1.1                          A bill for an act 
  1.2             relating to human services; requiring registration of 
  1.3             temporary employment agencies serving nursing 
  1.4             facilities and imposing other requirements; requiring 
  1.5             nursing facilities to report use of temporary 
  1.6             employment agencies; providing rate adjustments 
  1.7             related to use of temporary employment agencies; 
  1.8             amending Minnesota Statutes 2000, sections 144.057; 
  1.9             245A.04, subdivisions 3, 3a, 3b, and 3d; and 256B.431, 
  1.10            by adding a subdivision; proposing coding for new law 
  1.11            as Minnesota Statutes, chapter 256M. 
  1.12  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.13     Section 1.  Minnesota Statutes 2000, section 144.057, is 
  1.14  amended to read: 
  1.15     144.057 [BACKGROUND STUDIES ON LICENSEES AND TEMPORARY 
  1.16  EMPLOYMENT AGENCY PERSONNEL.] 
  1.17     Subdivision 1.  [BACKGROUND STUDIES REQUIRED.] The 
  1.18  commissioner of health shall contract with the commissioner of 
  1.19  human services to conduct background studies of: 
  1.20     (1) individuals providing services which have direct 
  1.21  contact, as defined under section 245A.04, subdivision 3, with 
  1.22  patients and residents in hospitals, boarding care homes, 
  1.23  outpatient surgical centers licensed under sections 144.50 to 
  1.24  144.58; nursing homes and home care agencies licensed under 
  1.25  chapter 144A; residential care homes licensed under chapter 
  1.26  144B, and board and lodging establishments that are registered 
  1.27  to provide supportive or health supervision services under 
  1.28  section 157.17; ~~and~~ 
  2.1      (2) beginning July 1, 1999, all other employees in nursing 
  2.2   homes licensed under chapter 144A, and boarding care homes 
  2.3   licensed under sections 144.50 to 144.58.  A disqualification of 
  2.4   an individual in this section shall disqualify the individual 
  2.5   from positions allowing direct contact or access to patients or 
  2.6   residents receiving services; 
  2.7      (3) individuals employed by temporary employment agencies 
  2.8   who are providing services in nursing facilities under contract 
  2.9   with a temporary employment agency registered under chapter 
  2.10  256M; and 
  2.11     (4) controlling persons of temporary employment agencies, 
  2.12  as defined in section 256M.01. 
  2.13     If a facility or program is licensed by the department of 
  2.14  human services and subject to the background study provisions of 
  2.15  chapter 245A and is also licensed by the department of health, 
  2.16  the department of human services is solely responsible for the 
  2.17  background studies of individuals in the jointly licensed 
  2.18  programs. 
  2.19     Subd. 2.  [RESPONSIBILITIES OF DEPARTMENT OF HUMAN 
  2.20  SERVICES.] The department of human services shall conduct the 
  2.21  background studies required by subdivision 1 in compliance with 
  2.22  the provisions of chapter 245A and Minnesota Rules, parts 
  2.23  9543.3000 to 9543.3090.  For the purpose of this section, the 
  2.24  term "residential program" shall include all facilities 
  2.25  described in subdivision 1.  The department of human services 
  2.26  shall provide necessary forms and instructions, shall conduct 
  2.27  the necessary background studies of individuals, and shall 
  2.28  provide notification of the results of the studies to the 
  2.29  facilities, temporary employment agencies, individuals, and the 
  2.30  commissioner of health.  Individuals shall be disqualified under 
  2.31  the provisions of chapter 245A and Minnesota Rules, parts 
  2.32  9543.3000 to 9543.3090.  If an individual is disqualified, the 
  2.33  department of human services shall notify the facility, the 
  2.34  temporary employment agency, and the individual and shall inform 
  2.35  the individual of the right to request a reconsideration of the 
  2.36  disqualification by submitting the request to the department of 
  3.1   health. 
  3.2      Subd. 3.  [RECONSIDERATIONS.] The commissioner of health 
  3.3   shall review and decide reconsideration requests, including the 
  3.4   granting of variances, in accordance with the procedures and 
  3.5   criteria contained in chapter 245A and Minnesota Rules, parts 
  3.6   9543.3000 to 9543.3090.  The commissioner's decision shall be 
  3.7   provided to the individual and to the department of human 
  3.8   services.  The commissioner's decision to grant or deny a 
  3.9   reconsideration of disqualification is the final administrative 
  3.10  agency action. 
  3.11     Subd. 4.  [RESPONSIBILITIES OF FACILITIES AND AGENCIES.] 
  3.12  Facilities and temporary employment agencies described in 
  3.13  subdivision 1 shall be responsible for cooperating with the 
  3.14  departments in implementing the provisions of this section.  The 
  3.15  responsibilities imposed on applicants and licensees under 
  3.16  chapter 245A and Minnesota Rules, parts 9543.3000 to 9543.3090, 
  3.17  shall apply to these facilities and temporary employment 
  3.18  agencies.  The provision of section 245A.04, subdivision 3, 
  3.19  paragraph ~~(e)~~ (f), shall apply to applicants, 
  3.20  licensees, registrants, or an individual's refusal to cooperate 
  3.21  with the completion of the background studies.  Temporary 
  3.22  employment agencies subject to the registration requirements in 
  3.23  section 256M.02 must maintain records verifying compliance with 
  3.24  the background study requirements under this section. 
  3.25     Sec. 2.  Minnesota Statutes 2000, section 245A.04, 
  3.26  subdivision 3, is amended to read: 
  3.27     Subd. 3.  [BACKGROUND STUDY OF THE APPLICANT; DEFINITIONS.] 
  3.28  (a) Before the commissioner issues a license, the commissioner 
  3.29  shall conduct a study of the individuals specified in paragraph 
  3.30  ~~(c)~~ (d), clauses (1) to (5), according to rules of the 
  3.31  commissioner. 
  3.32     Beginning January 1, 1997, the commissioner shall also 
  3.33  conduct a study of employees providing direct contact services 
  3.34  for nonlicensed personal care provider organizations described 
  3.35  in paragraph ~~(c)~~ (d), clause (5). 
  3.36     The commissioner shall recover the cost of these background 
  4.1   studies through a fee of no more than $12 per study charged to 
  4.2   the personal care provider organization.  
  4.3      Beginning August 1, 1997, the commissioner shall conduct 
  4.4   all background studies required under this chapter for adult 
  4.5   foster care providers who are licensed by the commissioner of 
  4.6   human services and registered under chapter 144D.  The 
  4.7   commissioner shall conduct these background studies in 
  4.8   accordance with this chapter.  The commissioner shall initiate a 
  4.9   pilot project to conduct up to 5,000 background studies under 
  4.10  this chapter in programs with joint licensure as home and 
  4.11  community-based services and adult foster care for people with 
  4.12  developmental disabilities when the license holder does not 
  4.13  reside in the foster care residence. 
  4.14     (b) Beginning July 1, 1998, the commissioner shall conduct 
  4.15  a background study on individuals specified in 
  4.16  paragraph ~~(c)~~ (d), clauses (1) to (5), who perform direct 
  4.17  contact services in a nursing home or a home care agency 
  4.18  licensed under chapter 144A or a boarding care home licensed 
  4.19  under sections 144.50 to 144.58, when the subject of the study 
  4.20  resides outside Minnesota; the study must be at least as 
  4.21  comprehensive as that of a Minnesota resident and include a 
  4.22  search of information from the criminal justice data 
  4.23  communications network in the state where the subject of the 
  4.24  study resides. 
  4.25     (c) Beginning August 1, 2001, the commissioner shall 
  4.26  conduct all background studies required under this chapter and 
  4.27  initiated by temporary employment agencies registered under 
  4.28  chapter 256M for individuals providing services in nursing 
  4.29  facilities.  The commissioner shall conduct the background 
  4.30  studies according to this chapter.  The commissioner shall 
  4.31  recover the cost of the background studies through a fee charged 
  4.32  to the temporary employment agency. 
  4.33     (d) The applicant, license holder, registrant, the bureau 
  4.34  of criminal apprehension, the commissioner of health and county 
  4.35  agencies, after written notice to the individual who is the 
  4.36  subject of the study, shall help with the study by giving the 
  5.1   commissioner criminal conviction data and reports about the 
  5.2   maltreatment of adults substantiated under section 626.557 and 
  5.3   the maltreatment of minors in licensed programs substantiated 
  5.4   under section 626.556.  The individuals to be studied shall 
  5.5   include: 
  5.6      (1) the applicant; 
  5.7      (2) persons over the age of 13 living in the household 
  5.8   where the licensed program will be provided; 
  5.9      (3) current employees or contractors of the applicant who 
  5.10  will have direct contact with persons served by the facility, 
  5.11  agency, or program; 
  5.12     (4) volunteers or student volunteers who have direct 
  5.13  contact with persons served by the program to provide program 
  5.14  services, if the contact is not directly supervised by the 
  5.15  individuals listed in clause (1) or (3); and 
  5.16     (5) any person who, as an individual or as a member of an 
  5.17  organization, exclusively offers, provides, or arranges for 
  5.18  personal care assistant services under the medical assistance 
  5.19  program as authorized under sections 256B.04, subdivision 16, 
  5.20  and 256B.0625, subdivision 19a. 
  5.21     The juvenile courts shall also help with the study by 
  5.22  giving the commissioner existing juvenile court records on 
  5.23  individuals described in clause (2) relating to delinquency 
  5.24  proceedings held within either the five years immediately 
  5.25  preceding the application or the five years immediately 
  5.26  preceding the individual's 18th birthday, whichever time period 
  5.27  is longer.  The commissioner shall destroy juvenile records 
  5.28  obtained pursuant to this subdivision when the subject of the 
  5.29  records reaches age 23.  
  5.30     For purposes of this section and Minnesota Rules, part 
  5.31  9543.3070, a finding that a delinquency petition is proven in 
  5.32  juvenile court shall be considered a conviction in state 
  5.33  district court. 
  5.34     For purposes of this subdivision, "direct contact" means 
  5.35  providing face-to-face care, training, supervision, counseling, 
  5.36  consultation, or medication assistance to persons served by a 
  6.1   program.  For purposes of this subdivision, "directly supervised"
  6.2   means an individual listed in clause (1), (3), or (5) is within 
  6.3   sight or hearing of a volunteer to the extent that the 
  6.4   individual listed in clause (1), (3), or (5) is capable at all 
  6.5   times of intervening to protect the health and safety of the 
  6.6   persons served by the program who have direct contact with the 
  6.7   volunteer. 
  6.8      A study of an individual in clauses (1) to (5) shall be 
  6.9   conducted at least upon application for initial license or 
  6.10  registration, and reapplication for a license or registration.  
  6.11  The commissioner is not required to conduct a study of an 
  6.12  individual at the time of reapplication for a license or if the 
  6.13  individual has been continuously affiliated with a foster care 
  6.14  provider licensed by the commissioner of human services and 
  6.15  registered under chapter 144D, other than a family day care or 
  6.16  foster care license, if:  (i) a study of the individual was 
  6.17  conducted either at the time of initial licensure or when the 
  6.18  individual became affiliated with the license holder; (ii) the 
  6.19  individual has been continuously affiliated with the license 
  6.20  holder since the last study was conducted; and (iii) the 
  6.21  procedure described in paragraph ~~(d)~~ (e) has been implemented 
  6.22  and was in effect continuously since the last study was 
  6.23  conducted.  For the purposes of this section, a physician 
  6.24  licensed under chapter 147 is considered to be continuously 
  6.25  affiliated upon the license holder's receipt from the 
  6.26  commissioner of health or human services of the physician's 
  6.27  background study results.  For individuals who are required to 
  6.28  have background studies under clauses (1) to (5) and who have 
  6.29  been continuously affiliated with a foster care provider that is 
  6.30  licensed in more than one county, criminal conviction data may 
  6.31  be shared among those counties in which the foster care programs 
  6.32  are licensed.  A county agency's receipt of criminal conviction 
  6.33  data from another county agency shall meet the criminal data 
  6.34  background study requirements of this section. 
  6.35     The commissioner ~~may~~ must also conduct studies on 
  6.36  individuals specified in clauses (3) and (4) when the studies 
  7.1   are initiated by: 
  7.2      (i) personnel pool agencies; 
  7.3      (ii) temporary personnel agencies; 
  7.4      (iii) educational programs that train persons by providing 
  7.5   direct contact services in licensed programs; and 
  7.6      (iv) professional services agencies that are not licensed 
  7.7   and which contract with licensed programs to provide direct 
  7.8   contact services or individuals who provide direct contact 
  7.9   services. 
  7.10     Studies on individuals in items (i) to (iv) must be 
  7.11  initiated annually by these agencies, programs, and 
  7.12  individuals.  Except for personal care provider 
  7.13  organizations and temporary employment agencies, no applicant, 
  7.14  license holder, or individual who is the subject of the study 
  7.15  shall pay any fees required to conduct the study. 
  7.16     (1) At the option of the licensed facility, rather than 
  7.17  initiating another background study on an individual required to 
  7.18  be studied who has indicated to the licensed facility that a 
  7.19  background study by the commissioner was previously completed, 
  7.20  the facility may make a request to the commissioner for 
  7.21  documentation of the individual's background study status, 
  7.22  provided that: 
  7.23     (i) the facility makes this request using a form provided 
  7.24  by the commissioner; 
  7.25     (ii) in making the request the facility informs the 
  7.26  commissioner that either: 
  7.27     (A) the individual has been continuously affiliated with a 
  7.28  licensed facility since the individual's previous background 
  7.29  study was completed, or since October 1, 1995, whichever is 
  7.30  shorter; or 
  7.31     (B) the individual is affiliated only with a personnel pool 
  7.32  agency, a temporary personnel agency, an educational program 
  7.33  that trains persons by providing direct contact services in 
  7.34  licensed programs, or a professional services agency that is not 
  7.35  licensed and which contracts with licensed programs to provide 
  7.36  direct contact services or individuals who provide direct 
  8.1   contact services; and 
  8.2      (iii) the facility provides notices to the individual as 
  8.3   required in paragraphs (a) to ~~(d)~~ (e), and that the facility is 
  8.4   requesting written notification of the individual's background 
  8.5   study status from the commissioner.  
  8.6      (2) The commissioner shall respond to each request under 
  8.7   paragraph (1) with a written or electronic notice to the 
  8.8   facility and the study subject.  If the commissioner determines 
  8.9   that a background study is necessary, the study shall be 
  8.10  completed without further request from a licensed agency or 
  8.11  notifications to the study subject.  
  8.12     (3) When a background study is being initiated by a 
  8.13  licensed facility or a foster care provider that is also 
  8.14  registered under chapter 144D, a study subject affiliated with 
  8.15  multiple licensed facilities may attach to the background study 
  8.16  form a cover letter indicating the additional facilities' names, 
  8.17  addresses, and background study identification numbers.  When 
  8.18  the commissioner receives such notices, each facility identified 
  8.19  by the background study subject shall be notified of the study 
  8.20  results.  The background study notice sent to the subsequent 
  8.21  agencies shall satisfy those facilities' responsibilities for 
  8.22  initiating a background study on that individual. 
  8.23     ~~(d)~~ (e) If an individual who is affiliated with a program 
  8.24  or facility regulated by the department of human services or 
  8.25  department of health or who is affiliated with a nonlicensed 
  8.26  personal care provider organization, is convicted of a crime 
  8.27  constituting a disqualification under subdivision 3d, the 
  8.28  probation officer or corrections agent shall notify the 
  8.29  commissioner of the conviction.  The commissioner, in 
  8.30  consultation with the commissioner of corrections, shall develop 
  8.31  forms and information necessary to implement this paragraph and 
  8.32  shall provide the forms and information to the commissioner of 
  8.33  corrections for distribution to local probation officers and 
  8.34  corrections agents.  The commissioner shall inform individuals 
  8.35  subject to a background study that criminal convictions for 
  8.36  disqualifying crimes will be reported to the commissioner by the 
  9.1   corrections system.  A probation officer, corrections agent, or 
  9.2   corrections agency is not civilly or criminally liable for 
  9.3   disclosing or failing to disclose the information required by 
  9.4   this paragraph.  Upon receipt of disqualifying information, the 
  9.5   commissioner shall provide the notifications required in 
  9.6   subdivision 3a, as appropriate to agencies on record as having 
  9.7   initiated a background study or making a request for 
  9.8   documentation of the background study status of the individual.  
  9.9   This paragraph does not apply to family day care and child 
  9.10  foster care programs. 
  9.11     ~~(e)~~ (f) The individual who is the subject of the study must 
  9.12  provide the applicant or license holder with sufficient 
  9.13  information to ensure an accurate study including the 
  9.14  individual's first, middle, and last name; home address, city, 
  9.15  county, and state of residence for the past five years; zip 
  9.16  code; sex; date of birth; and driver's license number.  The 
  9.17  applicant or license holder shall provide this information about 
  9.18  an individual in paragraph ~~(c)~~ (d), clauses (1) to (5), on forms 
  9.19  prescribed by the commissioner.  By January 1, 2000, for 
  9.20  background studies conducted by the department of human 
  9.21  services, the commissioner shall implement a system for the 
  9.22  electronic transmission of:  (1) background study information to 
  9.23  the commissioner; and (2) background study results to the 
  9.24  license holder.  The commissioner may request additional 
  9.25  information of the individual, which shall be optional for the 
  9.26  individual to provide, such as the individual's social security 
  9.27  number or race. 
  9.28     ~~(f)~~ (g) Except for child foster care, adult foster care, 
  9.29  and family day care homes, a study must include information 
  9.30  related to names of substantiated perpetrators of maltreatment 
  9.31  of vulnerable adults that has been received by the commissioner 
  9.32  as required under section 626.557, subdivision 9c, paragraph 
  9.33  (i), and the commissioner's records relating to the maltreatment 
  9.34  of minors in licensed programs, information from juvenile courts 
  9.35  as required in paragraph ~~(c)~~ (d) for persons listed in paragraph 
  9.36  ~~(c)~~ (d), clause (2), and information from the bureau of criminal 
 10.1   apprehension.  For child foster care, adult foster care, and 
 10.2   family day care homes, the study must include information from 
 10.3   the county agency's record of substantiated maltreatment of 
 10.4   adults, and the maltreatment of minors, information from 
 10.5   juvenile courts as required in paragraph ~~(c)~~ (d) for persons 
 10.6   listed in paragraph ~~(c)~~ (d), clause (2), and information from 
 10.7   the bureau of criminal apprehension.  The commissioner may also 
 10.8   review arrest and investigative information from the bureau of 
 10.9   criminal apprehension, the commissioner of health, a county 
 10.10  attorney, county sheriff, county agency, local chief of police, 
 10.11  other states, the courts, or the Federal Bureau of Investigation 
 10.12  if the commissioner has reasonable cause to believe the 
 10.13  information is pertinent to the disqualification of an 
 10.14  individual listed in paragraph ~~(c)~~ (d), clauses (1) to (5).  The 
 10.15  commissioner is not required to conduct more than one review of 
 10.16  a subject's records from the Federal Bureau of Investigation if 
 10.17  a review of the subject's criminal history with the Federal 
 10.18  Bureau of Investigation has already been completed by the 
 10.19  commissioner and there has been no break in the subject's 
 10.20  affiliation with the license holder who initiated the background 
 10.21  studies. 
 10.22     When the commissioner has reasonable cause to believe that 
 10.23  further pertinent information may exist on the subject, the 
 10.24  subject shall provide a set of classifiable fingerprints 
 10.25  obtained from an authorized law enforcement agency.  For 
 10.26  purposes of requiring fingerprints, the commissioner shall be 
 10.27  considered to have reasonable cause under, but not limited to, 
 10.28  the following circumstances: 
 10.29     (1) information from the bureau of criminal apprehension 
 10.30  indicates that the subject is a multistate offender; 
 10.31     (2) information from the bureau of criminal apprehension 
 10.32  indicates that multistate offender status is undetermined; or 
 10.33     (3) the commissioner has received a report from the subject 
 10.34  or a third party indicating that the subject has a criminal 
 10.35  history in a jurisdiction other than Minnesota. 
 10.36     ~~(g)~~ (h) An applicant's ~~or~~, license holder's, or 
 11.1   registrant's failure or refusal to cooperate with the 
 11.2   commissioner is reasonable cause to disqualify a subject, deny a 
 11.3   license application or immediately suspend, suspend, or revoke a 
 11.4   license or registration.  Failure or refusal of an individual to 
 11.5   cooperate with the study is just cause for denying or 
 11.6   terminating employment of the individual if the individual's 
 11.7   failure or refusal to cooperate could cause the applicant's 
 11.8   application to be denied or the license holder's license to be 
 11.9   immediately suspended, suspended, or revoked. 
 11.10     ~~(h)~~ (i) The commissioner shall not consider an application 
 11.11  to be complete until all of the information required to be 
 11.12  provided under this subdivision has been received.  
 11.13     ~~(i)~~ (j) No person in paragraph ~~(c)~~ (d), clause (1), (2), 
 11.14  (3), (4), or (5) who is disqualified as a result of this section 
 11.15  may be retained by the agency in a position involving direct 
 11.16  contact with persons served by the program. 
 11.17     ~~(j)~~ (k) Termination of persons in paragraph ~~(c)~~ (d), clause 
 11.18  (1), (2), (3), (4), or (5), made in good faith reliance on a 
 11.19  notice of disqualification provided by the commissioner shall 
 11.20  not subject the applicant or license holder to civil liability. 
 11.21     ~~(k)~~ (l) The commissioner may establish records to fulfill 
 11.22  the requirements of this section. 
 11.23     ~~(l)~~ (m) The commissioner may not disqualify an individual 
 11.24  subject to a study under this section because that person has, 
 11.25  or has had, a mental illness as defined in section 245.462, 
 11.26  subdivision 20. 
 11.27     ~~(m)~~ (n) An individual subject to disqualification under 
 11.28  this subdivision has the applicable rights in subdivision 3a, 
 11.29  3b, or 3c. 
 11.30     ~~(n)~~ (o) For the purposes of background studies completed by 
 11.31  tribal organizations performing licensing activities otherwise 
 11.32  required of the commissioner under this chapter, after obtaining 
 11.33  consent from the background study subject, tribal licensing 
 11.34  agencies shall have access to criminal history data in the same 
 11.35  manner as county licensing agencies and private licensing 
 11.36  agencies under this chapter. 
 12.1      Sec. 3.  Minnesota Statutes 2000, section 245A.04, 
 12.2   subdivision 3a, is amended to read: 
 12.3      Subd. 3a.  [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF 
 12.4   STUDY RESULTS; DETERMINATION OF RISK OF HARM.] (a) The 
 12.5   commissioner shall notify the applicant ~~or~~, license holder, or 
 12.6   registrant and the individual who is the subject of the study, 
 12.7   in writing or by electronic transmission, of the results of the 
 12.8   study.  When the study is completed, a notice that the study was 
 12.9   undertaken and completed shall be maintained in the personnel 
 12.10  files of the program.  For studies on individuals pertaining to 
 12.11  a license to provide family day care or group family day care, 
 12.12  foster care for children in the provider's own home, or foster 
 12.13  care or day care services for adults in the provider's own home, 
 12.14  the commissioner is not required to provide a separate notice of 
 12.15  the background study results to the individual who is the 
 12.16  subject of the study unless the study results in a 
 12.17  disqualification of the individual. 
 12.18     The commissioner shall notify the individual studied if the 
 12.19  information in the study indicates the individual is 
 12.20  disqualified from direct contact with persons served by the 
 12.21  program.  The commissioner shall disclose the information 
 12.22  causing disqualification and instructions on how to request a 
 12.23  reconsideration of the disqualification to the individual 
 12.24  studied.  An applicant or license holder who is not the subject 
 12.25  of the study shall be informed that the commissioner has found 
 12.26  information that disqualifies the subject from direct contact 
 12.27  with persons served by the program.  However, only the 
 12.28  individual studied must be informed of the information contained 
 12.29  in the subject's background study unless the only basis for the 
 12.30  disqualification is failure to cooperate, the Data Practices Act 
 12.31  provides for release of the information, or the individual 
 12.32  studied authorizes the release of the information. 
 12.33     (b) If the commissioner determines that the individual 
 12.34  studied has a disqualifying characteristic, the commissioner 
 12.35  shall review the information immediately available and make a 
 12.36  determination as to the subject's immediate risk of harm to 
 13.1   persons served by the program where the individual studied will 
 13.2   have direct contact.  The commissioner shall consider all 
 13.3   relevant information available, including the following factors 
 13.4   in determining the immediate risk of harm:  the recency of the 
 13.5   disqualifying characteristic; the recency of discharge from 
 13.6   probation for the crimes; the number of disqualifying 
 13.7   characteristics; the intrusiveness or violence of the 
 13.8   disqualifying characteristic; the vulnerability of the victim 
 13.9   involved in the disqualifying characteristic; and the similarity 
 13.10  of the victim to the persons served by the program where the 
 13.11  individual studied will have direct contact.  The commissioner 
 13.12  may determine that the evaluation of the information immediately 
 13.13  available gives the commissioner reason to believe one of the 
 13.14  following: 
 13.15     (1) The individual poses an imminent risk of harm to 
 13.16  persons served by the program where the individual studied will 
 13.17  have direct contact.  If the commissioner determines that an 
 13.18  individual studied poses an imminent risk of harm to persons 
 13.19  served by the program where the individual studied will have 
 13.20  direct contact, the individual and the license holder must be 
 13.21  sent a notice of disqualification.  The commissioner shall order 
 13.22  the license holder to immediately remove the individual studied 
 13.23  from direct contact.  The notice to the individual studied must 
 13.24  include an explanation of the basis of this determination. 
 13.25     (2) The individual poses a risk of harm requiring 
 13.26  continuous supervision while providing direct contact services 
 13.27  during the period in which the subject may request a 
 13.28  reconsideration.  If the commissioner determines that an 
 13.29  individual studied poses a risk of harm that requires continuous 
 13.30  supervision, the individual and the license holder must be sent 
 13.31  a notice of disqualification.  The commissioner shall order the 
 13.32  license holder to immediately remove the individual studied from 
 13.33  direct contact services or assure that the individual studied is 
 13.34  within sight or hearing of another staff person when providing 
 13.35  direct contact services during the period in which the 
 13.36  individual may request a reconsideration of the 
 14.1   disqualification.  If the individual studied does not submit a 
 14.2   timely request for reconsideration, or the individual submits a 
 14.3   timely request for reconsideration, but the disqualification is 
 14.4   not set aside for that license holder, the license holder will 
 14.5   be notified of the disqualification and ordered to immediately 
 14.6   remove the individual from any position allowing direct contact 
 14.7   with persons receiving services from the license holder. 
 14.8      (3) The individual does not pose an imminent risk of harm 
 14.9   or a risk of harm requiring continuous supervision while 
 14.10  providing direct contact services during the period in which the 
 14.11  subject may request a reconsideration.  If the commissioner 
 14.12  determines that an individual studied does not pose a risk of 
 14.13  harm that requires continuous supervision, only the individual 
 14.14  must be sent a notice of disqualification.  The license holder 
 14.15  must be sent a notice that more time is needed to complete the 
 14.16  individual's background study.  If the individual studied 
 14.17  submits a timely request for reconsideration, and if the 
 14.18  disqualification is set aside for that license holder, the 
 14.19  license holder will receive the same notification received by 
 14.20  license holders in cases where the individual studied has no 
 14.21  disqualifying characteristic.  If the individual studied does 
 14.22  not submit a timely request for reconsideration, or the 
 14.23  individual submits a timely request for reconsideration, but the 
 14.24  disqualification is not set aside for that license holder, the 
 14.25  license holder will be notified of the disqualification and 
 14.26  ordered to immediately remove the individual from any position 
 14.27  allowing direct contact with persons receiving services from the 
 14.28  license holder.  
 14.29     (c) County licensing agencies performing duties under this 
 14.30  subdivision may develop an alternative system for determining 
 14.31  the subject's immediate risk of harm to persons served by the 
 14.32  program, providing the notices under paragraph (b), and 
 14.33  documenting the action taken by the county licensing agency.  
 14.34  Each county licensing agency's implementation of the alternative 
 14.35  system is subject to approval by the commissioner.  
 14.36  Notwithstanding this alternative system, county licensing 
 15.1   agencies shall complete the requirements of paragraph (a). 
 15.2      Sec. 4.  Minnesota Statutes 2000, section 245A.04, 
 15.3   subdivision 3b, is amended to read: 
 15.4      Subd. 3b.  [RECONSIDERATION OF DISQUALIFICATION.] (a) The 
 15.5   individual who is the subject of the disqualification may 
 15.6   request a reconsideration of the disqualification.  
 15.7      The individual must submit the request for reconsideration 
 15.8   to the commissioner in writing.  A request for reconsideration 
 15.9   for an individual who has been sent a notice of disqualification 
 15.10  under subdivision 3a, paragraph (b), clause (1) or (2), must be 
 15.11  submitted within 30 calendar days of the disqualified 
 15.12  individual's receipt of the notice of disqualification.  A 
 15.13  request for reconsideration for an individual who has been sent 
 15.14  a notice of disqualification under subdivision 3a, paragraph 
 15.15  (b), clause (3), must be submitted within 15 calendar days of 
 15.16  the disqualified individual's receipt of the notice of 
 15.17  disqualification.  Removal of a disqualified individual from 
 15.18  direct contact shall be ordered if the individual does not 
 15.19  request reconsideration within the prescribed time, and for an 
 15.20  individual who submits a timely request for reconsideration, if 
 15.21  the disqualification is not set aside.  The individual must 
 15.22  present information showing that: 
 15.23     (1) the information the commissioner relied upon is 
 15.24  incorrect or inaccurate.  If the basis of a reconsideration 
 15.25  request is that a maltreatment determination or disposition 
 15.26  under section 626.556 or 626.557 is incorrect, and the 
 15.27  commissioner has issued a final order in an appeal of that 
 15.28  determination or disposition under section 256.045, the 
 15.29  commissioner's order is conclusive on the issue of maltreatment; 
 15.30  or 
 15.31     (2) the subject of the study does not pose a risk of harm 
 15.32  to any person served by the applicant ~~or~~, license holder, or 
 15.33  registrant. 
 15.34     (b) The commissioner may set aside the disqualification 
 15.35  under this section if the commissioner finds that the 
 15.36  information the commissioner relied upon is incorrect or the 
 16.1   individual does not pose a risk of harm to any person served by 
 16.2   the applicant ~~or~~, license holder, or registrant.  In determining 
 16.3   that an individual does not pose a risk of harm, the 
 16.4   commissioner shall consider the consequences of the event or 
 16.5   events that lead to disqualification, whether there is more than 
 16.6   one disqualifying event, the vulnerability of the victim at the 
 16.7   time of the event, the time elapsed without a repeat of the same 
 16.8   or similar event, documentation of successful completion by the 
 16.9   individual studied of training or rehabilitation pertinent to 
 16.10  the event, and any other information relevant to 
 16.11  reconsideration.  In reviewing a disqualification under this 
 16.12  section, the commissioner shall give preeminent weight to the 
 16.13  safety of each person to be served by the license holder ~~or~~, 
 16.14  applicant, or registrant over the interests of the license 
 16.15  holder ~~or~~, applicant, or registrant. 
 16.16     (c) Unless the information the commissioner relied on in 
 16.17  disqualifying an individual is incorrect, the commissioner may 
 16.18  not set aside the disqualification of an individual in 
 16.19  connection with a license to provide family day care for 
 16.20  children, foster care for children in the provider's own home, 
 16.21  or foster care or day care services for adults in the provider's 
 16.22  own home if: 
 16.23     (1) less than ten years have passed since the discharge of 
 16.24  the sentence imposed for the offense; and the individual has 
 16.25  been convicted of a violation of any offense listed in sections 
 16.26  609.20 (manslaughter in the first degree), 609.205 (manslaughter 
 16.27  in the second degree), criminal vehicular homicide under 609.21 
 16.28  (criminal vehicular homicide and injury), 609.215 (aiding 
 16.29  suicide or aiding attempted suicide), felony violations under 
 16.30  609.221 to 609.2231 (assault in the first, second, third, or 
 16.31  fourth degree), 609.713 (terroristic threats), 609.235 (use of 
 16.32  drugs to injure or to facilitate crime), 609.24 (simple 
 16.33  robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 
 16.34  609.255 (false imprisonment), 609.561 or 609.562 (arson in the 
 16.35  first or second degree), 609.71 (riot), burglary in the first or 
 16.36  second degree under 609.582 (burglary), 609.66 (dangerous 
 17.1   weapon), 609.665 (spring guns), 609.67 (machine guns and 
 17.2   short-barreled shotguns), 609.749 (harassment; stalking), 
 17.3   152.021 or 152.022 (controlled substance crime in the first or 
 17.4   second degree), 152.023, subdivision 1, clause (3) or (4), or 
 17.5   subdivision 2, clause (4) (controlled substance crime in the 
 17.6   third degree), 152.024, subdivision 1, clause (2), (3), or (4) 
 17.7   (controlled substance crime in the fourth degree), 609.224, 
 17.8   subdivision 2, paragraph (c) (fifth-degree assault by a 
 17.9   caregiver against a vulnerable adult), 609.228 (great bodily 
 17.10  harm caused by distribution of drugs), 609.23 (mistreatment of 
 17.11  persons confined), 609.231 (mistreatment of residents or 
 17.12  patients), 609.2325 (criminal abuse of a vulnerable adult), 
 17.13  609.233 (criminal neglect of a vulnerable adult), 609.2335 
 17.14  (financial exploitation of a vulnerable adult), 609.234 (failure 
 17.15  to report), 609.265 (abduction), 609.2664 to 609.2665 
 17.16  (manslaughter of an unborn child in the first or second degree), 
 17.17  609.267 to 609.2672 (assault of an unborn child in the first, 
 17.18  second, or third degree), 609.268 (injury or death of an unborn 
 17.19  child in the commission of a crime), 617.293 (disseminating or 
 17.20  displaying harmful material to minors), a gross misdemeanor 
 17.21  offense under 609.324, subdivision 1 (other prohibited acts), a 
 17.22  gross misdemeanor offense under 609.378 (neglect or endangerment 
 17.23  of a child), a gross misdemeanor offense under 609.377 
 17.24  (malicious punishment of a child), 609.72, subdivision 3 
 17.25  (disorderly conduct against a vulnerable adult); or an attempt 
 17.26  or conspiracy to commit any of these offenses, as each of these 
 17.27  offenses is defined in Minnesota Statutes; or an offense in any 
 17.28  other state, the elements of which are substantially similar to 
 17.29  the elements of any of the foregoing offenses; 
 17.30     (2) regardless of how much time has passed since the 
 17.31  discharge of the sentence imposed for the offense, the 
 17.32  individual was convicted of a violation of any offense listed in 
 17.33  sections 609.185 to 609.195 (murder in the first, second, or 
 17.34  third degree), 609.2661 to 609.2663 (murder of an unborn child 
 17.35  in the first, second, or third degree), a felony offense under 
 17.36  609.377 (malicious punishment of a child), a felony offense 
 18.1   under 609.324, subdivision 1 (other prohibited acts), a felony 
 18.2   offense under 609.378 (neglect or endangerment of a child), 
 18.3   609.322 (solicitation, inducement, and promotion of 
 18.4   prostitution), 609.342 to 609.345 (criminal sexual conduct in 
 18.5   the first, second, third, or fourth degree), 609.352 
 18.6   (solicitation of children to engage in sexual conduct), 617.246 
 18.7   (use of minors in a sexual performance), 617.247 (possession of 
 18.8   pictorial representations of a minor), 609.365 (incest), a 
 18.9   felony offense under sections 609.2242 and 609.2243 (domestic 
 18.10  assault), a felony offense of spousal abuse, a felony offense of 
 18.11  child abuse or neglect, a felony offense of a crime against 
 18.12  children, or an attempt or conspiracy to commit any of these 
 18.13  offenses as defined in Minnesota Statutes, or an offense in any 
 18.14  other state, the elements of which are substantially similar to 
 18.15  any of the foregoing offenses; 
 18.16     (3) within the seven years preceding the study, the 
 18.17  individual committed an act that constitutes maltreatment of a 
 18.18  child under section 626.556, subdivision 10e, and that resulted 
 18.19  in substantial bodily harm as defined in section 609.02, 
 18.20  subdivision 7a, or substantial mental or emotional harm as 
 18.21  supported by competent psychological or psychiatric evidence; or 
 18.22     (4) within the seven years preceding the study, the 
 18.23  individual was determined under section 626.557 to be the 
 18.24  perpetrator of a substantiated incident of maltreatment of a 
 18.25  vulnerable adult that resulted in substantial bodily harm as 
 18.26  defined in section 609.02, subdivision 7a, or substantial mental 
 18.27  or emotional harm as supported by competent psychological or 
 18.28  psychiatric evidence. 
 18.29     In the case of any ground for disqualification under 
 18.30  clauses (1) to (4), if the act was committed by an individual 
 18.31  other than the applicant or license holder residing in the 
 18.32  applicant's or license holder's home, the applicant ~~or~~, license 
 18.33  holder, or registrant may seek reconsideration when the 
 18.34  individual who committed the act no longer resides in the home.  
 18.35     The disqualification periods provided under clauses (1), 
 18.36  (3), and (4) are the minimum applicable disqualification 
 19.1   periods.  The commissioner may determine that an individual 
 19.2   should continue to be disqualified from licensure because the 
 19.3   license holder or applicant poses a risk of harm to a person 
 19.4   served by that individual after the minimum disqualification 
 19.5   period has passed. 
 19.6      (d) The commissioner shall respond in writing or by 
 19.7   electronic transmission to all reconsideration requests for 
 19.8   which the basis for the request is that the information relied 
 19.9   upon by the commissioner to disqualify is incorrect or 
 19.10  inaccurate within 30 working days of receipt of a request and 
 19.11  all relevant information.  If the basis for the request is that 
 19.12  the individual does not pose a risk of harm, the commissioner 
 19.13  shall respond to the request within 15 working days after 
 19.14  receiving the request for reconsideration and all relevant 
 19.15  information.  If the disqualification is set aside, the 
 19.16  commissioner shall notify the applicant or license holder in 
 19.17  writing or by electronic transmission of the decision. 
 19.18     (e) Except as provided in subdivision 3c, the 
 19.19  commissioner's decision to disqualify an individual, including 
 19.20  the decision to grant or deny a rescission or set aside a 
 19.21  disqualification under this section, is the final administrative 
 19.22  agency action and shall not be subject to further review in a 
 19.23  contested case under chapter 14 involving a negative licensing 
 19.24  appeal taken in response to the disqualification or involving an 
 19.25  accuracy and completeness appeal under section 13.04. 
 19.26     Sec. 5.  Minnesota Statutes 2000, section 245A.04, 
 19.27  subdivision 3d, is amended to read: 
 19.28     Subd. 3d.  [DISQUALIFICATION.] (a) Except as provided in 
 19.29  paragraph (b), when a background study completed under 
 19.30  subdivision 3 shows any of the following:  a conviction of one 
 19.31  or more crimes listed in clauses (1) to (4); the individual has 
 19.32  admitted to or a preponderance of the evidence indicates the 
 19.33  individual has committed an act or acts that meet the definition 
 19.34  of any of the crimes listed in clauses (1) to (4); or an 
 19.35  administrative determination listed under clause (4), the 
 19.36  individual shall be disqualified from any position allowing 
 20.1   direct contact with persons receiving services from the license 
 20.2   holder or registrant: 
 20.3      (1) regardless of how much time has passed since the 
 20.4   discharge of the sentence imposed for the offense, and unless 
 20.5   otherwise specified, regardless of the level of the conviction, 
 20.6   the individual was convicted of any of the following offenses:  
 20.7   sections 609.185 (murder in the first degree); 609.19 (murder in 
 20.8   the second degree); 609.195 (murder in the third degree); 
 20.9   609.2661 (murder of an unborn child in the first degree); 
 20.10  609.2662 (murder of an unborn child in the second degree); 
 20.11  609.2663 (murder of an unborn child in the third degree); 
 20.12  609.322 (solicitation, inducement, and promotion of 
 20.13  prostitution); 609.342 (criminal sexual conduct in the first 
 20.14  degree); 609.343 (criminal sexual conduct in the second degree); 
 20.15  609.344 (criminal sexual conduct in the third degree); 609.345 
 20.16  (criminal sexual conduct in the fourth degree); 609.352 
 20.17  (solicitation of children to engage in sexual conduct); 609.365 
 20.18  (incest); felony offense under 609.377 (malicious punishment of 
 20.19  a child); a felony offense under 609.378 (neglect or 
 20.20  endangerment of a child); a felony offense under 609.324, 
 20.21  subdivision 1 (other prohibited acts); 617.246 (use of minors in 
 20.22  sexual performance prohibited); 617.247 (possession of pictorial 
 20.23  representations of minors); a felony offense under sections 
 20.24  609.2242 and 609.2243 (domestic assault), a felony offense of 
 20.25  spousal abuse, a felony offense of child abuse or neglect, a 
 20.26  felony offense of a crime against children; or attempt or 
 20.27  conspiracy to commit any of these offenses as defined in 
 20.28  Minnesota Statutes, or an offense in any other state or country, 
 20.29  where the elements are substantially similar to any of the 
 20.30  offenses listed in this clause; 
 20.31     (2) if less than 15 years have passed since the discharge 
 20.32  of the sentence imposed for the offense; and the individual has 
 20.33  received a felony conviction for a violation of any of these 
 20.34  offenses:  sections 609.20 (manslaughter in the first degree); 
 20.35  609.205 (manslaughter in the second degree); 609.21 (criminal 
 20.36  vehicular homicide and injury); 609.215 (suicide); 609.221 to 
 21.1   609.2231 (assault in the first, second, third, or fourth 
 21.2   degree); repeat offenses under 609.224 (assault in the fifth 
 21.3   degree); repeat offenses under 609.3451 (criminal sexual conduct 
 21.4   in the fifth degree); 609.713 (terroristic threats); 609.235 
 21.5   (use of drugs to injure or facilitate crime); 609.24 (simple 
 21.6   robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 
 21.7   609.255 (false imprisonment); 609.561 (arson in the first 
 21.8   degree); 609.562 (arson in the second degree); 609.563 (arson in 
 21.9   the third degree); repeat offenses under 617.23 (indecent 
 21.10  exposure; penalties); repeat offenses under 617.241 (obscene 
 21.11  materials and performances; distribution and exhibition 
 21.12  prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 
 21.13  609.67 (machine guns and short-barreled shotguns); 609.749 
 21.14  (harassment; stalking; penalties); 609.228 (great bodily harm 
 21.15  caused by distribution of drugs); 609.2325 (criminal abuse of a 
 21.16  vulnerable adult); 609.2664 (manslaughter of an unborn child in 
 21.17  the first degree); 609.2665 (manslaughter of an unborn child in 
 21.18  the second degree); 609.267 (assault of an unborn child in the 
 21.19  first degree); 609.2671 (assault of an unborn child in the 
 21.20  second degree); 609.268 (injury or death of an unborn child in 
 21.21  the commission of a crime); 609.52 (theft); 609.2335 (financial 
 21.22  exploitation of a vulnerable adult); 609.521 (possession of 
 21.23  shoplifting gear); 609.582 (burglary); 609.625 (aggravated 
 21.24  forgery); 609.63 (forgery); 609.631 (check forgery; offering a 
 21.25  forged check); 609.635 (obtaining signature by false pretense); 
 21.26  609.27 (coercion); 609.275 (attempt to coerce); 609.687 
 21.27  (adulteration); 260C.301 (grounds for termination of parental 
 21.28  rights); and chapter 152 (drugs; controlled substance).  An 
 21.29  attempt or conspiracy to commit any of these offenses, as each 
 21.30  of these offenses is defined in Minnesota Statutes; or an 
 21.31  offense in any other state or country, the elements of which are 
 21.32  substantially similar to the elements of the offenses in this 
 21.33  clause.  If the individual studied is convicted of one of the 
 21.34  felonies listed in this clause, but the sentence is a gross 
 21.35  misdemeanor or misdemeanor disposition, the lookback period for 
 21.36  the conviction is the period applicable to the disposition, that 
 22.1   is the period for gross misdemeanors or misdemeanors; 
 22.2      (3) if less than ten years have passed since the discharge 
 22.3   of the sentence imposed for the offense; and the individual has 
 22.4   received a gross misdemeanor conviction for a violation of any 
 22.5   of the following offenses:  sections 609.224 (assault in the 
 22.6   fifth degree); 609.2242 and 609.2243 (domestic assault); 
 22.7   violation of an order for protection under 518B.01, subdivision 
 22.8   14; 609.3451 (criminal sexual conduct in the fifth degree); 
 22.9   repeat offenses under 609.746 (interference with privacy); 
 22.10  repeat offenses under 617.23 (indecent exposure); 617.241 
 22.11  (obscene materials and performances); 617.243 (indecent 
 22.12  literature, distribution); 617.293 (harmful materials; 
 22.13  dissemination and display to minors prohibited); 609.71 (riot); 
 22.14  609.66 (dangerous weapons); 609.749 (harassment; stalking; 
 22.15  penalties); 609.224, subdivision 2, paragraph (c) (assault in 
 22.16  the fifth degree by a caregiver against a vulnerable adult); 
 22.17  609.23 (mistreatment of persons confined); 609.231 (mistreatment 
 22.18  of residents or patients); 609.2325 (criminal abuse of a 
 22.19  vulnerable adult); 609.233 (criminal neglect of a vulnerable 
 22.20  adult); 609.2335 (financial exploitation of a vulnerable adult); 
 22.21  609.234 (failure to report maltreatment of a vulnerable adult); 
 22.22  609.72, subdivision 3 (disorderly conduct against a vulnerable 
 22.23  adult); 609.265 (abduction); 609.378 (neglect or endangerment of 
 22.24  a child); 609.377 (malicious punishment of a child); 609.324, 
 22.25  subdivision 1a (other prohibited acts; minor engaged in 
 22.26  prostitution); 609.33 (disorderly house); 609.52 (theft); 
 22.27  609.582 (burglary); 609.631 (check forgery; offering a forged 
 22.28  check); 609.275 (attempt to coerce); or an attempt or conspiracy 
 22.29  to commit any of these offenses, as each of these offenses is 
 22.30  defined in Minnesota Statutes; or an offense in any other state 
 22.31  or country, the elements of which are substantially similar to 
 22.32  the elements of any of the offenses listed in this clause.  If 
 22.33  the defendant is convicted of one of the gross misdemeanors 
 22.34  listed in this clause, but the sentence is a misdemeanor 
 22.35  disposition, the lookback period for the conviction is the 
 22.36  period applicable to misdemeanors; or 
 23.1      (4) if less than seven years have passed since the 
 23.2   discharge of the sentence imposed for the offense; and the 
 23.3   individual has received a misdemeanor conviction for a violation 
 23.4   of any of the following offenses:  sections 609.224 (assault in 
 23.5   the fifth degree); 609.2242 (domestic assault); violation of an 
 23.6   order for protection under 518B.01 (Domestic Abuse Act); 
 23.7   violation of an order for protection under 609.3232 (protective 
 23.8   order authorized; procedures; penalties); 609.746 (interference 
 23.9   with privacy); 609.79 (obscene or harassing phone calls); 
 23.10  609.795 (letter, telegram, or package; opening; harassment); 
 23.11  617.23 (indecent exposure; penalties); 609.2672 (assault of an 
 23.12  unborn child in the third degree); 617.293 (harmful materials; 
 23.13  dissemination and display to minors prohibited); 609.66 
 23.14  (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
 23.15  exploitation of a vulnerable adult); 609.234 (failure to report 
 23.16  maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
 23.17  (coercion); or an attempt or conspiracy to commit any of these 
 23.18  offenses, as each of these offenses is defined in Minnesota 
 23.19  Statutes; or an offense in any other state or country, the 
 23.20  elements of which are substantially similar to the elements of 
 23.21  any of the offenses listed in this clause; failure to make 
 23.22  required reports under section 626.556, subdivision 3, or 
 23.23  626.557, subdivision 3, for incidents in which:  (i) the final 
 23.24  disposition under section 626.556 or 626.557 was substantiated 
 23.25  maltreatment, and (ii) the maltreatment was recurring or 
 23.26  serious; or substantiated serious or recurring maltreatment of a 
 23.27  minor under section 626.556 or of a vulnerable adult under 
 23.28  section 626.557 for which there is a preponderance of evidence 
 23.29  that the maltreatment occurred, and that the subject was 
 23.30  responsible for the maltreatment. 
 23.31     For the purposes of this section, "serious maltreatment" 
 23.32  means sexual abuse; maltreatment resulting in death; or 
 23.33  maltreatment resulting in serious injury which reasonably 
 23.34  requires the care of a physician whether or not the care of a 
 23.35  physician was sought; or abuse resulting in serious injury.  For 
 23.36  purposes of this section, "abuse resulting in serious injury" 
 24.1   means:  bruises, bites, skin laceration or tissue damage; 
 24.2   fractures; dislocations; evidence of internal injuries; head 
 24.3   injuries with loss of consciousness; extensive second-degree or 
 24.4   third-degree burns and other burns for which complications are 
 24.5   present; extensive second-degree or third-degree frostbite, and 
 24.6   others for which complications are present; irreversible 
 24.7   mobility or avulsion of teeth; injuries to the eyeball; 
 24.8   ingestion of foreign substances and objects that are harmful; 
 24.9   near drowning; and heat exhaustion or sunstroke.  For purposes 
 24.10  of this section, "care of a physician" is treatment received or 
 24.11  ordered by a physician, but does not include diagnostic testing, 
 24.12  assessment, or observation.  For the purposes of this section, 
 24.13  "recurring maltreatment" means more than one incident of 
 24.14  maltreatment for which there is a preponderance of evidence that 
 24.15  the maltreatment occurred, and that the subject was responsible 
 24.16  for the maltreatment. 
 24.17     (b) If the subject of a background study is licensed by a 
 24.18  health-related licensing board, the board shall make the 
 24.19  determination regarding a disqualification under this 
 24.20  subdivision based on a finding of substantiated maltreatment 
 24.21  under section 626.556 or 626.557.  The commissioner shall notify 
 24.22  the health-related licensing board if a background study shows 
 24.23  that a licensee would be disqualified because of substantiated 
 24.24  maltreatment and the board shall make a determination under 
 24.25  section 214.104. 
 24.26     Sec. 6.  Minnesota Statutes 2000, section 256B.431, is 
 24.27  amended by adding a subdivision to read: 
 24.28     Subd. 31.  [REPORTING OF TEMPORARY EMPLOYMENT AGENCY USE; 
 24.29  RATE ADJUSTMENTS.] (a) For purposes of this subdivision, 
 24.30  "temporary employment agency" has the meaning provided in 
 24.31  section 256M.01. 
 24.32     (b) For the calendar quarter beginning July 1, 2001, and 
 24.33  each quarter thereafter, the commissioner of human services 
 24.34  shall require nursing facilities reimbursed under this section 
 24.35  or section 256B.434 or 256B.435, to report the following 
 24.36  information on use of temporary employment agency services, in 
 25.1   the form and manner specified by the commissioner: 
 25.2      (1) number of hours worked by temporary employment agency 
 25.3   personnel, by job classification, for each month; 
 25.4      (2) payments to temporary employment agencies, on a per 
 25.5   hour worked basis, by job classification, for each month; and 
 25.6      (3) percentage of total monthly work hours provided by 
 25.7   temporary employment agency personnel, by job classification, 
 25.8   for each shift and for weekdays and weekends. 
 25.9      (c) Effective for the rate period beginning January 1, 
 25.10  2002, and for the rate year beginning July 1, 2002, the 
 25.11  commissioner shall provide the following adjustments to the 
 25.12  total operating payment rate of facilities reimbursed under this 
 25.13  section or section 256B.434 or 256B.435: 
 25.14     (1) an increase of three percent for facilities at which 
 25.15  temporary employment agency personnel provide zero to five 
 25.16  percent of total work hours; 
 25.17     (2) an increase of two percent for facilities at which 
 25.18  temporary employment agency personnel provide greater than five 
 25.19  percent but not more than ten percent of total work hours; and 
 25.20     (3) an increase of one percent for facilities at which 
 25.21  temporary employment agency personnel provide greater than ten 
 25.22  percent but not more than 15 percent of total work hours. 
 25.23  Facilities receiving a rate increase under this paragraph must 
 25.24  use at least 70 percent of the new revenue received to increase 
 25.25  the per-hour pay of all employees, except management fees, the 
 25.26  administrator, and central office staff, by an equal dollar 
 25.27  amount and to pay associated costs for FICA, the Medicare tax, 
 25.28  workers' compensation premiums, and federal and state 
 25.29  unemployment insurance. 
 25.30     Sec. 7.  [256M.01] [DEFINITIONS.] 
 25.31     Subdivision 1.  [SCOPE.] As used in sections 256M.01 to 
 25.32  256M.10, the following terms have the meanings given them. 
 25.33     Subd. 2.  [COMMISSIONER.] "Commissioner" means the 
 25.34  commissioner of health or the commissioner's designee. 
 25.35     Subd. 3.  [CONTROLLING PERSON.] "Controlling person" means 
 25.36  a business entity, officer, program administrator, or director 
 26.1   whose responsibilities include the direction of the management 
 26.2   or policies of a temporary employment agency.  Controlling 
 26.3   person also means an individual who, directly or indirectly, 
 26.4   beneficially owns an interest in a corporation, partnership, or 
 26.5   other business association that is a controlling person. 
 26.6      Subd. 4.  [OWNER OF A TEMPORARY EMPLOYMENT AGENCY OR 
 26.7   OWNER.] "Owner of a temporary employment agency" or "owner" 
 26.8   means an individual whose ownership interest provides sufficient 
 26.9   authority or control to affect or change decisions related to 
 26.10  the operation of the temporary employment agency.  An owner 
 26.11  includes a sole proprietor, a general partner, or any other 
 26.12  individual whose individual ownership interest can affect the 
 26.13  management and direction of the policies of the temporary 
 26.14  employment agency. 
 26.15     Subd. 5.  [TEMPORARY EMPLOYMENT AGENCY SERVING NURSING 
 26.16  FACILITIES OR TEMPORARY EMPLOYMENT AGENCY.] "Temporary 
 26.17  employment agency serving nursing facilities" or "temporary 
 26.18  employment agency" means a personnel pool or temporary pool 
 26.19  agency providing individuals for direct contact services as 
 26.20  defined in section 245A.04 in nursing facilities licensed by the 
 26.21  commissioner.  A temporary employment agency does not include 
 26.22  direct contact services provided by or coordinated by nursing 
 26.23  facilities. 
 26.24     Sec. 8.  [256M.02] [REGISTRATION REQUIRED.] 
 26.25     Effective January 1, 2001, no entity may establish, 
 26.26  operate, conduct, or maintain a temporary employment agency in 
 26.27  this state without registering and operating as required in this 
 26.28  chapter.  Each application for a temporary employment agency 
 26.29  registration, or for a renewal of a registration, shall be 
 26.30  accompanied by a fee to be set by the commissioner. 
 26.31     Sec. 9.  [256M.03] [ENFORCEMENT.] 
 26.32     Subdivision 1.  [DENIAL; SUSPENSION; REVOCATION.] The 
 26.33  commissioner may refuse to grant or renew a registration, or may 
 26.34  suspend or revoke a registration, for violation of statutes or 
 26.35  rules relating to temporary employment agencies or for conduct 
 26.36  detrimental to the welfare of the consumer.  Prior to any 
 27.1   suspension, revocation, or refusal to renew a registration, the 
 27.2   temporary employment agency shall be entitled to notice and a 
 27.3   hearing as provided by sections 14.57 to 14.69.  In addition to 
 27.4   any other remedy provided by law, the commissioner may, without 
 27.5   a prior contested case hearing, temporarily suspend a 
 27.6   registration or prohibit delivery of services by a temporary 
 27.7   employment agency for no more than 60 days if the commissioner 
 27.8   determines that the health or safety of a consumer is in 
 27.9   imminent danger, provided: 
 27.10     (1) advance notice is given to the temporary employment 
 27.11  agency; 
 27.12     (2) after notice, the temporary employment agency fails to 
 27.13  correct the problem; 
 27.14     (3) the commissioner has reason to believe that other 
 27.15  administrative remedies are not likely to be effective; and 
 27.16     (4) there is an opportunity for a contested case hearing 
 27.17  within the 60 days. 
 27.18     Subd. 2.  [INELIGIBLE INDIVIDUALS.] (a) The owner and 
 27.19  managerial officials of a temporary employment agency, the 
 27.20  Minnesota registration of which has not been renewed or has been 
 27.21  revoked because of noncompliance with applicable law or rule, 
 27.22  are not eligible to apply for and shall not be granted a 
 27.23  registration for five years following the effective date of the 
 27.24  nonrenewal or revocation. 
 27.25     (b) The commissioner shall not issue a registration to a 
 27.26  temporary employment agency if an owner or managerial official 
 27.27  includes an individual who was an owner or managerial official 
 27.28  of a temporary employment agency, the registration of which was 
 27.29  not renewed or was revoked as described in paragraph (a), for 
 27.30  five years following the effective date of nonrenewal or 
 27.31  revocation. 
 27.32     (c) For purposes of this section, "managerial official" 
 27.33  means an individual who is responsible for the ongoing 
 27.34  management or direction of the policies, services, or employees 
 27.35  of the temporary employment agency relating to the areas of 
 27.36  noncompliance that resulted in the registration revocation or 
 28.1   nonrenewal. 
 28.2      Subd. 3.  [MANDATORY NONRENEWAL; SUSPENSION; 
 28.3   REVOCATION.] Notwithstanding subdivision 1, the commissioner 
 28.4   must not renew and shall suspend or revoke the registration of a 
 28.5   temporary employment agency that includes an individual as an 
 28.6   owner or managerial official who was an owner or managerial 
 28.7   official of a temporary employment agency, the registration of 
 28.8   which was not renewed or was revoked as described in subdivision 
 28.9   2, paragraph (a), for five years following the effective date of 
 28.10  the nonrenewal or revocation.  The commissioner must notify the 
 28.11  temporary employment agency 30 days in advance of the date of 
 28.12  nonrenewal, suspension, or revocation of the registration.  
 28.13     Subd. 4.  [REQUEST FOR STAY.] (a) Within ten days after 
 28.14  receipt of the notification under subdivision 3, the temporary 
 28.15  employment agency may request in writing that the commissioner 
 28.16  stay the nonrenewal, revocation, or suspension of the 
 28.17  registration.  The temporary employment agency must specify: 
 28.18     (1) the reasons for requesting the stay; 
 28.19     (2) the steps that will be taken to attain or maintain 
 28.20  compliance with the registration requirements; 
 28.21     (3) any limits on the authority or responsibility of the 
 28.22  owners or managerial officials whose actions resulted in the 
 28.23  notice of nonrenewal, revocation, or suspension; and 
 28.24     (4) any other information to establish that the continuing 
 28.25  affiliation with the individuals will not jeopardize client 
 28.26  health, safety, or well-being.  
 28.27     (b) The commissioner must determine whether to grant the 
 28.28  stay within 30 days of receiving the temporary employment 
 28.29  agency's request.  The commissioner may propose additional 
 28.30  restrictions or limitations on the temporary employment agency's 
 28.31  registration and require that granting of the stay be contingent 
 28.32  upon compliance with the provisions.  The commissioner must take 
 28.33  into consideration the following factors when determining 
 28.34  whether to grant the stay: 
 28.35     (1) the threat that continued involvement of the owners or 
 28.36  managerial officials in the temporary employment agency poses to 
 29.1   client health, safety, and well-being; 
 29.2      (2) the compliance history of the temporary employment 
 29.3   agency; and 
 29.4      (3) the appropriateness of any limits suggested by the 
 29.5   temporary employment agency. 
 29.6      (c) If the commissioner grants the stay, the order must 
 29.7   include any restrictions or limitation on the temporary 
 29.8   employment agency's registration.  Failure of the temporary 
 29.9   employment agency to comply with any restrictions or limitations 
 29.10  shall result in the immediate removal of the stay and the 
 29.11  commissioner must take immediate action to suspend, revoke, or 
 29.12  not renew the registration. 
 29.13     Subd. 5.  [EFFECTIVE DATE.] Subdivision 2 applies to any 
 29.14  nonrenewal or revocation of a temporary employment agency 
 29.15  registration occurring after January 1, 2001. 
 29.16     Sec. 10.  [256M.04] [INJUNCTIVE RELIEF.] 
 29.17     In addition to any other remedy provided by law, the 
 29.18  commissioner may bring an action in district court to enjoin a 
 29.19  person who is involved in the management, operation, or control 
 29.20  of a temporary employment agency or an employee of the temporary 
 29.21  employment agency from illegally engaging in activities 
 29.22  regulated by this chapter.  The commissioner may bring an action 
 29.23  under this section in the district court in Ramsey county or in 
 29.24  the district in which a temporary employment agency is providing 
 29.25  services.  The court may grant a temporary restraining order in 
 29.26  the proceeding if continued activity by the person who is 
 29.27  involved in the management, operation, or control of a temporary 
 29.28  employment agency or by an employee of the temporary employment 
 29.29  agency would create an imminent risk of harm to a recipient of 
 29.30  agency services. 
 29.31     Sec. 11.  [256M.05] [SUBPOENA.] 
 29.32     In matters pending before the commissioner under this 
 29.33  chapter, the commissioner may issue subpoenas and compel the 
 29.34  attendance of witnesses and the production of all necessary 
 29.35  papers, books, records, documents, and other evidentiary 
 29.36  material.  If a person fails or refuses to comply with a 
 30.1   subpoena or order of the commissioner to appear or testify 
 30.2   regarding any matter about which the person may be lawfully 
 30.3   questioned or to produce any papers, books, records, documents, 
 30.4   or evidentiary materials in the matter to be heard, the 
 30.5   commissioner may apply to the district court in any district, 
 30.6   and the court shall order the person to comply with the 
 30.7   commissioner's order or subpoena.  The commissioner may 
 30.8   administer oaths to witnesses or take their affirmation.  
 30.9   Depositions may be taken in or outside the state in a manner 
 30.10  provided by law for taking of depositions in civil actions.  A 
 30.11  subpoena or other process or paper may be served upon a named 
 30.12  person anywhere within the state by an officer authorized to 
 30.13  serve subpoenas in civil actions, with the same fees and mileage 
 30.14  and in the same manner as prescribed by law for process issued 
 30.15  out of a district court.  A person subpoenaed under this section 
 30.16  shall receive the same fees, mileage, and other costs that are 
 30.17  paid in proceedings in district court. 
 30.18     Sec. 12.  [256M.06] [BACKGROUND STUDIES.] 
 30.19     (a) Before the commissioner issues an initial or renewal 
 30.20  registration, an owner or managerial official shall be required 
 30.21  to complete a background study under section 144.057.  No person 
 30.22  may be involved in the management, operation, or control of a 
 30.23  temporary employment agency if the person has been disqualified 
 30.24  under chapter 245A.  An individual disqualified under chapter 
 30.25  245A may request a reconsideration and, if the disqualification 
 30.26  is set aside, the individual is then eligible to be involved in 
 30.27  the management, operation, or control of the temporary 
 30.28  employment agency. 
 30.29     (b) For purposes of this section, a "managerial official" 
 30.30  subject to the background check requirement means an individual 
 30.31  who provides direct contact as defined in section 245A.04 or who 
 30.32  is responsible for the ongoing management or direction of the 
 30.33  policies, services, or employees of the temporary employment 
 30.34  agency. 
 30.35     (c) Data collected under this section shall be classified 
 30.36  as private data under section 13.02, subdivision 12. 
 31.1      (d) Employees and contractors of a temporary employment 
 31.2   agency are subject to the background study required under 
 31.3   section 144.057.  These individuals shall be disqualified under 
 31.4   the provisions of chapter 245A and Minnesota Rules, parts 
 31.5   9543.3000 to 9543.3090. 
 31.6      (e) Termination of an employee in good faith reliance on 
 31.7   information or records obtained under paragraphs (a) to (d) 
 31.8   regarding a confirmed conviction does not subject the employee 
 31.9   and contractors of a temporary employment agency to civil 
 31.10  liability or liability for unemployment benefits. 
 31.11     Sec. 13.  [256M.07] [REGISTRATION.] 
 31.12     Subdivision 1.  [REGISTRATION PROCEDURES.] The commissioner 
 31.13  shall establish forms and procedures for annual registration of 
 31.14  temporary employment agencies.  The commissioner shall charge an 
 31.15  annual registration fee that is based on revenues of each 
 31.16  temporary employment agency that covers the ongoing costs of the 
 31.17  registration program.  No fee shall be refunded.  A registered 
 31.18  temporary employment agency shall notify the commissioner within 
 31.19  30 days of the date the agency is no longer required to be 
 31.20  registered under this chapter or of any change in the business 
 31.21  name or address of the establishment, the name or mailing 
 31.22  address of the owner or owners, or the name or mailing address 
 31.23  of the managing agent.  There is no fee for submission of the 
 31.24  notice. 
 31.25     Subd. 2.  [REGISTRATION INFORMATION.] The temporary 
 31.26  employment agency must provide the following information to the 
 31.27  commissioner to register: 
 31.28     (1) the business name, street address, and mailing address 
 31.29  of the establishment; 
 31.30     (2) the name and mailing address of the owner or owners of 
 31.31  the establishment and, if the owner or owners are not natural 
 31.32  persons, identification of the type of business entity of the 
 31.33  owner or owners, and the names and addresses of the officers and 
 31.34  members of the governing body, or comparable persons for 
 31.35  partnerships, limited liability corporations, or other types of 
 31.36  business organizations of the owner or owners; 
 32.1      (3) the name and mailing address of the managing agent, 
 32.2   whether through management agreement or lease agreement, of the 
 32.3   temporary employment agency, if different from the owner or 
 32.4   owners, and the name of the on-site manager, if any; 
 32.5      (4) verification that the temporary employment agency has 
 32.6   entered into a contract, as required in section 256M.08, with 
 32.7   each facility; 
 32.8      (5) the name and address of at least one natural person who 
 32.9   is responsible for dealing with the commissioner on all matters 
 32.10  provided for in this chapter, on whom personal service of all 
 32.11  notices and orders shall be made, and who is authorized to 
 32.12  accept service on behalf of the owner or owners and the managing 
 32.13  agent, if any; and 
 32.14     (6) the signature of the authorized representative of the 
 32.15  owner or owners or, if the owner or owners are not natural 
 32.16  persons, signatures of at least two authorized representatives 
 32.17  of each owner, one of whom must be an officer of the owner. 
 32.18  Personal service on the person identified under clause (5) by 
 32.19  the owner or owners in the registration shall be considered 
 32.20  service on the owner or owners and it is not a defense to any 
 32.21  action that personal service was not made on each individual or 
 32.22  entity.  The designation of one or more individuals under this 
 32.23  subdivision shall not affect the legal responsibility of owners 
 32.24  under this chapter. 
 32.25     Sec. 14.  [256M.08] [TEMPORARY EMPLOYMENT AGENCY 
 32.26  CONTRACTS.] 
 32.27     Subdivision 1.  [CONTRACT REQUIRED.] No temporary 
 32.28  employment agency may operate in this state unless a written 
 32.29  temporary employment agency contract, as defined in subdivision 
 32.30  2, is executed between the temporary employment agency and each 
 32.31  facility and unless the temporary employment agency operates 
 32.32  according to the terms of the contract.  The facility must be 
 32.33  given a complete copy of the contract and all supporting 
 32.34  documents and attachments and any changes that are made. 
 32.35     Subd. 2.  [CONTENTS OF CONTRACT.] A temporary employment 
 32.36  agency contract, which need not be named as such to comply with 
 33.1   this section, shall include at least the following elements in 
 33.2   the body of the contract or through supporting documents or 
 33.3   attachments: 
 33.4      (1) name, street address, and mailing address of the 
 33.5   temporary employment agency; 
 33.6      (2) the name and mailing address of the owner or owners of 
 33.7   the temporary employment agency and, if the owner or owners are 
 33.8   not natural persons, identification of the type of business 
 33.9   entity of the owner or owners; 
 33.10     (3) the name and mailing address of the managing agent, 
 33.11  through management agreement or lease agreement, of the 
 33.12  temporary employment agency, if different from the owner or 
 33.13  owners; 
 33.14     (4) the name and address of at least one natural person who 
 33.15  is authorized to accept service on behalf of the owner or owners 
 33.16  and managing agent; 
 33.17     (5) a statement describing the registration and licensure 
 33.18  status of the temporary employment agency; 
 33.19     (6) term of the contract; 
 33.20     (7) description of the services to be provided to the 
 33.21  facility in the base rate charged to the facility; 
 33.22     (8) description of the process through which the contract 
 33.23  may be modified, amended, or terminated; 
 33.24     (9) description of the temporary employment agency's 
 33.25  complaint resolution process available to facilities; 
 33.26     (10) the facility's designated contact, if any; 
 33.27     (11) criteria used by the temporary employment agency to 
 33.28  determine who may continue to be employed in a facility; 
 33.29     (12) billing and payment procedures and requirements; 
 33.30     (13) a statement that the temporary employment agency 
 33.31  conducts all required background checks on all employees working 
 33.32  in health care facilities, will provide documented proof of 
 33.33  satisfactory completion of a background study required by 
 33.34  sections 144.057 and 245A.04, and is responsible for all 
 33.35  employee actions; and 
 33.36     (14) a statement that the temporary employment agency only 
 34.1   places employees in nursing assistant or nurse aide positions 
 34.2   who are on the state nursing assistant registry. 
 34.3      Subd. 3.  [CONTRACTS IN PERMANENT FILES.] A temporary 
 34.4   employment agency shall maintain contracts and related documents 
 34.5   executed by the agency in files from the date of execution until 
 34.6   three years after the contract is terminated.  The contracts 
 34.7   must be made available for on-site inspection by the 
 34.8   commissioner upon request at any time. 
 34.9      Sec. 15.  [256M.09] [AUTHORITY OF COMMISSIONER.] 
 34.10     (a) The commissioner shall, upon receipt of information 
 34.11  which may indicate the failure of a temporary employment agency 
 34.12  to comply with a legal requirement, make appropriate referrals 
 34.13  to other governmental agencies and entities having jurisdiction 
 34.14  over the subject matter.  The commissioner may also make 
 34.15  referrals to any public or private agency the commissioner 
 34.16  considers available for appropriate assistance to those involved.
 34.17     (b) The commissioner may bring an action for injunctive 
 34.18  relief in the district court in which an establishment is 
 34.19  located to compel the temporary employment agency to meet the 
 34.20  requirements of this chapter or other requirements of the state 
 34.21  or of any county or local governmental unit to which the 
 34.22  temporary employment agency is otherwise subject.  Proceedings 
 34.23  for securing an injunction may be brought by the commissioner 
 34.24  through the attorney general.  The sanctions in this section do 
 34.25  not restrict other sanctions available. 
 34.26     Sec. 16.  [256M.10] [TEMPORARY EMPLOYMENT AGENCY FEES.] 
 34.27     (a) Effective July 1, 2001, a temporary employment agency 
 34.28  must not bill or receive payments from nursing facilities at a 
 34.29  rate greater than 150 percent of the weighted average rate for 
 34.30  the applicable job classification for the geographic group in 
 34.31  which the facility is located. 
 34.32     (b) The commissioner of human services shall determine 
 34.33  weighted average rates annually.  Nursing facilities using the 
 34.34  services of temporary employment agencies shall report to the 
 34.35  commissioner of human services, in the form and manner specified 
 34.36  by the commissioner of human services, information necessary to 
 35.1   determine the weighted average rate. 
 35.2      (c) Temporary employment agencies that charge a rate in 
 35.3   violation of this section are subject to an action by the state 
 35.4   or any of its subdivisions or agencies for civil damages.