2000 Minnesota Statutes

     245A.03 Who must be licensed. 

    Subdivision 1.    License required.  Unless licensed by 
 the commissioner, an individual, corporation, partnership, 
 voluntary association, other organization, or controlling 
 individual must not: 

    (1) operate a residential or a nonresidential program; 

    (2) receive a child or adult for care, supervision, or 
 placement in foster care or adoption; 

    (3) help plan the placement of a child or adult in foster 
 care or adoption or engage in placement activities as defined in 
 section 259.21, subdivision 9, in this state, whether or not the 
 adoption occurs in this state; or 

    (4) advertise a residential or nonresidential program. 

    Subd. 2.    Exclusion from licensure.  This chapter does 
 not apply to: 

    (1) residential or nonresidential programs that are 
 provided to a person by an individual who is related unless the 
 residential program is a child foster care placement made by a 
 local social services agency or a licensed child-placing agency, 
 except as provided in subdivision 2a; 

    (2) nonresidential programs that are provided by an 
 unrelated individual to persons from a single related family; 

    (3) residential or nonresidential programs that are 
 provided to adults who do not abuse chemicals or who do not have 
 a chemical dependency, a mental illness, mental retardation or a 
 related condition, a functional impairment, or a physical 
 handicap; 

    (4) sheltered workshops or work activity programs that are 
 certified by the commissioner of economic security; 

    (5) programs for children enrolled in kindergarten to the 
 12th grade and prekindergarten special education in a school as 
 defined in section 120A.22, subdivision 4, and programs serving 
 children in combined special education and regular 
 prekindergarten programs that are operated or assisted by the 
 commissioner of children, families, and learning; 

    (6) nonresidential programs primarily for children that 
 provide care or supervision, without charge for ten or fewer 
 days a year, and for periods of less than three hours a day 
 while the child's parent or legal guardian is in the same 
 building as the nonresidential program or present within another 
 building that is directly contiguous to the building in which 
 the nonresidential program is located; 

    (7) nursing homes or hospitals licensed by the commissioner 
 of health except as specified under section 245A.02; 

    (8) board and lodge facilities licensed by the commissioner 
 of health that provide services for five or more persons whose 
 primary diagnosis is mental illness who have refused an 
 appropriate residential program offered by a county agency.  
 This exclusion expires on July 1, 1990; 

    (9) homes providing programs for persons placed there by a 
 licensed agency for legal adoption, unless the adoption is not 
 completed within two years; 

    (10) programs licensed by the commissioner of corrections; 

    (11) recreation programs for children or adults that 
 operate for fewer than 40 calendar days in a calendar year or 
 programs operated by a park and recreation board of a city of 
 the first class whose primary purpose is to provide social and 
 recreational activities to school age children, provided the 
 program is approved by the park and recreation board; 

    (12) programs operated by a school as defined in section 
 120A.22, subdivision 4, whose primary purpose is to provide 
 child care to school-age children, provided the program is 
 approved by the district's school board; 

    (13) Head Start nonresidential programs which operate for 
 less than 31 days in each calendar year; 

    (14) noncertified boarding care homes unless they provide 
 services for five or more persons whose primary diagnosis is 
 mental illness or mental retardation; 

    (15) nonresidential programs for nonhandicapped children 
 provided for a cumulative total of less than 30 days in any 
 12-month period; 

    (16) residential programs for persons with mental illness, 
 that are located in hospitals, until the commissioner adopts 
 appropriate rules; 

    (17) the religious instruction of school-age children; 
 Sabbath or Sunday schools; or the congregate care of children by 
 a church, congregation, or religious society during the period 
 used by the church, congregation, or religious society for its 
 regular worship; 

    (18) camps licensed by the commissioner of health under 
 Minnesota Rules, chapter 4630; 

    (19) mental health outpatient services for adults with 
 mental illness or children with emotional disturbance; 

    (20) residential programs serving school-age children whose 
 sole purpose is cultural or educational exchange, until the 
 commissioner adopts appropriate rules; 

    (21) unrelated individuals who provide out-of-home respite 
 care services to persons with mental retardation or related 
 conditions from a single related family for no more than 90 days 
 in a 12-month period and the respite care services are for the 
 temporary relief of the person's family or legal representative; 

    (22) respite care services provided as a home and 
 community-based service to a person with mental retardation or a 
 related condition, in the person's primary residence; 

    (23) community support services programs as defined in 
 section 245.462, subdivision 6, and family community support 
 services as defined in section 245.4871, subdivision 17; 

    (24) the placement of a child by a birth parent or legal 
 guardian in a preadoptive home for purposes of adoption as 
 authorized by section 259.47; or 

    (25) settings registered under chapter 144D which provide 
 home care services licensed by the commissioner of health to 
 fewer than seven adults. 

    For purposes of clause (6), a building is directly 
 contiguous to a building in which a nonresidential program is 
 located if it shares a common wall with the building in which 
 the nonresidential program is located or is attached to that 
 building by skyway, tunnel, atrium, or common roof. 

    Subd. 2a.    Foster care by an individual who is related 
 to a child; license required.  Notwithstanding subdivision 2, 
 clause (1), in order to provide foster care for a child, an 
 individual who is related to the child, other than a parent, or 
 legal guardian, must be licensed by the commissioner except as 
 provided by section 245A.035.  

    Subd. 2b.    Exception.  The provision in subdivision 2, 
 clause (2), does not apply to: 

    (1) a child care provider who as an applicant for licensure 
 or as a license holder has received a license denial under 
 section 245A.05, a fine under section 245A.06, or a sanction 
 under section 245A.07 from the commissioner that has not been 
 reversed on appeal; or 

    (2) a child care provider, or a child care provider who has 
 a household member who, as a result of a licensing process, has 
 a disqualification under this chapter that has not been set 
 aside by the commissioner. 

    Subd. 3.    Unlicensed programs.  (a) It is a 
 misdemeanor for an individual, corporation, partnership, 
 voluntary association, other organization, or a controlling 
 individual to provide a residential or nonresidential program 
 without a license and in willful disregard of this chapter 
 unless the program is excluded from licensure under subdivision 
 2. 

    (b) If, after receiving notice that a license is required, 
 the individual, corporation, partnership, voluntary association, 
 other organization, or controlling individual has failed to 
 apply for a license, the commissioner may ask the appropriate 
 county attorney or the attorney general to begin proceedings to 
 secure a court order against the continued operation of the 
 program.  The county attorney and the attorney general have a 
 duty to cooperate with the commissioner.  

    Subd. 4.    Excluded child care programs; right to seek 
 licensure.  Nothing in this section shall prohibit a child 
 care program that is excluded from licensure under subdivision 
 2, clause (2), or under Laws 1997, chapter 248, section 46, as 
 amended by Laws 1997, First Special Session chapter 5, section 
 10, from seeking a license under this chapter.  The commissioner 
 shall ensure that any application received from such an excluded 
 provider is processed in the same manner as all other 
 applications for licensed family day care. 

    Subd. 5.    Excluded housing with services programs; right 
 to seek licensure.  Nothing in this section shall prohibit a 
 housing with services program that is excluded from licensure 
 under subdivision 2, clause (25), from seeking a license under 
 this chapter.  The commissioner shall ensure that any 
 application received from such an excluded provider is processed 
 in the same manner as all other applications for licensed adult 
 foster care. 

    HIST: 1987 c 333 s 3; 1988 c 411 s 2; 1989 c 282 art 2 s 
 66-68; 1990 c 568 art 2 s 41; 1991 c 265 art 9 s 63; 1992 c 499 
 art 3 s 12; 1992 c 513 art 9 s 9; 1993 c 338 s 3,4; 1993 c 339 s 
 5; 1994 c 483 s 1; 1994 c 598 s 1,2; 1994 c 631 s 3,4,31; 1995 c 
 158 s 3; 1995 c 207 art 2 s 5; 1Sp1995 c 3 art 16 s 13; 1997 c 
 113 s 16; 1997 c 248 s 9; 1998 c 397 art 11 s 3; 1998 c 406 art 
 1 s 4,37; 1998 c 407 art 6 s 3,4; art 9 s 4; 2000 c 327 s 1,2,6