Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1997, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 107-S.F.No. 101
An act relating to human services; adding an exclusion
to elderly housing with services establishment;
downsizing the number of IMD beds; modifying the
appeal process for nursing facilities; changing
procedure for permanent placement of a child and
provisions for reimbursement for family foster care;
removing the time limitation on family general
assistance; amending Minnesota Statutes 1996, sections
144D.01, subdivision 4; 245.466, by adding a
subdivision; 256B.059, subdivisions 1, 2, 5, and by
adding a subdivision; 256B.17, subdivision 7;
256B.431, subdivision 18; 256B.50, subdivisions 1, 1b,
1c, and 1e; 256D.01, subdivision 1a; 257.071,
subdivision 2; 260.191, subdivision 3b; 260.192;
260.242, subdivision 2; and 382.18; repealing
Minnesota Statutes 1996, sections 256B.17,
subdivisions 1, 2, 3, 4, 5, 6, and 8; and 256B.50,
subdivisions 1d, 1g, 1h, and 2.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1996, section 144D.01,
subdivision 4, is amended to read:
Subd. 4. [ELDERLY HOUSING WITH SERVICES ESTABLISHMENT OR
ESTABLISHMENT.] "Elderly housing with services establishment" or
"establishment" means an establishment providing sleeping
accommodations to one or more adult residents, at least 80
percent of which are 55 years of age or older, and offering or
providing, for a fee, one or more health-related or supportive
service, whether offered or provided directly by the
establishment or by another entity arranged for by the
establishment.
Elderly housing with services establishment does not
include:
(1) a nursing home licensed under chapter 144A;
(2) a hospital, boarding care home, or supervised living
facility licensed under sections 144.50 to 144.56;
(3) a board and lodging establishment licensed under
chapter 157 and Minnesota Rules, parts 9520.0500 to 9520.0670,
9525.0215 to 9525.0355, 9525.0500 to 9525.0660, or 9530.4100 to
9530.4450;
(4) a board and lodging establishment which serves as a
shelter for battered women or other similar purpose;
(5) a family adult foster care home licensed under
Minnesota Rules, parts 9543.0010 to 9543.0150; or
(6) private homes in which the residents are related by
kinship, law, or affinity with the providers of services; or
(7) residential settings for persons with mental
retardation or related conditions in which the services are
licensed under Minnesota Rules, parts 9525.2100 to 9525.2140, or
applicable successor rules or laws.
Sec. 2. Minnesota Statutes 1996, section 245.466, is
amended by adding a subdivision to read:
Subd. 7. [IMD DOWNSIZING FLEXIBILITY.] (a) If a county
presents a budget-neutral plan for a net reduction in the number
of institution for mental disease (IMD) beds funded under group
residential housing, the commissioner may transfer the net
savings from group residential housing and general assistance
medical care to medical assistance and mental health grants to
provide appropriate services in non-IMD settings. For the
purposes of this subdivision, "a budget neutral plan" means a
plan that does not increase the state share of costs.
(b) The provisions of paragraph (a) do not apply to a
facility that has its reimbursement rate established under
section 256B.431, subdivision 4, paragraph (c).
Sec. 3. Minnesota Statutes 1996, section 256B.059, is
amended by adding a subdivision to read:
Subdivision 1. [INSTITUTIONALIZED SPOUSE.] The provisions
of this section apply only when a spouse is institutionalized
for a continuous period beginning on or after October 1, 1989.
Sec. 4. Minnesota Statutes 1996, section 256B.059,
subdivision 1, is amended to read:
Subdivision 1. Subd. 1a. [DEFINITIONS.] (a) For purposes
of this section, the terms defined in this subdivision have the
meanings given them.
(b) "Community spouse" means the spouse of an
institutionalized spouse.
(c) "Spousal share" means one-half of the total value of
all assets, to the extent that either the institutionalized
spouse or the community spouse had an ownership interest at the
time of institutionalization.
(d) "Assets otherwise available to the community spouse"
means assets individually or jointly owned by the community
spouse, other than assets excluded by subdivision 5, paragraph
(c).
(e) "Community spouse asset allowance" is the value of
assets that can be transferred under subdivision 3.
(f) "Institutionalized spouse" means a person who is:
(1) in a hospital, nursing facility, or intermediate care
facility for persons with mental retardation, or receiving home
and community-based services under section 256B.0915 or 256B.49,
and is expected to remain in the facility or institution or
receive the home and community-based services for at least 30
consecutive days; and
(2) married to a person who is not in a hospital, nursing
facility, or intermediate care facility for persons with mental
retardation, and is not receiving home and community-based
services under section 256B.0915 or 256B.49.
Sec. 5. Minnesota Statutes 1996, section 256B.059,
subdivision 2, is amended to read:
Subd. 2. [ASSESSMENT OF SPOUSAL SHARE.] At the beginning
of a the first continuous period of institutionalization of a
person beginning on or after October 1, 1989, at the request of
either the institutionalized spouse or the community spouse, or
upon application for medical assistance, the total value of
assets in which either the institutionalized spouse or the
community spouse had an interest at the time of the first period
of institutionalization of 30 days or more shall be assessed and
documented and the spousal share shall be assessed and
documented.
Sec. 6. Minnesota Statutes 1996, section 256B.059,
subdivision 5, is amended to read:
Subd. 5. [ASSET AVAILABILITY.] (a) At the time of initial
determination of eligibility for medical assistance benefits
following the first continuous period of institutionalization on
or after October 1, 1989, assets considered available to the
institutionalized spouse shall be the total value of all assets
in which either spouse has an ownership interest, reduced by the
following:
(1) prior to July 1, 1994, the greater of:
(i) $14,148;
(ii) the lesser of the spousal share or $70,740; or
(iii) the amount required by court order to be paid to the
community spouse;
(2) for persons whose date of initial determination of
eligibility for medical assistance following their first
continuous period of institutionalization occurs on or after
July 1, 1994, the greater of:
(i) $20,000;
(ii) the lesser of the spousal share or $70,740; or
(iii) the amount required by court order to be paid to the
community spouse. If the community spouse asset allowance has
been increased under subdivision 4, then the assets considered
available to the institutionalized spouse under this subdivision
shall be further reduced by the value of additional amounts
allowed under subdivision 4.
(b) An institutionalized spouse may be found eligible for
medical assistance even though assets in excess of the allowable
amount are found to be available under paragraph (a) if the
assets are owned jointly or individually by the community
spouse, and the institutionalized spouse cannot use those assets
to pay for the cost of care without the consent of the community
spouse, and if: (i) the institutionalized spouse assigns to the
commissioner the right to support from the community spouse
under section 256B.14, subdivision 3; (ii) the institutionalized
spouse lacks the ability to execute an assignment due to a
physical or mental impairment; or (iii) the denial of
eligibility would cause an imminent threat to the
institutionalized spouse's health and well-being.
(c) After the month in which the institutionalized spouse
is determined eligible for medical assistance, during the
continuous period of institutionalization, no assets of the
community spouse are considered available to the
institutionalized spouse, unless the institutionalized spouse
has been found eligible under paragraph (b).
(d) Assets determined to be available to the
institutionalized spouse under this section must be used for the
health care or personal needs of the institutionalized spouse.
(e) For purposes of this section, assets do not include
assets excluded under the supplemental security income program.
Sec. 7. Minnesota Statutes 1996, section 256B.17,
subdivision 7, is amended to read:
Subd. 7. [EXCEPTION FOR ASSET TRANSFERS.] Notwithstanding
the provisions of subdivisions 1 to 6, An institutionalized
spouse, institutionalized before October 1, 1989, for a
continuous period, who applies for medical assistance on or
after July 1, 1983, may transfer liquid assets to a
noninstitutionalized spouse without loss of eligibility if all
of the following conditions apply:
(a) The noninstitutionalized spouse is not applying for or
receiving assistance;
(b) Either (1) the noninstitutionalized spouse has less
than $10,000 in liquid assets, including assets singly owned and
50 percent of assets owned jointly with the institutionalized
spouse; or (2) the noninstitutionalized spouse has less than 50
percent of the total value of nonexempt assets owned by both
parties, jointly or individually;
(c) The amount transferred, together with the
noninstitutionalized spouse's own assets, totals no more than
one-half of the total value of the liquid assets of the parties
or $10,000 in liquid assets, whichever is greater; and
(d) The transfer may be effected only once, at the time of
initial medical assistance application.
Sec. 8. Minnesota Statutes 1996, section 256B.431,
subdivision 18, is amended to read:
Subd. 18. [APPRAISALS; UPDATING APPRAISALS, ADDITIONS, AND
REPLACEMENTS.] (a) Notwithstanding Minnesota Rules, part
9549.0060, subparts 1 to 3, the appraised value, routine
updating of the appraised value, and special reappraisals are
subject to this subdivision.
(1) For rate years beginning after June 30, 1993, the
commissioner shall permit a nursing facility to appeal its
appraisal according to the procedures provided in section
256B.50, subdivision 2. Any reappraisals conducted in
connection with that appeal must utilize the comparative-unit
method as described in the Marshall Valuation Service published
by Marshall-Swift in establishing the nursing facility's
depreciated replacement cost.
Nursing facilities electing to appeal their appraised value
shall file written notice of appeal with the commissioner of
human services before December 30, 1992. The cost of the
reappraisal, if any, shall be considered an allowable cost under
Minnesota Rules, parts 9549.0040, subpart 9, and 9549.0061.
(2) The redetermination of a nursing facility's appraised
value under this paragraph shall have no impact on the rental
payment rate determined under subdivision 13 but shall only be
used for calculating the nursing facility's rental rate under
Minnesota Rules, parts 9549.0010 to 9549.0080, and this section
for rate years beginning after June 30, 1993.
(3) For all rate years after June 30, 1993, the
commissioner shall no longer conduct any appraisals under
Minnesota Rules, part 9549.0060, for the purpose of determining
property-related payment rates.
(b) Notwithstanding Minnesota Rules, part 9549.0060,
subpart 2, for rate years beginning after June 30, 1993, the
commissioner shall routinely update the appraised value of each
nursing facility by adding the cost of capital asset
acquisitions to its allowable appraised value.
The commissioner shall also annually index each nursing
facility's allowable appraised value by the inflation index
referenced in subdivision 3f, paragraph (a), for the purpose of
computing the nursing facility's annual rental rate. In
annually adjusting the nursing facility's appraised value, the
commissioner must not include the historical cost of capital
assets acquired during the reporting year in the nursing
facility's appraised value.
In addition, the nursing facility's appraised value must be
reduced by the historical cost of capital asset disposals or
applicable credits such as public grants and insurance
proceeds. Capital asset additions and disposals must be
reported on the nursing facility's annual cost report in the
reporting year of acquisition or disposal. The incremental
increase in the nursing facility's rental rate resulting from
this annual adjustment as determined under Minnesota Rules,
parts 9549.0010 to 9549.0080, and this section shall be added to
the nursing facility's property-related payment rate for the
rate year following the reporting year.
Sec. 9. Minnesota Statutes 1996, section 256B.50,
subdivision 1, is amended to read:
Subdivision 1. [SCOPE.] A provider may appeal from a
determination of a payment rate established pursuant to this
chapter and reimbursement rules of the commissioner if the
appeal, if successful, would result in a change to the
provider's payment rate or to the calculation of maximum charges
to therapy vendors as provided by section 256B.433, subdivision
3. Appeals must be filed in accordance with procedures in this
section. This section does not apply to a request from a
resident or nursing long-term care facility for reconsideration
of the classification of a resident under section 144.0722 or
144.0723.
Sec. 10. Minnesota Statutes 1996, section 256B.50,
subdivision 1b, is amended to read:
Subd. 1b. [FILING AN APPEAL.] To appeal, the provider
shall file with the commissioner a written notice of appeal; the
appeal must be postmarked or received by the commissioner within
60 days of the date the determination of the payment rate was
mailed or personally received by a provider, whichever is
earlier. The notice of appeal must specify each disputed item;
the reason for the dispute; the total dollar amount in dispute
for each separate disallowance, allocation, or adjustment of
each cost item or part of a cost item; the computation that the
provider believes is correct; the authority in statute or rule
upon which the provider relies for each disputed item; the name
and address of the person or firm with whom contacts may be made
regarding the appeal; and other information required by the
commissioner. The commissioner shall review an appeal by a
nursing facility, if the appeal was sent by certified mail and
postmarked prior to August 1, 1991, and would have been received
by the commissioner within the 60-day deadline if it had not
been delayed due to an error by the postal service.
Sec. 11. Minnesota Statutes 1996, section 256B.50,
subdivision 1c, is amended to read:
Subd. 1c. [CONTESTED CASE PROCEDURES APPEALS REVIEW
PROCESS.] Except as provided in subdivision 2, the appeal (a)
Effective for desk audit appeals for rate years beginning on or
after July 1, 1997, and for field audit appeals filed on or
after that date, the commissioner shall review appeals and issue
a written appeal determination on each appealed item within one
year of the due date of the appeal. Upon mutual agreement, the
commissioner and the provider may extend the time for issuing a
determination for a specified period. The commissioner shall
notify the provider by first class mail of the appeal
determination. The appeal determination takes effect 30 days
following the date of issuance specified in the determination.
(b) In reviewing the appeal, the commissioner may request
additional written or oral information from the provider. The
provider has the right to present information by telephone, in
writing, or in person concerning the appeal to the commissioner
prior to the issuance of the appeal determination within six
months of the date the appeal was received by the commissioner.
Written requests for conferences must be submitted separately
from the appeal letter. Statements made during the review
process are not admissible in a contested case hearing absent an
express stipulation by the parties to the contested case.
(c) For an appeal item on which the provider disagrees with
the appeal determination, the provider may file with the
commissioner a written demand for a contested case hearing to
determine the proper resolution of specified appeal items. The
demand must be postmarked or received by the commissioner within
30 days of the date of issuance specified in the determination.
A contested case demand for an appeal item nullifies the written
appeal determination issued by the commissioner for that appeal
item. The commissioner shall refer any contested case demand to
the office of the attorney general.
(d) A contested case hearing must be heard by an
administrative law judge according to sections 14.48 to 14.56.
In any proceeding under this section, the appealing party must
demonstrate by a preponderance of the evidence that the
commissioner's determination of a payment rate is incorrect.
(e) Regardless of any rate appeal, the rate established
must be the rate paid and must remain in effect until final
resolution of the appeal or subsequent desk or field audit
adjustment, notwithstanding any provision of law or rule to the
contrary.
(f) To challenge the validity of rules established by the
commissioner pursuant to this section and sections 256B.41,
256B.421, 256B.431, 256B.47, 256B.48, 256B.501, and 256B.502, a
provider shall comply with section 14.44.
(g) The commissioner has discretion to issue to the
provider a proposed resolution for specified appeal items upon a
request from the provider filed separately from the notice of
appeal. The proposed resolution is final upon written
acceptance by the provider within 30 days of the date the
proposed resolution was mailed to or personally received by the
provider, whichever is earlier.
(h) The commissioner may use the procedures described in
this subdivision to resolve appeals filed prior to July 1, 1997.
Sec. 12. Minnesota Statutes 1996, section 256B.50,
subdivision 1e, is amended to read:
Subd. 1e. [ATTORNEY'S FEES AND COSTS.] (a) Notwithstanding
section 15.472, paragraph (a), for an issue appealed under
subdivision 1, the prevailing party in a contested case
proceeding or, if appealed, in subsequent judicial review, must
be awarded reasonable attorney's fees and costs incurred in
litigating the appeal, if the prevailing party shows that the
position of the opposing party was not substantially justified.
The procedures for awarding fees and costs set forth in section
15.474 must be followed in determining the prevailing party's
fees and costs except as otherwise provided in this
subdivision. For purposes of this subdivision, "costs" means
subpoena fees and mileage, transcript costs, court reporter
fees, witness fees, postage and delivery costs, photocopying and
printing costs, amounts charged the commissioner by the office
of administrative hearings, and direct administrative costs of
the department; and "substantially justified" means that a
position had a reasonable basis in law and fact, based on the
totality of the circumstances prior to and during the contested
case proceeding and subsequent review.
(b) When an award is made to the department under this
subdivision, attorney fees must be calculated at the cost to the
department. When an award is made to a provider under this
subdivision, attorney fees must be calculated at the rate
charged to the provider except that attorney fees awarded must
be the lesser of the attorney's normal hourly fee or $100 per
hour.
(c) In contested case proceedings involving more than one
issue, the administrative law judge shall determine what portion
of each party's attorney fees and costs is related to the issue
or issues on which it prevailed and for which it is entitled to
an award. In making that determination, the administrative law
judge shall consider the amount of time spent on each issue, the
precedential value of the issue, the complexity of the issue,
and other factors deemed appropriate by the administrative law
judge.
(d) When the department prevails on an issue involving more
than one provider, the administrative law judge shall allocate
the total amount of any award for attorney fees and costs among
the providers. In determining the allocation, the
administrative law judge shall consider each provider's monetary
interest in the issue and other factors deemed appropriate by
the administrative law judge.
(e) Attorney fees and costs awarded to the department for
proceedings under this subdivision must not be reported or
treated as allowable costs on the provider's cost report.
(f) Fees and costs awarded to a provider for proceedings
under this subdivision must be reimbursed to them by reporting
the amount of fees and costs awarded as allowable costs on the
provider's cost report for the reporting year in which they were
awarded. Fees and costs reported pursuant to this subdivision
must be included in the general and administrative cost category
but are not subject to either the general and administrative or
other operating cost limits categorical or overall cost
limitations established in rule or statute.
(g) If the provider fails to pay the awarded attorney fees
and costs within 120 days of the final decision on the award of
attorney fees and costs, the department may collect the amount
due through any method available to it for the collection of
medical assistance overpayments to providers. Interest charges
must be assessed on balances outstanding after 120 days of the
final decision on the award of attorney fees and costs. The
annual interest rate charged must be the rate charged by the
commissioner of revenue for late payment of taxes that is in
effect on the 121st day after the final decision on the award of
attorney fees and costs.
(h) Amounts collected by the commissioner pursuant to this
subdivision must be deemed to be recoveries pursuant to section
256.01, subdivision 2, clause 15.
(i) This subdivision applies to all contested case
proceedings set on for hearing by the commissioner on or after
April 29, 1988, regardless of the date the appeal was filed.
Sec. 13. Minnesota Statutes 1996, section 256D.01,
subdivision 1a, is amended to read:
Subd. 1a. [STANDARDS.] (a) A principal objective in
providing general assistance is to provide for persons
ineligible for federal programs who are unable to provide for
themselves. The minimum standard of assistance determines the
total amount of the general assistance grant without separate
standards for shelter, utilities, or other needs.
(b) The commissioner shall set the standard of assistance
for an assistance unit consisting of an adult recipient who is
childless and unmarried or living apart from children and spouse
and who does not live with a parent or parents or a legal
custodian. When the other standards specified in this
subdivision increase, this standard must also be increased by
the same percentage.
(c) For an assistance unit consisting of a single adult who
lives with a parent or parents, the general assistance standard
of assistance is the amount that the aid to families with
dependent children standard of assistance would increase if the
recipient were added as an additional minor child to an
assistance unit consisting of the recipient's parent and all of
that parent's family members, except that the standard may not
exceed the standard for a general assistance recipient living
alone. Benefits received by a responsible relative of the
assistance unit under the supplemental security income program,
a workers' compensation program, the Minnesota supplemental aid
program, or any other program based on the responsible
relative's disability, and any benefits received by a
responsible relative of the assistance unit under the social
security retirement program, may not be counted in the
determination of eligibility or benefit level for the assistance
unit. Except as provided below, the assistance unit is
ineligible for general assistance if the available resources or
the countable income of the assistance unit and the parent or
parents with whom the assistance unit lives are such that a
family consisting of the assistance unit's parent or parents,
the parent or parents' other family members and the assistance
unit as the only or additional minor child would be financially
ineligible for general assistance. For the purposes of
calculating the countable income of the assistance unit's parent
or parents, the calculation methods, income deductions,
exclusions, and disregards used when calculating the countable
income for a single adult or childless couple must be used.
(d) For an assistance unit consisting of a childless
couple, the standards of assistance are the same as the first
and second adult standards of the aid to families with dependent
children program. If one member of the couple is not included
in the general assistance grant, the standard of assistance for
the other is the second adult standard of the aid to families
with dependent children program.
(e) For an assistance unit consisting of all members of a
family, the standards of assistance are the same as the
standards of assistance that apply to a family under the aid to
families with dependent children program if that family had the
same number of parents and children as the assistance unit under
general assistance and if all members of that family were
eligible for the aid to families with dependent children
program. If one or more members of the family are not included
in the assistance unit for general assistance, the standards of
assistance for the remaining members are the same as the
standards of assistance that apply to an assistance unit
composed of the entire family, less the standards of assistance
for a family of the same number of parents and children as those
members of the family who are not in the assistance unit for
general assistance. In no case shall the standard for family
members who are in the assistance unit for general assistance,
when combined with the standard for family members who are not
in the general assistance unit, total more than the standard for
the entire family if all members were in an AFDC assistance
unit. A child may not be excluded from the assistance unit
unless income intended for its benefit is received from a
federally aided categorical assistance program or supplemental
security income. The income of a child who is excluded from the
assistance unit may not be counted in the determination of
eligibility or benefit level for the assistance unit.
(f) An assistance unit consisting of one or more members of
a family must have its grant determined using the policies and
procedures of the aid to families with dependent children
program, except that, until June 30, 1995, in cases where a
county agency has developed or approved a case plan that
includes reunification with the children, foster care
maintenance payments made under state or local law for a child
who is temporarily absent from the assistance unit must not be
considered income to the child and the payments must not be
counted in the determination of the eligibility or benefit level
of the assistance unit. Otherwise, the standard of assistance
must be determined according to paragraph (e); the first $50 of
total child support received by an assistance unit in a month
must be excluded and the balance counted as unearned income.
Sec. 14. Minnesota Statutes 1996, section 257.071,
subdivision 2, is amended to read:
Subd. 2. [SIX-MONTH REVIEW OF PLACEMENTS.] There shall be
an administrative review of the case plan of each child placed
in a residential facility no later than 180 days after the
initial placement of the child in a residential facility and at
least every six months thereafter if the child is not returned
to the home of the parent or parents within that time. The case
plan must be monitored and updated at each administrative
review. As an alternative to the administrative review, the
social service agency responsible for the placement may bring a
petition as provided in section 260.131, subdivision 1a, to the
court for review of the foster care to determine if placement is
in the best interests of the child. This petition must be
brought to the court within the applicable six months and is not
in lieu of the requirements contained in subdivision 3 or 4. A
court review conducted pursuant to section 260.191, subdivision
3b, shall satisfy the requirement for an administrative review
so long as the other requirements of this section are met.
Sec. 15. Minnesota Statutes 1996, section 260.191,
subdivision 3b, is amended to read:
Subd. 3b. [REVIEW OF COURT ORDERED PLACEMENTS; PERMANENT
PLACEMENT DETERMINATION.] (a) If the court places a child in a
residential facility, as defined in section 257.071, subdivision
1, the court shall conduct a hearing to determine the permanent
status of the child not later than 12 months after the child was
placed out of the home of the parent. Not later than ten days
prior to this hearing, the responsible social service agency
shall file pleadings to establish the basis for the permanent
placement determination. Notice of the hearing and copies of
the pleadings must be provided pursuant to section 260.141. If
a termination of parental rights petition is filed before the
date required for the permanency planning determination, no
hearing need be conducted under this section. The court shall
determine whether the child is to be returned home or, if not,
what permanent placement is consistent with the child's best
interests. The "best interests of the child" means all relevant
factors to be considered and evaluated.
If the child is not returned to the home, the dispositions
available for permanent placement determination are:
(1) permanent legal and physical custody to a relative
pursuant to the standards and procedures applicable under
chapter 257 or 518. The social service agency may petition on
behalf of the proposed custodian;
(2) termination of parental rights and adoption; the social
service agency shall file a petition for termination of parental
rights under section 260.231 and all the requirements of
sections 260.221 to 260.245 remain applicable; or
(3) long-term foster care; transfer of legal custody and
adoption are preferred permanency options for a child who cannot
return home. The court may order a child into long-term foster
care only if it finds that neither an award of legal and
physical custody to a relative, nor termination of parental
rights nor adoption is in the child's best interests. Further,
the court may only order long-term foster care for the child
under this section if it finds the following:
(i) the child has reached age 12 and reasonable efforts by
the responsible social service agency have failed to locate an
adoptive family for the child; or
(ii) the child is a sibling of a child described in clause
(i) and the siblings have a significant positive relationship
and are ordered into the same long-term foster care home.
(b) The court may extend the time period for determination
of permanent placement to 18 months after the child was placed
in a residential facility if:
(1) there is a substantial probability that the child will
be returned home within the next six months;
(2) the agency has not made reasonable, or, in the case of
an Indian child, active efforts, to correct the conditions that
form the basis of the out-of-home placement; or
(3) extraordinary circumstances exist precluding a
permanent placement determination, in which case the court shall
make written findings documenting the extraordinary
circumstances and order one subsequent review after six months
to determine permanent placement. A court finding that
extraordinary circumstances exist precluding a permanent
placement determination must be supported by detailed factual
findings regarding those circumstances.
(c) In ordering a permanent placement of a child, the court
must be governed by the best interests of the child, including a
review of the relationship between the child and relatives and
the child and other important persons with whom the child has
resided or had significant contact.
(d) Once a permanent placement determination has been made
and permanent placement has been established, further court
reviews and dispositional hearings are only necessary if
otherwise required by federal law, an adoption has not yet been
finalized, or there is a disruption of the permanent or
long-term placement. If required, reviews must take place no
less frequently than every six months.
(e) An order under this subdivision must include the
following detailed findings:
(1) how the child's best interests are served by the order;
(2) the nature and extent of the responsible social service
agency's reasonable efforts, or, in the case of an Indian child,
active efforts, to reunify the child with the parent or parents;
(3) the parent's or parents' efforts and ability to use
services to correct the conditions which led to the out-of-home
placement;
(4) whether the conditions which led to the out-of-home
placement have been corrected so that the child can return home;
and
(5) if the child cannot be returned home, whether there is
a substantial probability of the child being able to return home
in the next six months.
(f) An order for permanent legal and physical custody of a
child may be modified under sections 518.18 and 518.185. The
social service agency is a party to the proceeding and must
receive notice. An order for long-term foster care is
reviewable upon motion and a showing by the parent of a
substantial change in the parent's circumstances such that the
parent could provide appropriate care for the child and that
removal of the child from the child's permanent placement and
the return to the parent's care would be in the best interest of
the child.
Sec. 16. Minnesota Statutes 1996, section 260.192, is
amended to read:
260.192 [DISPOSITIONS; VOLUNTARY FOSTER CARE PLACEMENTS.]
Upon a petition for review of the foster care status of a
child, the court may:
(a) In the case of a petition required to be filed under
section 257.071, subdivision 3, find that the child's needs are
being met, that the child's placement in foster care is in the
best interests of the child, and that the child will be returned
home in the next six months, in which case the court shall
approve the voluntary arrangement and continue the matter for
six months to assure the child returns to the parent's home.
(b) In the case of a petition required to be filed under
section 257.071, subdivision 4, find that the child's needs are
being met and that the child's placement in foster care is in
the best interests of the child, in which case the court shall
approve the voluntary arrangement. The court shall order the
social service agency responsible for the placement to bring a
petition under section 260.131, subdivision 1 or 1a, as
appropriate, within two years 12 months.
(c) Find that the child's needs are not being met, in which
case the court shall order the social service agency or the
parents to take whatever action is necessary and feasible to
meet the child's needs, including, when appropriate, the
provision by the social service agency of services to the
parents which would enable the child to live at home, and order
a disposition under section 260.191.
(d) Find that the child has been abandoned by parents
financially or emotionally, or that the developmentally disabled
child does not require out-of-home care because of the
handicapping condition, in which case the court shall order the
social service agency to file an appropriate petition pursuant
to sections 260.131, subdivision 1, or 260.231.
Nothing in this section shall be construed to prohibit
bringing a petition pursuant to section 260.131, subdivision 1
or 2, sooner than required by court order pursuant to this
section.
Sec. 17. Minnesota Statutes 1996, section 260.242,
subdivision 2, is amended to read:
Subd. 2. [GUARDIAN'S RESPONSIBILITIES.] (a) A guardian
appointed under the provisions of this section has legal custody
of a ward unless the court which appoints the guardian gives
legal custody to some other person. If the court awards custody
to a person other than the guardian, the guardian nonetheless
has the right and responsibility of reasonable visitation,
except as limited by court order.
(b) The guardian may make major decisions affecting the
person of the ward, including but not limited to giving consent
(when consent is legally required) to the marriage, enlistment
in the armed forces, medical, surgical, or psychiatric
treatment, or adoption of the ward. When, pursuant to this
section, the commissioner of human services is appointed
guardian, the commissioner may delegate to the local social
services agency of the county in which, after the appointment,
the ward resides, the authority to act for the commissioner in
decisions affecting the person of the ward, including but not
limited to giving consent to the marriage, enlistment in the
armed forces, medical, surgical, or psychiatric treatment of the
ward.
(c) A guardianship created under the provisions of this
section shall not of itself include the guardianship of the
estate of the ward.
(d) If the ward is in foster care, the court shall, upon
its own motion or that of the guardian, conduct a dispositional
hearing within 18 months of the child's initial foster care
placement and once every two years 12 months thereafter to
determine the future status of the ward including, but not
limited to, whether the child should be continued in foster care
for a specified period, should be placed for adoption, or
should, because of the child's special needs or circumstances,
be continued in foster care on a permanent or long-term basis.
When the court has determined that the special needs of the ward
are met through a permanent or long-term foster care placement,
no subsequent dispositional hearings are required.
Sec. 18. Minnesota Statutes 1996, section 382.18, is
amended to read:
382.18 [OFFICIALS NOT TO BE INTERESTED IN CONTRACTS.]
No county official, or deputy or clerk or employee of such
official; and no commissioner for tax-forfeited lands or
commissioner's assistants, shall be directly or indirectly
interested in any contract, work, labor, or business to which
the county is a party or in which it is or may be interested or
in the furnishing of any article to, or the purchase or sale of
any property, real or personal, by, the county, or of which the
consideration, price, or expense is payable from the county
treasury. Nothing in this section shall prevent a person from
receiving reimbursement from a county for providing licensed or
tribally approved family foster care. Any violation of the
provisions of this section shall be a gross misdemeanor.
Sec. 19. [REPEALER.]
Minnesota Statutes 1996, sections 256B.17, subdivisions 1,
2, 3, 4, 5, 6, and 8; and 256B.50, subdivisions 1d, 1g, 1h, and
2, are repealed.
Presented to the governor May 5, 1997
Signed by the governor May 6, 1997, 2:50 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes