SF 2322

1st Engrossment - 91st Legislature (2019 - 2020) Posted on 03/15/2019 10:26am

A bill for an act
relating to child care; reforming child care provider licensing inspections;
establishing an abbreviated inspection process for qualifying child care providers;
establishing risk-based violation levels and corresponding enforcement actions;
directing the commissioner of human services to assign rules and statutory
provisions to violation risk levels; directing the commissioner of human services
to develop key indicators that predict full compliance for use in abbreviated
inspections; appropriating money; amending Minnesota Statutes 2018, sections
245A.04, subdivision 4, by adding a subdivision; 245A.06, subdivision 1;
245A.065; 245A.16, subdivision 1; proposing coding for new law in Minnesota
Statutes, chapter 245A.

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

Section 1.

Minnesota Statutes 2018, section 245A.04, subdivision 4, is amended to read:

Subd. 4.

Inspections; waiver.

(a) Before issuing an initial license, the commissioner
shall conduct an inspection of the program. The inspection must include but is not limited
to:

(1) an inspection of the physical plant;

(2) an inspection of records and documents;

(3) an evaluation of the program by consumers of the program;

(4) observation of the program in operation; and

(5) an inspection for the health, safety, and fire standards in licensing requirements for
a child care license holder.

For the purposes of this subdivision, "consumer" means a person who receives the
services of a licensed program, the person's legal guardian, or the parent or individual having
legal custody of a child who receives the services of a licensed program.

(b) The evaluation required in paragraph (a), clause (3), or the observation in paragraph
(a), clause (4), is not required prior to issuing an initial license under subdivision 7. If the
commissioner issues an initial license under subdivision 7, these requirements must be
completed within one year after the issuance of an initial license.

(c) Before completing a licensing inspection in a family child care program or child care
center, the licensing agency must offer the license holder an exit interview to discuss
violations of law or rule observed during the inspection and offer technical assistance on
how to comply with applicable laws and rules. Nothing in this paragraph limits the ability
of the commissioner to issue a correction order or negative action for violations of law or
rule not discussed in an exit interview or in the event that a license holder chooses not to
participate in an exit interview.

(d) The commissioner or the county shall inspect at least annually a child care provider
licensed under this chapter and Minnesota Rules, chapter 9502 or 9503, for compliance
with applicable licensing standards. new text begin Inspections of family child care providers shall be
conducted in accordance with section 245A.055.
new text end

(e) No later than November 19, 2017, the commissioner shall make publicly available
on the department's website the results of inspection reports of all child care providers
licensed under this chapter and under Minnesota Rules, chapter 9502 or 9503, and the
number of deaths, serious injuries, and instances of substantiated child maltreatment that
occurred in licensed child care settings each year.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2020.
new text end

Sec. 2.

Minnesota Statutes 2018, section 245A.04, is amended by adding a subdivision to
read:

new text begin Subd. 18. new text end

new text begin Plain-language handbook. new text end

new text begin By January 1, 2020, the commissioner of human
services shall, following consultation with family child care license holders, parents, and
county agencies, develop a plain-language handbook that describes the process and
requirements to become a licensed family child care provider. The handbook shall include
a list of the applicable statutory provisions and rules that apply to licensed family child care
providers. The commissioner shall electronically publish the handbook on the Department
of Human Services website, available at no charge to the public. Each county human services
office and the Department of Human Services shall maintain physical copies of the handbook
for public use.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3.

new text begin [245A.055] FAMILY CHILD CARE PROVIDER INSPECTIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Inspections. new text end

new text begin The commissioner shall conduct inspections of each family
child care provider pursuant to section 245A.04, subdivision 4, paragraph (d).
new text end

new text begin Subd. 2. new text end

new text begin Types of child care licensing inspections. new text end

new text begin (a) "Initial inspection" means an
inspection before issuing an initial license under section 245A.04, subdivision 4, paragraph
(a).
new text end

new text begin (b) "Full inspection" means the inspection of a family child care provider to determine
ongoing compliance with all applicable legal requirements for family child care providers.
A full inspection shall be conducted for temporary provisional licensees and for providers
who do not meet the requirements needed for an abbreviated inspection.
new text end

new text begin (c) "Abbreviated inspection" means the inspection of a family child care provider to
determine ongoing compliance with key indicators that statistically predict compliance with
all applicable legal requirements for family child care providers. Abbreviated inspections
are available for family child care providers who have been licensed for at least three years
with the latest inspection finding no Level 4 violations. Providers must also not have had
any substantiated licensing complaints that amount to a Level 4 violation, substantiated
complaints of maltreatment, or sanctions under section 245A.07 in the past three years. If
a county licensor finds that the provider has failed to comply with any key indicator during
an abbreviated inspection, the county licensor shall immediately conduct a full inspection.
new text end

new text begin (d) "Follow-up inspection" means a full inspection conducted following an inspection
that found more than one Level 4 violation.
new text end

new text begin Subd. 3. new text end

new text begin Enforcement actions. new text end

new text begin (a) Except where required by federal law, enforcement
actions under this subdivision may be taken based on the risk level of the violation as follows:
new text end

new text begin (1) Level 1: a violation that presents no risk of harm or minimal risk of harm, warranting
verbal technical assistance under section 245A.066, subdivision 1;
new text end

new text begin (2) Level 2: a violation that presents a low risk of harm, warranting issuance of a technical
assistance notice under section 245A.065, subdivision 2;
new text end

new text begin (3) Level 3: a violation that presents a moderate risk of harm, warranting issuance of a
fix-it ticket under section 245A.065; and
new text end

new text begin (4) Level 4: a violation that presents a substantial risk of harm, warranting issuance of
a correction order or conditional license under section 245A.06.
new text end

new text begin (b) The commissioner shall, following consultation with family child care license holders,
parents, and county agencies, issue a report by January 1, 2020, that identifies the violations
of this chapter and Minnesota Rules, chapter 9502, that constitute Level 1, Level 2, Level
3, or Level 4 violations based on the schedule in paragraph (a). The commissioner shall
also identify the rules and statutes that may be violated at more than one risk level, such
that the county licensor may assign the violation a risk level according to the licensor's
discretion during an inspection. The report shall also identify all rules and statutory provisions
that must be enforced in accordance with federal law. The commissioner shall provide the
report to county agencies and the chairs and ranking minority members of the legislative
committees with jurisdiction over child care, and shall post the report to the department's
website. By July 1, 2020, the commissioner shall develop, distribute, and provide training
on guidelines on the use of the risk-based violation levels in paragraph (a) during family
child care provider inspections.
new text end

new text begin Subd. 4. new text end

new text begin Follow-up inspections. new text end

new text begin If, upon inspection, the commissioner finds more than
one Level 4 violation, the commissioner shall conduct a follow-up inspection within six
months. The date of the follow-up inspection does not alter the provider's annual inspection
date.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2020, with the exception that
subdivision 3, paragraph (b), is effective the day following final enactment.
new text end

Sec. 4.

Minnesota Statutes 2018, section 245A.06, subdivision 1, is amended to read:

Subdivision 1.

Contents of correction orders and conditional licenses.

(a) new text begin Except as
provided in paragraph (c), new text end if the commissioner finds that the applicant or license holder has
failed to comply with an applicable law or rule and this failure does not imminently endanger
the health, safety, or rights of the persons served by the program, the commissioner may
issue a correction order and an order of conditional license to the applicant or license holder.
When issuing a conditional 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 served by the program. The correction order or conditional license must
state the following in plain language:

(1) the conditions that constitute a violation of the law or rule;

(2) the specific law or rule violated;

(3) the time allowed to correct each violation; and

(4) if a license is made conditional, the length and terms of the conditional license, and
the reasons for making the license conditional.

(b) Nothing in this section prohibits the commissioner from proposing a sanction as
specified in section 245A.07, prior to issuing a correction order or conditional license.

new text begin (c) For family child care license holders, the commissioner may issue a correction order
or conditional license as provided in this section if, upon inspection, the commissioner finds
a Level 4 violation as provided in section 245A.055, subdivision 3, or if a child care provider
fails to correct a Level 3 violation as required under section 245A.065, paragraph (e).
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2020.
new text end

Sec. 5.

Minnesota Statutes 2018, section 245A.065, is amended to read:

245A.065 CHILD CARE FIX-IT TICKET.

(a) deleted text begin In lieu of a correction order under section 245A.06, deleted text end The commissioner deleted text begin shall deleted text end new text begin may new text end
issue a fix-it ticket to a deleted text begin family child care or deleted text end child care center license holder if new text begin , upon
inspection, new text end the commissioner finds that:

(1) the license holder has failed to comply with a requirement in this chapter or Minnesota
Rules, chapter 9502 or 9503, that the commissioner determines to be eligible for a fix-it
ticket;

(2) the violation does not imminently endanger the health, safety, or rights of the persons
served by the program;

(3) the license holder did not receive a fix-it ticket or correction order for the violation
at the license holder's last licensing inspection;

(4) the violation can be corrected at the time of inspection or within 48 hours, excluding
Saturdays, Sundays, and holidays; and

(5) the license holder corrects the violation at the time of inspection or agrees to correct
the violation within 48 hours, excluding Saturdays, Sundays, and holidays.

(b) new text begin The commissioner may issue a fix-it ticket to a family child care license holder if,
upon inspection, the commissioner finds a Level 3 violation as provided in section 245A.055,
subdivision 3.
new text end

new text begin (c) new text end The fix-it ticket must state:

(1) the conditions that constitute a violation of the law or rule;

(2) the specific law or rule violated; and

(3) that the violation was corrected at the time of inspection or must be corrected within
48 hours, excluding Saturdays, Sundays, and holidays.

deleted text begin (c) deleted text end new text begin (d) new text end The commissioner shall not publicly publish a fix-it ticket on the department's
website new text begin , unless required by federal law new text end .

deleted text begin (d) deleted text end new text begin (e) new text end Within 48 hours, excluding Saturdays, Sundays, and holidays, of receiving a fix-it
ticket, the license holder must correct the violation and within one week submit evidence
to the licensing agency that the violation was corrected.

deleted text begin (e) deleted text end new text begin (f) new text end If the violation is not corrected at the time of inspection or within 48 hours,
excluding Saturdays, Sundays, and holidays, or the evidence submitted is insufficient to
establish that the license holder corrected the violation, the commissioner deleted text begin must deleted text end new text begin may new text end issue
a correction order for the violation of Minnesota law or rule identified in the fix-it ticket
according to section 245A.06.

deleted text begin (f) The commissioner shall, following consultation with family child care license holders,
child care center license holders, and county agencies, issue a report by October 1, 2017,
that identifies the violations of this chapter and Minnesota Rules, chapters 9502 and 9503,
that are eligible for a fix-it ticket. The commissioner shall provide the report to county
agencies and the chairs and ranking minority members of the legislative committees with
jurisdiction over child care, and shall post the report to the department's website.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2020.
new text end

Sec. 6.

new text begin [245A.066] CHILD CARE TECHNICAL ASSISTANCE.
new text end

new text begin Subdivision 1. new text end

new text begin Verbal technical assistance. new text end

new text begin The commissioner may provide verbal
technical assistance to a family child care or child care center license holder if, upon
inspection, the commissioner finds a Level 1 violation as provided in section 245A.055,
subdivision 3.
new text end

new text begin Subd. 2. new text end

new text begin Technical assistance notice. new text end

new text begin (a) The commissioner may issue a written technical
assistance notice to a family child care license holder if, upon inspection, the commissioner
finds a Level 2 violation as provided in section 245A.055, subdivision 3.
new text end

new text begin (b) The technical assistance notice must state:
new text end

new text begin (1) the conditions that constitute a violation of the law or rule;
new text end

new text begin (2) the specific law or rule violated; and
new text end

new text begin (3) examples of how to correct the violation.
new text end

new text begin (c) The commissioner shall not publicly publish a written technical assistance notice on
the department's website, unless required by federal law.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2020.
new text end

Sec. 7.

Minnesota Statutes 2018, section 245A.16, subdivision 1, is amended to read:

Subdivision 1.

Delegation of authority to agencies.

(a) County agencies and private
agencies that have been designated or licensed by the commissioner to perform licensing
functions and activities under section 245A.04 and background studies for family child care
under chapter 245C; to recommend denial of applicants under section 245A.05; to issue
correction orders, to issue variances, and recommend a conditional license under section
245A.06; or to recommend suspending or revoking a license or issuing a fine under section
245A.07, shall comply with rules and directives of the commissioner governing those
functions and with this section. The following variances are excluded from the delegation
of variance authority and may be issued only by the commissioner:

(1) dual licensure of family child care and child foster care, dual licensure of child and
adult foster care, and adult foster care and family child care;

(2) adult foster care maximum capacity;

(3) adult foster care minimum age requirement;

(4) child foster care maximum age requirement;

(5) variances regarding disqualified individuals except that, before the implementation
of NETStudy 2.0, county agencies may issue variances under section 245C.30 regarding
disqualified individuals when the county is responsible for conducting a consolidated
reconsideration according to sections 245C.25 and 245C.27, subdivision 2, clauses (a) and
(b), of a county maltreatment determination and a disqualification based on serious or
recurring maltreatment;

(6) the required presence of a caregiver in the adult foster care residence during normal
sleeping hours; and

(7) variances to requirements relating to chemical use problems of a license holder or a
household member of a license holder.

Except as provided in section 245A.14, subdivision 4, paragraph (e), a county agency must
not grant a license holder a variance to exceed the maximum allowable family child care
license capacity of 14 children.

(b) Before the implementation of NETStudy 2.0, county agencies must report information
about disqualification reconsiderations under sections 245C.25 and 245C.27, subdivision
2, paragraphs (a) and (b), and variances granted under paragraph (a), clause (5), to the
commissioner at least monthly in a format prescribed by the commissioner.

(c) For family child care programs, the commissioner shall require a county agency to
conduct one unannounced licensing deleted text begin review deleted text end new text begin inspection new text end at least annually.

(d) For family adult day services programs, the commissioner may authorize licensing
reviews every two years after a licensee has had at least one annual review.

(e) A license issued under this section may be issued for up to two years.

(f) During implementation of chapter 245D, the commissioner shall consider:

(1) the role of counties in quality assurance;

(2) the duties of county licensing staff; and

(3) the possible use of joint powers agreements, according to section 471.59, with counties
through which some licensing duties under chapter 245D may be delegated by the
commissioner to the counties.

Any consideration related to this paragraph must meet all of the requirements of the corrective
action plan ordered by the federal Centers for Medicare and Medicaid Services.

(g) Licensing authority specific to section 245D.06, subdivisions 5, 6, 7, and 8, or
successor provisions; and section 245D.061 or successor provisions, for family child foster
care programs providing out-of-home respite, as identified in section 245D.03, subdivision
1, paragraph (b), clause (1), is excluded from the delegation of authority to county and
private agencies.

(h) A county agency shall report to the commissioner, in a manner prescribed by the
commissioner, the following information for a licensed family child care program:

(1) the results of each licensing deleted text begin review deleted text end new text begin inspection new text end completed, including the date of the
deleted text begin review deleted text end new text begin inspection new text end , and any deleted text begin licensing deleted text end correction order issued; and

(2) any death, serious injury, or determination of substantiated maltreatment.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 8. new text begin DIRECTION TO COMMISSIONER; ABBREVIATED INSPECTION
MODEL.
new text end

new text begin (a) By January 1, 2020, the commissioner of human services shall, following consultation
with family child care license holders, parents, and county agencies, develop the key
indicators for use in the abbreviated inspection process under Minnesota Statutes, section
245A.055, subdivision 2, paragraph (c), and report the results to the chairs and ranking
minority members of the legislative committees with jurisdiction over child care. In
developing the key indicators that predict full compliance with the statutes and rules
governing licensed child care providers, the commissioner shall utilize an empirically based
statistical methodology similar to the licensing key indicator systems as developed by the
National Association for Regulatory Administration and the Research Institute for Key
Indicators.
new text end

new text begin (b) By July 1, 2020, the commissioner of human services shall develop, distribute, and
provide training to implement abbreviated inspections as described in Minnesota Statutes,
section 245A.055, subdivision 2, paragraph (c).
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 9. new text begin DIRECTION TO COMMISSIONER; CORRECTION ORDER
ENFORCEMENT REVIEW.
new text end

new text begin By January 1, 2020, the commissioner of human services shall develop and implement
a process to review licensing inspection results provided under Minnesota Statutes, section
245A.16, subdivision 1, paragraph (h), clause (1), by county to identify trends in correction
order enforcement. The commissioner shall develop guidance and training as needed to
address any imbalance or inaccuracy in correction order enforcement. The commissioner
shall include the results in the annual report on child care under Minnesota Statutes, section
245A.153, provided that the results are limited to summary data as defined in Minnesota
Statutes, section 13.02, subdivision 19.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 10. new text begin APPROPRIATION.
new text end

new text begin $....... in fiscal year 2020 is appropriated from the general fund to the commissioner of
human services to develop, distribute, and provide training on child care provider inspections
based on the risk-based violation levels under Minnesota Statutes, section 245A.055,
subdivision 3, including use of an abbreviated inspection that is based on key indicators
that predict full compliance with the statutes and rules governing licensed child care providers
under Minnesota Statutes, section 245A.055, subdivision 2, for qualifying child care
providers. This is a onetime appropriation.
new text end