Key: (1) language to be deleted (2) new language
An act
relating to human services; modifying requirements for human services background studies;
amending Minnesota Statutes 2012, sections 245C.02, by adding subdivisions; 245C.03, subdivision 2, by adding a subdivision; 245C.04, subdivision 1; 245C.05, subdivisions 1, 2, 2c, 4, 5; 245C.07; 245C.13, subdivision 1; 245C.17, subdivision 1; 245C.20, by adding a subdivision; 245C.32, by adding subdivisions; Minnesota Statutes 2013 Supplement, section 245C.04, subdivision 4a; proposing coding for new law in Minnesota Statutes, chapter 245C.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
new text begin "Authorized fingerprint collection vendor" means a qualified organization under a written contract with the commissioner to provide services in accordance with section 245C.05, subdivision 5, paragraph (d). new text end
new text begin "NETStudy" means the commissioner's online system implemented in July 2004 and used by entities for submitting background study requests required under this chapter. new text end
new text begin "NETStudy 2.0" means the commissioner's system that replaces both NETStudy and the department's internal background study processing system. NETStudy 2.0 is designed to enhance protection of children and vulnerable adults by improving the accuracy of background studies through fingerprint-based criminal record checks and expanding the background studies to include a review of information from the Minnesota Court Information System and the national crime information database. NETStudy 2.0 is also designed to increase efficiencies in and speed of the hiring process by: new text end
new text begin (1) providing access to and updates from public Web-based data related to employment eligibility; new text end
new text begin (2) decreasing the need for repeat studies through electronic updates of background study subjects' criminal records; new text end
new text begin (3) supporting identity verification using subjects' Social Security numbers and photographs; new text end
new text begin (4) using electronic employer notifications; and new text end
new text begin (5) issuing immediate verification of subjects' eligibility to provide services as more studies are completed under the NETStudy 2.0 system. new text end
new text begin (a) "Roster" means the electronic method used to identify the entity or entities required to conduct background studies under this chapter with which a background subject is affiliated. There are three types of rosters: active roster, inactive roster, and master roster. new text end
new text begin (b) "Active roster" means the list of individuals specific to an entity who have been determined eligible under this chapter to provide services for the entity and who the entity has identified as affiliated. An individual shall remain on the entity's active roster and is considered affiliated until the commissioner determines the individual is ineligible or the entity removes the individual from the entity's active roster. new text end
new text begin (c) "Inactive roster" means the list maintained by the commissioner of individuals who are eligible under this chapter to provide services and are not on an active roster. Individuals shall remain on the inactive roster for no more than 180 consecutive days, unless the individual submits a written request to the commissioner requesting to remain on the inactive roster for a longer period of time. Upon the commissioner's receipt of information that may cause an individual on the inactive roster to be disqualified under this chapter, the commissioner shall remove the individual from the inactive roster, and if the individual again seeks a position requiring a background study, the individual shall be required to complete a new background study. new text end
new text begin (d) "Master roster" means the list maintained by the commissioner of all individuals who, as a result of a background study under this chapter, and regardless of affiliation with an entity, are determined by the commissioner to be eligible to provide services for one or more entities. The master roster includes all background study subjects on rosters under paragraphs (b) and (c). new text end
The commissioner shall conduct background studies on any individual required under sections 256B.0651 to 256B.0656 deleted text begin anddeleted text end new text begin ,new text end 256B.0659new text begin , and 256B.85new text end to have a background study completed under this chapter.
new text begin Upon implementation of NETStudy 2.0, the commissioner shall conduct background studies according to this chapter when initiated by an individual who is not on the master roster. A subject under this subdivision who is not disqualified must be placed on the inactive roster. new text end
(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.
(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) From July 1, 2007, to June 30, 2009, the commissioner of human services shall conduct a study of an individual required to be studied under section 245C.03, at the time of reapplication for a child foster care license. The county or private agency shall collect and forward to the commissioner the information required under section 245C.05, subdivisions 1, paragraphs (a) and (b), and 5, paragraphs (a) and (b). The background study conducted by the commissioner of human services under this paragraph must include a review of the information required under section 245C.08, subdivisions 1, paragraph (a), clauses (1) to (5), 3, and 4.
(e) The commissioner of human services shall conduct a background study of an individual specified under section 245C.03, subdivision 1, paragraph (a), clauses (2) to (6), who is newly affiliated with a child foster care license holder. The county or private agency shall collect and forward to the commissioner the information required under section 245C.05, subdivisions 1 and 5. The background study conducted by the commissioner of human services under this paragraph must include a review of the information required under section 245C.08, subdivisions 1, 3, and 4.
(f) From January 1, 2010, to December 31, 2012, unless otherwise specified in paragraph (c), the commissioner shall conduct a study of an individual required to be studied under section 245C.03 at the time of reapplication for an adult foster care or family adult day services license: (1) the county shall collect and forward to the commissioner the information required under section 245C.05, subdivision 1, paragraphs (a) and (b), and subdivision 5, paragraphs (a) and (b), for background studies conducted by the commissioner for all family adult day services and for adult foster care when the adult foster care license holder resides in the adult foster care or family adult day services residence; (2) the license holder shall collect and forward to the commissioner the information required under section 245C.05, subdivisions 1, paragraphs (a) and (b); and 5, paragraphs (a) and (b), for background studies conducted by the commissioner for adult foster care when the license holder does not reside in the adult foster care residence; and (3) the background study conducted by the commissioner under this paragraph must include a review of the information required under section 245C.08, subdivision 1, paragraph (a), clauses (1) to (5), and subdivisions 3 and 4.
(g) The commissioner shall conduct a background study of an individual specified under section 245C.03, subdivision 1, paragraph (a), clauses (2) to (6), who is newly affiliated with an adult foster care or family adult day services license holder: (1) the county shall collect and forward to the commissioner the information required under section 245C.05, subdivision 1, paragraphs (a) and (b), and subdivision 5, paragraphs (a) and (b), for background studies conducted by the commissioner for all family adult day services and for adult foster care when the adult foster care license holder resides in the adult foster care residence; (2) the license holder shall collect and forward to the commissioner the information required under section 245C.05, subdivisions 1, paragraphs (a) and (b); and 5, paragraphs (a) and (b), for background studies conducted by the commissioner for adult foster care when the license holder does not reside in the adult foster care residence; and (3) the background study conducted by the commissioner under this paragraph must include a review of the information required under section 245C.08, subdivision 1, paragraph (a), and subdivisions 3 and 4.
(h) 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.
(i) deleted text begin A license holderdeleted text end new text begin For an individual who is not on the entity's active roster, the entitynew text end must initiate a new background study through the commissioner's online background study system when:
(1) an individual returns to a position requiring a background study following an absence of 90 or more consecutive days; or
(2) a program that discontinued providing licensed direct contact services for 90 or more consecutive days begins to provide direct contact licensed services again.
The license holder shall maintain a copy of the notification provided to the commissioner under this paragraph in the program's files. If the individual's disqualification was previously set aside for the license holder's program and the new background study results in no new information that indicates the individual may pose a risk of harm to persons receiving services from the license holder, the previous set-aside shall remain in effect.
(j) 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.
(k) For purposes of family child care, a substitute caregiver must receive repeat background studies at the time of each license renewal.
(a) The commissioner shall develop and implement an electronic process new text begin as a part of NETStudy 2.0 new text end for the regular transfer of new criminal case information that is added to the Minnesota court information system. The commissioner's system must include for review only information that relates to individuals who deleted text begin have been the subject of a background study under this chapter that remain affiliated with the agency that initiated the background study. For purposes of this paragraph, an individual remains affiliated with an agency that initiated the background study until the agency informs the commissioner that the individual is no longer affiliated. When any individual no longer affiliated according to this paragraph returns to a position requiring a background study under this chapter, the agency with whom the individual is again affiliated shall initiate a new background study regardless of the length of time the individual was no longer affiliated with the agencydeleted text end new text begin are on the master rosternew text end .
(b) The commissioner shall develop and implement an online system new text begin as a part of NETStudy 2.0 new text end for agencies that initiate background studies under this chapter to access and maintain records of background studies initiated by that agency. The system must show all active background study subjects affiliated with that agency and the status of each individual's background study. Each agency that initiates background studies must use this system to notify the commissioner of discontinued affiliation for purposes of the processes required under paragraph (a).
new text begin (c) After an entity initiating a background study has paid the applicable fee for the study and has provided the individual with the privacy notice required under section 245C.05, subdivision 2c, NETStudy 2.0 shall immediately inform the entity whether the individual requires a background study or whether the individual is immediately eligible to provide services based on a previous background study. If the individual is immediately eligible, the entity initiating the background study shall be able to view the information previously supplied by the individual who is the subject of a background study as required under section 245C.05, subdivision 1, including the individual's photograph taken at the time the individual's fingerprints were recorded. The commissioner shall not provide any entity initiating a subsequent background study with information regarding the other entities that initiated background studies on the subject. new text end
new text begin (d) Verification that an individual is eligible to provide services based on a previous background study is dependent on the individual voluntarily providing the individual's Social Security number to the commissioner at the time each background study is initiated. When an individual does not provide the individual's Social Security number for the background study, that study is not transferable and a repeat background study on that individual is required if the individual seeks a position requiring a background study under this chapter with another entity. new text end
(a) 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) new text begin current new text end home address, city, and state of residence;
(3) new text begin current new text end zip code;
(4) sex;
(5) date of birth; deleted text begin anddeleted text end
(6) Minnesota driver's license number or state identification numberdeleted text begin .deleted text end new text begin ; andnew text end
new text begin (7) upon implementation of NETStudy 2.0, the home address, city, county, and state of residence for the past five years. new text end
(b) Every subject of a background study conducted or initiated by counties or private agencies under this chapter must also provide the home address, city, county, and state of residence for the past five years.
(c) Every subject of a background study related to private agency adoptions or related to child foster care licensed through a private agency, who is 18 years of age or older, shall also provide the commissioner a signed consent for the release of any information received from national crime information databases to the private agency that initiated the background study.
(d) The subject of a background study shall provide fingerprints new text begin and a photograph new text end as required in subdivision 5deleted text begin , paragraph (c)deleted text end .
new text begin (a) new text end The applicant, license holder, or other entities as provided in this chapter shall verify that the information collected under subdivision 1 about an individual who is the subject of the background study is correct and must provide the information on forms or in a format prescribed by the commissioner.
new text begin (b) The information collected under subdivision 1 about an individual who is the subject of a completed background study may only be viewable by an entity that initiates a subsequent background study on that individual under NETStudy 2.0 after the entity has paid the applicable fee for the study and has provided the individual with the privacy notice in subdivision 2c. new text end
(a) deleted text begin For everydeleted text end new text begin Prior to initiating eachnew text end background study, the new text begin entity initiating the study must provide the new text end commissioner'snew text begin privacynew text end notice to the background study subject required under section 13.04, subdivision 2deleted text begin , that is provideddeleted text end new text begin . The notice must be availablenew text end through the commissioner's electronic NETStudy deleted text begin system or through the commissioner's background study formsdeleted text end new text begin and NETStudy 2.0 systems andnew text end shall include the information in deleted text begin paragraphdeleted text end new text begin paragraphsnew text end (b)new text begin and (c)new text end .
(b) The background study subject shall be informed that any previous background studies that received a set-aside will be reviewed, and without further contact with the background study subject, the commissioner may notify the agency that initiated the subsequent background study:
(1) that the individual has a disqualification that has been set aside for the program or agency that initiated the study;
(2) the reason for the disqualification; and
(3) that information about the decision to set aside the disqualification will be available to the license holder upon request without the consent of the background study subject.
new text begin (c) The background study subject must also be informed that: new text end
new text begin (1) the subject's fingerprints collected for purposes of completing the background study under this chapter must not be retained by the Department of Public Safety, Bureau of Criminal Apprehension, or by the commissioner, but will be retained by the Federal Bureau of Investigation; new text end
new text begin (2) effective upon implementation of NETStudy 2.0, the subject's photographic image will be retained by the commissioner, and if the subject has provided the subject's Social Security number for purposes of the background study, the photographic image will be available to prospective employers and agencies initiating background studies under this chapter to verify the identity of the subject of the background study; new text end
new text begin (3) the commissioner's authorized fingerprint collection vendor shall, for purposes of verifying the identity of the background study subject, be able to view the identifying information entered into NETStudy 2.0 by the entity that initiated the background study, but shall not retain the subject's fingerprints, photograph, or information from NETStudy 2.0. The authorized fingerprint collection vendor shall retain no more than the subject's name and the date and time the subject's fingerprints were recorded and sent, only as necessary for auditing and billing activities; new text end
new text begin (4) the commissioner shall provide the subject notice, as required in section 245C.17, subdivision 1, paragraph (a), when an entity initiates a background study on the individual; new text end
new text begin (5) the subject may request in writing a report listing the entities that initiated a background study on the individual as provided in section 245C.17, subdivision 1, paragraph (b); new text end
new text begin (6) the subject may request in writing that information used to complete the individual's background study in NETStudy 2.0 be destroyed if the requirements of section 245C.051, paragraph (a), are met; and new text end
new text begin (7) notwithstanding clause (6), the commissioner shall destroy: new text end
new text begin (i) the subject's photograph after a period of two years when the requirements of section 245C.051, paragraph (c), are met; and new text end
new text begin (ii) any data collected on a subject under this chapter after a period of two years following the individual's death as provided in section 245C.051, paragraph (d). new text end
(a) For background studies conducted by the Department of Human Services, the commissioner shall implement anew text begin securenew text end system for the electronic transmission of:
(1) background study information to the commissioner;
(2) background study results to the license holder;
(3) background study results to county and private agencies for background studies conducted by the commissioner for child foster care; and
(4) background study results to county agencies for background studies conducted by the commissioner for adult foster care and family adult day services.
(b) Unless the commissioner has granted a hardship variance under paragraph (c), a license holder or an applicant must use the electronic transmission system known as NETStudy new text begin or NETStudy 2.0 new text end to submit all requests for background studies to the commissioner as required by this chapter.
(c) A license holder or applicant whose program is located in an area in which high-speed Internet is inaccessible may request the commissioner to grant a variance to the electronic transmission requirement.
(a) new text begin Before the implementation of NETStudy 2.0, new text end except as provided in paragraph (c), for any background study completed under this chapter, 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 agency.
(b) new text begin Before the implementation of NETStudy 2.0, new text end 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.
(c) deleted text begin Except as specified under section 245C.04, subdivision 1,deleted text end new text begin Notwithstandingnew text end paragraph (d), for background studies conducted by the commissioner for child foster care or adoptions, the subject of the background study, who is 18 years of age or older, shall provide the commissioner with a set of classifiable fingerprints obtained from an authorized agency.
new text begin (d) For background studies initiated on or after the implementation of NETStudy 2.0, every subject of a background study must provide the commissioner with a set of the background study subject's classifiable fingerprints and photograph. The photograph and fingerprints must be recorded at the same time by the commissioner's authorized fingerprint collection vendor and sent to the commissioner through the commissioner's secure data system described in section 245C.32, subdivision 1a, paragraph (b). The fingerprints shall not be retained by the Department of Public Safety, Bureau of Criminal Apprehension, or the commissioner, but will be retained by the Federal Bureau of Investigation. The commissioner's authorized fingerprint collection vendor shall, for purposes of verifying the identity of the background study subject, be able to view the identifying information entered into NETStudy 2.0 by the entity that initiated the background study, but shall not retain the subject's fingerprints, photograph, or information from NETStudy 2.0. The authorized fingerprint collection vendor shall retain no more than the name and date and time the subject's fingerprints were recorded and sent, only as necessary for auditing and billing activities. new text end
new text begin (a) A background study subject may request in writing to the commissioner that information used to complete the individual's study in NETStudy 2.0 be destroyed if the individual: new text end
new text begin (1) has not been affiliated with any entity for the previous two years; and new text end
new text begin (2) has no current disqualifying characteristic. new text end
new text begin (b) After receiving the request and verifying the information in paragraph (a), the commissioner shall destroy the information used to complete the subject's background study and shall keep a record of the subject's name and a notation of the date that the information was destroyed. new text end
new text begin (c) When a previously studied individual has not been on the master roster for two years, the commissioner shall destroy the photographic image of the individual obtained under section 245C.05, subdivision 5, paragraph (d). new text end
new text begin (d) Any data collected on an individual under this chapter that is maintained by the commissioner that has not been destroyed according to paragraph (b) or (c), shall be destroyed when two years have elapsed from the individual's actual death that is reported to the commissioner or when 90 years have elapsed since the individual's birth except when readily available data indicate that the individual is still living. new text end
(a) Subject to the conditions in paragraph (d), when a license holder, applicant, or other entity owns multiple programs or services that are licensed by the Department of Human Services, Department of Health, or Department of Corrections, only one background study is required for an individual who provides direct contact services in one or more of the licensed programs or services if:
(1) the license holder designates one individual with one address and telephone number as the person to receive sensitive background study information for the multiple licensed programs or services that depend on the same background study; and
(2) the individual designated to receive the sensitive background study information is capable of determining, upon request of the department, whether a background study subject is providing direct contact services in one or more of the license holder's programs or services and, if so, at which location or locations.
(b) When a license holder maintains background study compliance for multiple licensed programs according to paragraph (a), and one or more of the licensed programs closes, the license holder shall immediately notify the commissioner which staff must be transferred to an active license so that the background studies can be electronically paired with the license holder's active program.
(c) When a background study is being initiated by a licensed program or service or a foster care provider that is also registered under chapter 144D, a study subject affiliated with multiple licensed programs or services may attach to the background study form a cover letter indicating the additional names of the programs or services, addresses, and background study identification numbers.
When the commissioner receives a notice, the commissioner shall notify each program or service identified by the background study subject of the study results.
The background study notice the commissioner sends to the subsequent agencies shall satisfy those programs' or services' responsibilities for initiating a background study on that individual.
(d) If a background study was conducted on an individual related to child foster care and the requirements under paragraph (a) are met, the background study is transferable across all licensed programs. If a background study was conducted on an individual under a license other than child foster care and the requirements under paragraph (a) are met, the background study is transferable to all licensed programs except child foster care.
(e) The provisions of this section that allow a single background study in one or more licensed programs or services do not apply to background studies submitted by adoption agencies, supplemental nursing services agencies, personnel agencies, educational programs, professional services agencies, and unlicensed personal care provider organizations.
new text begin (f) For an entity operating under NETStudy 2.0, the entity's active roster must be the system used to document when a background study subject is affiliated with multiple entities. new text end
Upon receipt of the background study forms from an applicant, license holder, or other entity as provided in this chapter 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 1deleted text begin , within 15 working daysdeleted text end .
deleted text begin (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. deleted text end
deleted text begin (b)deleted text end new text begin (a)new text end Within deleted text begin 15deleted text end new text begin threenew text end working days after the commissioner's receipt of deleted text begin thedeleted text end new text begin a request for anew text end background study deleted text begin formdeleted text end submitted deleted text begin on paperdeleted text end new text begin through the commissioner's NETStudy or NETStudy 2.0 systemnew text end , the commissioner shall notify the deleted text begin applicant,deleted text end new text begin background study subject and thenew text end license holderdeleted text begin ,deleted text end or other entity as provided in this chapter in writing or by electronic transmission of the results of the study or that more time is needed to complete the study.new text begin The notice to the individual shall include the identity of the entity that initiated the background study.new text end
deleted text begin (c) Within three days after the commissioner's receipt of a request for a background study submitted through the commissioner's online system, the commissioner shall provide an electronic notification to the applicant, license holder, or other entity as provided in this chapter. The electronic notification shall disclose the results of the study or that more time is needed to complete the study. deleted text end new text begin (b) Before being provided access to NETStudy 2.0, the license holder or other entity under section 245C.04 shall sign an acknowledgment of responsibilities form developed by the commissioner that includes identifying the sensitive background study information person, who must be an employee of the license holder or entity. All queries to NETStudy 2.0 are electronically recorded and subject to audit by the commissioner. The electronic record shall identify the specific user. A background study subject may request in writing to the commissioner a report listing the entities that initiated a background study on the individual. new text end
deleted text begin (d)deleted text end new text begin (c)new text end When the commissioner has completed a prior background study on an individual that resulted in an order for immediate removal and more time is necessary to complete a subsequent study, the notice that more time is needed that is issued under deleted text begin paragraphsdeleted text end new text begin paragraphnew text end (a)deleted text begin , (b), and (c)deleted text end shall include an order for immediate removal of the individual from any position allowing direct contact with or access to people receiving services pending completion of the background study.
new text begin The requirements in subdivisions 1 and 2 are met for entities for which active rosters are implemented and for whom all individuals affiliated with the entity are recorded on the active roster. new text end
new text begin (a) The commissioner shall design, develop, and test the NETStudy 2.0 system and implement it no later than September 1, 2015. new text end
new text begin (b) The NETStudy 2.0 system developed and implemented by the commissioner shall incorporate and meet all applicable data security standards and policies required by the Federal Bureau of Investigation (FBI), Department of Public Safety, Bureau of Criminal Apprehension, and the MN.IT Services Department. The system shall meet all required standards for encryption of data at the database level as well as encryption of data that travels electronically among agencies initiating background studies, the commissioner's authorized fingerprint collection vendor, the commissioner, the Bureau of Criminal Apprehension, and in cases involving national criminal record checks, the FBI. new text end
new text begin (c) The data system developed and implemented by the commissioner shall incorporate a system of data security that allows the commissioner to control access to the data field level by the commissioner's employees. The commissioner shall establish that employees have access to the minimum amount of private data on any individual as is necessary to perform their duties under this chapter. new text end
new text begin (d) The commissioner shall oversee regular quality and compliance audits of the authorized fingerprint collection vendor. new text end
new text begin When accessing private data on individuals through NETStudy 2.0, entities that are authorized to initiate background studies and the commissioner's authorized fingerprint collection vendors shall be subject to all responsibilities and civil remedies applicable to a responsible authority or government entity as specified under section 13.08. new text end
Presented to the governor May 13, 2014
Signed by the governor May 16, 2014, 10:46 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes