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1988 Minnesota Session Laws

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                         Laws of Minnesota 1988 

                        CHAPTER 543-H.F.No. 2138 
           An act relating to human services; revising and 
          clarifying the duties and powers of the ombudsman for 
          mental health and mental retardation; transferring 
          money; amending Minnesota Statutes 1987 Supplement, 
          sections 245.91, subdivisions 2, 3, and 4; 245.92; 
          245.94, subdivisions 1, 2, 3, and 4; 245.95, 
          subdivision 1; 245.97, subdivision 1; 626.556, 
          subdivisions 9 and 10; and 626.557, subdivision 9. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1987 Supplement, section 
245.91, subdivision 2, is amended to read:  
    Subd. 2.  [MENTAL HEALTH OR MENTAL RETARDATION AGENCY.] 
"Mental health or mental retardation agency" or "Agency" means 
the divisions, officials, or employees of the state departments 
of human services and health, and of designated county social 
service agencies as defined in section 256G.02, subdivision 7, 
that are engaged in monitoring, providing, or regulating 
services to mental health or mental retardation clients.  It 
does not include a political subdivision of the state or 
treatment for mental illness, mental retardation or a related 
condition, chemical dependency, or emotional disturbance. 
    Sec. 2.  Minnesota Statutes 1987 Supplement, section 
245.91, subdivision 3, is amended to read:  
    Subd. 3.  [MENTAL HEALTH OR MENTAL RETARDATION CLIENT.] 
"Mental health or mental retardation client" or "Client" means a 
patient, resident, or other person served by a mental health or 
mental retardation an agency or, facility, or program, who is 
receiving residential services or treatment for mental illness, 
mental retardation or a related condition, chemical dependency, 
or emotional disturbance. 
    Sec. 3.  Minnesota Statutes 1987 Supplement, section 
245.91, subdivision 4, is amended to read:  
    Subd. 4.  [MENTAL HEALTH OR MENTAL RETARDATION FACILITY OR 
PROGRAM.] "Mental health or mental retardation facility" 
or "Facility" or "program" means a regional center operated by 
the commissioner of human services, a nonresidential or 
residential facility program as defined in section 245.782, 
subdivision 6 245A.02, subdivisions 10 and 14, that is required 
to be licensed by the commissioner of human services, and an 
acute care inpatient facility, that provides services or 
treatment for mental illness, mental retardation or a related 
condition, chemical dependency, or emotional disturbance. 
    Sec. 4.  Minnesota Statutes 1987 Supplement, section 
245.92, is amended to read:  
    245.92 [OFFICE OF OMBUDSMAN; CREATION; QUALIFICATIONS; 
FUNCTION.] 
    The ombudsman for mental health and mental retardation 
shall promote the highest attainable standards of treatment, 
competence, efficiency, and justice for people persons receiving 
care services or treatment for mental illness, mental 
retardation or a related condition, chemical dependency, or 
emotional disturbance shall promote the highest attainable 
standards of treatment, competence, efficiency, and justice.  
The ombudsman may gather information about decisions, acts, and 
other matters of an agency or, facility, or program.  The 
ombudsman serves at the pleasure of the is appointed by the 
governor, serves in the unclassified service, and is accountable 
to the governor may be removed only for just cause.  The 
ombudsman must be selected without regard to political 
affiliation and must be a person who has knowledge and 
experience concerning the treatment, needs, and rights of mental 
health and mental retardation clients, and who is highly 
competent and qualified.  No person may serve as ombudsman while 
holding another public office. 
    Sec. 5.  Minnesota Statutes 1987 Supplement, section 
245.94, subdivision 1, is amended to read:  
    Subdivision 1.  [POWERS.] (a) The ombudsman may prescribe 
the methods by which complaints to the office are to be made, 
reviewed, and acted upon.  The ombudsman may not levy a 
complaint fee. 
    (b) The ombudsman may mediate or advocate on behalf of a 
client.  
    (c) The ombudsman may investigate the quality of services 
provided to clients and determine the extent to which quality 
assurance mechanisms within state and county government work to 
promote the health, safety, and welfare of clients, other than 
clients in acute care facilities who are receiving services not 
paid for by public funds. 
    (d) At the request of a client, or upon receiving a 
complaint or other information affording reasonable grounds to 
believe that the rights of a client who is not capable of 
requesting assistance have been adversely affected, the 
ombudsman may gather information about and analyze, on behalf of 
the client, the actions of an agency or, facility, or program. 
    (d) (e) The ombudsman may examine, on behalf of a client, 
records of an agency or, facility, or program to which the 
client is entitled to access if the records relate to a matter 
that is within the scope of the ombudsman's authority.  If the 
records are private and confidential and the client is capable 
of providing consent, the ombudsman shall first obtain the 
client's consent.  The ombudsman is not required to obtain 
consent for access to private data on clients with mental 
retardation or a related condition.  
    (e) (f) The ombudsman may, at reasonable times in the 
course of conducting a review, enter and view premises within 
the control of an agency or, facility, or program.  
    (f) (g) The ombudsman may attend department of human 
services review board and special review board proceedings; 
proceedings regarding the transfer of patients or residents, as 
defined in section 246.50, subdivisions 4 and 4a, between 
institutions operated by the department of human services; and, 
subject to the consent of the affected patient or resident 
client, other proceedings affecting the rights of residents or 
patients clients.  The ombudsman is not required to obtain 
consent to attend meetings or proceedings and have access to 
private data on clients with mental retardation or a related 
condition. 
    (g) (h) The ombudsman shall have access to data of 
agencies, facilities, or programs classified as private or 
confidential as defined in section 13.02, subdivisions 12 and 
13, regarding services provided to clients with mental 
retardation or a related condition. 
     (i) To avoid duplication and preserve evidence, the 
ombudsman shall inform relevant licensing or regulatory 
officials before undertaking a review of an action of the 
facility or program. 
    (h) (j) Sections 245.91 to 245.97 are in addition to other 
provisions of law under which any other remedy or right is 
provided. 
    Sec. 6.  Minnesota Statutes 1987 Supplement, section 
245.94, subdivision 2, is amended to read:  
    Subd. 2.  [MATTERS APPROPRIATE FOR REVIEW.] (a) In 
selecting matters for review by the office, the ombudsman shall 
give particular attention to unusual deaths or injuries of a 
client served by an agency or, facility, or program, or actions 
of an agency or, facility, or program that: 
    (1) may be contrary to law or rule; 
    (2) may be unreasonable, unfair, oppressive, or 
inconsistent with a policy or order of an agency or, facility, 
or program; 
    (3) may be mistaken in law or arbitrary in the 
ascertainment of facts; 
    (4) may be unclear or inadequately explained, when reasons 
should have been revealed; 
    (5) may result in abuse or neglect of a person receiving 
treatment; or 
    (6) may disregard the rights of a client or other 
individual served by an agency or facility; 
     (7) may impede or promote independence, community 
integration, and productivity for clients; or 
     (8) may impede or improve the monitoring or evaluation of 
services provided to clients. 
    (b) The ombudsman shall, in selecting matters for review 
and in the course of the review, avoid duplicating other 
investigations or regulatory efforts. 
    Sec. 7.  Minnesota Statutes 1987 Supplement, section 
245.94, subdivision 3, is amended to read:  
    Subd. 3.  [COMPLAINTS.] The ombudsman may receive a 
complaint from any source concerning an action of an agency or, 
facility, or program.  After completing a review, the ombudsman 
shall inform the complainant and the agency or, facility, or 
program.  No client may be punished nor may the general 
condition of the client's treatment be unfavorably altered as a 
result of an investigation, a complaint by the client, or by 
another person on the client's behalf.  An agency, facility, or 
program shall not retaliate or take adverse action, as defined 
in section 626.557, subdivision 17, paragraph (c), against a 
client or other person, who in good faith makes a complaint or 
assists in an investigation. 
    Sec. 8.  Minnesota Statutes 1987 Supplement, section 
245.94, subdivision 4, is amended to read:  
    Subd. 4.  [RECOMMENDATIONS TO AGENCY.] (a) If, after 
reviewing a complaint or conducting an investigation and 
considering the response of an agency or, facility, or program 
and any other pertinent material, the ombudsman determines that 
the complaint has merit or the investigation reveals a problem, 
the ombudsman may recommend that the agency or, facility, or 
program: 
    (1) consider the matter further; 
    (2) modify or cancel its actions; 
    (3) alter a rule, order, or internal policy;  
    (4) explain more fully the action in question; or 
    (5) take any other action the ombudsman recommends to the 
agency or facility involved. 
    (b) At the ombudsman's request, the agency or, facility, or 
program shall, within a reasonable time, inform the ombudsman 
about the action taken on the recommendation or the reasons for 
not complying with it. 
    Sec. 9.  Minnesota Statutes 1987 Supplement, section 
245.95, subdivision 1, is amended to read:  
    Subdivision 1.  [SPECIFIC REPORTS.] The ombudsman may send 
conclusions and suggestions concerning any matter reviewed to 
the governor.  Before making public a conclusion or 
recommendation that expressly or implicitly criticizes an agency 
or, facility, program, or any person, the ombudsman shall 
consult with the governor and the agency, facility, program, or 
person concerning the conclusion or recommendation.  When 
sending a conclusion or recommendation to the governor that is 
adverse to an agency or, facility, program, or any person, the 
ombudsman shall include any statement of reasonable length made 
by that agency, facility, program, or person in defense or 
mitigation of the office's conclusion or recommendation. 
    Sec. 10.  Minnesota Statutes 1987 Supplement, section 
245.97, subdivision 1, is amended to read:  
    Subdivision 1.  [MEMBERSHIP.] The ombudsman committee 
consists of 15 members appointed by the governor to three-year 
terms.  Members shall be appointed on the basis of their 
knowledge of and interest in the health and human services 
system subject to the ombudsman's authority.  In making the 
appointments, the governor shall try to ensure that the overall 
membership of the committee adequately reflects the agencies, 
facilities, and programs within the ombudsman's authority and 
that members include consumer representatives, including 
clients, former clients, and relatives of present or former 
clients; representatives of advocacy organizations for clients 
and other individuals served by an agency or, facility, or 
program; human services and health care professionals, including 
specialists in psychiatry, psychology, internal medicine, and 
forensic pathology; and other providers of services or treatment 
to mental health or mental retardation clients or other 
individuals served by an agency or facility. 
    Sec. 11.  Minnesota Statutes 1987 Supplement, section 
626.556, subdivision 9, is amended to read:  
    Subd. 9.  [MANDATORY REPORTING TO A MEDICAL EXAMINER OR 
CORONER.] When a person required to report under the provisions 
of subdivision 3 knows or has reason to believe a child has died 
as a result of neglect or physical or sexual abuse, the person 
shall report that information to the appropriate medical 
examiner or coroner instead of the local welfare agency, police 
department, or county sheriff.  Medical examiners or coroners 
shall notify the local welfare agency or police department or 
county sheriff in instances in which they believe that the child 
has died as a result of neglect or physical or sexual abuse.  
The medical examiner or coroner shall complete an investigation 
as soon as feasible and report the findings to the police 
department or county sheriff and the local welfare agency.  If 
the child was receiving residential services or treatment for 
mental illness, mental retardation or a related condition, 
chemical dependency, or emotional disturbance from a mental 
health or mental retardation an agency or, facility, or 
program as defined in section 245.91, the medical examiner or 
coroner shall also notify and report findings to the 
ombudsman for mental health and mental retardation established 
under sections 245.91 to 245.97. 
    Sec. 12.  Minnesota Statutes 1987 Supplement, section 
626.556, subdivision 10, is amended to read:  
    Subd. 10.  [DUTIES OF LOCAL WELFARE AGENCY AND LOCAL LAW 
ENFORCEMENT AGENCY UPON RECEIPT OF A REPORT.] (a) If the report 
alleges neglect, physical abuse, or sexual abuse by a parent, 
guardian, or individual functioning within the family unit as a 
person responsible for the child's care, the local welfare 
agency shall immediately conduct an assessment and offer 
protective social services for purposes of preventing further 
abuses, safeguarding and enhancing the welfare of the abused or 
neglected minor, and preserving family life whenever possible.  
If the report alleges a violation of a criminal statute 
involving sexual abuse or physical abuse, the local law 
enforcement agency and local welfare agency shall coordinate the 
planning and execution of their respective investigation and 
assessment efforts to avoid a duplication of fact-finding 
efforts and multiple interviews.  Each agency shall prepare a 
separate report of the results of its investigation. When 
necessary the local welfare agency shall seek authority to 
remove the child from the custody of a parent, guardian, or 
adult with whom the child is living.  In performing any of these 
duties, the local welfare agency shall maintain appropriate 
records.  
    (b) When a local agency receives a report or otherwise has 
information indicating that a child who is a mental health or 
mental retardation client, as defined in section 245.91, has 
been the subject of physical abuse or neglect at a mental health 
or mental retardation an agency or, facility, or program as 
defined in section 245.91, it shall, in addition to its other 
duties under this section, immediately inform the ombudsman for 
mental health and mental retardation established under sections 
245.91 to 245.97. 
    (c) Authority of the local welfare agency responsible for 
assessing the child abuse report and of the local law 
enforcement agency for investigating the alleged abuse includes, 
but is not limited to, authority to interview, without parental 
consent, the alleged victim and any other minors who currently 
reside with or who have resided with the alleged perpetrator.  
The interview may take place at school or at any facility or 
other place where the alleged victim or other minors might be 
found and may take place outside the presence of the perpetrator 
or parent, legal custodian, guardian, or school official.  
Except as provided in this clause, the parent, legal custodian, 
or guardian shall be notified by the responsible local welfare 
or law enforcement agency no later than the conclusion of the 
investigation or assessment that this interview has occurred.  
Notwithstanding rule 49.02 of the Minnesota rules of procedure 
for juvenile courts, the juvenile court may, after hearing on an 
ex parte motion by the local welfare agency, order that, where 
reasonable cause exists, the agency withhold notification of 
this interview from the parent, legal custodian, or guardian.  
If the interview took place or is to take place on school 
property, the order shall specify that school officials may not 
disclose to the parent, legal custodian, or guardian the 
contents of the notification of intent to interview the child on 
school property, as provided under paragraph (c), and any other 
related information regarding the interview that may be a part 
of the child's school record.  A copy of the order shall be sent 
by the local welfare or law enforcement agency to the 
appropriate school official. 
    (d) When the local welfare or local law enforcement agency 
determines that an interview should take place on school 
property, written notification of intent to interview the child 
on school property must be received by school officials prior to 
the interview.  The notification shall include the name of the 
child to be interviewed, the purpose of the interview, and a 
reference to the statutory authority to conduct an interview on 
school property.  For interviews conducted by the local welfare 
agency, the notification shall be signed by the chair of the 
county welfare board or the chair's designee.  The notification 
shall be private data on individuals subject to the provisions 
of this paragraph.  School officials may not disclose to the 
parent, legal custodian, or guardian the contents of the 
notification or any other related information regarding the 
interview until notified in writing by the local welfare or law 
enforcement agency that the investigation or assessment has been 
concluded.  Until that time, the local welfare or law 
enforcement agency shall be solely responsible for any 
disclosures regarding the nature of the assessment or 
investigation.  
    Except where the alleged perpetrator is believed to be a 
school official or employee, the time and place, and manner of 
the interview on school premises shall be within the discretion 
of school officials, but the local welfare or law enforcement 
agency shall have the exclusive authority to determine who may 
attend the interview.  The conditions as to time, place, and 
manner of the interview set by the school officials shall be 
reasonable and the interview shall be conducted not more than 24 
hours after the receipt of the notification unless another time 
is considered necessary by agreement between the school 
officials and the local welfare or law enforcement agency.  
Where the school fails to comply with the provisions of this 
paragraph, the juvenile court may order the school to comply.  
Every effort must be made to reduce the disruption of the 
educational program of the child, other students, or school 
staff when an interview is conducted on school premises.  
    (e) Where the perpetrator or a person responsible for the 
care of the alleged victim or other minor prevents access to the 
victim or other minor by the local welfare agency, the juvenile 
court may order the parents, legal custodian, or guardian to 
produce the alleged victim or other minor for questioning by the 
local welfare agency or the local law enforcement agency outside 
the presence of the perpetrator or any person responsible for 
the child's care at reasonable places and times as specified by 
court order.  
    (f) Before making an order under paragraph (d), the court 
shall issue an order to show cause, either upon its own motion 
or upon a verified petition, specifying the basis for the 
requested interviews and fixing the time and place of the 
hearing.  The order to show cause shall be served personally and 
shall be heard in the same manner as provided in other cases in 
the juvenile court.  The court shall consider the need for 
appointment of a guardian ad litem to protect the best interests 
of the child.  If appointed, the guardian ad litem shall be 
present at the hearing on the order to show cause.  
    (g) The commissioner, the ombudsman for mental health and 
mental retardation, the local welfare agencies responsible for 
investigating reports, and the local law enforcement agencies 
have the right to enter facilities as defined in subdivision 2 
and to inspect and copy the facility's records, including 
medical records, as part of the investigation.  Notwithstanding 
the provisions of chapter 13, they also have the right to inform 
the facility under investigation that they are conducting an 
investigation, to disclose to the facility the names of the 
individuals under investigation for abusing or neglecting a 
child, and to provide the facility with a copy of the report and 
the investigative findings. 
    Sec. 13.  Minnesota Statutes 1987 Supplement, section 
626.557, subdivision 9, is amended to read:  
    Subd. 9.  [MANDATORY REPORTING TO A MEDICAL EXAMINER OR 
CORONER.] A person required to report under the provisions of 
subdivision 3 who has reasonable cause to believe that a 
vulnerable adult has died as a direct or indirect result of 
abuse or neglect shall report that information to the 
appropriate medical examiner or coroner in addition to the local 
welfare agency, police department, or county sheriff or 
appropriate licensing agency or agencies.  The medical examiner 
or coroner shall complete an investigation as soon as feasible 
and report the findings to the police department or county 
sheriff, the local welfare agency, and, if applicable, each 
licensing agency.  A person or agency that receives a report 
under this subdivision concerning a vulnerable adult who was 
receiving residential services or treatment for mental illness, 
mental retardation or a related condition, chemical dependency, 
or emotional disturbance from a mental health or mental 
retardation an agency or, facility, or program as defined in 
section 245.91, shall also report the information and findings 
to the ombudsman for mental health and mental 
retardation established under sections 245.91 to 245.97. 
    Sec. 14.  [TRANSFER OF MONEY.] 
    The money appropriated in Laws 1987, chapter 403, article 
1, section 2, subdivision 2, to the commissioner of human 
services for the Welsch consent decree monitor's office for the 
fiscal year ending June 30, 1989, is transferred to the 
appropriation in Laws 1987, chapter 352, section 13, to the 
ombudsman for mental health and mental retardation. 
    Approved April 18, 1988

700 State Office Building, 100 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155 ♦ Phone: (651) 296-2868 ♦ TTY: 1-800-627-3529 ♦ Fax: (651) 296-0569