HF 1267

as introduced - 92nd Legislature (2021 - 2022) Posted on 02/25/2021 05:50pm

A bill for an act
relating to corrections; providing for safety in licensed facilities; amending
Minnesota Statutes 2020, sections 241.021, subdivision 1, by adding subdivisions;
243.52.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2020, section 241.021, subdivision 1, is amended to read:

Subdivision 1.

Correctional facilities; inspection; licensing.

(a) Except as provided
in paragraph (b), the commissioner of corrections shall inspect and license all correctional
facilities throughout the state, whether public or private, established and operated for the
detention and confinement of persons detained or confined or incarcerated therein according
to law except to the extent that they are inspected or licensed by other state regulating
agencies. The commissioner shall promulgate pursuant to chapter 14, rules establishing
minimum standards for these facilities with respect to their management, operation, physical
condition, and the security, safety, health, treatment, and discipline of persons detained or
confined or incarcerated therein. Commencing September 1, 1980, These minimum standards
shall include but are not limited to specific guidance pertaining to:

(1) mental health, including but not limited to assessment following admission, medication
administration, and requirements for discharge planning;

(2) self-auditing of compliance with minimum standards;

(3) information sharing with medical personnel and when medical assessment must be
facilitated;

(4) a code of conduct policy for facility staff and annual training;

(5) a policy on death review of all circumstances surrounding the death of an individual
committed to the custody of the facility; and

(6) dissemination of a rights statement made available to persons confined or incarcerated
in licensed correctional facilities.

No individual, corporation, partnership, voluntary association, or other private
organization legally responsible for the operation of a correctional facility may operate the
facility unless licensed by it possesses a current license from the commissioner of corrections.
Private adult correctional facilities shall have the authority of section 624.714, subdivision
13, if the Department of Corrections licenses the facility with such the authority and the
facility meets requirements of section 243.52.

The commissioner shall review the correctional facilities described in this subdivision
at least once every biennium two years, except as otherwise provided herein, to determine
compliance with the minimum standards established pursuant according to this subdivision
or other law related to minimum standards and conditions of confinement.

The commissioner shall grant a license to any facility found to conform to minimum
standards or to any facility which, in the commissioner's judgment, is making satisfactory
progress toward substantial conformity and the interests and well-being of the persons
detained or confined therein or incarcerated in the facility are protected. The commissioner
may grant licensure up to two years. Unless otherwise specified by statute, all licenses issued
under this chapter expire at 12:01 a.m. on the day after the expiration date stated on the
license.

The commissioner shall have access to the buildings, grounds, books, records, staff, and
to persons detained or confined or incarcerated in these facilities. The commissioner may
require the officers in charge of these facilities to furnish all information and statistics the
commissioner deems necessary, at a time and place designated by the commissioner.

All facility administrators of correctional facilities defined under subdivision 1f are
required to report all deaths of individuals who died while committed to the custody of the
facility, regardless of whether the death occurred at the facility or after removal from the
facility for medical care stemming from an incident or need for medical care at the
correctional facility, within 24 hours of receiving knowledge of the death, including any
demographic information as required by the commissioner.

All facility administrators of correctional facilities defined under subdivision 1f are
required to report all other emergency or unusual occurrences as defined by rule, including
uses of force by facility staff that result in substantial bodily harm, to the commissioner of
corrections within ten days from the occurrence, including any demographic information
as required by the commissioner. The commissioner of corrections shall consult with the
Minnesota Sheriffs' Association to define "use of force" that results in substantial bodily
harm for reporting purposes.

The commissioner may require that any or all such information be provided through the
Department of Corrections detention information system. The commissioner shall post each
inspection report publicly within 30 days of completing the inspection. The education
program offered in a correctional facility for the detention or confinement or incarceration
of juvenile offenders must be approved by the commissioner of education before the
commissioner of corrections may grant a license to the facility.

(b) For juvenile facilities licensed by the commissioner of human services, the
commissioner may inspect and certify programs based on certification standards set forth
in Minnesota Rules. For the purpose of this paragraph, "certification" has the meaning given
it in section 245A.02.

(c) Any state agency which regulates, inspects, or licenses certain aspects of correctional
facilities shall, insofar as is possible, ensure that the minimum standards it requires are
substantially the same as those required by other state agencies which regulate, inspect, or
license the same aspects of similar types of correctional facilities, although at different
correctional facilities.

(d) Nothing in this section shall be construed to limit the commissioner of corrections'
authority to promulgate rules establishing standards of eligibility for counties to receive
funds under sections 401.01 to 401.16, or to require counties to comply with operating
standards the commissioner establishes as a condition precedent for counties to receive that
funding.

(e) When the commissioner finds that any facility described in paragraph (a), except
foster care facilities for delinquent children and youth as provided in subdivision 2, does
not substantially conform to the minimum standards established by the commissioner and
is not making satisfactory progress toward substantial conformance, the commissioner shall
promptly notify the chief executive officer and the governing board of the facility of the
deficiencies and order that they be remedied within a reasonable period of time. The
commissioner may by written order restrict the use of any facility which does not substantially
conform to minimum standards to prohibit the detention of any person therein for more than
72 hours at one time. When, after due notice and hearing, the commissioner finds that any
facility described in this subdivision, except county jails and lockups as provided in sections
641.26, 642.10, and 642.11, does not conform to minimum standards, or is not making
satisfactory progress toward substantial compliance therewith, the commissioner may issue
an order revoking the license of that facility. After revocation of its license, that facility
shall not be used until its license is renewed. When the commissioner is satisfied that
satisfactory progress towards substantial compliance with minimum standard is being made,
the commissioner may, at the request of the appropriate officials of the affected facility
supported by a written schedule for compliance, grant an extension of time for a period not
to exceed one year.

(f) As used in this subdivision, "correctional facility" means any facility, including a
group home, having a residential component, the primary purpose of which is to serve
persons placed therein by a court, court services department, parole authority, or other
correctional agency having dispositional power over persons charged with, convicted, or
adjudicated to be guilty or delinquent.

Sec. 2.

Minnesota Statutes 2020, section 241.021, is amended by adding a subdivision to
read:

Subd. 1a.

Correction order; conditional license.

(a) When the commissioner finds that
any facility described in subdivision 1, except foster care facilities for delinquent children
and youth as provided in subdivision 2, does not substantially conform to the minimum
standards established by the commissioner and is not making satisfactory progress toward
substantial conformance and the nonconformance does not present an imminent risk of
life-threatening harm or serious physical injury to the persons confined or incarcerated in
the facility, the commissioner shall promptly notify the facility administrator and the
governing board of the facility of the deficiencies and may issue a correction order or a
conditional license order that they be remedied within a reasonable and specified period of
time.

The conditional license order may restrict the use of any facility which does not
substantially conform to minimum standards, including imposition of conditions limiting
operation of the facility or parts of the facility, reducing facility capacity, limiting intake,
limiting length of detention for individuals, or imposing detention limitations based on the
needs of the individuals being confined or incarcerated therein.

The correction order or conditional license order must clearly state the following:

(1) the specific minimum standards violated, noting the implicated rule or law;

(2) the findings that constitute a violation of minimum standards;

(3) the corrective action needed;

(4) time allowed to correct each violation; and

(5) if a license is made conditional, the length and terms of the conditional license, any
conditions limiting operation of the facility, and the reasons for making the license
conditional.

(b) The facility administrator may request review of the findings noted in the conditional
license order after satisfactory progress toward substantial compliance with minimum
standards has been made, supported by evidence of correction, and, if appropriate, may
include a written schedule for compliance. The commissioner shall review the evidence of
correction and the progress made toward substantial compliance with minimum standards
within a reasonable period of time, not to exceed ten business days. When the commissioner
has assurance that satisfactory progress toward substantial compliance with minimum
standards is being made, the commissioner shall lift any conditions limiting operation of
the facility or parts of the facility or remove the conditional license order.

(c) Nothing in this section prohibits the commissioner from ordering a revocation under
subdivision 1b prior to issuing a correction order or conditional license order.

Sec. 3.

Minnesota Statutes 2020, section 241.021, is amended by adding a subdivision to
read:

Subd. 1b.

License revocation order.

(a) When, after due notice to the facility
administrator of the commissioner's intent to issue a revocation order, the commissioner
finds that any facility described in this subdivision, except county jails and lockups subject
to active condemnation proceedings or orders as provided in sections 641.26, 642.10, and
642.11, does not conform to minimum standards, or is not making satisfactory progress
toward substantial compliance with minimum standards, the commissioner may issue an
order revoking the license of that facility.

The notice of intent to issue a revocation order shall include:

(1) the citation to minimum standards that have been violated;

(2) the nature and severity of each violation;

(3) whether the violation is recurring or nonrecurring;

(4) the effect of the violation on persons confined or incarcerated by the correctional
facility;

(5) an evaluation of the risk of harm to persons confined or incarcerated in the correctional
facility;

(6) relevant facts, conditions, and circumstances concerning the operation of the licensed
facility, including at a minimum:

(i) specific facility deficiencies that endanger the health or safety of persons confined
or incarcerated in the correctional facility;

(ii) substantiated complaints relating to the correctional facility; or

(iii) any other evidence that the correctional facility is not in compliance with minimum
standards.

(b) The facility administrator must submit a written response within 60 days of receipt
of the notice of intent to issue a revocation order with any information related to errors in
the notice, ability to conform to minimum standards within a set period of time including
but not limited to a written schedule for compliance, and any other information the facility
administrator deems relevant for consideration in revocation. The written response must
also include a written plan indicating how the correctional facility will ensure the transfer
of confined or incarcerated individuals and records if the correctional facility closes. Plans
must specify arrangements the correctional facility will make to transfer confined or
incarcerated individuals to another licensed correctional facility for continuation of detention.

(c) When revoking a license, the commissioner shall consider the nature, chronicity, or
severity of the violation of law or rule and the effect of the violation on the health, safety,
or rights of persons confined or incarcerated in the correctional facility.

(d) If the facility administrator does not respond within 60 days to the notice of intent
to issue a revocation order or if the commissioner does not have assurance that satisfactory
progress toward substantial compliance with minimum standards will be made, the
commissioner shall issue a revocation order. The revocation order must be sent to the facility
administrator and the governing board of the facility, clearly stating:

(1) the specific minimum standards violated, noting the implicated rule or law;

(2) the findings that constitute a violation of minimum standards and the nature,
chronicity, or severity of those violations;

(3) the corrective action needed;

(4) any prior correction or conditional license orders issued to correct violations; and

(5) the date at which the license revocation shall take place.

A revocation order may authorize use until a certain date, not to exceed the duration of the
current license, unless a new license is issued by the commissioner for purposes of
effectuating a facility closure and continued operation does not present an imminent risk
of life-threatening harm or is not likely to result in serious physical injury to the persons
confined or incarcerated in the facility.

(e) After revocation of the facility's licensure, that facility shall not be used until the
license is renewed. When the commissioner is satisfied that satisfactory progress toward
substantial compliance with minimum standards is being made, the commissioner may, at
the request of the appropriate officials of the affected facility supported by a written schedule
for compliance, reinstate the license for a period not to exceed one year.

Sec. 4.

Minnesota Statutes 2020, section 241.021, is amended by adding a subdivision to
read:

Subd. 1c.

Temporary license suspension.

The commissioner shall act immediately to
temporarily suspend a license issued under this chapter if:

(1) the correctional facility's failure to comply with applicable minimum standards or
the conditions in the correctional facility pose an imminent risk of life-threatening harm or
serious physical injury to persons confined or incarcerated in the facility, staff, law
enforcement, visitors, or the public; and

(i) if the imminent risk of life-threatening harm or serious physical injury cannot be
promptly corrected through a different type of order under this section; and

(ii) the correctional facility cannot or has not corrected the violation giving rise to the
imminent risk of life-threatening harm or serious physical injury; or

(2) while the correctional facility continues to operate pending due notice and opportunity
for written response to the commissioner's notice of intent to issue an order of revocation,
the commissioner identifies one or more subsequent violations of minimum standards which
may adversely affect the health or safety of persons confined or incarcerated in the facility,
staff, law enforcement, visitors, or the public.

A notice stating the reasons for the immediate suspension informing the facility
administrator must be delivered by personal service to the correctional facility administrator
and the governing board of the facility.

Sec. 5.

Minnesota Statutes 2020, section 241.021, is amended by adding a subdivision to
read:

Subd. 1d.

Reconsideration of orders; appeals.

(a) If the facility administrator believes
the correction order, conditional license order, or revocation order is in error, the facility
administrator may ask the Department of Corrections to reconsider the parts of the order or
action that are alleged to be in error. The request for reconsideration must:

(1) be made in writing;

(2) be postmarked and sent to the commissioner no later than 30 calendar days after
receipt of the correction order, conditional license order, or revocation order;

(3) specify the parts of the order that are alleged to be in error;

(4) explain why the correction order, conditional license order, or revocation order is in
error; and

(5) include documentation to support the allegation of error.

The commissioner shall issue a disposition within 60 days of receipt of the facility
administrator's response to correction, conditional license, or revocation order violations.
A request for reconsideration does not stay any provisions or requirements of the order.

(b) The facility administrator may request reconsideration of an order immediately
suspending a license. The request for reconsideration of an order immediately suspending
a license must be made in writing and sent by certified mail, personal service, or other means
expressly stated in the commissioner's order. If mailed, the request for reconsideration must
be postmarked and sent to the commissioner no later than five business days after the facility
administrator receives notice that the license has been immediately suspended. If a request
is made by personal service, it must be received by the commissioner no later than five
business days after the facility administrator received the order. The request for
reconsideration must:

(1) specify the parts of the order that are alleged to be in error;

(2) explain why they are in error; and

(3) include documentation to support the allegation of error.

A facility administrator and any controlling board or individual shall discontinue operation
of the correctional facility upon receipt of the commissioner's order to immediately suspend
the license.

(c) Within five business days of receipt of the facility administrator's timely request for
reconsideration of a temporary immediate suspension, the commissioner shall review the
request for reconsideration. The scope of the review shall be limited solely to the issue of
whether the temporary immediate suspension should remain in effect pending the written
response to commissioner's notice of intent to issue a revocation order.

The commissioner's disposition of a request for reconsideration of correction, conditional
license, temporary immediate suspension, or revocation order is final and subject to appeal.
The facility administrator must request reconsideration as required by this section of any
correction, conditional license, temporary immediate suspension, or revocation order prior
to appeal.

No later than 60 days after the postmark date of the mailed notice of the commissioner's
decision, the facility administrator may appeal the decision by filing a writ of certiorari with
the court of appeals under section 606.01 and Minnesota Rules of Civil Appellate Procedure,
Rule 115. Failure by the facility administrator to appeal to the court of appeals no later than
the 60-day period precludes the person from later raising, in any subsequent administrative
hearing or court proceeding, those substantive and procedural issues that reasonably should
have been raised upon a timely appeal.

Sec. 6.

Minnesota Statutes 2020, section 241.021, is amended by adding a subdivision to
read:

Subd. 1e.

Report.

By February 15, 2022, and by February 15 each year thereafter, the
commissioner of corrections shall report to the chairs and ranking minority members of the
house of representatives and senate committees and divisions with jurisdiction over public
safety and judiciary on the status of the implementation of the provisions in this section
over the prior year, particularly the health and safety of individuals confined or incarcerated
in a state correctional facility and a facility licensed by the commissioner. This report shall
include but not be limited to data regarding:

(1) the number of confined or incarcerated persons who died while committed to the
custody of the facility, regardless of whether the death occurred at the facility or after
removal from the facility for medical care stemming from an incident or need for medical
care at the correctional facility, including aggregated demographic information and the
correctional facilities' most recent inspection reports and any corrective orders or conditional
licenses issued;

(2) the aggregated results of the death reviews by facility as required by subdivision 8,
including any implemented policy changes;

(3) the number of uses of force by facility staff on persons confined or incarcerated in
the correctional facility, including but not limited to whether those uses of force were
determined to be justified by the facility, for which the commissioner of corrections shall
consult with the Minnesota Sheriffs' Association to develop criteria for reporting and define
reportable uses of force;

(4) the number of persons committed to the commissioner of corrections' authority that
the commissioner is housing in facilities licensed under subdivision 1f, including but not
limited to:

(i) aggregated demographic data of those individuals;

(ii) length of time spent housed in a licensed correctional facility; and

(iii) any contracts the Department of Corrections has with correctional facilities to provide
housing; and

(5) summary data from state correctional facilities regarding complaints involving alleged
on-duty staff misconduct, including but not limited to the:

(i) total number of misconduct complaints and investigations;

(ii) total number of complaints by each category of misconduct, as defined by the
commissioner of corrections;

(iii) number of allegations dismissed as unfounded;

(iv) number of allegations dismissed on grounds that the allegation was unsubstantiated;
and

(v) number of allegations substantiated, any resulting disciplinary action, and the nature
of the discipline.

Sec. 7.

Minnesota Statutes 2020, section 241.021, is amended by adding a subdivision to
read:

Subd. 1f.

Definition.

As used in this section, "correctional facility" means any facility,
including a group home, having a residential component, the primary purpose of which is
to serve persons placed therein by a court, court services department, parole authority, or
other correctional agency having dispositional power over persons charged with, convicted,
or adjudicated guilty or delinquent.

Sec. 8.

Minnesota Statutes 2020, section 241.021, is amended by adding a subdivision to
read:

Subd. 7.

Intake release of information.

All correctional facilities that confine or
incarcerate adults are required at intake to provide every person an authorization form to
release information related to their health condition and when that information should be
shared. This release form shall allow the individual to select if they want to require the
correctional facility to make attempts to contact the designated person to facilitate the sharing
of health condition information upon incapacitation or if the individual becomes unable to
communicate or direct the sharing of this information, so long as contact information was
provided and the incapacitated person or individual who is unable to communicate or direct
the sharing of this information is not subject to a court order prohibiting contact with the
designated person.

Sec. 9.

Minnesota Statutes 2020, section 241.021, is amended by adding a subdivision to
read:

Subd. 8.

Death review teams.

In the event a correctional facility as defined in subdivision
1f receives information of the death of an individual while committed to the custody of the
facility, regardless of whether the death occurred at the facility or after removal from the
facility for medical care stemming from an incident or need for medical care at the
correctional facility, the administrator of the facility, minimally including a medical expert
of the facility's choosing who did not provide medical services to the individual, and, if
appropriate, a mental health expert, shall review the circumstances of the death and assess
for preventable mortality and morbidity, including recommendations for policy or procedure
change, within 90 days of death. The investigating law enforcement agency may provide
documentation, participate in, or provide documentation and participate in the review in
instances where criminal charges were not brought. A preliminary autopsy report must be
provided as part of the review and any subsequent autopsy findings as available. The facility
administrator shall provide notice to the commissioner of corrections via the Department
of Corrections detention information system that the correctional facility has conducted a
review and identify any recommendations for changes in policy, procedure, or training that
will be implemented. Any report or other documentation created for purposes of a facility
death review is confidential as defined in section 13.02, subdivision 3. Nothing in this
section relieves the facility administrator from complying with the notice of death to the
commissioner as required by subdivision 1, paragraph (a).

Sec. 10.

Minnesota Statutes 2020, section 243.52, is amended to read:

243.52 DISCIPLINE; PREVENTION OF ESCAPE; DUTY TO REPORT.

Subdivision 1.

Discipline and prevention of escape

If any inmate of person confined
or incarcerated in any adult correctional facility either under the control of the commissioner
of corrections or licensed by the commissioner of corrections under section 241.021 assaults
any correctional officer or any other person or inmate, the assaulted person may use force
in defense of the assault, except as limited in this section. If any inmate confined or
incarcerated person attempts to damage the buildings or appurtenances, resists the lawful
authority of any correctional officer, refuses to obey the correctional officer's reasonable
demands, or attempts to escape, the correctional officer may enforce obedience and discipline
or prevent escape by the use of force. If any inmate confined or incarcerated person resisting
lawful authority is wounded or killed by the use of force by the correctional officer or
assistants, that conduct is authorized under this section.

Subd. 2.

Use of force.

(a) Unless the use of deadly force is justified in this section, a
correctional officer may not use any of the following restraints:

(1) a choke hold;

(2) tying all of a person's limbs together behind the person's back to render the person
immobile; or

(3) securing a person in any way that results in transporting the person face down in a
vehicle, except as directed by a medical professional.

(b) For the purposes of this subdivision, the following terms have the meanings given
them:

(1) "choke hold" has the meaning given in section 609.06, subdivision 3, paragraph (b);
and

As used in this section, (2) "use of force" means conduct which is defined by sections
609.06 to 609.066.

(c) Use of deadly force is justified only if an objectively reasonable correctional officer
would believe, based on the totality of the circumstances known to the officer at the time
and without the benefit of hindsight, that deadly force is necessary:

(1) to protect the correctional officer or another from death or great bodily harm, provided
that the threat:

(i) can be articulated with specificity by the correctional officer;

(ii) is reasonably likely to occur absent action by the correctional officer; and

(iii) must be addressed through the use of deadly force without unreasonable delay; or

(2) to effect the capture, or prevent the escape, of a person whom the correctional officer
knows or has reasonable grounds to believe has committed or attempted to commit a felony
and the officer reasonably believes that the person will cause death or great bodily harm to
another person under the threat criteria in clause (1), unless immediately apprehended.

Subd. 3.

Duty to report.

(a) Regardless of tenure or rank, staff who observe another
employee engage in neglect or use force that exceeds the degree of force permitted by law
must report the incident in writing within 24 hours to the administrator of the correctional
facility that employs the reporting staff member.

(b) A staff member who fails to report neglect or excessive use of force within 24 hours
is subject to disciplinary action or sanction by the correctional facility that employs them.
Staff members shall suffer no reprisal for reporting another staff member engaged in
excessive use of force or neglect.

(c) For the purposes of this subdivision, neglect means:

(1) the knowing failure or omission to supply a person confined or incarcerated in the
facility with care or services, including but not limited to food, clothing, health care, or
supervision that is reasonable and necessary to obtain or maintain the person's physical or
mental health or safety; or

(2) the absence or likelihood of absence of care or services, including but not limited to
food, clothing, health care, or supervision necessary to maintain the physical and mental
health of the person that a reasonable person would deem essential for health, safety, or
comfort.

EFFECTIVE DATE.

This section is effective March 1, 2021.