or 626.557, the appeal must be submitted in accordance
with sections 245A.07, subdivision 3, and 626.556, subdivision
10i, or 626.557, subdivision 9d. As provided for under section
245A.08, subdivision 2a, the scope of the contested case hearing
must include the maltreatment determination, the
disqualification, and the licensing sanction or denial of a
license. In such cases, a fair hearing must not be conducted
under section 256.045.
Subd. 2. [INDIVIDUAL OTHER THAN THE LICENSE HOLDER.] If
the basis for the commissioner's denial of a license under
section 245A.05 or a licensing sanction under section 245A.07 is
a maltreatment determination or disqualification that was not
set aside or rescinded under section 245C.22, and the
disqualified subject is an individual other than the license
holder and upon whom a background study must be conducted under
section 245C.03, the hearing of all parties may be consolidated
into a single contested case hearing upon consent of all parties
and the administrative law judge.
Subd. 3. [EMPLOYEES OF PUBLIC EMPLOYER.] (a) If the
commissioner does not set aside the disqualification of an
individual who is an employee of an employer, as defined in
section 179A.03, subdivision 15, the individual may request a
contested case hearing under chapter 14.
(b) If the commissioner does not set aside or rescind a
disqualification that is based on a maltreatment determination,
the scope of the contested case hearing must include the
maltreatment determination and the disqualification. In such
cases, a fair hearing must not be conducted under section
256.045.
(c) Rules adopted under this chapter may not preclude an
employee in a contested case hearing for a disqualification from
submitting evidence concerning information gathered under this
chapter.
Subd. 4. [FINAL AGENCY ORDER.] The commissioner's final
order under section 245A.08, subdivision 5, is conclusive on the
issue of maltreatment and disqualification, including for
purposes of subsequent background studies. The contested case
hearing under this section is the only administrative appeal of
the final agency determination, specifically, including a
challenge to the accuracy and completeness of data under section
13.04.
Sec. 29. [245C.29] [CONCLUSIVE DETERMINATIONS OR
DISPOSITIONS.]
Subdivision 1. [CONCLUSIVE MALTREATMENT DETERMINATION OR
DISPOSITION.] Unless otherwise specified in statute, a
maltreatment determination or disposition under section 626.556
or 626.557 is conclusive, if:
(1) the commissioner has issued a final order in an appeal
of that determination or disposition under section 245A.08,
subdivision 5, or 256.045;
(2) the individual did not request reconsideration of the
maltreatment determination or disposition under section 626.556
or 626.557; or
(3) the individual did not request a hearing of the
maltreatment determination or disposition under section 256.045.
Subd. 2. [CONCLUSIVE DISQUALIFICATION
DETERMINATION.] Unless otherwise specified in statute, a
determination that:
(1) the information the commissioner relied upon to
disqualify an individual under section 245C.14 was correct based
on serious or recurring maltreatment;
(2) a preponderance of the evidence shows that the
individual committed an act or acts that meet the definition of
any of the crimes listed in section 245C.15; or
(3) the individual failed to make required reports under
section 626.556, subdivision 3, or 626.557, subdivision 3, is
conclusive if:
(i) the commissioner has issued a final order in an appeal
of that determination under section 245A.08, subdivision 5, or
256.045, or a court has issued a final decision;
(ii) the individual did not request reconsideration of the
disqualification under section 245C.21; or
(iii) the individual did not request a hearing on the
disqualification under section 256.045.
Sec. 30. [245C.30] [VARIANCE FOR A DISQUALIFIED
INDIVIDUAL.]
Subdivision 1. [LICENSE HOLDER VARIANCE.] (a) When the
commissioner has not set aside a background study subject's
disqualification, and there are conditions under which the
disqualified individual may provide direct contact services or
have access to people receiving services that minimize the risk
of harm to people receiving services, the commissioner may grant
a time-limited variance to a license holder.
(b) The variance shall state the reason for the
disqualification, the services that may be provided by the
disqualified individual, and the conditions with which the
license holder or applicant must comply for the variance to
remain in effect.
Subd. 2. [DISCLOSURE OF REASON FOR DISQUALIFICATION.] (a)
The commissioner may not grant a variance for a disqualified
individual unless the applicant or license holder requests the
variance and the disqualified individual provides written
consent for the commissioner to disclose to the applicant or
license holder the reason for the disqualification.
(b) This subdivision does not apply to programs licensed to
provide family child 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.
Subd. 3. [CONSEQUENCES FOR FAILING TO COMPLY WITH
CONDITIONS OF VARIANCE.] When a license holder permits a
disqualified individual to provide any services for which the
subject is disqualified without complying with the conditions of
the variance, the commissioner may terminate the variance
effective immediately and subject the license holder to a
licensing action under sections 245A.06 and 245A.07.
Subd. 4. [TERMINATION OF A VARIANCE.] The commissioner may
terminate a variance for a disqualified individual at any time
for cause.
Subd. 5. [FINAL DECISION.] The commissioner's decision to
grant or deny a variance is final and not subject to appeal
under the provisions of chapter 14.
Sec. 31. [245C.31] [DISQUALIFICATION OF INDIVIDUAL
REGULATED BY A HEALTH-RELATED LICENSING BOARD WHEN
DISQUALIFICATION BASED ON SUBSTANTIATED MALTREATMENT.]
Subdivision 1. [BOARD DETERMINES DISCIPLINARY OR
CORRECTIVE ACTION.] (a) When the subject of a background study
is regulated by a health-related licensing board as defined in
chapter 214, and the commissioner determines that the regulated
individual is responsible for substantiated maltreatment under
section 626.556 or 626.557, instead of the commissioner making a
decision regarding disqualification, the board shall make a
determination whether to impose disciplinary or corrective
action under chapter 214.
(b) This section does not apply to a background study of an
individual regulated by a health-related licensing board if the
individual's study is related to child foster care, adult foster
care, or family child care licensure.
Subd. 2. [COMMISSIONER'S NOTICE TO THE BOARD.] (a) The
commissioner shall notify the health-related licensing board:
(1) upon completion of a background study that produces a
record showing that the individual was determined to have been
responsible for substantiated maltreatment;
(2) upon the commissioner's completion of an investigation
that determined the individual was responsible for substantiated
maltreatment; or
(3) upon receipt from another agency of a finding of
substantiated maltreatment for which the individual was
responsible.
(b) The commissioner's notice to the health-related
licensing board shall indicate whether the commissioner would
have disqualified the individual for the substantiated
maltreatment if the individual were not regulated by the board.
(c) The commissioner shall concurrently send the notice
under this subdivision to the individual who is the subject of
the background study.
Subd. 3. [COMMISSIONER'S OR LOCAL AGENCY'S REFERRAL TO
BOARD.] (a) When the commissioner or a local agency has reason
to believe that the direct contact services provided by an
individual may fall within the jurisdiction of a health-related
licensing board, the commissioner or local agency shall refer
the matter to the board as provided in this section.
(b) If, upon review of the information provided by the
commissioner, a health-related licensing board informs the
commissioner that the board does not have jurisdiction to take
disciplinary or corrective action, the commissioner shall make
the appropriate disqualification decision regarding the
individual as otherwise provided in this chapter.
Subd. 4. [FACILITY MONITORING.] (a) The commissioner has
the authority to monitor the facility's compliance with any
requirements that the health-related licensing board places on
regulated individuals practicing in a facility either during the
period pending a final decision on a disciplinary or corrective
action or as a result of a disciplinary or corrective action.
The commissioner has the authority to order the immediate
removal of a regulated individual from direct contact or access
when a board issues an order of temporary suspension based on a
determination that the regulated individual poses an immediate
risk of harm to persons receiving services in a licensed
facility.
(b) A facility that allows a regulated individual to
provide direct contact services while not complying with the
requirements imposed by the health-related licensing board is
subject to action by the commissioner as specified under
sections 245A.06 and 245A.07.
(c) The commissioner shall notify a health-related
licensing board immediately upon receipt of knowledge of a
facility's or individual's noncompliance with requirements the
board placed on a facility or upon an individual regulated by
the board.
Sec. 32. [245C.32] [SYSTEMS AND RECORDS.]
Subdivision 1. [ESTABLISHMENT.] The commissioner may
establish systems and records to fulfill the requirements of
this chapter.
Subd. 2. [USE.] (a) The commissioner may also use these
systems and records to obtain and provide criminal history data
from the bureau of criminal apprehension and data about
substantiated maltreatment under section 626.556 or 626.557, for
other purposes, provided that:
(1) the background study is specifically authorized in
statute; or
(2) the request is made with the informed consent of the
subject of the study as provided in section 13.05, subdivision 4.
(b) An individual making a request under paragraph (a),
clause (2), must agree in writing not to disclose the data to
any other individual without the consent of the subject of the
data.
(c) The commissioner may recover the cost of obtaining and
providing background study data by charging the individual
requesting the study a fee of no more than $12 per study. The
fees collected under this paragraph are appropriated to the
commissioner for the purpose of conducting background studies.
Subd. 3. [NATIONAL RECORDS SEARCH.] (a) When specifically
required by statute, the commissioner shall also obtain criminal
history data from the National Criminal Records Repository.
(b) To obtain criminal history data from the National
Criminal Records Repository, the commissioner shall require
classifiable fingerprints of the data subject and must submit
these fingerprint requests through the bureau of criminal
apprehension.
(c) The commissioner may require the background study
subject to submit fingerprint images electronically. The
commissioner may not require electronic fingerprint images until
the electronic recording and transfer system is available for
noncriminal justice purposes and the necessary equipment is in
use in the law enforcement agency in the background study
subject's local community.
(d) The commissioner may recover the cost of obtaining and
providing criminal history data from the National Criminal
Records Repository by charging the individual requesting the
study a fee of no more than $30 per study. The fees collected
under this subdivision are appropriated to the commissioner for
the purpose of obtaining criminal history data from the National
Criminal Records Repository.
Sec. 33. [REVISOR'S INSTRUCTION.]
(a) The revisor of statutes shall correct internal
cross-references to sections that are now in Minnesota Statutes,
chapter 245C, throughout Minnesota Statutes and Minnesota Rules.
(b) If a provision of a section of Minnesota Statutes
amended or recodified by this act is amended by the 2003 regular
legislative session or 2003 special legislative session, if any,
the revisor shall codify the amendment consistent with the
recodification of the affected section by this act,
notwithstanding any law to the contrary. In sections affected
by this instruction, the revisor may make changes necessary to
correct the punctuation, grammar, or structure of the remaining
text and preserve its meaning.
Sec. 34. [EFFECTIVE DATE.]
Sections 1 to 33 are effective the day following final
enactment.
ARTICLE 2
CONFORMING AMENDMENTS
Section 1. Minnesota Statutes 2002, section 245A.04,
subdivision 1, is amended to read:
Subdivision 1. [APPLICATION FOR LICENSURE.] (a) An
individual, corporation, partnership, voluntary association,
other organization or controlling individual that is subject to
licensure under section 245A.03 must apply for a license. The
application must be made on the forms and in the manner
prescribed by the commissioner. The commissioner shall provide
the applicant with instruction in completing the application and
provide information about the rules and requirements of other
state agencies that affect the applicant.
The commissioner shall act on the application within 90
working days after a complete application and any required
reports have been received from other state agencies or
departments, counties, municipalities, or other political
subdivisions. The commissioner shall not consider an
application to be complete until the commissioner receives all
of the information required under section 245C.05.
(b) An application for licensure must specify one or more
controlling individuals as an agent who is responsible for
dealing with the commissioner of human services on all matters
provided for in this chapter and on whom service of all notices
and orders must be made. The agent must be authorized to accept
service on behalf of all of the controlling individuals of the
program. Service on the agent is service on all of the
controlling individuals of the program. It is not a defense to
any action arising under this chapter that service was not made
on each controlling individual of the program. The designation
of one or more controlling individuals as agents under this
paragraph does not affect the legal responsibility of any other
controlling individual under this chapter.
Sec. 2. Minnesota Statutes 2002, section 245A.04,
subdivision 3, is amended to read:
Subd. 3. [BACKGROUND STUDY OF THE APPLICANT;
DEFINITIONS.] (a) Individuals and organizations that are
required in statute under section 245C.03 to have or initiate
background studies under this section shall comply with the
following requirements: in chapter 245C.
(1) Applicants for licensure, license holders, and other
entities as provided in this section must submit completed
background study forms to the commissioner before individuals
specified in paragraph (c), clauses (1) to (4), (6), and (7),
begin positions allowing direct contact in any licensed program.
(2) Applicants and license holders under the jurisdiction
of other state agencies who are required in other statutory
sections to initiate background studies under this section must
submit completed background study forms to the commissioner
prior to the background study subject beginning in a position
allowing direct contact in the licensed program, or where
applicable, prior to being employed.
(3) Organizations required to initiate background studies
under section 256B.0627 for individuals described in paragraph
(c), clause (5), must submit a completed background study form
to the commissioner before those individuals begin a position
allowing direct contact with persons served by the
organization. The commissioner shall recover the cost of these
background studies through a fee of no more than $12 per study
charged to the organization responsible for submitting the
background study form. The fees collected under this paragraph
are appropriated to the commissioner for the purpose of
conducting background studies.
Upon receipt of the background study forms from the
entities in clauses (1) to (3), the commissioner shall complete
the background study as specified under this section and provide
notices required in subdivision 3a. Unless otherwise specified,
the subject of a background study may have direct contact with
persons served by a program after the background study form is
mailed or submitted to the commissioner pending notification of
the study results under subdivision 3a. A county agency may
accept a background study completed by the commissioner under
this section in place of the background study required under
section 245A.16, subdivision 3, 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 and the subject of
the study has been continuously affiliated with the license
holder since the date of the commissioner's study.
(b) The definitions in this paragraph apply only to
subdivisions 3 to 3e.
(1) "Background study" means the review of records
conducted by the commissioner to determine whether a subject is
disqualified from direct contact with persons served by a
program, and where specifically provided in statutes, whether a
subject is disqualified from having access to persons served by
a program.
(2) "Continuous, direct supervision" means an individual is
within sight or hearing of the supervising person to the extent
that supervising person is capable at all times of intervening
to protect the health and safety of the persons served by the
program.
(3) "Contractor" means any person, regardless of employer,
who is providing program services for hire under the control of
the provider.
(4) "Direct contact" means providing face-to-face care,
training, supervision, counseling, consultation, or medication
assistance to persons served by the program.
(5) "Reasonable cause" means information or circumstances
exist which provide the commissioner with articulable suspicion
that further pertinent information may exist concerning a
subject. The commissioner has reasonable cause when, but not
limited to, the commissioner has received a report from the
subject, the license holder, or a third party indicating that
the subject has a history that would disqualify the person or
that may pose a risk to the health or safety of persons
receiving services.
(6) "Subject of a background study" means an individual on
whom a background study is required or completed.
(c) The applicant, license holder, registrant under section
144A.71, subdivision 1, bureau of criminal apprehension,
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. If a background study is initiated by an applicant or
license holder and the applicant or license holder receives
information about the possible criminal or maltreatment history
of an individual who is the subject of the background study, the
applicant or license holder must immediately provide the
information to the commissioner. The individuals to be studied
shall include:
(1) the applicant;
(2) persons age 13 and over 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 under the continuous, direct
supervision by an individual listed in clause (1) or (3);
(5) any person required under section 256B.0627 to have a
background study completed under this section;
(6) persons ages 10 to 12 living in the household where the
licensed services will be provided when the commissioner has
reasonable cause; and
(7) persons who, without providing direct contact services
at a licensed program, may have unsupervised access to children
or vulnerable adults receiving services from the program
licensed to provide family child 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 when the
commissioner has reasonable cause.
(d) According to paragraph (c), clauses (2) and (6), the
commissioner shall review records from the juvenile courts. For
persons under paragraph (c), clauses (1), (3), (4), (5), and
(7), who are ages 13 to 17, the commissioner shall review
records from the juvenile courts when the commissioner has
reasonable cause. The juvenile courts shall help with the study
by giving the commissioner existing juvenile court records on
individuals described in paragraph (c), clauses (2), (6), and
(7), relating to delinquency proceedings held within either the
five years immediately preceding the background study 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.
(e) Beginning August 1, 2001, the commissioner shall
conduct all background studies required under this chapter and
initiated by supplemental nursing services agencies registered
under section 144A.71, subdivision 1. Studies for the agencies
must be initiated annually by each agency. The commissioner
shall conduct the background studies according to this chapter.
The commissioner shall recover the cost of the background
studies through a fee of no more than $8 per study, charged to
the supplemental nursing services agency. The fees collected
under this paragraph are appropriated to the commissioner for
the purpose of conducting background studies.
(f) For purposes of this section, a finding that a
delinquency petition is proven in juvenile court shall be
considered a conviction in state district court.
(g) A study of an individual in paragraph (c), clauses (1)
to (7), shall be conducted at least upon application for initial
license for all license types or registration under section
144A.71, subdivision 1, and at reapplication for a license for
family child care, child foster care, and adult foster care.
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 (j) 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
paragraph (c) 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.
(h) The commissioner may also conduct studies on
individuals specified in paragraph (c), 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.
(i) Studies on individuals in paragraph (h), items (i) to
(iv), must be initiated annually by these agencies, programs,
and individuals. Except as provided in paragraph (a), clause
(3), 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 (j), 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.
(j) 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 any type of home
care agency or provider of personal care assistance services, is
convicted of a crime constituting a disqualification under
subdivision 3d, the probation officer or corrections agent shall
notify the commissioner of the conviction. For the purpose of
this paragraph, "conviction" has the meaning given it in section
609.02, subdivision 5. 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.
(k) 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 and all other names by
which the individual has been known; home address, city, county,
and state of residence for the past five years; zip code; sex;
date of birth; and driver's license number or state
identification number. The applicant or license holder shall
provide this information about an individual in paragraph (c),
clauses (1) to (7), 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.
(l) For programs directly licensed by the commissioner, 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), clauses (2), (6), and (7),
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),
clauses (2), (6), and (7), 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 (7). 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 study.
(m) 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.
(n) The failure or refusal of an applicant, license holder,
or registrant under section 144A.71, subdivision 1, to cooperate
with the commissioner is reasonable cause to disqualify a
subject, deny a license application or immediately suspend,
suspend, or revoke a license or registration. 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.
(o) 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.
(p) No person in paragraph (c), clauses (1) to (7), 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 and no person in paragraph (c), clauses
(2), (6), and (7), or as provided elsewhere in statute who is
disqualified as a result of this section may be allowed access
to persons served by the program, unless the commissioner has
provided written notice to the agency stating that:
(1) the individual may remain in direct contact during the
period in which the individual may request reconsideration as
provided in subdivision 3a, paragraph (b), clause (2) or (3);
(2) the individual's disqualification has been set aside
for that agency as provided in subdivision 3b, paragraph (b); or
(3) the license holder has been granted a variance for the
disqualified individual under subdivision 3e.
(q) Termination of affiliation with persons in paragraph
(c), clauses (1) to (7), 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.
(r) The commissioner may establish records to fulfill the
requirements of this section.
(s) 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.
(t) An individual subject to disqualification under this
subdivision has the applicable rights in subdivision 3a, 3b, or
3c.
(u) 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.
(v) County agencies shall have access to the criminal
history data in the same manner as county licensing agencies
under this chapter for purposes of background studies completed
by county agencies on legal nonlicensed child care providers to
determine eligibility for child care funds under chapter 119B.
Sec. 3. Minnesota Statutes 2002, section 245A.04,
subdivision 3a, is amended to read:
Subd. 3a. [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF
NOTICE OF BACKGROUND STUDY RESULTS; COMMISSIONER'S DETERMINATION
OF RISK OF HARM.] (a) Within 15 working days, the commissioner
shall notify the applicant, license holder, or registrant under
section 144A.71, subdivision 1, and the individual who is the
subject of the study, in writing or by electronic transmission,
of the results of the study or that more time is needed to
complete the study. When the study is completed, a notice that
the study was undertaken and completed shall be maintained in
the personnel files of the program. For studies on individuals
pertaining to a license to provide family day care or group
family day care, 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, the commissioner is not required to provide
a separate notice of the background study results to the
individual who is the subject of the study unless the study
results in a disqualification of the individual.
The commissioner shall notify the individual studied if the
information in the study indicates the individual is
disqualified from direct contact with persons served by the
program. The commissioner shall disclose the information
causing disqualification and instructions on how to request a
reconsideration of the disqualification to the individual
studied. An applicant or license holder who is not the subject
of the study shall be informed that the commissioner has found
information that disqualifies the subject from direct contact
with persons served by the program. However, only the
individual studied must be informed of the information contained
in the subject's background study unless the basis for the
disqualification is failure to cooperate, substantiated
maltreatment under section 626.556 or 626.557, the Data
Practices Act provides for release of the information, or the
individual studied authorizes the release of the information.
When a disqualification is based on the subject's failure to
cooperate with the background study or substantiated
maltreatment under section 626.556 or 626.557, the agency that
initiated the study shall be informed by the commissioner of the
reason for the disqualification.
(b) Except as provided in subdivision 3d, paragraph (b), if
the commissioner determines that the individual studied has a
disqualifying characteristic, the commissioner shall review the
information immediately available and make a determination as to
the subject's immediate risk of harm to persons served by the
program where the individual studied will have direct contact.
The commissioner shall consider all relevant information
available, including the following factors in determining the
immediate risk of harm: the recency of the disqualifying
characteristic; the recency of discharge from probation for the
crimes; the number of disqualifying characteristics; the
intrusiveness or violence of the disqualifying characteristic;
the vulnerability of the victim involved in the disqualifying
characteristic; and the similarity of the victim to the persons
served by the program where the individual studied will have
direct contact. The commissioner may determine that the
evaluation of the information immediately available gives the
commissioner reason to believe one of the following:
(1) The individual poses an imminent risk of harm to
persons served by the program where the individual studied will
have direct contact. If the commissioner determines that an
individual studied poses an imminent risk of harm to persons
served by the program where the individual studied will have
direct contact, the individual and the license holder must be
sent a notice of disqualification. The commissioner shall order
the license holder to immediately remove the individual studied
from direct contact. The notice to the individual studied must
include an explanation of the basis of this determination.
(2) The individual poses a risk of harm requiring
continuous, direct supervision while providing direct contact
services during the period in which the subject may request a
reconsideration. If the commissioner determines that an
individual studied poses a risk of harm that requires
continuous, direct supervision, the individual and the license
holder must be sent a notice of disqualification. The
commissioner shall order the license holder to immediately
remove the individual studied from direct contact services or
assure that the individual studied is under the continuous,
direct supervision of another staff person when providing direct
contact services during the period in which the individual may
request a reconsideration of the disqualification. If the
individual studied does not submit a timely request for
reconsideration, or the individual submits a timely request for
reconsideration, but the disqualification is not set aside for
that license holder, the license holder will be notified of the
disqualification and ordered to immediately remove the
individual from any position allowing direct contact with
persons receiving services from the license holder.
(3) The individual does not pose an imminent risk of harm
or a risk of harm requiring continuous, direct supervision while
providing direct contact services during the period in which the
subject may request a reconsideration. If the commissioner
determines that an individual studied does not pose a risk of
harm that requires continuous, direct supervision, only the
individual must be sent a notice of disqualification. The
license holder must be sent a notice that more time is needed to
complete the individual's background study. If the individual
studied submits a timely request for reconsideration, and if the
disqualification is set aside for that license holder, the
license holder will receive the same notification received by
license holders in cases where the individual studied has no
disqualifying characteristic. If the individual studied does
not submit a timely request for reconsideration, or the
individual submits a timely request for reconsideration, but the
disqualification is not set aside for that license holder, the
license holder will be notified of the disqualification and
ordered to immediately remove the individual from any position
allowing direct contact with persons receiving services from the
license holder.
(c) County licensing agencies performing duties under this
subdivision may develop an alternative system for determining
the subject's immediate risk of harm to persons served by the
program, providing the notices under paragraph (b), and
documenting the action taken by the county licensing agency.
Each county licensing agency's implementation of the alternative
system is subject to approval by the commissioner.
Notwithstanding this alternative system, county licensing
agencies shall complete the requirements of paragraph (a) The
notice of background study results and the commissioner's
determination of the background subject's risk of harm shall be
governed according to sections 245C.16 and 245C.17.
Sec. 4. Minnesota Statutes 2002, 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. Upon
showing that the information in clause (1) or (2) cannot be
obtained within 30 days, the disqualified individual may request
additional time, not to exceed 30 days, to obtain that
information. 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. An individual who was determined to
have maltreated a child under section 626.556 or a vulnerable
adult under section 626.557, and who was disqualified under this
section on the basis of serious or recurring maltreatment, may
request reconsideration of both the maltreatment and the
disqualification determinations. The request for
reconsideration of the maltreatment determination and the
disqualification must be submitted within 30 calendar days of
the 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 in
determining that the underlying conduct giving rise to the
disqualification occurred, and for maltreatment, that the
maltreatment was serious or recurring, is incorrect; or
(2) the subject of the study does not pose a risk of harm
to any person served by the applicant, license holder, or
registrant under section 144A.71, subdivision 1.
(b) The commissioner shall rescind the disqualification if
the commissioner finds that the information relied on to
disqualify the subject is incorrect. The commissioner may set
aside the disqualification under this section if the
commissioner finds that the individual does not pose a risk of
harm to any person served by the applicant, license holder, or
registrant under section 144A.71, subdivision 1. In determining
that an individual does not pose a risk of harm, the
commissioner shall consider the nature, severity, and
consequences of the event or events that lead to
disqualification, whether there is more than one disqualifying
event, the age and vulnerability of the victim at the time of
the event, the harm suffered by the victim, the similarity
between the victim and persons served by the program, 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, applicant, or registrant under section
144A.71, subdivision 1, over the interests of the license
holder, applicant, or registrant under section 144A.71,
subdivision 1.
(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
609.165 (felon ineligible to possess firearm), criminal
vehicular homicide under 609.21 (criminal vehicular homicide and
injury), 609.215 (aiding suicide or aiding attempted suicide),
felony violations under 609.223 or 609.2231 (assault in the
third or fourth degree), 609.713 (terroristic threats), 609.235
(use of drugs to injure or to facilitate crime), 609.24 (simple
robbery), 609.255 (false imprisonment), 609.562 (arson in the
second degree), 609.71 (riot), 609.498, subdivision 1 or 1a
(aggravated first degree or first degree tampering with a
witness), 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,
subdivision 2 (gross misdemeanor 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), 609.23 (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 felony level
conviction involving alcohol or drug use, 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
involuntary termination of parental rights under section
260C.301 or 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), 609.20 (manslaughter in the
first degree), 609.205 (manslaughter in the second degree),
609.245 (aggravated robbery), 609.25 (kidnapping), 609.561
(arson in the first degree), 609.749, subdivision 3, 4, or 5
(felony-level harassment; stalking), 609.228 (great bodily harm
caused by distribution of drugs), 609.221 or 609.222 (assault in
the first or second degree), 609.66, subdivision 1e (drive-by
shooting), 609.855, subdivision 5 (shooting in or at a public
transit vehicle or facility), 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, license holder, or registrant under
section 144A.71, subdivision 1, residing in the applicant's or
license holder's home, or the home of a registrant under section
144A.71, subdivision 1, the applicant, license holder, or
registrant under section 144A.71, subdivision 1, 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 or
registration under section 144A.71, subdivision 1, because the
license holder, applicant, or registrant under section 144A.71,
subdivision 1, 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 request is based on both the correctness or
accuracy of the information relied on to disqualify the
individual and the risk of harm, the commissioner shall respond
to the request within 45 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, if a
disqualification for which reconsideration was requested is not
set aside or is not rescinded, an individual who was
disqualified on the basis of a preponderance of evidence that
the individual committed an act or acts that meet the definition
of any of the crimes listed in subdivision 3d, paragraph (a),
clauses (1) to (4); or for failure to make required reports
under section 626.556, subdivision 3, or 626.557, subdivision 3,
pursuant to subdivision 3d, paragraph (a), clause (4), may
request a fair hearing under section 256.045. Except as
provided under subdivision 3c, the fair hearing is the only
administrative appeal of the final agency determination,
specifically, including a challenge to the accuracy and
completeness of data under section 13.04.
(f) Except as provided under subdivision 3c, if an
individual was disqualified on the basis of a determination of
maltreatment under section 626.556 or 626.557, which was serious
or recurring, and the individual has requested reconsideration
of the maltreatment determination under section 626.556,
subdivision 10i, or 626.557, subdivision 9d, and also requested
reconsideration of the disqualification under this subdivision,
reconsideration of the maltreatment determination and
reconsideration of the disqualification shall be consolidated
into a single reconsideration. For maltreatment and
disqualification determinations made by county agencies, the
consolidated reconsideration shall be conducted by the county
agency. If the county agency has disqualified an individual on
multiple bases, one of which is a county maltreatment
determination for which the individual has a right to request
reconsideration, the county shall conduct the reconsideration of
all disqualifications. Except as provided under subdivision 3c,
if an individual who was disqualified on the basis of serious or
recurring maltreatment requests a fair hearing on the
maltreatment determination under section 626.556, subdivision
10i, or 626.557, subdivision 9d, and requests a fair hearing on
the disqualification, which has not been set aside or rescinded
under this subdivision, the scope of the fair hearing under
section 256.045 shall include the maltreatment determination and
the disqualification. Except as provided under subdivision 3c,
a fair hearing is the only administrative appeal of the final
agency determination, specifically, including a challenge to the
accuracy and completeness of data under section 13.04.
(g) In the notice from the commissioner that a
disqualification has been set aside, the license holder must be
informed that information about the nature of the
disqualification and which factors under paragraph (b) were the
bases of the decision to set aside the disqualification is
available to the license holder upon request without consent of
the background study subject. With the written consent of a
background study subject, the commissioner may release to the
license holder copies of all information related to the
background study subject's disqualification and the
commissioner's decision to set aside the disqualification as
specified in the written consent Reconsideration of a
disqualification shall be governed according to sections 245C.21
to 245C.27.
Sec. 5. Minnesota Statutes 2002, section 245A.04,
subdivision 3c, is amended to read:
Subd. 3c. [CONTESTED CASE.] (a) Notwithstanding
subdivision 3b, paragraphs (e) and (f), if a disqualification is
not set aside, a person who is an employee of an employer, as
defined in section 179A.03, subdivision 15, may request a
contested case hearing under chapter 14. If the
disqualification which was not set aside or was not rescinded
was based on a maltreatment determination, the scope of the
contested case hearing shall include the maltreatment
determination and the disqualification. In such cases, a fair
hearing shall not be conducted under section 256.045. Rules
adopted under this chapter may not preclude an employee in a
contested case hearing for disqualification from submitting
evidence concerning information gathered under subdivision 3,
paragraph (e).
(b) If a disqualification for which reconsideration was
requested and which was not set aside or was not rescinded under
subdivision 3b is the basis for a denial of a license under
section 245A.05 or a licensing sanction under section 245A.07,
the license holder has the right to a contested case hearing
under chapter 14 and Minnesota Rules, parts 1400.8510 to
1400.8612 and successor rules. The appeal must be submitted in
accordance with section 245A.05 or 245A.07, subdivision 3. As
provided for under section 245A.08, subdivision 2a, the scope of
the consolidated contested case hearing shall include the
disqualification and the licensing sanction or denial of a
license. If the disqualification was based on a determination
of substantiated serious or recurring maltreatment under section
626.556 or 626.557, the appeal must be submitted in accordance
with sections 245A.07, subdivision 3, and 626.556, subdivision
10i, or 626.557, subdivision 9d. As provided for under section
245A.08, subdivision 2a, the scope of the contested case hearing
shall include the maltreatment determination, the
disqualification, and the licensing sanction or denial of a
license. In such cases, a fair hearing shall not be conducted
under section 256.045.
(c) If a maltreatment determination or disqualification,
which was not set aside or was not rescinded under subdivision
3b, is the basis for a denial of a license under section 245A.05
or a licensing sanction under section 245A.07, and the
disqualified subject is an individual other than the license
holder and upon whom a background study must be conducted under
subdivision 3, the hearing of all parties may be consolidated
into a single contested case hearing upon consent of all parties
and the administrative law judge.
(d) The commissioner's final order under section 245A.08,
subdivision 5, is conclusive on the issue of maltreatment and
disqualification, including for purposes of subsequent
background studies. The contested case hearing under this
subdivision is the only administrative appeal of the final
agency determination, specifically, including a challenge to the
accuracy and completeness of data under section 13.04 Contested
case hearing rights related to a disqualification shall be
governed according to section 245C.28.
Sec. 6. Minnesota Statutes 2002, section 245A.04,
subdivision 3d, is amended to read:
Subd. 3d. [DISQUALIFICATION.] (a) Upon receipt of
information showing, or 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
investigation results in 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, entity identified in subdivision 3,
paragraph (a), or registrant under section 144A.71, subdivision
1, and for individuals studied under section 245A.04,
subdivision 3, paragraph (c), clauses (2), (6), and (7), the
individual shall also be disqualified from access to a person
receiving services from the license holder:
(1) regardless of how much time has passed since the
involuntary termination of parental rights under section
260C.301 or 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); 609.20 (manslaughter in the first degree); 609.205
(manslaughter in the second degree); 609.221 or 609.222 (assault
in the first or second degree); 609.228 (great bodily harm
caused by distribution of drugs); 609.245 (aggravated robbery);
609.25 (kidnapping); 609.561 (arson in the first degree);
609.749, subdivision 3, 4, or 5 (felony-level harassment;
stalking); 609.66, subdivision 1e (drive-by shooting); 609.855,
subdivision 5 (shooting at or in a public transit vehicle or
facility); 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 609.21 (criminal vehicular homicide and
injury); 609.165 (felon ineligible to possess firearm); 609.215
(suicide); 609.223 or 609.2231 (assault in the 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); 609.498, subdivision 1 or 1a (aggravated
first degree or first degree tampering with a witness); 609.713
(terroristic threats); 609.235 (use of drugs to injure or
facilitate crime); 609.24 (simple robbery); 609.255 (false
imprisonment); 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); 609.2325
(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); 609.52 (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); chapter 152 (drugs; controlled substance); and
a felony level conviction involving alcohol or drug use. 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, subdivision 2 (harassment;
stalking); 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; a determination or
disposition of 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 a determination or
disposition of 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 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. For purposes of this section, "access"
means physical access to an individual receiving services or the
individual's personal property without continuous, direct
supervision as defined in section 245A.04, subdivision 3.
(b) Except for background studies related to child foster
care, adult foster care, or family child care licensure, when
the subject of a background study is regulated by a
health-related licensing board as defined in chapter 214, and
the regulated person has been determined to have been
responsible for substantiated maltreatment under section 626.556
or 626.557, instead of the commissioner making a decision
regarding disqualification, the board shall make a determination
whether to impose disciplinary or corrective action under
chapter 214.
(1) The commissioner shall notify the health-related
licensing board:
(i) upon completion of a background study that produces a
record showing that the individual was determined to have been
responsible for substantiated maltreatment;
(ii) upon the commissioner's completion of an investigation
that determined the individual was responsible for substantiated
maltreatment; or
(iii) upon receipt from another agency of a finding of
substantiated maltreatment for which the individual was
responsible.
(2) The commissioner's notice shall indicate whether the
individual would have been disqualified by the commissioner for
the substantiated maltreatment if the individual were not
regulated by the board. The commissioner shall concurrently
send this notice to the individual.
(3) Notwithstanding the exclusion from this subdivision for
individuals who provide child foster care, adult foster care, or
family child care, when the commissioner or a local agency has
reason to believe that the direct contact services provided by
the individual may fall within the jurisdiction of a
health-related licensing board, a referral shall be made to the
board as provided in this section.
(4) If, upon review of the information provided by the
commissioner, a health-related licensing board informs the
commissioner that the board does not have jurisdiction to take
disciplinary or corrective action, the commissioner shall make
the appropriate disqualification decision regarding the
individual as otherwise provided in this chapter.
(5) The commissioner has the authority to monitor the
facility's compliance with any requirements that the
health-related licensing board places on regulated persons
practicing in a facility either during the period pending a
final decision on a disciplinary or corrective action or as a
result of a disciplinary or corrective action. The commissioner
has the authority to order the immediate removal of a regulated
person from direct contact or access when a board issues an
order of temporary suspension based on a determination that the
regulated person poses an immediate risk of harm to persons
receiving services in a licensed facility.
(6) A facility that allows a regulated person to provide
direct contact services while not complying with the
requirements imposed by the health-related licensing board is
subject to action by the commissioner as specified under
sections 245A.06 and 245A.07.
(7) The commissioner shall notify a health-related
licensing board immediately upon receipt of knowledge of
noncompliance with requirements placed on a facility or upon a
person regulated by the board Disqualification shall be governed
according to sections 245C.14 and 245C.15.
Sec. 7. Minnesota Statutes 2002, section 245A.04,
subdivision 3e, is amended to read:
Subd. 3e. [VARIANCE FOR A DISQUALIFIED PERSON
INDIVIDUAL.] (a) When a background study subject's
disqualification has not been set aside by the commissioner, and
there are conditions under which the disqualified individual may
provide direct contact services or have access to people
receiving services that minimize the risk of harm to people
receiving services, the commissioner may grant a time-limited
variance to a license holder that states the reason for the
disqualification, the services that may be provided by the
disqualified individual, and the conditions with which the
license holder or applicant must comply for the variance to be
effective.
(b) Except for programs licensed 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, the commissioner may not grant a variance
for a disqualified person unless the applicant or license holder
has requested the variance and the disqualified individual has
provided written consent for the commissioner to disclose to the
applicant or license holder the reason for the disqualification.
(c) When a license holder permits a disqualified individual
to provide any services for which the subject is disqualified
without complying with the conditions of the variance,
termination of the variance is immediate and the license holder
may be subject to fines or sanctions under sections 245A.06 and
245A.07.
(d) The commissioner may terminate a variance for a
disqualified person at any time for cause.
(e) The commissioner's decision to grant or deny a variance
request is final and not subject to appeal under the provisions
of chapter 14 A variance for a disqualified individual shall be
governed according to section 245C.30.
Sec. 8. Minnesota Statutes 2002, section 245A.04,
subdivision 3f, is amended to read:
Subd. 3f. [CONCLUSIVE DETERMINATIONS OR DISPOSITIONS.]
Unless otherwise specified in statute, the following
determinations or dispositions are deemed conclusive:
(1) a maltreatment determination or disposition under
section 626.556 or 626.557, if:
(i) the commissioner has issued a final order in an appeal
of that determination or disposition under section 245A.08,
subdivision 5, or 256.045;
(ii) the individual did not request reconsideration of the
maltreatment determination or disposition under section 626.556
or 626.557; or
(iii) the individual did not request a hearing of the
maltreatment determination or disposition under section 256.045;
and
(2) a determination that the information relied upon to
disqualify an individual under subdivision 3d was correct based
on serious or recurring maltreatment; or
(3) a preponderance of evidence shows that the individual
committed an act or acts that meet the definition of any of the
crimes listed in subdivision 3d, paragraph (a), clauses (1) to
(4); or the individual's failure to make required reports under
section 626.556, subdivision 3, or 626.557, subdivision 3, if:
(i) the commissioner has issued a final order in an appeal
of that determination under section 245A.08, subdivision 5, or
256.045, or a court has issued a final decision;
(ii) the individual did not request reconsideration of the
disqualification under this section; or
(iii) the individual did not request a hearing on the
disqualification under section 256.045 Whether a
disqualification determination or maltreatment determination or
disposition is deemed conclusive shall be governed according to
section 245C.29.
Sec. 9. Minnesota Statutes 2002, section 245A.041, is
amended to read:
245A.041 [SYSTEMS AND RECORDS.]
Subdivision 1. [ESTABLISHMENT; USE.] (a) The commissioner
may establish systems and records to fulfill the requirements of
section 245A.04. The commissioner may also use these systems
and records to obtain and provide criminal history data from the
bureau of criminal apprehension and data about substantiated
maltreatment under section 626.556 or 626.557, for other
purposes, provided that:
(1) the background study is specifically authorized in
statute; or
(2) the request is made with the informed consent of the
subject of the study as provided in section 13.05, subdivision 4.
A person making a request under clause (2) must agree in
writing not to disclose the data to any other person without the
consent of the subject of the data.
(b) The commissioner may recover the cost of obtaining and
providing background study data by charging the person
requesting the study a fee of no more than $12 per study. The
fees collected under this paragraph are appropriated to the
commissioner for the purpose of conducting background
studies The commissioner's establishment and use of systems and
records to fulfill the requirements under chapter 245C shall be
governed according to section 245C.32, subdivisions 1 and 2.
Subd. 2. [NATIONAL RECORDS SEARCH.] (a) When specifically
required by statute, the commissioner shall also obtain criminal
history data from the National Criminal Records Repository. To
obtain criminal history data from the National Criminal Records
Repository, the commissioner shall require classifiable
fingerprints of the data subject and must submit these
fingerprint requests through the bureau of criminal
apprehension. The commissioner may recover the cost of
obtaining and providing criminal history data from the National
Criminal Records Repository by charging the person requesting
the study a fee of no more than $30 per study. The fees
collected under this subdivision are appropriated to the
commissioner for the purpose of obtaining criminal history data
from the National Criminal Records Repository.
(b) To obtain criminal history data from the National
Criminal Records Repository under this chapter, the commissioner
may require the background study subject to submit fingerprint
images electronically. The commissioner may not require
electronic fingerprint images until the electronic recording and
transfer system is available for non-criminal-justice purposes
and the necessary equipment is in use in the law enforcement
agency in the background study subject's local
community National records searches shall be governed according
to section 245C.32, subdivision 3.
Sec. 10. [EFFECTIVE DATE.]
Sections 1 to 9 are effective the day following final
enactment.
Presented to the governor April 16, 2003
Signed by the governor April 17, 2003, 10:35 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes