1.1                          A bill for an act 
  1.2             relating to vulnerable adults; specifying rights for 
  1.3             reconsideration and review of determinations regarding 
  1.4             maltreatment; amending Minnesota Statutes 1998, 
  1.5             section 626.557, subdivisions 9c, 9d, and 12b; 
  1.6             Minnesota Statutes 1999 Supplement, section 13.99, by 
  1.7             adding a subdivision; proposing coding for new law in 
  1.8             Minnesota Statutes, chapter 256. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  Minnesota Statutes 1999 Supplement, section 
  1.11  13.99, is amended by adding a subdivision to read: 
  1.12     Subd. 74d.  [VULNERABLE ADULT MALTREATMENT REVIEW 
  1.13  PANEL.] Data of the vulnerable adult maltreatment review panel 
  1.14  are classified under section 2. 
  1.15     Sec. 2.  [256.021] [VULNERABLE ADULT MALTREATMENT REVIEW 
  1.16  PANEL.] 
  1.17     Subdivision 1.  [CREATION.] (a) The commissioner of human 
  1.18  services shall establish a review panel for purposes of 
  1.19  reviewing lead agency determinations regarding maltreatment of a 
  1.20  vulnerable adult in response to requests received under section 
  1.21  626.557, subdivision 9d, paragraph (b).  The panel shall hold 
  1.22  quarterly meetings for purposes of conducting reviews under this 
  1.23  section.  
  1.24     (b) The review panel consists of: 
  1.25     (1) the commissioners of health and human services or their 
  1.26  designees; 
  1.27     (2) the ombudsperson for older Minnesotans and ombudsperson 
  2.1   for mental health and mental retardation, or their designees; 
  2.2   and 
  2.3      (3) a member of the board on aging, appointed by the board. 
  2.4      Subd. 2.  [REVIEW PROCEDURE.] (a) If a vulnerable adult or 
  2.5   an interested person acting on behalf of the vulnerable adult 
  2.6   requests a review under this section, the panel shall review the 
  2.7   request at its next quarterly meeting.  If the next quarterly 
  2.8   meeting is within ten days of the panel's receipt of the request 
  2.9   for review, the review may be delayed until the next subsequent 
  2.10  meeting.  The panel shall review the request and the 
  2.11  investigation memorandum and may review any other data on the 
  2.12  investigation maintained by the lead agency that are pertinent 
  2.13  and necessary to its review of the final disposition.  If more 
  2.14  than one person requests a review under this section with 
  2.15  respect to the same final disposition, the review panel shall 
  2.16  combine the requests into one review.  
  2.17     (b) Within 30 days of the review under this section, the 
  2.18  panel shall notify the lead agency and the vulnerable adult or 
  2.19  interested person who requested the review as to whether the 
  2.20  panel agrees with the final disposition or whether the lead 
  2.21  agency must reconsider the final disposition.  If the panel 
  2.22  determines that the lead agency must reconsider the final 
  2.23  disposition, the panel must make specific investigative 
  2.24  recommendations to the agency.  Within 30 days the lead agency 
  2.25  shall conduct a review and report back to the panel with its 
  2.26  determination and the specific rationale for its final 
  2.27  disposition. 
  2.28     Subd. 3.  [REPORT.] By January 15 of each year, the panel 
  2.29  shall submit a report to the committees of the legislature with 
  2.30  jurisdiction over section 626.557 regarding the number of 
  2.31  requests for review it receives under this section, the number 
  2.32  of cases where the panel requires the lead agency to reconsider 
  2.33  its final disposition, and the number of cases where the final 
  2.34  disposition is changed, and any recommendations to improve the 
  2.35  review or investigative process.  
  2.36     Subd. 4.  [DATA.] Data of the review panel created as part 
  3.1   of a review under this section are private data on individuals 
  3.2   as defined in section 13.02. 
  3.3      Sec. 3.  Minnesota Statutes 1998, section 626.557, 
  3.4   subdivision 9c, is amended to read: 
  3.5      Subd. 9c.  [LEAD AGENCY; NOTIFICATIONS, DISPOSITIONS, AND 
  3.6   DETERMINATIONS.] (a) Upon request of the reporter, the lead 
  3.7   agency shall notify the reporter that it has received the 
  3.8   report, and provide information on the initial disposition of 
  3.9   the report within five business days of receipt of the report, 
  3.10  provided that the notification will not endanger the vulnerable 
  3.11  adult or hamper the investigation. 
  3.12     (b) Upon conclusion of every investigation it conducts, the 
  3.13  lead agency shall make a final disposition as defined in section 
  3.14  626.5572, subdivision 8. 
  3.15     (c) When determining whether the facility or individual is 
  3.16  the responsible party for substantiated maltreatment, the lead 
  3.17  agency shall consider at least the following mitigating factors: 
  3.18     (1) whether the actions of the facility or the individual 
  3.19  caregivers were in accordance with, and followed the terms of, 
  3.20  an erroneous physician order, prescription, resident care plan, 
  3.21  or directive.  This is not a mitigating factor when the facility 
  3.22  or caregiver is responsible for the issuance of the erroneous 
  3.23  order, prescription, plan, or directive or knows or should have 
  3.24  known of the errors and took no reasonable measures to correct 
  3.25  the defect before administering care; 
  3.26     (2) the comparative responsibility between the facility, 
  3.27  other caregivers, and requirements placed upon the employee, 
  3.28  including but not limited to, the facility's compliance with 
  3.29  related regulatory standards and factors such as the adequacy of 
  3.30  facility policies and procedures, the adequacy of facility 
  3.31  training, the adequacy of an individual's participation in the 
  3.32  training, the adequacy of caregiver supervision, the adequacy of 
  3.33  facility staffing levels, and a consideration of the scope of 
  3.34  the individual employee's authority; and 
  3.35     (3) whether the facility or individual followed 
  3.36  professional standards in exercising professional judgment. 
  4.1      (d) The lead agency shall complete its final disposition 
  4.2   within 60 calendar days.  If the lead agency is unable to 
  4.3   complete its final disposition within 60 calendar days, the lead 
  4.4   agency shall notify the following persons provided that the 
  4.5   notification will not endanger the vulnerable adult or hamper 
  4.6   the investigation:  (1) the vulnerable adult or the vulnerable 
  4.7   adult's legal guardian, when known, if the lead agency knows 
  4.8   them to be aware of the investigation and (2) the facility, 
  4.9   where applicable.  The notice shall contain the reason for the 
  4.10  delay and the projected completion date.  If the lead agency is 
  4.11  unable to complete its final disposition by a subsequent 
  4.12  projected completion date, the lead agency shall again notify 
  4.13  the vulnerable adult or the vulnerable adult's legal guardian, 
  4.14  when known if the lead agency knows them to be aware of the 
  4.15  investigation, and the facility, where applicable, of the reason 
  4.16  for the delay and the revised projected completion date provided 
  4.17  that the notification will not endanger the vulnerable adult or 
  4.18  hamper the investigation.  A lead agency's inability to complete 
  4.19  the final disposition within 60 calendar days or by any 
  4.20  projected completion date does not invalidate the final 
  4.21  disposition. 
  4.22     (e) Within ten calendar days of completing the final 
  4.23  disposition, the lead agency shall provide a copy of the public 
  4.24  investigation memorandum under subdivision 12b, paragraph (b), 
  4.25  clause (1), when required to be completed under this section, to 
  4.26  the following persons:  (1) the vulnerable adult, or the 
  4.27  vulnerable adult's legal guardian, if known unless the lead 
  4.28  agency knows that the notification would endanger the well-being 
  4.29  of the vulnerable adult; (2) the reporter, if the reporter 
  4.30  requested notification when making the report, provided this 
  4.31  notification would not endanger the well-being of the vulnerable 
  4.32  adult; (3) the alleged perpetrator, if known; (4) the facility; 
  4.33  and (5) the ombudsman for older Minnesotans, or the ombudsman 
  4.34  for mental health and mental retardation, as appropriate. 
  4.35     (f) The lead agency shall notify the vulnerable adult who 
  4.36  is the subject of the report or the vulnerable adult's legal 
  5.1   guardian, if known, and any person or facility determined to 
  5.2   have maltreated a vulnerable adult, of their appeal or review 
  5.3   rights under this section or section 2. 
  5.4      (g) The lead agency shall routinely provide investigation 
  5.5   memoranda for substantiated reports to the appropriate licensing 
  5.6   boards.  These reports must include the names of substantiated 
  5.7   perpetrators.  The lead agency may not provide investigative 
  5.8   memoranda for inconclusive or false reports to the appropriate 
  5.9   licensing boards unless the lead agency's investigation gives 
  5.10  reason to believe that there may have been a violation of the 
  5.11  applicable professional practice laws.  If the investigation 
  5.12  memorandum is provided to a licensing board, the subject of the 
  5.13  investigation memorandum shall be notified and receive a summary 
  5.14  of the investigative findings. 
  5.15     (h) In order to avoid duplication, licensing boards shall 
  5.16  consider the findings of the lead agency in their investigations 
  5.17  if they choose to investigate.  This does not preclude licensing 
  5.18  boards from considering other information. 
  5.19     (i) The lead agency must provide to the commissioner of 
  5.20  human services its final dispositions, including the names of 
  5.21  all substantiated perpetrators.  The commissioner of human 
  5.22  services shall establish records to retain the names of 
  5.23  substantiated perpetrators. 
  5.24     Sec. 4.  Minnesota Statutes 1998, section 626.557, 
  5.25  subdivision 9d, is amended to read: 
  5.26     Subd. 9d.  [ADMINISTRATIVE RECONSIDERATION OF FINAL 
  5.27  DISPOSITION; REVIEW PANEL.] (a) Any individual or facility which 
  5.28  a lead agency determines has maltreated a vulnerable adult, or 
  5.29  the vulnerable adult or ~~vulnerable adult's designee~~ an 
  5.30  interested person acting on behalf of the vulnerable adult, 
  5.31  regardless of the lead agency's determination, who contests the 
  5.32  lead agency's final disposition of an allegation of 
  5.33  maltreatment, may request the lead agency to reconsider its 
  5.34  final disposition.  The request for reconsideration must be 
  5.35  submitted in writing to the lead agency within 15 calendar days 
  5.36  after receipt of notice of final disposition or, if the request 
  6.1   is made by an interested person who is not entitled to notice, 
  6.2   within 15 days after receipt of the notice by the vulnerable 
  6.3   adult or the vulnerable adult's legal guardian. 
  6.4      (b) If the lead agency denies the request or fails to act 
  6.5   upon the request within 15 calendar days after receiving the 
  6.6   request for reconsideration, the person or facility entitled to 
  6.7   a fair hearing under section 256.045, may submit to the 
  6.8   commissioner of human services a written request for a hearing 
  6.9   under that statute.  The vulnerable adult, or an interested 
  6.10  person acting on behalf of the vulnerable adult, may request a 
  6.11  review by the vulnerable adult maltreatment review panel under 
  6.12  section 2 if the lead agency denies the request or fails to act 
  6.13  upon the request, or if the vulnerable adult or interested 
  6.14  person contests a reconsidered disposition.  The lead agency 
  6.15  shall notify persons who request reconsideration of their rights 
  6.16  under this paragraph.  The request must be submitted in writing 
  6.17  to the review panel and a copy sent to the lead agency within 30 
  6.18  calendar days of receipt of notice of a denial of a request for 
  6.19  reconsideration or of a reconsidered disposition.  The request 
  6.20  must specifically identify the aspects of the agency 
  6.21  determination with which the person is dissatisfied.  
  6.22     (c) If, as a result of ~~the~~ a reconsideration or review, the 
  6.23  lead agency changes the final disposition, it shall notify the 
  6.24  parties specified in subdivision 9c, paragraph (d). 
  6.25     (d) For purposes of this subdivision, "interested person 
  6.26  acting on behalf of the vulnerable adult" means a person 
  6.27  designated in writing by the vulnerable adult to act on behalf 
  6.28  of the vulnerable adult, or a legal guardian or conservator or 
  6.29  other legal representative, a proxy or health care agent 
  6.30  appointed under chapter 145B or 145C, or an individual who is 
  6.31  related to the vulnerable adult, as defined in section 245A.02, 
  6.32  subdivision 13. 
  6.33     Sec. 5.  Minnesota Statutes 1998, section 626.557, 
  6.34  subdivision 12b, is amended to read: 
  6.35     Subd. 12b.  [DATA MANAGEMENT.] (a)  [COUNTY DATA.] In 
  6.36  performing any of the duties of this section as a lead agency, 
  7.1   the county social service agency shall maintain appropriate 
  7.2   records.  Data collected by the county social service agency 
  7.3   under this section are welfare data under section 13.46.  
  7.4   Notwithstanding section 13.46, subdivision 1, paragraph (a), 
  7.5   data under this paragraph that are inactive investigative data 
  7.6   on an individual who is a vendor of services are private data on 
  7.7   individuals, as defined in section 13.02.  The identity of the 
  7.8   reporter may only be disclosed as provided in paragraph (c). 
  7.9      Data maintained by the common entry point are confidential 
  7.10  data on individuals or protected nonpublic data as defined in 
  7.11  section 13.02.  Notwithstanding section 138.163, the common 
  7.12  entry point shall destroy data three calendar years after date 
  7.13  of receipt. 
  7.14     (b)  [LEAD AGENCY DATA.] The commissioners of health and 
  7.15  human services shall prepare an investigation memorandum for 
  7.16  each report alleging maltreatment investigated under this 
  7.17  section.  During an investigation by the commissioner of health 
  7.18  or the commissioner of human services, data collected under this 
  7.19  section are confidential data on individuals or protected 
  7.20  nonpublic data as defined in section 13.02.  Upon completion of 
  7.21  the investigation, the data are classified as provided in 
  7.22  clauses (1) to (3) and paragraph (c). 
  7.23     (1) The investigation memorandum must contain the following 
  7.24  data, which are public: 
  7.25     (i) the name of the facility investigated; 
  7.26     (ii) a statement of the nature of the alleged maltreatment; 
  7.27     (iii) pertinent information obtained from medical or other 
  7.28  records reviewed; 
  7.29     (iv) the identity of the investigator; 
  7.30     (v) a summary of the investigation's findings; 
  7.31     (vi) statement of whether the report was found to be 
  7.32  substantiated, inconclusive, false, or that no determination 
  7.33  will be made; 
  7.34     (vii) a statement of any action taken by the facility; 
  7.35     (viii) a statement of any action taken by the lead agency; 
  7.36  and 
  8.1      (ix) when a lead agency's determination has substantiated 
  8.2   maltreatment, a statement of whether an individual, individuals, 
  8.3   or a facility were responsible for the substantiated 
  8.4   maltreatment, if known. 
  8.5      The investigation memorandum must be written in a manner 
  8.6   which protects the identity of the reporter and of the 
  8.7   vulnerable adult and may not contain the names or, to the extent 
  8.8   possible, data on individuals or private data listed in clause 
  8.9   (2). 
  8.10     (2) Data on individuals collected and maintained in the 
  8.11  investigation memorandum are private data, including: 
  8.12     (i) the name of the vulnerable adult; 
  8.13     (ii) the identity of the individual alleged to be the 
  8.14  perpetrator; 
  8.15     (iii) the identity of the individual substantiated as the 
  8.16  perpetrator; and 
  8.17     (iv) the identity of all individuals interviewed as part of 
  8.18  the investigation. 
  8.19     (3) Other data on individuals maintained as part of an 
  8.20  investigation under this section are private data on individuals 
  8.21  upon completion of the investigation. 
  8.22     (c)  [IDENTITY OF REPORTER.] The subject of the report may 
  8.23  compel disclosure of the name of the reporter only with the 
  8.24  consent of the reporter or upon a written finding by a court 
  8.25  that the report was false and there is evidence that the report 
  8.26  was made in bad faith.  This subdivision does not alter 
  8.27  disclosure responsibilities or obligations under the rules of 
  8.28  criminal procedure, except that where the identity of the 
  8.29  reporter is relevant to a criminal prosecution, the district 
  8.30  court shall do an in-camera review prior to determining whether 
  8.31  to order disclosure of the identity of the reporter. 
  8.32     (d)  [DESTRUCTION OF DATA.] Notwithstanding section 
  8.33  138.163, data maintained under this section by the commissioners 
  8.34  of health and human services must be destroyed under the 
  8.35  following schedule: 
  8.36     (1) data from reports determined to be false, two years 
  9.1   after the finding was made; 
  9.2      (2) data from reports determined to be inconclusive, four 
  9.3   years after the finding was made; 
  9.4      (3) data from reports determined to be substantiated, seven 
  9.5   years after the finding was made; and 
  9.6      (4) data from reports which were not investigated by a lead 
  9.7   agency and for which there is no final disposition, two years 
  9.8   from the date of the report. 
  9.9      (e)  [SUMMARY OF REPORTS.] The commissioners of health and 
  9.10  human services shall each annually prepare a summary of the 
  9.11  number and type of reports of alleged maltreatment involving 
  9.12  licensed facilities reported under this section. 
  9.13     (f)  [RECORD RETENTION POLICY.] Each lead agency must have 
  9.14  a record retention policy. 
  9.15     (g)  [EXCHANGE OF INFORMATION.] Lead agencies, prosecuting 
  9.16  authorities, and law enforcement agencies may exchange not 
  9.17  public data, as defined in section 13.02, if the agency or 
  9.18  authority requesting the data determines that the data are 
  9.19  pertinent and necessary to the requesting agency in initiating, 
  9.20  furthering, or completing an investigation under this section.  
  9.21  Data collected under this section must be made available to 
  9.22  prosecuting authorities and law enforcement officials, local 
  9.23  county agencies, and licensing agencies investigating the 
  9.24  alleged maltreatment under this section.  The lead agency shall 
  9.25  exchange not public data with the vulnerable adult maltreatment 
  9.26  review panel established in section 2 if the data are pertinent 
  9.27  and necessary for a review requested under that section.  Upon 
  9.28  completion of the review, not public data received by the review 
  9.29  panel must be returned to the lead agency.  
  9.30     (h)  [COMPLETION TIME.] Each lead agency shall keep records 
  9.31  of the length of time it takes to complete its investigations. 
  9.32     (i)  [NOTIFICATION OF OTHER AFFECTED PARTIES.] A lead 
  9.33  agency may notify other affected parties and their authorized 
  9.34  representative if the agency has reason to believe maltreatment 
  9.35  has occurred and determines the information will safeguard the 
  9.36  well-being of the affected parties or dispel widespread rumor or 
 10.1   unrest in the affected facility. 
 10.2      (j)  [FEDERAL REQUIREMENTS.] Under any notification 
 10.3   provision of this section, where federal law specifically 
 10.4   prohibits the disclosure of patient identifying information, a 
 10.5   lead agency may not provide any notice unless the vulnerable 
 10.6   adult has consented to disclosure in a manner which conforms to 
 10.7   federal requirements.