1.1                          A bill for an act
  1.2             relating to health and human services; changing 
  1.3             requirements to background studies for licensed 
  1.4             programs; amending Minnesota Statutes 2000, sections 
  1.5             13.46, subdivision 4; 144.057; 241.021, subdivision 1; 
  1.6             245A.02, subdivisions 1, 9, by adding a subdivision; 
  1.7             245A.03, subdivision 2, by adding a subdivision; 
  1.8             245A.035, subdivision 1; 245A.04, subdivisions 3, 3a, 
  1.9             3b, 3d, 6, 11, by adding a subdivision; 245A.06, 
  1.10            subdivision 6; 245A.16, subdivision 1; proposing 
  1.11            coding for new law in Minnesota Statutes, chapter 
  1.12            245A; repealing Minnesota Rules, parts 9543.3000; 
  1.13            9543.3010; 9543.3020; 9543.3030; 9543.3040; 9543.3050; 
  1.14            9543.3060; 9543.3080; 9543.3090. 
  1.15  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.16     Section 1.  Minnesota Statutes 2000, section 13.46, 
  1.17  subdivision 4, is amended to read: 
  1.18     Subd. 4.  [LICENSING DATA.] (a) As used in this subdivision:
  1.19     (1) "licensing data" means all data collected, maintained, 
  1.20  used, or disseminated by the welfare system pertaining to 
  1.21  persons licensed or registered or who apply for licensure or 
  1.22  registration or who formerly were licensed or registered under 
  1.23  the authority of the commissioner of human services; 
  1.24     (2) "client" means a person who is receiving services from 
  1.25  a licensee or from an applicant for licensure; and 
  1.26     (3) "personal and personal financial data" means social 
  1.27  security numbers, identity of and letters of reference, 
  1.28  insurance information, reports from the bureau of criminal 
  1.29  apprehension, health examination reports, and social/home 
  1.30  studies. 
  2.1      (b) (1) Except as provided in paragraph (c), the following 
  2.2   data on current and former licensees and applicants for 
  2.3   licensure are public:  name, address, telephone number of 
  2.4   licensees and applicants, licensed capacity, type of client 
  2.5   preferred, variances granted, type of dwelling, name and 
  2.6   relationship of other family members, previous license history, 
  2.7   class of license, and the existence and status of complaints.  
  2.8   When ~~disciplinary action has been taken against a licensee~~ a 
  2.9   correction order or fine has been issued, a license is 
  2.10  suspended, immediately suspended, revoked, denied, or made 
  2.11  conditional, or ~~the~~ a complaint is resolved, the following data 
  2.12  on current and former licensees and applicants for licensure are 
  2.13  public:  the substance and investigative findings of the 
  2.14  complaint, ~~the findings of the investigation of the~~ 
  2.15  ~~complaint,~~ licensing violation, or substantiated maltreatment; 
  2.16  the record of informal resolution of a licensing violation~~,~~; 
  2.17  orders of hearing~~,~~; findings of fact~~,~~; conclusions of law~~,~~; 
  2.18  and specifications of the final ~~disciplinary action~~ correction 
  2.19  order, fine, suspension, immediate suspension, revocation, 
  2.20  denial, or conditional license contained in the record of 
  2.21  disciplinary action.  When an individual licensee or applicant 
  2.22  for licensure is a substantiated perpetrator of maltreatment, 
  2.23  and the substantiated maltreatment is a reason for the licensing 
  2.24  action, the identity of the licensee or applicant as a 
  2.25  perpetrator is public data. 
  2.26     (2) The following data on persons subject to 
  2.27  disqualification under section 245A.04 in connection with a 
  2.28  license to provide family day care for children, child care 
  2.29  center services, foster care for children in the provider's 
  2.30  home, or foster care or day care services for adults in the 
  2.31  provider's home, are public:  the nature of any disqualification 
  2.32  set aside under section 245A.04, subdivision 3b, and the reasons 
  2.33  for setting aside the disqualification; and the reasons for 
  2.34  granting any variance under section 245A.04, subdivision 9. 
  2.35     (c) The following are private data on individuals under 
  2.36  section 13.02, subdivision 12, or nonpublic data under section 
  3.1   13.02, subdivision 9:  personal and personal financial data on 
  3.2   family day care program and family foster care program 
  3.3   applicants and licensees and their family members who provide 
  3.4   services under the license. 
  3.5      (d) The following are private data on individuals:  the 
  3.6   identity of persons who have made reports concerning licensees 
  3.7   or applicants that appear in inactive investigative data, and 
  3.8   the records of clients or employees of the licensee or applicant 
  3.9   for licensure whose records are received by the licensing agency 
  3.10  for purposes of review or in anticipation of a contested 
  3.11  matter.  The names of reporters under sections 626.556 and 
  3.12  626.557 may be disclosed only as provided in section 626.556, 
  3.13  subdivision 11, or 626.557, subdivision 12b. 
  3.14     (e) Data classified as private, confidential, nonpublic, or 
  3.15  protected nonpublic under this subdivision become public data if 
  3.16  submitted to a court or administrative law judge as part of a 
  3.17  disciplinary proceeding in which there is a public hearing 
  3.18  concerning ~~the disciplinary action~~ a license which has been 
  3.19  suspended, immediately suspended, revoked, or denied. 
  3.20     (f) Data generated in the course of licensing 
  3.21  investigations that relate to an alleged violation of law are 
  3.22  investigative data under subdivision 3. 
  3.23     (g) Data that are not public data collected, maintained, 
  3.24  used, or disseminated under this subdivision that relate to or 
  3.25  are derived from a report as defined in section 626.556, 
  3.26  subdivision 2, or 626.5572, subdivision 18, are subject to the 
  3.27  destruction provisions of ~~section~~ sections 626.556, subdivision 
  3.28  ~~11~~ 11c, and 626.557, subdivision 12b.  
  3.29     Sec. 2.  Minnesota Statutes 2000, section 144.057, is 
  3.30  amended to read: 
  3.31     144.057 [BACKGROUND STUDIES ON LICENSEES.] 
  3.32     Subdivision 1.  [BACKGROUND STUDIES REQUIRED.] The 
  3.33  commissioner of health shall contract with the commissioner of 
  3.34  human services to conduct background studies of: 
  3.35     (1) individuals providing services which have direct 
  3.36  contact, as defined under section 245A.04, subdivision 3, with 
  4.1   patients and residents in hospitals, boarding care homes, 
  4.2   outpatient surgical centers licensed under sections 144.50 to 
  4.3   144.58; nursing homes and home care agencies licensed under 
  4.4   chapter 144A; residential care homes licensed under chapter 
  4.5   144B, and board and lodging establishments that are registered 
  4.6   to provide supportive or health supervision services under 
  4.7   section 157.17; ~~and~~ 
  4.8      (2) individuals specified in section 245A.04, subdivision 
  4.9   3, paragraph (c), who perform direct contact services in a 
  4.10  nursing home or a home care agency licensed under chapter 144A 
  4.11  or a boarding care home licensed under sections 144.50 to 
  4.12  144.58, and if the individual under study resides outside 
  4.13  Minnesota, the study must be at least as comprehensive as that 
  4.14  of a Minnesota resident and include a search of information from 
  4.15  the criminal justice data communications network in the state 
  4.16  where the subject of the study resides; and 
  4.17     (3) beginning July 1, 1999, all other employees in nursing 
  4.18  homes licensed under chapter 144A, and boarding care homes 
  4.19  licensed under sections 144.50 to 144.58.  A disqualification of 
  4.20  an individual in this section shall disqualify the individual 
  4.21  from positions allowing direct contact or access to patients or 
  4.22  residents receiving services.  "Access" means physical access to 
  4.23  a client or the client's personal property without continuous, 
  4.24  direct supervision as defined in section 245A.04, subdivision 3, 
  4.25  paragraph (b), clause (2), when the employee's employment 
  4.26  responsibilities do not include providing direct contact 
  4.27  services. 
  4.28     If a facility or program is licensed by the department of 
  4.29  human services and subject to the background study provisions of 
  4.30  chapter 245A and is also licensed by the department of health, 
  4.31  the department of human services is solely responsible for the 
  4.32  background studies of individuals in the jointly licensed 
  4.33  programs. 
  4.34     Subd. 2.  [RESPONSIBILITIES OF DEPARTMENT OF HUMAN 
  4.35  SERVICES.] The department of human services shall conduct the 
  4.36  background studies required by subdivision 1 in compliance with 
  5.1   the provisions of chapter 245A ~~and Minnesota Rules, parts~~ 
  5.2   ~~9543.3000 to 9543.3090~~.  For the purpose of this section, the 
  5.3   term "residential program" shall include all facilities 
  5.4   described in subdivision 1.  The department of human services 
  5.5   shall provide necessary forms and instructions, shall conduct 
  5.6   the necessary background studies of individuals, and shall 
  5.7   provide notification of the results of the studies to the 
  5.8   facilities, individuals, and the commissioner of health.  
  5.9   Individuals shall be disqualified under the provisions of 
  5.10  chapter 245A ~~and Minnesota Rules, parts 9543.3000 to 9543.3090~~.  
  5.11  If an individual is disqualified, the department of human 
  5.12  services shall notify the facility and the individual and shall 
  5.13  inform the individual of the right to request a reconsideration 
  5.14  of the disqualification by submitting the request to the 
  5.15  department of health. 
  5.16     Subd. 3.  [RECONSIDERATIONS.] The commissioner of health 
  5.17  shall review and decide reconsideration requests, including the 
  5.18  granting of variances, in accordance with the procedures and 
  5.19  criteria contained in chapter 245A ~~and Minnesota Rules, parts~~ 
  5.20  ~~9543.3000 to 9543.3090~~.  The commissioner's decision shall be 
  5.21  provided to the individual and to the department of human 
  5.22  services.  The commissioner's decision to grant or deny a 
  5.23  reconsideration of disqualification is the final administrative 
  5.24  agency action. 
  5.25     Subd. 4.  [RESPONSIBILITIES OF FACILITIES.] Facilities 
  5.26  described in subdivision 1 shall be responsible for cooperating 
  5.27  with the departments in implementing the provisions of this 
  5.28  section.  The responsibilities imposed on applicants and 
  5.29  licensees under chapter 245A ~~and Minnesota Rules, parts~~ 
  5.30  ~~9543.3000 to 9543.3090,~~ shall apply to these facilities.  The 
  5.31  provision of section 245A.04, subdivision 3, paragraph (e), 
  5.32  shall apply to applicants, licensees, or an individual's refusal 
  5.33  to cooperate with the completion of the background studies. 
  5.34     Sec. 3.  Minnesota Statutes 2000, section 241.021, 
  5.35  subdivision 1, is amended to read: 
  5.36     Subdivision 1.  [SUPERVISION OVER CORRECTIONAL 
  6.1   INSTITUTIONS.] ~~(1)~~ (a) Except as provided in paragraph (b), the 
  6.2   commissioner of corrections shall inspect and license all 
  6.3   correctional facilities throughout the state, whether public or 
  6.4   private, established and operated for the detention and 
  6.5   confinement of persons detained or confined therein according to 
  6.6   law except to the extent that they are inspected or licensed by 
  6.7   other state regulating agencies.  The commissioner shall 
  6.8   promulgate pursuant to chapter 14, rules establishing minimum 
  6.9   standards for these facilities with respect to their management, 
  6.10  operation, physical condition, and the security, safety, health, 
  6.11  treatment, and discipline of persons detained or confined 
  6.12  therein.  Commencing September 1, 1980, no individual, 
  6.13  corporation, partnership, voluntary association, or other 
  6.14  private organization legally responsible for the operation of a 
  6.15  correctional facility may operate the facility unless licensed 
  6.16  by the commissioner of corrections.  The commissioner shall 
  6.17  review the correctional facilities described in this subdivision 
  6.18  at least once every biennium, except as otherwise provided 
  6.19  herein, to determine compliance with the minimum standards 
  6.20  established pursuant to this subdivision.  The commissioner 
  6.21  shall grant a license to any facility found to conform to 
  6.22  minimum standards or to any facility which, in the 
  6.23  commissioner's judgment, is making satisfactory progress toward 
  6.24  substantial conformity and the interests and well-being of the 
  6.25  persons detained or confined therein are protected.  The 
  6.26  commissioner may grant licensure up to two years.  The 
  6.27  commissioner shall have access to the buildings, grounds, books, 
  6.28  records, staff, and to persons detained or confined in these 
  6.29  facilities.  The commissioner may require the officers in charge 
  6.30  of these facilities to furnish all information and statistics 
  6.31  the commissioner deems necessary, at a time and place designated 
  6.32  by the commissioner.  The commissioner may require that any or 
  6.33  all such information be provided through the department of 
  6.34  corrections detention information system.  The education program 
  6.35  offered in a correctional facility for the detention or 
  6.36  confinement of juvenile offenders must be approved by the 
  7.1   commissioner of children, families, and learning before the 
  7.2   commissioner of corrections may grant a license to the facility. 
  7.3      (b) For juvenile facilities licensed by the commissioner of 
  7.4   human services, the commissioner of corrections may inspect and 
  7.5   certify programs based on certification standards set forth in 
  7.6   Minnesota Rules.  For the purpose of this paragraph, 
  7.7   "certification" has the meaning given it in section 245A.02, 
  7.8   subdivision 3a. 
  7.9      ~~(2)~~ (c) Any state agency which regulates, inspects, or 
  7.10  licenses certain aspects of correctional facilities shall, 
  7.11  insofar as is possible, ensure that the minimum standards it 
  7.12  requires are substantially the same as those required by other 
  7.13  state agencies which regulate, inspect, or license the same 
  7.14  aspects of similar types of correctional facilities, although at 
  7.15  different correctional facilities. 
  7.16     ~~(3)~~ (d) Nothing in this section shall be construed to limit 
  7.17  the commissioner of corrections' authority to promulgate rules 
  7.18  establishing standards of eligibility for counties to receive 
  7.19  funds under sections 401.01 to 401.16, or to require counties to 
  7.20  comply with operating standards the commissioner establishes as 
  7.21  a condition precedent for counties to receive that funding. 
  7.22     ~~(4)~~ (e) When the commissioner finds that any facility 
  7.23  described in ~~clause (1)~~ paragraph (a), except foster care 
  7.24  facilities for delinquent children and youth as provided in 
  7.25  subdivision 2, does not substantially conform to the minimum 
  7.26  standards established by the commissioner and is not making 
  7.27  satisfactory progress toward substantial conformance, the 
  7.28  commissioner shall promptly notify the chief executive officer 
  7.29  and the governing board of the facility of the deficiencies and 
  7.30  order that they be remedied within a reasonable period of time.  
  7.31  The commissioner may by written order restrict the use of any 
  7.32  facility which does not substantially conform to minimum 
  7.33  standards to prohibit the detention of any person therein for 
  7.34  more than 72 hours at one time.  When, after due notice and 
  7.35  hearing, the commissioner finds that any facility described in 
  7.36  this subdivision, except county jails and lockups as provided in 
  8.1   sections 641.26, 642.10, and 642.11, does not conform to minimum 
  8.2   standards, or is not making satisfactory progress toward 
  8.3   substantial compliance therewith, the commissioner may issue an 
  8.4   order revoking the license of that facility.  After revocation 
  8.5   of its license, that facility shall not be used until its 
  8.6   license is renewed.  When the commissioner is satisfied that 
  8.7   satisfactory progress towards substantial compliance with 
  8.8   minimum standard is being made, the commissioner may, at the 
  8.9   request of the appropriate officials of the affected facility 
  8.10  supported by a written schedule for compliance, grant an 
  8.11  extension of time for a period not to exceed one year. 
  8.12     ~~(5)~~ (f) As used in this subdivision, "correctional facility"
  8.13  means any facility, including a group home, having a residential 
  8.14  component, the primary purpose of which is to serve persons 
  8.15  placed therein by a court, court services department, parole 
  8.16  authority, or other correctional agency having dispositional 
  8.17  power over persons charged with, convicted, or adjudicated to be 
  8.18  guilty or delinquent. 
  8.19     Sec. 4.  Minnesota Statutes 2000, section 245A.02, 
  8.20  subdivision 1, is amended to read: 
  8.21     Subdivision 1.  [SCOPE.] The terms used in this chapter and 
  8.22  chapter 245B have the meanings given them in this section. 
  8.23     Sec. 5.  Minnesota Statutes 2000, section 245A.02, is 
  8.24  amended by adding a subdivision to read: 
  8.25     Subd. 3a.  [CERTIFICATION.] "Certification" means the 
  8.26  commissioner's written authorization for a license holder 
  8.27  licensed by the commissioner of human services or the 
  8.28  commissioner of corrections to serve children in a residential 
  8.29  program and provide specialized services based on certification 
  8.30  standards in Minnesota Rules.  The term "certification" and its 
  8.31  derivatives have the same meaning and may be substituted for the 
  8.32  term "licensure" and its derivatives in this chapter. 
  8.33     Sec. 6.  Minnesota Statutes 2000, section 245A.02, 
  8.34  subdivision 9, is amended to read: 
  8.35     Subd. 9.  [LICENSE HOLDER.] "License holder" means an 
  8.36  individual, corporation, partnership, voluntary association, or 
  9.1   other organization that is legally responsible for the operation 
  9.2   of the program, has been granted a license by the commissioner 
  9.3   under this chapter or chapter 245B and the rules of the 
  9.4   commissioner, and is a controlling individual. 
  9.5      Sec. 7.  Minnesota Statutes 2000, section 245A.03, 
  9.6   subdivision 2, is amended to read: 
  9.7      Subd. 2.  [EXCLUSION FROM LICENSURE.] This chapter does not 
  9.8   apply to: 
  9.9      (1) residential or nonresidential programs that are 
  9.10  provided to a person by an individual who is related unless the 
  9.11  residential program is a child foster care placement made by a 
  9.12  local social services agency or a licensed child-placing agency, 
  9.13  except as provided in subdivision 2a; 
  9.14     (2) nonresidential programs that are provided by an 
  9.15  unrelated individual to persons from a single related family; 
  9.16     (3) residential or nonresidential programs that are 
  9.17  provided to adults who do not abuse chemicals or who do not have 
  9.18  a chemical dependency, a mental illness, mental retardation or a 
  9.19  related condition, a functional impairment, or a physical 
  9.20  handicap; 
  9.21     (4) sheltered workshops or work activity programs that are 
  9.22  certified by the commissioner of economic security; 
  9.23     (5) programs for children enrolled in kindergarten to the 
  9.24  12th grade and prekindergarten special education in a school as 
  9.25  defined in section 120A.22, subdivision 4, and programs serving 
  9.26  children in combined special education and regular 
  9.27  prekindergarten programs that are operated or assisted by the 
  9.28  commissioner of children, families, and learning; 
  9.29     (6) nonresidential programs primarily for children that 
  9.30  provide care or supervision, without charge for ten or fewer 
  9.31  days a year, and for periods of less than three hours a day 
  9.32  while the child's parent or legal guardian is in the same 
  9.33  building as the nonresidential program or present within another 
  9.34  building that is directly contiguous to the building in which 
  9.35  the nonresidential program is located; 
  9.36     (7) nursing homes or hospitals licensed by the commissioner 
 10.1   of health except as specified under section 245A.02; 
 10.2      (8) board and lodge facilities licensed by the commissioner 
 10.3   of health that provide services for five or more persons whose 
 10.4   primary diagnosis is mental illness who have refused an 
 10.5   appropriate residential program offered by a county agency.  
 10.6   This exclusion expires on July 1, 1990; 
 10.7      (9) homes providing programs for persons placed there by a 
 10.8   licensed agency for legal adoption, unless the adoption is not 
 10.9   completed within two years; 
 10.10     (10) programs licensed by the commissioner of corrections; 
 10.11     (11) recreation programs for children or adults that 
 10.12  operate for fewer than 40 calendar days in a calendar year or 
 10.13  programs operated by a park and recreation board of a city of 
 10.14  the first class whose primary purpose is to provide social and 
 10.15  recreational activities to school age children, provided the 
 10.16  program is approved by the park and recreation board; 
 10.17     (12) programs operated by a school as defined in section 
 10.18  120A.22, subdivision 4, whose primary purpose is to provide 
 10.19  child care to school-age children, provided the program is 
 10.20  approved by the district's school board; 
 10.21     (13) Head Start nonresidential programs which operate for 
 10.22  less than 31 days in each calendar year; 
 10.23     (14) noncertified boarding care homes unless they provide 
 10.24  services for five or more persons whose primary diagnosis is 
 10.25  mental illness or mental retardation; 
 10.26     (15) nonresidential programs for nonhandicapped children 
 10.27  provided for a cumulative total of less than 30 days in any 
 10.28  12-month period; 
 10.29     (16) residential programs for persons with mental illness, 
 10.30  that are located in hospitals, until the commissioner adopts 
 10.31  appropriate rules; 
 10.32     (17) the religious instruction of school-age children; 
 10.33  Sabbath or Sunday schools; or the congregate care of children by 
 10.34  a church, congregation, or religious society during the period 
 10.35  used by the church, congregation, or religious society for its 
 10.36  regular worship; 
 11.1      (18) camps licensed by the commissioner of health under 
 11.2   Minnesota Rules, chapter 4630; 
 11.3      (19) mental health outpatient services for adults with 
 11.4   mental illness or children with emotional disturbance; 
 11.5      (20) residential programs serving school-age children whose 
 11.6   sole purpose is cultural or educational exchange, until the 
 11.7   commissioner adopts appropriate rules; 
 11.8      (21) unrelated individuals who provide out-of-home respite 
 11.9   care services to persons with mental retardation or related 
 11.10  conditions from a single related family for no more than 90 days 
 11.11  in a 12-month period and the respite care services are for the 
 11.12  temporary relief of the person's family or legal representative; 
 11.13     (22) respite care services provided as a home and 
 11.14  community-based service to a person with mental retardation or a 
 11.15  related condition, in the person's primary residence; 
 11.16     (23) community support services programs as defined in 
 11.17  section 245.462, subdivision 6, and family community support 
 11.18  services as defined in section 245.4871, subdivision 17; 
 11.19     (24) the placement of a child by a birth parent or legal 
 11.20  guardian in a preadoptive home for purposes of adoption as 
 11.21  authorized by section 259.47; ~~or~~ 
 11.22     (25) settings registered under chapter 144D which provide 
 11.23  home care services licensed by the commissioner of health to 
 11.24  fewer than seven adults~~.~~; or 
 11.25     (26) consumer-directed community support service funded 
 11.26  under the Medicaid waiver for persons with mental retardation 
 11.27  and related conditions when the individual who provided the 
 11.28  service is:  
 11.29     (i) the same individual who is the direct payee of these 
 11.30  specific waiver funds; and 
 11.31     (ii) not under the control of a residential or 
 11.32  nonresidential program that is required to be licensed under 
 11.33  this chapter when providing the service. 
 11.34     For purposes of clause (6), a building is directly 
 11.35  contiguous to a building in which a nonresidential program is 
 11.36  located if it shares a common wall with the building in which 
 12.1   the nonresidential program is located or is attached to that 
 12.2   building by skyway, tunnel, atrium, or common roof. 
 12.3      Sec. 8.  Minnesota Statutes 2000, section 245A.03, is 
 12.4   amended by adding a subdivision to read: 
 12.5      Subd. 6.  [RIGHT TO SEEK CERTIFICATION.] Nothing in this 
 12.6   section shall prohibit a residential program licensed by the 
 12.7   commissioner of corrections to serve children, that is excluded 
 12.8   from licensure under subdivision 2, clause (10), from seeking 
 12.9   certification from the commissioner of human services under this 
 12.10  chapter for program services for which certification standards 
 12.11  have been adopted. 
 12.12     Sec. 9.  Minnesota Statutes 2000, section 245A.035, 
 12.13  subdivision 1, is amended to read: 
 12.14     Subdivision 1.  [GRANT OF EMERGENCY LICENSE.] 
 12.15  Notwithstanding section 245A.03, subdivision 2a, a county agency 
 12.16  may place a child for foster care with a relative who is not 
 12.17  licensed to provide foster care, provided the requirements of 
 12.18  subdivision 2 are met.  As used in this section, the term 
 12.19  "relative" has the meaning given it under section ~~260.181,~~ 
 12.20  ~~subdivision 3~~ 260B.007, subdivision 12. 
 12.21     Sec. 10.  Minnesota Statutes 2000, section 245A.04, 
 12.22  subdivision 3, is amended to read: 
 12.23     Subd. 3.  [BACKGROUND STUDY OF THE APPLICANT; DEFINITIONS.] 
 12.24  (a) ~~Before the commissioner issues a license, the commissioner~~ 
 12.25  ~~shall conduct a study of the individuals specified in paragraph~~ 
 12.26  ~~(c), clauses (1) to (5), according to rules of the commissioner.~~ 
 12.27     ~~Beginning January 1, 1997, the commissioner shall also~~ 
 12.28  ~~conduct a study of employees providing direct contact services~~ 
 12.29  ~~for nonlicensed personal care provider organizations~~ Individuals 
 12.30  and organizations that are required in statute to initiate 
 12.31  background studies under this section shall comply with the 
 12.32  following requirements: 
 12.33     (1) Applicants for licensure, license holders, and other 
 12.34  entities as provided in this section must submit completed 
 12.35  background study forms to the commissioner before individuals 
 12.36  specified in paragraph (c), clauses (1) to (4), (6), and (7), 
 13.1   begin positions allowing direct contact in any licensed program. 
 13.2      (2) Applicants and license holders under the jurisdiction 
 13.3   of other state agencies who are required in other statutory 
 13.4   sections to initiate background studies under this section must 
 13.5   submit completed background study forms to the commissioner 
 13.6   prior to the background study subject beginning in a position 
 13.7   allowing direct contact in the licensed program, or where 
 13.8   applicable, prior to being employed. 
 13.9      (3) Organizations required to initiate background studies 
 13.10  under section 256B.0627 for individuals described in paragraph 
 13.11  (c), clause (5), must submit a completed background study form 
 13.12  to the commissioner before those individuals begin a position 
 13.13  allowing direct contact with persons served by the organization. 
 13.14  The commissioner shall recover the cost of these background 
 13.15  studies through a fee of no more than $12 per study charged to 
 13.16  the ~~personal care provider~~ organization responsible for 
 13.17  submitting the background study form.  
 13.18     ~~Beginning August 1, 1997,~~ Upon receipt of the background 
 13.19  study forms from the entities in clauses (1) to (3), the 
 13.20  commissioner shall ~~conduct all background studies required under~~ 
 13.21  ~~this chapter for adult foster care providers who are licensed by~~ 
 13.22  ~~the commissioner of human services and registered under chapter~~ 
 13.23  ~~144D.  The commissioner shall conduct these background studies~~ 
 13.24  ~~in accordance with this chapter.  The commissioner shall~~ 
 13.25  ~~initiate a pilot project to conduct up to 5,000 background~~ 
 13.26  ~~studies under this chapter~~ complete the background study as 
 13.27  specified under this section and provide notices required in 
 13.28  subdivision 3a.  Unless otherwise specified, the subject of a 
 13.29  background study may have direct contact with persons served by 
 13.30  a program after the background study form is mailed or submitted 
 13.31  to the commissioner pending notification of the study results 
 13.32  under subdivision 3a.  A county agency may accept a background 
 13.33  study completed by the commissioner under this section in place 
 13.34  of the background study required under section 245A.16, 
 13.35  subdivision 3, in programs with joint licensure as home and 
 13.36  community-based services and adult foster care for people with 
 14.1   developmental disabilities when the license holder does not 
 14.2   reside in the foster care residence and the subject of the study 
 14.3   has been continuously affiliated with the license holder since 
 14.4   the date of the commissioner's study. 
 14.5      (b) ~~Beginning July 1, 1998, the commissioner shall conduct~~ 
 14.6   ~~a background study on individuals specified in paragraph (c),~~ 
 14.7   ~~clauses (1) to (5), who perform direct contact services in a~~ 
 14.8   ~~nursing home or a home care agency licensed under chapter 144A~~ 
 14.9   ~~or a boarding care home licensed under sections 144.50 to~~ 
 14.10  ~~144.58, when the subject of the study resides outside Minnesota;~~ 
 14.11  ~~the study must be at least as comprehensive as that of a~~ 
 14.12  ~~Minnesota resident and include a search of information from the~~ 
 14.13  ~~criminal justice data communications network in the state where~~ 
 14.14  ~~the subject of the study resides~~ The definitions in this 
 14.15  paragraph apply to subdivisions 3 to 3e. 
 14.16     (1) "Background study" means the review of records 
 14.17  conducted by the commissioner to determine whether a subject is 
 14.18  disqualified from direct contact with persons served by a 
 14.19  program, and where specifically provided in statutes, whether a 
 14.20  subject is disqualified from having access to persons served by 
 14.21  a program. 
 14.22     (2) "Continuous, direct supervision" means an individual is 
 14.23  within sight or hearing of the supervising person to the extent 
 14.24  that supervising person is capable at all times of intervening 
 14.25  to protect the health and safety of the persons served by the 
 14.26  program. 
 14.27     (3) "Contractor" means any person, regardless of employer, 
 14.28  who is providing program services for hire under the control of 
 14.29  the provider. 
 14.30     (4) "Direct contact" means providing face-to-face care, 
 14.31  training, supervision, counseling, consultation, or medication 
 14.32  assistance to persons served by the program. 
 14.33     (5) "Reasonable cause" means information or circumstances 
 14.34  exist which provide the commissioner with articulable suspicion 
 14.35  that further pertinent information may exist concerning a 
 14.36  subject.  The commissioner has reasonable cause when, but not 
 15.1   limited to, the commissioner has received a report from the 
 15.2   subject, the license holder, or a third party indicating that 
 15.3   the subject has a history that would disqualify the person or 
 15.4   that may pose a risk to the health or safety of persons 
 15.5   receiving services. 
 15.6      (6) "Subject of a background study" means an individual on 
 15.7   whom a background study is required or completed. 
 15.8      (c) The applicant, license holder, the bureau of criminal 
 15.9   apprehension, the commissioner of health and county agencies, 
 15.10  after written notice to the individual who is the subject of the 
 15.11  study, shall help with the study by giving the commissioner 
 15.12  criminal conviction data and reports about the maltreatment of 
 15.13  adults substantiated under section 626.557 and the maltreatment 
 15.14  of minors in licensed programs substantiated under section 
 15.15  626.556.  The individuals to be studied shall include: 
 15.16     (1) the applicant; 
 15.17     (2) persons ~~over the~~ age ~~of~~ 13 and over living in the 
 15.18  household where the licensed program will be provided; 
 15.19     (3) current employees or contractors of the applicant who 
 15.20  will have direct contact with persons served by the facility, 
 15.21  agency, or program; 
 15.22     (4) volunteers or student volunteers who have direct 
 15.23  contact with persons served by the program to provide program 
 15.24  services, if the contact is not directly supervised by the 
 15.25  individuals listed in clause (1) or (3); ~~and~~ 
 15.26     (5) any person ~~who, as an individual or as a member of an~~ 
 15.27  ~~organization, exclusively offers, provides, or arranges for~~ 
 15.28  ~~personal care assistant services under the medical assistance~~ 
 15.29  ~~program as authorized under sections 256B.04, subdivision 16,~~ 
 15.30  ~~and 256B.0625, subdivision 19a.~~ required under section 256B.0627 
 15.31  to have a background study completed under this section; 
 15.32     (6) persons age 10 to 12 living in the household where the 
 15.33  licensed services will be provided when the commissioner has 
 15.34  reasonable cause; and 
 15.35     (7) persons who, without providing direct contact services 
 15.36  at a licensed program, may have unsupervised access to children 
 16.1   or vulnerable adults receiving services from the program 
 16.2   licensed to provide family child care for children, foster care 
 16.3   for children in the provider's own home, or foster care or day 
 16.4   care services for adults in the provider's own home when the 
 16.5   commissioner has reasonable cause. 
 16.6      (d) According to paragraph (c), clauses (2) and (6), the 
 16.7   commissioner shall review records from the juvenile courts.  For 
 16.8   persons under paragraph (c), clauses (1), (3), (4), (5), and 
 16.9   (7), who are ages 13 to 17, the commissioner shall review 
 16.10  records from the juvenile courts when the commissioner has 
 16.11  reasonable cause.  The juvenile courts shall ~~also~~ help with the 
 16.12  study by giving the commissioner existing juvenile court records 
 16.13  on individuals described in ~~clause~~ paragraph (c), clauses (2), 
 16.14  (6), and (7), relating to delinquency proceedings held within 
 16.15  either the five years immediately preceding the ~~application~~ 
 16.16  background study or the five years immediately preceding the 
 16.17  individual's 18th birthday, whichever time period is longer.  
 16.18  The commissioner shall destroy juvenile records obtained 
 16.19  pursuant to this subdivision when the subject of the records 
 16.20  reaches age 23. 
 16.21     (e) For purposes of this section ~~and Minnesota Rules, part~~ 
 16.22  ~~9543.3070~~, a finding that a delinquency petition is proven in 
 16.23  juvenile court shall be considered a conviction in state 
 16.24  district court. 
 16.25     ~~For purposes of this subdivision, "direct contact" means~~ 
 16.26  ~~providing face-to-face care, training, supervision, counseling,~~ 
 16.27  ~~consultation, or medication assistance to persons served by a~~ 
 16.28  ~~program.  For purposes of this subdivision, "directly supervised"~~
 16.29  ~~means an individual listed in clause (1), (3), or (5) is within~~ 
 16.30  ~~sight or hearing of a volunteer to the extent that the~~ 
 16.31  ~~individual listed in clause (1), (3), or (5) is capable at all~~ 
 16.32  ~~times of intervening to protect the health and safety of the~~ 
 16.33  ~~persons served by the program who have direct contact with the~~ 
 16.34  ~~volunteer.~~ 
 16.35     (f) A study of an individual in paragraph (c), clauses (1) 
 16.36  to ~~(5)~~ (7), shall be conducted at least upon application for 
 17.1   initial license for all license types and at reapplication for a 
 17.2   license for family child care, child foster care, and adult 
 17.3   foster care.  The commissioner is not required to conduct a 
 17.4   study of an individual at the time of reapplication for a 
 17.5   license or if the individual has been continuously affiliated 
 17.6   with a foster care provider licensed by the commissioner of 
 17.7   human services and registered under chapter 144D, other than a 
 17.8   family day care or foster care license, if:  (i) a study of the 
 17.9   individual was conducted either at the time of initial licensure 
 17.10  or when the individual became affiliated with the license 
 17.11  holder; (ii) the individual has been continuously affiliated 
 17.12  with the license holder since the last study was conducted; and 
 17.13  (iii) the procedure described in paragraph ~~(d)~~ (i) has been 
 17.14  implemented and was in effect continuously since the last study 
 17.15  was conducted.  For the purposes of this section, a physician 
 17.16  licensed under chapter 147 is considered to be continuously 
 17.17  affiliated upon the license holder's receipt from the 
 17.18  commissioner of health or human services of the physician's 
 17.19  background study results.  For individuals who are required to 
 17.20  have background studies under ~~clauses (1) to (5)~~ paragraph (c) 
 17.21  and who have been continuously affiliated with a foster care 
 17.22  provider that is licensed in more than one county, criminal 
 17.23  conviction data may be shared among those counties in which the 
 17.24  foster care programs are licensed.  A county agency's receipt of 
 17.25  criminal conviction data from another county agency shall meet 
 17.26  the criminal data background study requirements of this section. 
 17.27     (g) The commissioner may also conduct studies on 
 17.28  individuals specified in paragraph (c), clauses (3) and (4), 
 17.29  when the studies are initiated by: 
 17.30     (i) personnel pool agencies; 
 17.31     (ii) temporary personnel agencies; 
 17.32     (iii) educational programs that train persons by providing 
 17.33  direct contact services in licensed programs; and 
 17.34     (iv) professional services agencies that are not licensed 
 17.35  and which contract with licensed programs to provide direct 
 17.36  contact services or individuals who provide direct contact 
 18.1   services. 
 18.2      (h) Studies on individuals in paragraph (g), items (i) to 
 18.3   (iv), must be initiated annually by these agencies, programs, 
 18.4   and individuals.  Except ~~for personal care provider~~ 
 18.5   ~~organizations~~ as provided in paragraph (a), clause (3), no 
 18.6   applicant, license holder, or individual who is the subject of 
 18.7   the study shall pay any fees required to conduct the study. 
 18.8      (1) At the option of the licensed facility, rather than 
 18.9   initiating another background study on an individual required to 
 18.10  be studied who has indicated to the licensed facility that a 
 18.11  background study by the commissioner was previously completed, 
 18.12  the facility may make a request to the commissioner for 
 18.13  documentation of the individual's background study status, 
 18.14  provided that: 
 18.15     (i) the facility makes this request using a form provided 
 18.16  by the commissioner; 
 18.17     (ii) in making the request the facility informs the 
 18.18  commissioner that either: 
 18.19     (A) the individual has been continuously affiliated with a 
 18.20  licensed facility since the individual's previous background 
 18.21  study was completed, or since October 1, 1995, whichever is 
 18.22  shorter; or 
 18.23     (B) the individual is affiliated only with a personnel pool 
 18.24  agency, a temporary personnel agency, an educational program 
 18.25  that trains persons by providing direct contact services in 
 18.26  licensed programs, or a professional services agency that is not 
 18.27  licensed and which contracts with licensed programs to provide 
 18.28  direct contact services or individuals who provide direct 
 18.29  contact services; and 
 18.30     (iii) the facility provides notices to the individual as 
 18.31  required in paragraphs (a) to ~~(d)~~ (i), and that the facility is 
 18.32  requesting written notification of the individual's background 
 18.33  study status from the commissioner.  
 18.34     (2) The commissioner shall respond to each request under 
 18.35  paragraph (1) with a written or electronic notice to the 
 18.36  facility and the study subject.  If the commissioner determines 
 19.1   that a background study is necessary, the study shall be 
 19.2   completed without further request from a licensed agency or 
 19.3   notifications to the study subject.  
 19.4      (3) When a background study is being initiated by a 
 19.5   licensed facility or a foster care provider that is also 
 19.6   registered under chapter 144D, a study subject affiliated with 
 19.7   multiple licensed facilities may attach to the background study 
 19.8   form a cover letter indicating the additional facilities' names, 
 19.9   addresses, and background study identification numbers.  When 
 19.10  the commissioner receives such notices, each facility identified 
 19.11  by the background study subject shall be notified of the study 
 19.12  results.  The background study notice sent to the subsequent 
 19.13  agencies shall satisfy those facilities' responsibilities for 
 19.14  initiating a background study on that individual. 
 19.15     ~~(d)~~ (i) If an individual who is affiliated with a program 
 19.16  or facility regulated by the department of human services or 
 19.17  department of health or who is affiliated with ~~a nonlicensed~~ 
 19.18  ~~personal care provider organization~~ any type of home care agency 
 19.19  or provider of personal care assistance services, is convicted 
 19.20  of a crime constituting a disqualification under subdivision 3d, 
 19.21  the probation officer or corrections agent shall notify the 
 19.22  commissioner of the conviction.  For the purpose of this 
 19.23  paragraph, "conviction" has the meaning given it in section 
 19.24  609.02, subdivision 5.  The commissioner, in consultation with 
 19.25  the commissioner of corrections, shall develop forms and 
 19.26  information necessary to implement this paragraph and shall 
 19.27  provide the forms and information to the commissioner of 
 19.28  corrections for distribution to local probation officers and 
 19.29  corrections agents.  The commissioner shall inform individuals 
 19.30  subject to a background study that criminal convictions for 
 19.31  disqualifying crimes will be reported to the commissioner by the 
 19.32  corrections system.  A probation officer, corrections agent, or 
 19.33  corrections agency is not civilly or criminally liable for 
 19.34  disclosing or failing to disclose the information required by 
 19.35  this paragraph.  Upon receipt of disqualifying information, the 
 19.36  commissioner shall provide the notifications required in 
 20.1   subdivision 3a, as appropriate to agencies on record as having 
 20.2   initiated a background study or making a request for 
 20.3   documentation of the background study status of the individual.  
 20.4   This paragraph does not apply to family day care and child 
 20.5   foster care programs. 
 20.6      ~~(e)~~ (j) The individual who is the subject of the study must 
 20.7   provide the applicant or license holder with sufficient 
 20.8   information to ensure an accurate study including the 
 20.9   individual's first, middle, and last name and all other names by 
 20.10  which the individual has been known; home address, city, county, 
 20.11  and state of residence for the past five years; zip code; sex; 
 20.12  date of birth; and driver's license number or state 
 20.13  identification number.  The applicant or license holder shall 
 20.14  provide this information about an individual in paragraph (c), 
 20.15  clauses (1) to ~~(5)~~ (7), on forms prescribed by the commissioner. 
 20.16  By January 1, 2000, for background studies conducted by the 
 20.17  department of human services, the commissioner shall implement a 
 20.18  system for the electronic transmission of:  (1) background study 
 20.19  information to the commissioner; and (2) background study 
 20.20  results to the license holder.  The commissioner may request 
 20.21  additional information of the individual, which shall be 
 20.22  optional for the individual to provide, such as the individual's 
 20.23  social security number or race. 
 20.24     ~~(f) Except for child foster care, adult foster care, and~~ 
 20.25  ~~family day care homes~~ (k) For programs directly licensed by the 
 20.26  commissioner, a study must include information related to names 
 20.27  of substantiated perpetrators of maltreatment of vulnerable 
 20.28  adults that has been received by the commissioner as required 
 20.29  under section 626.557, subdivision 9c, paragraph (i), and the 
 20.30  commissioner's records relating to the maltreatment of minors in 
 20.31  licensed programs, information from juvenile courts as required 
 20.32  in paragraph (c) for persons listed in paragraph (c), 
 20.33  ~~clause~~ clauses (2), (6), and (7), and information from the 
 20.34  bureau of criminal apprehension.  For child foster care, adult 
 20.35  foster care, and family day care homes, the study must include 
 20.36  information from the county agency's record of substantiated 
 21.1   maltreatment of adults, and the maltreatment of minors, 
 21.2   information from juvenile courts as required in paragraph (c) 
 21.3   for persons listed in paragraph (c), ~~clause~~ clauses (2), (6), 
 21.4   and (7), and information from the bureau of criminal 
 21.5   apprehension.  The commissioner may also review arrest and 
 21.6   investigative information from the bureau of criminal 
 21.7   apprehension, the commissioner of health, a county attorney, 
 21.8   county sheriff, county agency, local chief of police, other 
 21.9   states, the courts, or the Federal Bureau of Investigation if 
 21.10  the commissioner has reasonable cause to believe the information 
 21.11  is pertinent to the disqualification of an individual listed in 
 21.12  paragraph (c), clauses (1) to ~~(5)~~ (7).  The commissioner is not 
 21.13  required to conduct more than one review of a subject's records 
 21.14  from the Federal Bureau of Investigation if a review of the 
 21.15  subject's criminal history with the Federal Bureau of 
 21.16  Investigation has already been completed by the commissioner and 
 21.17  there has been no break in the subject's affiliation with the 
 21.18  license holder who initiated the background ~~studies~~ study. 
 21.19     (l) When the commissioner has reasonable cause to believe 
 21.20  that further pertinent information may exist on the subject, the 
 21.21  subject shall provide a set of classifiable fingerprints 
 21.22  obtained from an authorized law enforcement agency.  For 
 21.23  purposes of requiring fingerprints, the commissioner shall be 
 21.24  considered to have reasonable cause under, but not limited to, 
 21.25  the following circumstances: 
 21.26     (1) information from the bureau of criminal apprehension 
 21.27  indicates that the subject is a multistate offender; 
 21.28     (2) information from the bureau of criminal apprehension 
 21.29  indicates that multistate offender status is undetermined; or 
 21.30     (3) the commissioner has received a report from the subject 
 21.31  or a third party indicating that the subject has a criminal 
 21.32  history in a jurisdiction other than Minnesota. 
 21.33     ~~(g)~~ (m) An applicant's or license holder's failure or 
 21.34  refusal to cooperate with the commissioner is reasonable cause 
 21.35  to disqualify a subject, deny a license application or 
 21.36  immediately suspend, suspend, or revoke a license.  Failure or 
 22.1   refusal of an individual to cooperate with the study is just 
 22.2   cause for denying or terminating employment of the individual if 
 22.3   the individual's failure or refusal to cooperate could cause the 
 22.4   applicant's application to be denied or the license holder's 
 22.5   license to be immediately suspended, suspended, or revoked. 
 22.6      ~~(h)~~ (n) The commissioner shall not consider an application 
 22.7   to be complete until all of the information required to be 
 22.8   provided under this subdivision has been received.  
 22.9      ~~(i)~~ (o) No person in paragraph (c), ~~clause~~ clauses (1)~~,~~ 
 22.10  ~~(2), (3), (4), or (5)~~ to (7), who is disqualified as a result of 
 22.11  this section may be retained by the agency in a position 
 22.12  involving direct contact with persons served by the program~~.~~ or 
 22.13  in a position allowing access to persons served by the program 
 22.14  as provided for in statutes, unless the commissioner has 
 22.15  provided written notice to the agency stating that: 
 22.16     (1) the individual may remain in direct contact during the 
 22.17  period in which the individual may request reconsideration as 
 22.18  provided in subdivision 3a, paragraph (b), clause (2) or (3); 
 22.19     (2) the individual's disqualification has been set aside 
 22.20  for that agency as provided in subdivision 3b, paragraph (b); or 
 22.21     (3) the license holder has been granted a variance for the 
 22.22  disqualified individual under subdivision 3e. 
 22.23     ~~(j)~~ (p) Termination of persons in paragraph (c), ~~clause~~ 
 22.24  clauses (1)~~, (2), (3), (4), or (5)~~ to (7), made in good faith 
 22.25  reliance on a notice of disqualification provided by the 
 22.26  commissioner shall not subject the applicant or license holder 
 22.27  to civil liability. 
 22.28     ~~(k)~~ (q) The commissioner may establish records to fulfill 
 22.29  the requirements of this section. 
 22.30     ~~(l)~~ (r) The commissioner may not disqualify an individual 
 22.31  subject to a study under this section because that person has, 
 22.32  or has had, a mental illness as defined in section 245.462, 
 22.33  subdivision 20. 
 22.34     ~~(m)~~ (s) An individual subject to disqualification under 
 22.35  this subdivision has the applicable rights in subdivision 3a, 
 22.36  3b, or 3c. 
 23.1      ~~(n)~~ (t) For the purposes of background studies completed by 
 23.2   tribal organizations performing licensing activities otherwise 
 23.3   required of the commissioner under this chapter, after obtaining 
 23.4   consent from the background study subject, tribal licensing 
 23.5   agencies shall have access to criminal history data in the same 
 23.6   manner as county licensing agencies and private licensing 
 23.7   agencies under this chapter. 
 23.8      Sec. 11.  Minnesota Statutes 2000, section 245A.04, 
 23.9   subdivision 3a, is amended to read: 
 23.10     Subd. 3a.  [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF 
 23.11  STUDY RESULTS; DETERMINATION OF RISK OF HARM.] (a) Within 15 
 23.12  working days, the commissioner shall notify the applicant or 
 23.13  license holder and the individual who is the subject of the 
 23.14  study, in writing or by electronic transmission, of the results 
 23.15  of the study or that more time is needed to complete the study.  
 23.16  When the study is completed, a notice that the study was 
 23.17  undertaken and completed shall be maintained in the personnel 
 23.18  files of the program.  For studies on individuals pertaining to 
 23.19  a license to provide family day care or group family day care, 
 23.20  foster care for children in the provider's own home, or foster 
 23.21  care or day care services for adults in the provider's own home, 
 23.22  the commissioner is not required to provide a separate notice of 
 23.23  the background study results to the individual who is the 
 23.24  subject of the study unless the study results in a 
 23.25  disqualification of the individual. 
 23.26     The commissioner shall notify the individual studied if the 
 23.27  information in the study indicates the individual is 
 23.28  disqualified from direct contact with persons served by the 
 23.29  program.  The commissioner shall disclose the information 
 23.30  causing disqualification and instructions on how to request a 
 23.31  reconsideration of the disqualification to the individual 
 23.32  studied.  An applicant or license holder who is not the subject 
 23.33  of the study shall be informed that the commissioner has found 
 23.34  information that disqualifies the subject from direct contact 
 23.35  with persons served by the program.  However, only the 
 23.36  individual studied must be informed of the information contained 
 24.1   in the subject's background study unless the only basis for the 
 24.2   disqualification is failure to cooperate, the Data Practices Act 
 24.3   provides for release of the information, or the individual 
 24.4   studied authorizes the release of the information.  
 24.5      (b) If the commissioner determines that the individual 
 24.6   studied has a disqualifying characteristic, the commissioner 
 24.7   shall review the information immediately available and make a 
 24.8   determination as to the subject's immediate risk of harm to 
 24.9   persons served by the program where the individual studied will 
 24.10  have direct contact.  The commissioner shall consider all 
 24.11  relevant information available, including the following factors 
 24.12  in determining the immediate risk of harm:  the recency of the 
 24.13  disqualifying characteristic; the recency of discharge from 
 24.14  probation for the crimes; the number of disqualifying 
 24.15  characteristics; the intrusiveness or violence of the 
 24.16  disqualifying characteristic; the vulnerability of the victim 
 24.17  involved in the disqualifying characteristic; and the similarity 
 24.18  of the victim to the persons served by the program where the 
 24.19  individual studied will have direct contact.  The commissioner 
 24.20  may determine that the evaluation of the information immediately 
 24.21  available gives the commissioner reason to believe one of the 
 24.22  following: 
 24.23     (1) The individual poses an imminent risk of harm to 
 24.24  persons served by the program where the individual studied will 
 24.25  have direct contact.  If the commissioner determines that an 
 24.26  individual studied poses an imminent risk of harm to persons 
 24.27  served by the program where the individual studied will have 
 24.28  direct contact, the individual and the license holder must be 
 24.29  sent a notice of disqualification.  The commissioner shall order 
 24.30  the license holder to immediately remove the individual studied 
 24.31  from direct contact.  The notice to the individual studied must 
 24.32  include an explanation of the basis of this determination. 
 24.33     (2) The individual poses a risk of harm requiring 
 24.34  continuous, direct supervision while providing direct contact 
 24.35  services during the period in which the subject may request a 
 24.36  reconsideration.  If the commissioner determines that an 
 25.1   individual studied poses a risk of harm that requires 
 25.2   continuous, direct supervision, the individual and the license 
 25.3   holder must be sent a notice of disqualification.  The 
 25.4   commissioner shall order the license holder to immediately 
 25.5   remove the individual studied from direct contact services or 
 25.6   assure that the individual studied is within sight or hearing of 
 25.7   another staff person when providing direct contact services 
 25.8   during the period in which the individual may request a 
 25.9   reconsideration of the disqualification.  If the individual 
 25.10  studied does not submit a timely request for reconsideration, or 
 25.11  the individual submits a timely request for reconsideration, but 
 25.12  the disqualification is not set aside for that license holder, 
 25.13  the license holder will be notified of the disqualification and 
 25.14  ordered to immediately remove the individual from any position 
 25.15  allowing direct contact with persons receiving services from the 
 25.16  license holder. 
 25.17     (3) The individual does not pose an imminent risk of harm 
 25.18  or a risk of harm requiring continuous, direct supervision while 
 25.19  providing direct contact services during the period in which the 
 25.20  subject may request a reconsideration.  If the commissioner 
 25.21  determines that an individual studied does not pose a risk of 
 25.22  harm that requires continuous, direct supervision, only the 
 25.23  individual must be sent a notice of disqualification.  The 
 25.24  license holder must be sent a notice that more time is needed to 
 25.25  complete the individual's background study.  If the individual 
 25.26  studied submits a timely request for reconsideration, and if the 
 25.27  disqualification is set aside for that license holder, the 
 25.28  license holder will receive the same notification received by 
 25.29  license holders in cases where the individual studied has no 
 25.30  disqualifying characteristic.  If the individual studied does 
 25.31  not submit a timely request for reconsideration, or the 
 25.32  individual submits a timely request for reconsideration, but the 
 25.33  disqualification is not set aside for that license holder, the 
 25.34  license holder will be notified of the disqualification and 
 25.35  ordered to immediately remove the individual from any position 
 25.36  allowing direct contact with persons receiving services from the 
 26.1   license holder.  
 26.2      (c) County licensing agencies performing duties under this 
 26.3   subdivision may develop an alternative system for determining 
 26.4   the subject's immediate risk of harm to persons served by the 
 26.5   program, providing the notices under paragraph (b), and 
 26.6   documenting the action taken by the county licensing agency.  
 26.7   Each county licensing agency's implementation of the alternative 
 26.8   system is subject to approval by the commissioner.  
 26.9   Notwithstanding this alternative system, county licensing 
 26.10  agencies shall complete the requirements of paragraph (a). 
 26.11     Sec. 12.  Minnesota Statutes 2000, section 245A.04, 
 26.12  subdivision 3b, is amended to read: 
 26.13     Subd. 3b.  [RECONSIDERATION OF DISQUALIFICATION.] (a) The 
 26.14  individual who is the subject of the disqualification may 
 26.15  request a reconsideration of the disqualification.  
 26.16     The individual must submit the request for reconsideration 
 26.17  to the commissioner in writing.  A request for reconsideration 
 26.18  for an individual who has been sent a notice of disqualification 
 26.19  under subdivision 3a, paragraph (b), clause (1) or (2), must be 
 26.20  submitted within 30 calendar days of the disqualified 
 26.21  individual's receipt of the notice of disqualification.  Upon 
 26.22  showing that the information in clause (1) or (2) cannot be 
 26.23  obtained within 30 days, the disqualified individual may request 
 26.24  additional time, not to exceed 30 days, to obtain that 
 26.25  information.  A request for reconsideration for an individual 
 26.26  who has been sent a notice of disqualification under subdivision 
 26.27  3a, paragraph (b), clause (3), must be submitted within 15 
 26.28  calendar days of the disqualified individual's receipt of the 
 26.29  notice of disqualification.  Removal of a disqualified 
 26.30  individual from direct contact shall be ordered if the 
 26.31  individual does not request reconsideration within the 
 26.32  prescribed time, and for an individual who submits a timely 
 26.33  request for reconsideration, if the disqualification is not set 
 26.34  aside.  The individual must present information showing that: 
 26.35     (1) the information the commissioner relied upon is 
 26.36  incorrect or inaccurate.  If the basis of a reconsideration 
 27.1   request is that a maltreatment determination or disposition 
 27.2   under section 626.556 or 626.557 is incorrect, and the 
 27.3   commissioner has issued a final order in an appeal of that 
 27.4   determination or disposition under section 256.045, the 
 27.5   commissioner's order is conclusive on the issue of maltreatment; 
 27.6   or 
 27.7      (2) the subject of the study does not pose a risk of harm 
 27.8   to any person served by the applicant or license holder. 
 27.9      (b) The commissioner shall rescind the disqualification if 
 27.10  the commissioner finds that the information relied on to 
 27.11  disqualify the subject is incorrect.  The commissioner may set 
 27.12  aside the disqualification under this section if the 
 27.13  commissioner finds that the ~~information the commissioner relied~~ 
 27.14  ~~upon is incorrect or the~~ individual does not pose a risk of harm 
 27.15  to any person served by the applicant or license holder.  In 
 27.16  determining that an individual does not pose a risk of harm, the 
 27.17  commissioner shall consider the nature, severity, and 
 27.18  consequences of the event or events that lead to 
 27.19  disqualification, whether there is more than one disqualifying 
 27.20  event, the age and vulnerability of the victim at the time of 
 27.21  the event, the harm suffered by the victim, the similarity 
 27.22  between the victim and persons served by the program, the time 
 27.23  elapsed without a repeat of the same or similar event, 
 27.24  documentation of successful completion by the individual studied 
 27.25  of training or rehabilitation pertinent to the event, and any 
 27.26  other information relevant to reconsideration.  In reviewing a 
 27.27  disqualification under this section, the commissioner shall give 
 27.28  preeminent weight to the safety of each person to be served by 
 27.29  the license holder or applicant over the interests of the 
 27.30  license holder or applicant. 
 27.31     (c) Unless the information the commissioner relied on in 
 27.32  disqualifying an individual is incorrect, the commissioner may 
 27.33  not set aside the disqualification of an individual in 
 27.34  connection with a license to provide family day care for 
 27.35  children, foster care for children in the provider's own home, 
 27.36  or foster care or day care services for adults in the provider's 
 28.1   own home if: 
 28.2      (1) less than ten years have passed since the discharge of 
 28.3   the sentence imposed for the offense; and the individual has 
 28.4   been convicted of a violation of any offense listed in sections 
 28.5   609.20 (manslaughter in the first degree), 609.205 (manslaughter 
 28.6   in the second degree), criminal vehicular homicide under 609.21 
 28.7   (criminal vehicular homicide and injury), 609.215 (aiding 
 28.8   suicide or aiding attempted suicide), felony violations under 
 28.9   609.221 to 609.2231 (assault in the first, second, third, or 
 28.10  fourth degree), 609.713 (terroristic threats), 609.235 (use of 
 28.11  drugs to injure or to facilitate crime), 609.24 (simple 
 28.12  robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 
 28.13  609.255 (false imprisonment), 609.561 or 609.562 (arson in the 
 28.14  first or second degree), 609.71 (riot), burglary in the first or 
 28.15  second degree under 609.582 (burglary), 609.66 (dangerous 
 28.16  weapon), 609.665 (spring guns), 609.67 (machine guns and 
 28.17  short-barreled shotguns), 609.749 (harassment; stalking), 
 28.18  152.021 or 152.022 (controlled substance crime in the first or 
 28.19  second degree), 152.023, subdivision 1, clause (3) or (4), or 
 28.20  subdivision 2, clause (4) (controlled substance crime in the 
 28.21  third degree), 152.024, subdivision 1, clause (2), (3), or (4) 
 28.22  (controlled substance crime in the fourth degree), 609.224, 
 28.23  subdivision 2, paragraph (c) (fifth-degree assault by a 
 28.24  caregiver against a vulnerable adult), 609.228 (great bodily 
 28.25  harm caused by distribution of drugs), 609.23 (mistreatment of 
 28.26  persons confined), 609.231 (mistreatment of residents or 
 28.27  patients), 609.2325 (criminal abuse of a vulnerable adult), 
 28.28  609.233 (criminal neglect of a vulnerable adult), 609.2335 
 28.29  (financial exploitation of a vulnerable adult), 609.234 (failure 
 28.30  to report), 609.265 (abduction), 609.2664 to 609.2665 
 28.31  (manslaughter of an unborn child in the first or second degree), 
 28.32  609.267 to 609.2672 (assault of an unborn child in the first, 
 28.33  second, or third degree), 609.268 (injury or death of an unborn 
 28.34  child in the commission of a crime), 617.293 (disseminating or 
 28.35  displaying harmful material to minors), a felony level 
 28.36  conviction involving alcohol or drug use, a gross misdemeanor 
 29.1   offense under 609.324, subdivision 1 (other prohibited acts), a 
 29.2   gross misdemeanor offense under 609.378 (neglect or endangerment 
 29.3   of a child), a gross misdemeanor offense under 609.377 
 29.4   (malicious punishment of a child), 609.72, subdivision 3 
 29.5   (disorderly conduct against a vulnerable adult); or an attempt 
 29.6   or conspiracy to commit any of these offenses, as each of these 
 29.7   offenses is defined in Minnesota Statutes; or an offense in any 
 29.8   other state, the elements of which are substantially similar to 
 29.9   the elements of any of the foregoing offenses; 
 29.10     (2) regardless of how much time has passed since the 
 29.11  involuntary termination of parental rights under section 
 29.12  260C.301 or the discharge of the sentence imposed for the 
 29.13  offense, the individual was convicted of a violation of any 
 29.14  offense listed in sections 609.185 to 609.195 (murder in the 
 29.15  first, second, or third degree), 609.2661 to 609.2663 (murder of 
 29.16  an unborn child in the first, second, or third degree), a felony 
 29.17  offense under 609.377 (malicious punishment of a child), a 
 29.18  felony offense under 609.324, subdivision 1 (other prohibited 
 29.19  acts), a felony offense under 609.378 (neglect or endangerment 
 29.20  of a child), 609.322 (solicitation, inducement, and promotion of 
 29.21  prostitution), 609.342 to 609.345 (criminal sexual conduct in 
 29.22  the first, second, third, or fourth degree), 609.352 
 29.23  (solicitation of children to engage in sexual conduct), 617.246 
 29.24  (use of minors in a sexual performance), 617.247 (possession of 
 29.25  pictorial representations of a minor), 609.365 (incest), a 
 29.26  felony offense under sections 609.2242 and 609.2243 (domestic 
 29.27  assault), a felony offense of spousal abuse, a felony offense of 
 29.28  child abuse or neglect, a felony offense of a crime against 
 29.29  children, or an attempt or conspiracy to commit any of these 
 29.30  offenses as defined in Minnesota Statutes, or an offense in any 
 29.31  other state, the elements of which are substantially similar to 
 29.32  any of the foregoing offenses; 
 29.33     (3) within the seven years preceding the study, the 
 29.34  individual committed an act that constitutes maltreatment of a 
 29.35  child under section 626.556, subdivision 10e, and that resulted 
 29.36  in substantial bodily harm as defined in section 609.02, 
 30.1   subdivision 7a, or substantial mental or emotional harm as 
 30.2   supported by competent psychological or psychiatric evidence; or 
 30.3      (4) within the seven years preceding the study, the 
 30.4   individual was determined under section 626.557 to be the 
 30.5   perpetrator of a substantiated incident of maltreatment of a 
 30.6   vulnerable adult that resulted in substantial bodily harm as 
 30.7   defined in section 609.02, subdivision 7a, or substantial mental 
 30.8   or emotional harm as supported by competent psychological or 
 30.9   psychiatric evidence. 
 30.10     In the case of any ground for disqualification under 
 30.11  clauses (1) to (4), if the act was committed by an individual 
 30.12  other than the applicant or license holder residing in the 
 30.13  applicant's or license holder's home, the applicant or license 
 30.14  holder may seek reconsideration when the individual who 
 30.15  committed the act no longer resides in the home.  
 30.16     The disqualification periods provided under clauses (1), 
 30.17  (3), and (4) are the minimum applicable disqualification 
 30.18  periods.  The commissioner may determine that an individual 
 30.19  should continue to be disqualified from licensure because the 
 30.20  license holder or applicant poses a risk of harm to a person 
 30.21  served by that individual after the minimum disqualification 
 30.22  period has passed. 
 30.23     (d) The commissioner shall respond in writing or by 
 30.24  electronic transmission to all reconsideration requests for 
 30.25  which the basis for the request is that the information relied 
 30.26  upon by the commissioner to disqualify is incorrect or 
 30.27  inaccurate within 30 working days of receipt of a request and 
 30.28  all relevant information.  If the basis for the request is that 
 30.29  the individual does not pose a risk of harm, the commissioner 
 30.30  shall respond to the request within 15 working days after 
 30.31  receiving the request for reconsideration and all relevant 
 30.32  information.  If the disqualification is set aside, the 
 30.33  commissioner shall notify the applicant or license holder in 
 30.34  writing or by electronic transmission of the decision. 
 30.35     (e) Except as provided in subdivision 3c, the 
 30.36  commissioner's decision to ~~disqualify an individual, including~~ 
 31.1   ~~the decision to~~ grant or deny a rescission or set aside a 
 31.2   disqualification under this section, is the final administrative 
 31.3   agency action and shall not be subject to further review in a 
 31.4   contested case under chapter 14 involving a negative licensing 
 31.5   appeal taken in response to the disqualification or involving an 
 31.6   accuracy and completeness appeal under section 13.04. 
 31.7      Sec. 13.  Minnesota Statutes 2000, section 245A.04, 
 31.8   subdivision 3d, is amended to read: 
 31.9      Subd. 3d.  [DISQUALIFICATION.] ~~(a) Except as provided in~~ 
 31.10  ~~paragraph (b),~~ Upon receipt of information showing, or when a 
 31.11  background study completed under subdivision 3 shows any of the 
 31.12  following:  a conviction of one or more crimes listed in clauses 
 31.13  (1) to (4); the individual has admitted to or a preponderance of 
 31.14  the evidence indicates the individual has committed an act or 
 31.15  acts that meet the definition of any of the crimes listed in 
 31.16  clauses (1) to (4); or an administrative determination listed 
 31.17  under clause (4), the individual shall be disqualified from any 
 31.18  position allowing direct contact with persons receiving services 
 31.19  from the license holder or entity identified in subdivision 3, 
 31.20  paragraph (a): 
 31.21     (1) regardless of how much time has passed since the 
 31.22  involuntary termination of parental rights under section 
 31.23  260C.301 or the discharge of the sentence imposed for the 
 31.24  offense, and unless otherwise specified, regardless of the level 
 31.25  of the conviction, the individual was convicted of any of the 
 31.26  following offenses:  sections 609.185 (murder in the first 
 31.27  degree); 609.19 (murder in the second degree); 609.195 (murder 
 31.28  in the third degree); 609.2661 (murder of an unborn child in the 
 31.29  first degree); 609.2662 (murder of an unborn child in the second 
 31.30  degree); 609.2663 (murder of an unborn child in the third 
 31.31  degree); 609.322 (solicitation, inducement, and promotion of 
 31.32  prostitution); 609.342 (criminal sexual conduct in the first 
 31.33  degree); 609.343 (criminal sexual conduct in the second degree); 
 31.34  609.344 (criminal sexual conduct in the third degree); 609.345 
 31.35  (criminal sexual conduct in the fourth degree); 609.352 
 31.36  (solicitation of children to engage in sexual conduct); 609.365 
 32.1   (incest); felony offense under 609.377 (malicious punishment of 
 32.2   a child); a felony offense under 609.378 (neglect or 
 32.3   endangerment of a child); a felony offense under 609.324, 
 32.4   subdivision 1 (other prohibited acts); 617.246 (use of minors in 
 32.5   sexual performance prohibited); 617.247 (possession of pictorial 
 32.6   representations of minors); a felony offense under sections 
 32.7   609.2242 and 609.2243 (domestic assault), a felony offense of 
 32.8   spousal abuse, a felony offense of child abuse or neglect, a 
 32.9   felony offense of a crime against children; or attempt or 
 32.10  conspiracy to commit any of these offenses as defined in 
 32.11  Minnesota Statutes, or an offense in any other state or country, 
 32.12  where the elements are substantially similar to any of the 
 32.13  offenses listed in this clause; 
 32.14     (2) if less than 15 years have passed since the discharge 
 32.15  of the sentence imposed for the offense; and the individual has 
 32.16  received a felony conviction for a violation of any of these 
 32.17  offenses:  sections 609.20 (manslaughter in the first degree); 
 32.18  609.205 (manslaughter in the second degree); 609.21 (criminal 
 32.19  vehicular homicide and injury); 609.215 (suicide); 609.221 to 
 32.20  609.2231 (assault in the first, second, third, or fourth 
 32.21  degree); repeat offenses under 609.224 (assault in the fifth 
 32.22  degree); repeat offenses under 609.3451 (criminal sexual conduct 
 32.23  in the fifth degree); 609.713 (terroristic threats); 609.235 
 32.24  (use of drugs to injure or facilitate crime); 609.24 (simple 
 32.25  robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 
 32.26  609.255 (false imprisonment); 609.561 (arson in the first 
 32.27  degree); 609.562 (arson in the second degree); 609.563 (arson in 
 32.28  the third degree); repeat offenses under 617.23 (indecent 
 32.29  exposure; penalties); repeat offenses under 617.241 (obscene 
 32.30  materials and performances; distribution and exhibition 
 32.31  prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 
 32.32  609.67 (machine guns and short-barreled shotguns); 609.749 
 32.33  (harassment; stalking; penalties); 609.228 (great bodily harm 
 32.34  caused by distribution of drugs); 609.2325 (criminal abuse of a 
 32.35  vulnerable adult); 609.2664 (manslaughter of an unborn child in 
 32.36  the first degree); 609.2665 (manslaughter of an unborn child in 
 33.1   the second degree); 609.267 (assault of an unborn child in the 
 33.2   first degree); 609.2671 (assault of an unborn child in the 
 33.3   second degree); 609.268 (injury or death of an unborn child in 
 33.4   the commission of a crime); 609.52 (theft); 609.2335 (financial 
 33.5   exploitation of a vulnerable adult); 609.521 (possession of 
 33.6   shoplifting gear); 609.582 (burglary); 609.625 (aggravated 
 33.7   forgery); 609.63 (forgery); 609.631 (check forgery; offering a 
 33.8   forged check); 609.635 (obtaining signature by false pretense); 
 33.9   609.27 (coercion); 609.275 (attempt to coerce); 609.687 
 33.10  (adulteration); 260C.301 (grounds for termination of parental 
 33.11  rights); ~~and~~ chapter 152 (drugs; controlled substance); and a 
 33.12  felony level conviction involving alcohol or drug use.  An 
 33.13  attempt or conspiracy to commit any of these offenses, as each 
 33.14  of these offenses is defined in Minnesota Statutes; or an 
 33.15  offense in any other state or country, the elements of which are 
 33.16  substantially similar to the elements of the offenses in this 
 33.17  clause.  If the individual studied is convicted of one of the 
 33.18  felonies listed in this clause, but the sentence is a gross 
 33.19  misdemeanor or misdemeanor disposition, the lookback period for 
 33.20  the conviction is the period applicable to the disposition, that 
 33.21  is the period for gross misdemeanors or misdemeanors; 
 33.22     (3) if less than ten years have passed since the discharge 
 33.23  of the sentence imposed for the offense; and the individual has 
 33.24  received a gross misdemeanor conviction for a violation of any 
 33.25  of the following offenses:  sections 609.224 (assault in the 
 33.26  fifth degree); 609.2242 and 609.2243 (domestic assault); 
 33.27  violation of an order for protection under 518B.01, subdivision 
 33.28  14; 609.3451 (criminal sexual conduct in the fifth degree); 
 33.29  repeat offenses under 609.746 (interference with privacy); 
 33.30  repeat offenses under 617.23 (indecent exposure); 617.241 
 33.31  (obscene materials and performances); 617.243 (indecent 
 33.32  literature, distribution); 617.293 (harmful materials; 
 33.33  dissemination and display to minors prohibited); 609.71 (riot); 
 33.34  609.66 (dangerous weapons); 609.749 (harassment; stalking; 
 33.35  penalties); 609.224, subdivision 2, paragraph (c) (assault in 
 33.36  the fifth degree by a caregiver against a vulnerable adult); 
 34.1   609.23 (mistreatment of persons confined); 609.231 (mistreatment 
 34.2   of residents or patients); 609.2325 (criminal abuse of a 
 34.3   vulnerable adult); 609.233 (criminal neglect of a vulnerable 
 34.4   adult); 609.2335 (financial exploitation of a vulnerable adult); 
 34.5   609.234 (failure to report maltreatment of a vulnerable adult); 
 34.6   609.72, subdivision 3 (disorderly conduct against a vulnerable 
 34.7   adult); 609.265 (abduction); 609.378 (neglect or endangerment of 
 34.8   a child); 609.377 (malicious punishment of a child); 609.324, 
 34.9   subdivision 1a (other prohibited acts; minor engaged in 
 34.10  prostitution); 609.33 (disorderly house); 609.52 (theft); 
 34.11  609.582 (burglary); 609.631 (check forgery; offering a forged 
 34.12  check); 609.275 (attempt to coerce); or an attempt or conspiracy 
 34.13  to commit any of these offenses, as each of these offenses is 
 34.14  defined in Minnesota Statutes; or an offense in any other state 
 34.15  or country, the elements of which are substantially similar to 
 34.16  the elements of any of the offenses listed in this clause.  If 
 34.17  the defendant is convicted of one of the gross misdemeanors 
 34.18  listed in this clause, but the sentence is a misdemeanor 
 34.19  disposition, the lookback period for the conviction is the 
 34.20  period applicable to misdemeanors; or 
 34.21     (4) if less than seven years have passed since the 
 34.22  discharge of the sentence imposed for the offense; and the 
 34.23  individual has received a misdemeanor conviction for a violation 
 34.24  of any of the following offenses:  sections 609.224 (assault in 
 34.25  the fifth degree); 609.2242 (domestic assault); violation of an 
 34.26  order for protection under 518B.01 (Domestic Abuse Act); 
 34.27  violation of an order for protection under 609.3232 (protective 
 34.28  order authorized; procedures; penalties); 609.746 (interference 
 34.29  with privacy); 609.79 (obscene or harassing phone calls); 
 34.30  609.795 (letter, telegram, or package; opening; harassment); 
 34.31  617.23 (indecent exposure; penalties); 609.2672 (assault of an 
 34.32  unborn child in the third degree); 617.293 (harmful materials; 
 34.33  dissemination and display to minors prohibited); 609.66 
 34.34  (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
 34.35  exploitation of a vulnerable adult); 609.234 (failure to report 
 34.36  maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
 35.1   (coercion); or an attempt or conspiracy to commit any of these 
 35.2   offenses, as each of these offenses is defined in Minnesota 
 35.3   Statutes; or an offense in any other state or country, the 
 35.4   elements of which are substantially similar to the elements of 
 35.5   any of the offenses listed in this clause; a determination or 
 35.6   disposition of failure to make required reports under section 
 35.7   626.556, subdivision 3, or 626.557, subdivision 3, for incidents 
 35.8   in which:  (i) the final disposition under section 626.556 or 
 35.9   626.557 was substantiated maltreatment, and (ii) the 
 35.10  maltreatment was recurring or serious; or a determination or 
 35.11  disposition of substantiated serious or recurring maltreatment 
 35.12  of a minor under section 626.556 or of a vulnerable adult under 
 35.13  section 626.557 for which there is a preponderance of evidence 
 35.14  that the maltreatment occurred, and that the subject was 
 35.15  responsible for the maltreatment. 
 35.16     For the purposes of this section, "serious maltreatment" 
 35.17  means sexual abuse; maltreatment resulting in death; or 
 35.18  maltreatment resulting in serious injury which reasonably 
 35.19  requires the care of a physician whether or not the care of a 
 35.20  physician was sought; or abuse resulting in serious injury.  For 
 35.21  purposes of this section, "abuse resulting in serious injury" 
 35.22  means:  bruises, bites, skin laceration or tissue damage; 
 35.23  fractures; dislocations; evidence of internal injuries; head 
 35.24  injuries with loss of consciousness; extensive second-degree or 
 35.25  third-degree burns and other burns for which complications are 
 35.26  present; extensive second-degree or third-degree frostbite, and 
 35.27  others for which complications are present; irreversible 
 35.28  mobility or avulsion of teeth; injuries to the eyeball; 
 35.29  ingestion of foreign substances and objects that are harmful; 
 35.30  near drowning; and heat exhaustion or sunstroke.  For purposes 
 35.31  of this section, "care of a physician" is treatment received or 
 35.32  ordered by a physician, but does not include diagnostic testing, 
 35.33  assessment, or observation.  For the purposes of this section, 
 35.34  "recurring maltreatment" means more than one incident of 
 35.35  maltreatment for which there is a preponderance of evidence that 
 35.36  the maltreatment occurred, and that the subject was responsible 
 36.1   for the maltreatment. 
 36.2      ~~(b) If the subject of a background study is licensed by a~~ 
 36.3   ~~health-related licensing board, the board shall make the~~ 
 36.4   ~~determination regarding a disqualification under this~~ 
 36.5   ~~subdivision based on a finding of substantiated maltreatment~~ 
 36.6   ~~under section 626.556 or 626.557.  The commissioner shall notify~~ 
 36.7   ~~the health-related licensing board if a background study shows~~ 
 36.8   ~~that a licensee would be disqualified because of substantiated~~ 
 36.9   ~~maltreatment and the board shall make a determination under~~ 
 36.10  ~~section 214.104.~~ 
 36.11     Sec. 14.  Minnesota Statutes 2000, section 245A.04, is 
 36.12  amended by adding a subdivision to read: 
 36.13     Subd. 3e.  [VARIANCE FOR A DISQUALIFIED PERSON.] (a) When a 
 36.14  background study subject's disqualification has not been set 
 36.15  aside by the commissioner, and there are conditions under which 
 36.16  the disqualified individual may provide direct contact services 
 36.17  or have access to people receiving services that minimize the 
 36.18  risk of harm to people receiving services, the commissioner may 
 36.19  grant a time limited variance to a license holder that states 
 36.20  the reason for the disqualification, the services that may be 
 36.21  provided by the disqualified individual, and the conditions with 
 36.22  which the license holder or applicant must comply for the 
 36.23  variance to be effective. 
 36.24     (b) Except for programs licensed to provide family day care 
 36.25  for children, foster care for children in the provider's own 
 36.26  home, or foster care or day care services for adults in the 
 36.27  provider's own home, the commissioner may not grant a variance 
 36.28  for a disqualified person unless the applicant or license holder 
 36.29  has requested the variance and the disqualified individual has 
 36.30  provided written consent for the commissioner to disclose to the 
 36.31  applicant or license holder the reason for the disqualification. 
 36.32     (c) When a license holder permits a disqualified individual 
 36.33  to provide any services for which the subject is disqualified 
 36.34  without complying with the conditions of the variance, 
 36.35  termination of the variance is immediate and the license holder 
 36.36  may be subject to fines or sanctions under sections 245A.06 and 
 37.1   245A.07. 
 37.2      (d) The commissioner may terminate a variance for a 
 37.3   disqualified person at any time. 
 37.4      (e) The commissioner's decision to grant or deny a variance 
 37.5   request is final and not subject to appeal under the provisions 
 37.6   of chapter 14. 
 37.7      Sec. 15.  Minnesota Statutes 2000, section 245A.04, 
 37.8   subdivision 6, is amended to read: 
 37.9      Subd. 6.  [COMMISSIONER'S EVALUATION.] Before ~~granting~~ 
 37.10  issuing, denying, suspending, revoking, or making conditional a 
 37.11  license, the commissioner shall evaluate information gathered 
 37.12  under this section.  The commissioner's evaluation shall 
 37.13  consider facts, conditions, or circumstances concerning the 
 37.14  program's operation, the well-being of persons served by the 
 37.15  program, available consumer evaluations of the program, and 
 37.16  information about the qualifications of the personnel employed 
 37.17  by the applicant or license holder. 
 37.18     The commissioner shall evaluate the results of the study 
 37.19  required in subdivision 3 and determine whether a risk of harm 
 37.20  to the persons served by the program exists.  In conducting this 
 37.21  evaluation, the commissioner shall apply the disqualification 
 37.22  standards set forth in rules adopted under this chapter.  
 37.23     Sec. 16.  Minnesota Statutes 2000, section 245A.04, 
 37.24  subdivision 11, is amended to read: 
 37.25     Subd. 11.  [EDUCATION PROGRAM; ADDITIONAL REQUIREMENT.] (a) 
 37.26  The education program offered in a residential or nonresidential 
 37.27  program, except for child care, foster care, or services for 
 37.28  adults, must be approved by the commissioner of children, 
 37.29  families, and learning before the commissioner of human services 
 37.30  may grant a license to the program. 
 37.31     (b) A residential program licensed under Minnesota Rules, 
 37.32  parts 9545.0905 to 9545.1125 or 9545.1400 to 9545.1480, may 
 37.33  serve persons through the age of 19 when: 
 37.34     (1) the admission is necessary for a person to complete a 
 37.35  secondary school program or its equivalent, or it is necessary 
 37.36  to facilitate a transition period after completing the secondary 
 38.1   school program or its equivalent for up to four months in order 
 38.2   for the resident to obtain other living arrangements; 
 38.3      (2) the facility develops policies, procedures, and plans 
 38.4   required under section 245A.65; 
 38.5      (3) the facility documents as assessment of the 18- or 
 38.6   19-year-old person's risk of victimizing children residing in 
 38.7   the facility, and develops necessary risk reduction measures, 
 38.8   including sleeping arrangements, to minimize any risk of harm to 
 38.9   children; and 
 38.10     (4) notwithstanding the license holder's target population 
 38.11  age range, whenever persons age 18 or 19 years old are receiving 
 38.12  residential services, the age difference among residents may not 
 38.13  exceed five years. 
 38.14     (c) Nothing in this paragraph precludes the license holder 
 38.15  from seeking other variances under section 245A.04, subdivision 
 38.16  9. 
 38.17     Sec. 17.  Minnesota Statutes 2000, section 245A.06, 
 38.18  subdivision 6, is amended to read: 
 38.19     Subd. 6.  [AMOUNT OF FINES.] Fines shall be assessed as 
 38.20  follows: 
 38.21     (1) the license holder shall forfeit $1,000 for each 
 38.22  occurrence of substantiated maltreatment or violation of law or 
 38.23  rule prohibiting the maltreatment of children or the 
 38.24  maltreatment of vulnerable adults, including but not limited to 
 38.25  corporal punishment, illegal or unauthorized use of physical, 
 38.26  mechanical, or chemical restraints, and illegal or unauthorized 
 38.27  use of aversive or deprivation procedures; 
 38.28     (2) the license holder shall forfeit $200 for each 
 38.29  occurrence of a violation of law or rule governing matters of 
 38.30  health, safety, or supervision, including but not limited to the 
 38.31  provision of adequate staff to child or adult ratios, failure to 
 38.32  submit a background form to the commissioner; and 
 38.33     (3) the license holder shall forfeit $100 for each 
 38.34  occurrence of a violation of law or rule other than those 
 38.35  included in clauses (1) and (2). 
 38.36     For the purposes of this section, "occurrence" means each 
 39.1   violation identified in the commissioner's forfeiture order. 
 39.2      Sec. 18.  [245A.144] [REDUCTION OF RISK OF SUDDEN INFANT 
 39.3   DEATH SYNDROME IN CHILD CARE PROGRAMS.] 
 39.4      License holders must ensure that before staff persons, 
 39.5   caregivers, and helpers assist in the care of infants, they 
 39.6   receive training on reducing the risk of sudden infant death 
 39.7   syndrome.  The training on reducing the risk of sudden infant 
 39.8   death syndrome may be provided as orientation training under 
 39.9   Minnesota Rules, part 9503.0035, subpart 1, as initial training 
 39.10  under Minnesota Rules, part 9502.0385, subpart 2, as in-service 
 39.11  training under Minnesota Rules, part 9503.0035, subpart 4, or as 
 39.12  ongoing training under Minnesota Rules, part 9502.0385, subpart 
 39.13  3.  Training required under this section must be completed at 
 39.14  least once every five years. 
 39.15     Sec. 19.  Minnesota Statutes 2000, section 245A.16, 
 39.16  subdivision 1, is amended to read: 
 39.17     Subdivision 1.  [DELEGATION OF AUTHORITY TO AGENCIES.] (a) 
 39.18  County agencies and private agencies that have been designated 
 39.19  or licensed by the commissioner to perform licensing functions 
 39.20  and activities under section 245A.04, to recommend denial of 
 39.21  applicants under section 245A.05, to issue correction orders, to 
 39.22  issue variances, and recommend fines under section 245A.06, or 
 39.23  to recommend suspending, revoking, and making licenses 
 39.24  probationary under section 245A.07, shall comply with rules and 
 39.25  directives of the commissioner governing those functions and 
 39.26  with this section.  The following variances are excluded from 
 39.27  the delegation of variance authority and may be issued only by 
 39.28  the commissioner: 
 39.29     (1) dual licensure of family child care and child foster 
 39.30  care, dual licensure of child and adult foster care, and adult 
 39.31  foster care and family child care; 
 39.32     (2) adult foster care maximum capacity; 
 39.33     (3) adult foster care minimum age requirement; 
 39.34     (4) child foster care maximum age requirement; 
 39.35     (5) variances regarding disqualified individuals; and 
 39.36     (6) the required presence of a caregiver in the adult 
 40.1   foster care residence during normal sleeping hours. 
 40.2      (b) For family day care programs, the commissioner may 
 40.3   authorize licensing reviews every two years after a licensee has 
 40.4   had at least one annual review. 
 40.5      Sec. 20.  [INSTRUCTION TO REVISOR.] 
 40.6      (a) The revisor of statutes shall replace any references to 
 40.7   "sections 245A.01 to 245A.16" in chapter 245A with "this 
 40.8   chapter." 
 40.9      (b) The revisor of statutes shall replace references in 
 40.10  Minnesota Rules and Minnesota Statutes to "parts 9543.3000 to 
 40.11  9543.3090" with "section 245A.04." 
 40.12     (c) The revisor of statutes shall replace references in 
 40.13  Minnesota Rules and Minnesota Statutes to "part 9543.3070" with 
 40.14  "section 245A.04, subdivision 3d." 
 40.15     (d) The revisor of statutes shall replace references in 
 40.16  Minnesota Rules and Minnesota Statutes to "part 9543.3080" with 
 40.17  "section 245A.04, subdivision 3b." 
 40.18     Sec. 21.  [REPEALER.] 
 40.19     Minnesota Rules, parts 9543.3000; 9543.3010; 9543.3020; 
 40.20  9543.3030; 9543.3040; 9543.3050; 9543.3060; 9543.3080; and 
 40.21  9543.3090, are repealed.