2000 Minnesota Statutes

CHAPTER 245A. Human services licensing

     245A.01 Citation. 

    This chapter may be cited as the "Human Services Licensing 
 Act." 

    HIST: 1987 c 333 s 1; 2000 c 327 s 6 

     245A.02 Definitions. 

    Subdivision 1.    Scope.  The terms used in this chapter 
 have the meanings given them in this section. 

    Subd. 2.    Adult.  "Adult" means a person who is 18 
 years old or older and who: 

    (1) has mental illness, mental retardation or a related 
 condition, a physical handicap, or a functional impairment; or 

    (2) is chemically dependent or abuses chemicals. 

    Subd. 3.    Applicant.  "Applicant" means an individual, 
 corporation, partnership, voluntary association, controlling 
 individual, or other organization that has applied for licensure 
 under this chapter and the rules of the commissioner. 

    Subd. 4.    Child.  "Child" means a person who has not 
 reached age 18. 

    Subd. 5.    Commissioner.  "Commissioner" means the 
 commissioner of human services or the commissioner's designated 
 representative including county agencies and private agencies.  

    Subd. 5a.    Controlling individual.  "Controlling 
 individual" means a public body, governmental agency, business 
 entity, officer, program administrator, or director whose 
 responsibilities include the direction of the management or 
 policies of a program.  Controlling individual also means an 
 individual who, directly or indirectly, beneficially owns an 
 interest in a corporation, partnership, or other business 
 association that is a controlling individual.  Controlling 
 individual does not include: 

    (1) a bank, savings bank, trust company, savings 
 association, credit union, industrial loan and thrift company, 
 investment banking firm, or insurance company unless the entity 
 operates a program directly or through a subsidiary; 

    (2) an individual who is a state or federal official, or 
 state or federal employee, or a member or employee of the 
 governing body of a political subdivision of the state or 
 federal government that operates one or more programs, unless 
 the individual is also an officer or director of the program, 
 receives remuneration from the program, or owns any of the 
 beneficial interests not excluded in this subdivision; 

    (3) an individual who owns less than five percent of the 
 outstanding common shares of a corporation: 

    (i) whose securities are exempt under section 80A.15, 
 subdivision 1, clause (f); or 

    (ii) whose transactions are exempt under section 80A.15, 
 subdivision 2, clause (b); or 

    (4) an individual who is a member of an organization exempt 
 from taxation under section 290.05, unless the individual is 
 also an officer or director of the program or owns any of the 
 beneficial interests not excluded in this subdivision.  This 
 clause does not exclude from the definition of controlling 
 individual an organization that is exempt from taxation. 

    Subd. 6.    County agency.  "County agency" means the 
 agency designated by the county board of commissioners, human 
 service boards, local social services agencies or multicounty 
 local social services agencies, or departments where those have 
 been established under the law. 

    Subd. 6a.    Drop-in child care program.  "Drop-in child 
 care program" means a nonresidential program of child care in 
 which children participate on a one-time only or occasional 
 basis up to a maximum of 90 hours per child, per month.  A 
 drop-in child care program must be licensed under Minnesota 
 Rules governing child care centers.  A drop-in child care 
 program must meet one of the following requirements to qualify 
 for the rule exemptions specified in section 245A.14, 
 subdivision 6: 

    (1) the drop-in child care program operates in a child care 
 center which houses no child care program except the drop-in 
 child care program; 

    (2) the drop-in child care program operates in the same 
 child care center but not during the same hours as a regularly 
 scheduled ongoing child care program with a stable enrollment; 
 or 

    (3) the drop-in child care program operates in a child care 
 center at the same time as a regularly scheduled ongoing child 
 care program with a stable enrollment but the program's 
 activities, except for bathroom use and outdoor play, are 
 conducted separately from each other. 

    Subd. 6b.    Experience.  For purposes of child care 
 centers, "experience" includes paid or unpaid employment serving 
 children as a teacher, assistant teacher, aide, or a student 
 intern in a licensed child care center, in a public or nonpublic 
 school, or in a program licensed as a family day care or group 
 family day care provider. 

    Subd. 7.    Functional impairment.  For the purposes of 
 adult day care or adult foster care, "functional impairment" 
 means: 

    (1) a condition that is characterized by substantial 
 difficulty in carrying out one or more of the essential major 
 activities of daily living, such as caring for oneself, 
 performing manual tasks, walking, seeing, hearing, speaking, 
 breathing, learning, working; or 

    (2) a disorder of thought or mood that significantly 
 impairs judgment, behavior, capacity to recognize reality, or 
 ability to cope with the ordinary demands of life and that 
 requires support to maintain independence in the community. 

    Subd. 7a.    HIV minimum standards.  "HIV minimum 
 standards" means those items approved by the department and 
 contained in the HIV-1 Guidelines for chemical dependency 
 treatment and care programs in Minnesota including HIV education 
 to clients, completion of HIV training by all new and existing 
 staff, provision for referral to individual HIV counseling and 
 services for all clients, and the implementation of written 
 policies and procedures for working with HIV-infected clients.  

    Subd. 7b.    Interpretive guidelines.  "Interpretive 
 guidelines" means a policy statement that has been published 
 pursuant to section 245A.09, subdivision 12, and which provides 
 interpretation, details, or supplementary information concerning 
 the application of laws or rules.  Interpretive guidelines are 
 published for the information and guidance of consumers, 
 providers of service, county agencies, the department of human 
 services, and others concerned. 

    Subd. 8.    License.  "License" means a certificate 
 issued by the commissioner authorizing the license holder to 
 provide a specified program for a specified period of time and 
 in accordance with the terms of the license and the rules of the 
 commissioner. 

    Subd. 9.    License holder.  "License holder" means an 
 individual, corporation, partnership, voluntary association, or 
 other organization that is legally responsible for the operation 
 of the program, has been granted a license by the commissioner 
 under this chapter and the rules of the commissioner, and is a 
 controlling individual. 

    Subd. 10.    Nonresidential program.  "Nonresidential 
 program" means care, supervision, rehabilitation, training or 
 habilitation of a person provided outside the person's own home 
 and provided for fewer than 24 hours a day, including adult day 
 care programs; a nursing home that receives public funds to 
 provide services for five or more persons whose primary 
 diagnosis is mental retardation or a related condition or mental 
 illness and who do not have a significant physical or medical 
 problem that necessitates nursing home care; a nursing home or 
 hospital that was licensed by the commissioner on July 1, 1987, 
 to provide a program for persons with a physical handicap that 
 is not the result of the normal aging process and considered to 
 be a chronic condition; and chemical dependency or chemical 
 abuse programs that are located in a nursing home or hospital 
 and receive public funds for providing chemical abuse or 
 chemical dependency treatment services under chapter 254B.  
 Nonresidential programs include home and community-based 
 services and semi-independent living services for persons with 
 mental retardation or a related condition that are provided in 
 or outside of a person's own home. 

    Subd. 10a.    Parent cooperative.  "Parent cooperative" 
 means a nonprofit group child care program that is governed by a 
 board that meets regularly and makes all continuing operational 
 decisions about the program.  At least 70 percent of the board 
 membership must be parent-users of the program. 

    Subd. 11.    Person.  "Person" means a child or adult as 
 defined in subdivisions 2 and 4. 

    Subd. 12.    Private agency.  "Private agency" means an 
 individual, corporation, partnership, voluntary association or 
 other organization, other than a county agency, or a court with 
 jurisdiction, that places persons who cannot remain in their own 
 homes in residential programs, foster care, or adoptive homes. 

    Subd. 13.    Individual who is related.  "Individual who 
 is related" means a spouse, a parent, a natural or adopted child 
 or stepchild, a stepparent, a stepbrother, a stepsister, a 
 niece, a nephew, an adoptive parent, a grandparent, a sibling, 
 an aunt, an uncle, or a legal guardian. 

    Subd. 14.    Residential program.  "Residential program" 
 means a program that provides 24-hour-a-day care, supervision, 
 food, lodging, rehabilitation, training, education, 
 habilitation, or treatment outside a person's own home, 
 including a nursing home or hospital that receives public funds, 
 administered by the commissioner, to provide services for five 
 or more persons whose primary diagnosis is mental retardation or 
 a related condition or mental illness and who do not have a 
 significant physical or medical problem that necessitates 
 nursing home care; a program in an intermediate care facility 
 for four or more persons with mental retardation or a related 
 condition; a nursing home or hospital that was licensed by the 
 commissioner on July 1, 1987, to provide a program for persons 
 with a physical handicap that is not the result of the normal 
 aging process and considered to be a chronic condition; and 
 chemical dependency or chemical abuse programs that are located 
 in a hospital or nursing home and receive public funds for 
 providing chemical abuse or chemical dependency treatment 
 services under chapter 254B.  Residential programs include home 
 and community-based services for persons with mental retardation 
 or a related condition that are provided in or outside of a 
 person's own home. 

    Subd. 15.    Respite care services.  "Respite care 
 services" means temporary services provided to a person due to 
 the absence or need for relief of the primary caregiver, the 
 person's family member, or legal representative who is the 
 primary caregiver and principally responsible for the care and 
 supervision of the person.  Respite care services are those that 
 provide the level of supervision and care that is necessary to 
 ensure the health and safety of the person.  Respite care 
 services do not include services that are specifically directed 
 toward the training and habilitation of the person. 

    Subd. 16.    School age child.  "School age child," for 
 programs licensed or required to be licensed as a child care 
 center, means a child who is at least of sufficient age to have 
 attended the first day of kindergarten, or is eligible to enter 
 kindergarten within the next four months, but is younger than 13 
 years of age.  

    Subd. 17.    School age child care program.  "School age 
 child care program" means a program licensed or required to be 
 licensed as a child care center, serving more than ten children 
 with the primary purpose of providing child care for school age 
 children.  School age child care program does not include 
 programs such as scouting, boys clubs, girls clubs, nor sports 
 or art programs. 

    Subd. 18.    Supervision.  For purposes of child care 
 centers, "supervision" means when a program staff person is 
 within sight and hearing of a child at all times so that the 
 program staff can intervene to protect the health and safety of 
 the child.  When an infant is placed in a crib room to sleep, 
 supervision occurs when a staff person is within sight or 
 hearing of the infant.  When supervision of a crib room is 
 provided by sight or hearing, the center must have a plan to 
 address the other supervision component. 

    Subd. 19.    Family day care and group family day care 
 child age classifications.  (a) For the purposes of family day 
 care and group family day care licensing under this chapter, the 
 following terms have the meanings given them in this subdivision.

    (b) "Newborn" means a child between birth and six weeks old.

    (c) "Infant" means a child who is at least six weeks old 
 but less than 12 months old. 

    (d) "Toddler" means a child who is at least 12 months old 
 but less than 24 months old, except that for purposes of 
 specialized infant and toddler family and group family day care, 
 "toddler" means a child who is at least 12 months old but less 
 than 30 months old. 

    (e) "Preschooler" means a child who is at least 24 months 
 old up to the age of being eligible to enter kindergarten within 
 the next four months. 

    (f) "School age" means a child who is at least of 
 sufficient age to have attended the first day of kindergarten, 
 or is eligible to enter kindergarten within the next four 
 months, but is younger than 11 years of age. 

    HIST: 1987 c 333 s 2; 1988 c 411 s 1; 1989 c 282 art 2 s 
 60-65; 1990 c 568 art 2 s 40; 1991 c 142 s 1; 1992 c 513 art 9 s 
 7,8; 1993 c 338 s 1,2; 1994 c 631 s 31; 1995 c 158 s 1,2; 1995 c 
 202 art 1 s 25; 1995 c 207 art 2 s 4; 1997 c 248 s 3-7; 1999 c 
 36 s 1; 2000 c 327 s 6 

     245A.023 In-service training. 

    For purposes of child care centers, in-service training 
 must be completed within the license period for which it is 
 required.  In-service training completed by staff persons as 
 required must be transferable upon a staff person's change in 
 employment to another child care program.  License holders shall 
 record all staff in-service training on forms prescribed by the 
 commissioner of human services. 

    HIST: 1997 c 248 s 8 

     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 

     245A.035 Relative foster care; emergency license. 

    Subdivision 1.    Grant of emergency license.  
 Notwithstanding section 245A.03, subdivision 2a, a county agency 
 may place a child for foster care with a relative who is not 
 licensed to provide foster care, provided the requirements of 
 subdivision 2 are met.  As used in this section, the term 
 "relative" has the meaning given it under section 260.181, 
 subdivision 3. 

    Subd. 2.    Cooperation with emergency licensing process. 
  (a) A county agency that places a child with a relative who 
 is not licensed to provide foster care must begin the process of 
 securing an emergency license for the relative as soon as 
 possible and must conduct the initial inspection required by 
 subdivision 3, clause (1), whenever possible, prior to placing 
 the child in the relative's home, but no later than three 
 working days after placing the child in the home.  A child 
 placed in the home of a relative who is not licensed to provide 
 foster care must be removed from that home if the relative fails 
 to cooperate with the county agency in securing an emergency 
 foster care license.  The commissioner may issue an emergency 
 foster care license to a relative with whom the county agency 
 wishes to place or has placed a child for foster care, or to a 
 relative with whom a child has been placed by court order.  

    (b) If a child is to be placed in the home of a relative 
 not licensed to provide foster care, either the placing agency 
 or the county agency in the county in which the relative lives 
 shall conduct the emergency licensing process as required in 
 this section. 

    Subd. 3.    Requirements for emergency license.  Before 
 an emergency license may be issued, the following requirements 
 must be met: 

    (1) the county agency must conduct an initial inspection of 
 the premises where the foster care is to be provided to ensure 
 the health and safety of any child placed in the home.  The 
 county agency shall conduct the inspection using a form 
 developed by the commissioner; 

    (2) at the time of the inspection or placement, whichever 
 is earlier, the relative being considered for an emergency 
 license shall receive an application form for a child foster 
 care license; and 

    (3) whenever possible, prior to placing the child in the 
 relative's home, the relative being considered for an emergency 
 license shall provide the information required by section 
 245A.04, subdivision 3, paragraph (b). 

    Subd. 4.    Applicant study.  When the county agency has 
 received the information required by section 245A.04, 
 subdivision 3, paragraph (b), the county agency shall begin an 
 applicant study according to the procedures in section 245A.04, 
 subdivision 3.  The commissioner may issue an emergency license 
 upon recommendation of the county agency once the initial 
 inspection has been successfully completed and the information 
 necessary to begin the applicant background study has been 
 provided.  If the county agency does not recommend that the 
 emergency license be granted, the agency shall notify the 
 relative in writing that the agency is recommending denial to 
 the commissioner; shall remove any child who has been placed in 
 the home prior to licensure; and shall inform the relative in 
 writing of the procedure to request review pursuant to 
 subdivision 6.  An emergency license shall be effective until a 
 child foster care license is granted or denied, but shall in no 
 case remain in effect more than 120 days from the date of 
 placement. 

    Subd. 5.    Child foster care license application.  The 
 emergency license holder shall complete the child foster care 
 license application and necessary paperwork within ten days of 
 the placement.  The county agency shall assist the emergency 
 license holder to complete the application.  The granting of a 
 child foster care license to a relative shall be under the 
 procedures in this chapter and according to the standards set 
 forth by foster care rule.  In licensing a relative, the 
 commissioner shall consider the importance of maintaining the 
 child's relationship with relatives as an additional significant 
 factor in determining whether to set aside a licensing 
 disqualifier under section 245A.04, subdivision 3b, or to grant 
 a variance of licensing requirements under section 245A.04, 
 subdivision 9. 

    Subd. 6.    Denial of emergency license.  If the 
 commissioner denies an application for an emergency foster care 
 license under this section, that denial must be in writing and 
 must include reasons for the denial.  Denial of an emergency 
 license is not subject to appeal under chapter 14.  The relative 
 may request a review of the denial by submitting to the 
 commissioner a written statement of the reasons an emergency 
 license should be granted.  The commissioner shall evaluate the 
 request for review and determine whether to grant the emergency 
 license.  The commissioner's review shall be based on a review 
 of the records submitted by the county agency and the relative.  
 Within 15 working days of the receipt of the request for review, 
 the commissioner shall notify the relative requesting review in 
 written form whether the emergency license will be granted.  The 
 commissioner's review shall be based on a review of the records 
 submitted by the county agency and the relative.  A child shall 
 not be placed or remain placed in the relative's home while the 
 request for review is pending.  Denial of an emergency license 
 shall not preclude an individual from reapplying for an 
 emergency license or from applying for a child foster care 
 license.  The decision of the commissioner is the final 
 administrative agency action.  

    HIST: 1995 c 207 art 2 s 6; 1996 c 421 s 1; 1998 c 406 art 1 s 
 5,37; 1998 c 407 art 9 s 5 

     245A.04 Application procedures. 

    Subdivision 1.    Application for licensure.  (a) An 
 individual, corporation, partnership, voluntary association, 
 other organization or controlling individual that is subject to 
 licensure under section 245A.03 must apply for a license.  The 
 application must be made on the forms and in the manner 
 prescribed by the commissioner.  The commissioner shall provide 
 the applicant with instruction in completing the application and 
 provide information about the rules and requirements of other 
 state agencies that affect the applicant.  

    The commissioner shall act on the application within 90 
 working days after a complete application and any required 
 reports have been received from other state agencies or 
 departments, counties, municipalities, or other political 
 subdivisions.  

    (b) An application for licensure must specify one or more 
 controlling individuals as an agent who is responsible for 
 dealing with the commissioner of human services on all matters 
 provided for in this chapter and on whom service of all notices 
 and orders must be made.  The agent must be authorized to accept 
 service on behalf of all of the controlling individuals of the 
 program.  Service on the agent is service on all of the 
 controlling individuals of the program.  It is not a defense to 
 any action arising under this chapter that service was not made 
 on each controlling individual of the program.  The designation 
 of one or more controlling individuals as agents under this 
 paragraph does not affect the legal responsibility of any other 
 controlling individual under this chapter. 

    Subd. 2.    Notification of affected municipality.  The 
 commissioner must not issue a license without giving 30 calendar 
 days' written notice to the affected municipality or other 
 political subdivision unless the program is considered a 
 permitted single-family residential use under sections 245A.11 
 and 245A.14.  The notification must be given before the first 
 issuance of a license and annually after that time if annual 
 notification is requested in writing by the affected 
 municipality or other political subdivision.  State funds must 
 not be made available to or be spent by an agency or department 
 of state, county, or municipal government for payment to a 
 residential or nonresidential program licensed under this 
 chapter until the provisions of this subdivision have been 
 complied with in full.  The provisions of this subdivision shall 
 not apply to programs located in hospitals. 

    Subd. 3.    Background study of the applicant; 
 definitions.  (a) Before the commissioner issues a license, 
 the commissioner shall conduct a study of the individuals 
 specified in paragraph (c), clauses (1) to (5), according to 
 rules of the commissioner. 

    Beginning January 1, 1997, the commissioner shall also 
 conduct a study of employees providing direct contact services 
 for nonlicensed personal care provider organizations described 
 in paragraph (c), clause (5). 

    The commissioner shall recover the cost of these background 
 studies through a fee of no more than $12 per study charged to 
 the personal care provider organization.  

    Beginning August 1, 1997, the commissioner shall conduct 
 all background studies required under this chapter for adult 
 foster care providers who are licensed by the commissioner of 
 human services and registered under chapter 144D.  The 
 commissioner shall conduct these background studies in 
 accordance with this chapter.  The commissioner shall initiate a 
 pilot project to conduct up to 5,000 background studies under 
 this chapter in programs with joint licensure as home and 
 community-based services and adult foster care for people with 
 developmental disabilities when the license holder does not 
 reside in the foster care residence. 

    (b) Beginning July 1, 1998, the commissioner shall conduct 
 a background study on individuals specified in paragraph (c), 
 clauses (1) to (5), who perform direct contact services in a 
 nursing home or a home care agency licensed under chapter 144A 
 or a boarding care home licensed under sections 144.50 to 
 144.58, when the subject of the study resides outside Minnesota; 
 the study must be at least as comprehensive as that of a 
 Minnesota resident and include a search of information from the 
 criminal justice data communications network in the state where 
 the subject of the study resides. 

    (c) The applicant, license holder, the bureau of criminal 
 apprehension, the commissioner of health and county agencies, 
 after written notice to the individual who is the subject of the 
 study, shall help with the study by giving the commissioner 
 criminal conviction data and reports about the maltreatment of 
 adults substantiated under section 626.557 and the maltreatment 
 of minors in licensed programs substantiated under section 
 626.556.  The individuals to be studied shall include: 

    (1) the applicant; 

    (2) persons over the age of 13 living in the household 
 where the licensed program will be provided; 

    (3) current employees or contractors of the applicant who 
 will have direct contact with persons served by the facility, 
 agency, or program; 

    (4) volunteers or student volunteers who have direct 
 contact with persons served by the program to provide program 
 services, if the contact is not directly supervised by the 
 individuals listed in clause (1) or (3); and 

    (5) any person who, as an individual or as a member of an 
 organization, exclusively offers, provides, or arranges for 
 personal care assistant services under the medical assistance 
 program as authorized under sections 256B.04, subdivision 16, 
 and 256B.0625, subdivision 19a. 

    The juvenile courts shall also help with the study by 
 giving the commissioner existing juvenile court records on 
 individuals described in clause (2) relating to delinquency 
 proceedings held within either the five years immediately 
 preceding the application or the five years immediately 
 preceding the individual's 18th birthday, whichever time period 
 is longer.  The commissioner shall destroy juvenile records 
 obtained pursuant to this subdivision when the subject of the 
 records reaches age 23.  

    For purposes of this section and Minnesota Rules, part 
 9543.3070, a finding that a delinquency petition is proven in 
 juvenile court shall be considered a conviction in state 
 district court. 

    For purposes of this subdivision, "direct contact" means 
 providing face-to-face care, training, supervision, counseling, 
 consultation, or medication assistance to persons served by a 
 program.  For purposes of this subdivision, "directly supervised"
 means an individual listed in clause (1), (3), or (5) is within 
 sight or hearing of a volunteer to the extent that the 
 individual listed in clause (1), (3), or (5) is capable at all 
 times of intervening to protect the health and safety of the 
 persons served by the program who have direct contact with the 
 volunteer. 

    A study of an individual in clauses (1) to (5) shall be 
 conducted at least upon application for initial license and 
 reapplication for a license.  The commissioner is not required 
 to conduct a study of an individual at the time of reapplication 
 for a license or if the individual has been continuously 
 affiliated with a foster care provider licensed by the 
 commissioner of human services and registered under chapter 
 144D, other than a family day care or foster care license, if:  
 (i) a study of the individual was conducted either at the time 
 of initial licensure or when the individual became affiliated 
 with the license holder; (ii) the individual has been 
 continuously affiliated with the license holder since the last 
 study was conducted; and (iii) the procedure described in 
 paragraph (d) has been implemented and was in effect 
 continuously since the last study was conducted.  For the 
 purposes of this section, a physician licensed under chapter 147 
 is considered to be continuously affiliated upon the license 
 holder's receipt from the commissioner of health or human 
 services of the physician's background study results.  For 
 individuals who are required to have background studies under 
 clauses (1) to (5) and who have been continuously affiliated 
 with a foster care provider that is licensed in more than one 
 county, criminal conviction data may be shared among those 
 counties in which the foster care programs are licensed.  A 
 county agency's receipt of criminal conviction data from another 
 county agency shall meet the criminal data background study 
 requirements of this section. 

    The commissioner may also conduct studies on individuals 
 specified in clauses (3) and (4) when the studies are initiated 
 by: 

    (i) personnel pool agencies; 

    (ii) temporary personnel agencies; 

    (iii) educational programs that train persons by providing 
 direct contact services in licensed programs; and 

    (iv) professional services agencies that are not licensed 
 and which contract with licensed programs to provide direct 
 contact services or individuals who provide direct contact 
 services. 

    Studies on individuals in items (i) to (iv) must be 
 initiated annually by these agencies, programs, and 
 individuals.  Except for personal care provider organizations, 
 no applicant, license holder, or individual who is the subject 
 of the study shall pay any fees required to conduct the study. 

    (1) At the option of the licensed facility, rather than 
 initiating another background study on an individual required to 
 be studied who has indicated to the licensed facility that a 
 background study by the commissioner was previously completed, 
 the facility may make a request to the commissioner for 
 documentation of the individual's background study status, 
 provided that: 

    (i) the facility makes this request using a form provided 
 by the commissioner; 

    (ii) in making the request the facility informs the 
 commissioner that either: 

    (A) the individual has been continuously affiliated with a 
 licensed facility since the individual's previous background 
 study was completed, or since October 1, 1995, whichever is 
 shorter; or 

    (B) the individual is affiliated only with a personnel pool 
 agency, a temporary personnel agency, an educational program 
 that trains persons by providing direct contact services in 
 licensed programs, or a professional services agency that is not 
 licensed and which contracts with licensed programs to provide 
 direct contact services or individuals who provide direct 
 contact services; and 

    (iii) the facility provides notices to the individual as 
 required in paragraphs (a) to (d), and that the facility is 
 requesting written notification of the individual's background 
 study status from the commissioner.  

    (2) The commissioner shall respond to each request under 
 paragraph (1) with a written or electronic notice to the 
 facility and the study subject.  If the commissioner determines 
 that a background study is necessary, the study shall be 
 completed without further request from a licensed agency or 
 notifications to the study subject.  

    (3) When a background study is being initiated by a 
 licensed facility or a foster care provider that is also 
 registered under chapter 144D, a study subject affiliated with 
 multiple licensed facilities may attach to the background study 
 form a cover letter indicating the additional facilities' names, 
 addresses, and background study identification numbers.  When 
 the commissioner receives such notices, each facility identified 
 by the background study subject shall be notified of the study 
 results.  The background study notice sent to the subsequent 
 agencies shall satisfy those facilities' responsibilities for 
 initiating a background study on that individual. 

    (d) If an individual who is affiliated with a program or 
 facility regulated by the department of human services or 
 department of health or who is affiliated with a nonlicensed 
 personal care provider organization, is convicted of a crime 
 constituting a disqualification under subdivision 3d, the 
 probation officer or corrections agent shall notify the 
 commissioner of the conviction.  The commissioner, in 
 consultation with the commissioner of corrections, shall develop 
 forms and information necessary to implement this paragraph and 
 shall provide the forms and information to the commissioner of 
 corrections for distribution to local probation officers and 
 corrections agents.  The commissioner shall inform individuals 
 subject to a background study that criminal convictions for 
 disqualifying crimes will be reported to the commissioner by the 
 corrections system.  A probation officer, corrections agent, or 
 corrections agency is not civilly or criminally liable for 
 disclosing or failing to disclose the information required by 
 this paragraph.  Upon receipt of disqualifying information, the 
 commissioner shall provide the notifications required in 
 subdivision 3a, as appropriate to agencies on record as having 
 initiated a background study or making a request for 
 documentation of the background study status of the individual.  
 This paragraph does not apply to family day care and child 
 foster care programs. 

    (e) The individual who is the subject of the study must 
 provide the applicant or license holder with sufficient 
 information to ensure an accurate study including the 
 individual's first, middle, and last name; home address, city, 
 county, and state of residence for the past five years; zip 
 code; sex; date of birth; and driver's license number.  The 
 applicant or license holder shall provide this information about 
 an individual in paragraph (c), clauses (1) to (5), on forms 
 prescribed by the commissioner.  By January 1, 2000, for 
 background studies conducted by the department of human 
 services, the commissioner shall implement a system for the 
 electronic transmission of:  (1) background study information to 
 the commissioner; and (2) background study results to the 
 license holder.  The commissioner may request additional 
 information of the individual, which shall be optional for the 
 individual to provide, such as the individual's social security 
 number or race. 

    (f) Except for child foster care, adult foster care, and 
 family day care homes, a study must include information related 
 to names of substantiated perpetrators of maltreatment of 
 vulnerable adults that has been received by the commissioner as 
 required under section 626.557, subdivision 9c, paragraph (i), 
 and the commissioner's records relating to the maltreatment of 
 minors in licensed programs, information from juvenile courts as 
 required in paragraph (c) for persons listed in paragraph (c), 
 clause (2), and information from the bureau of criminal 
 apprehension.  For child foster care, adult foster care, and 
 family day care homes, the study must include information from 
 the county agency's record of substantiated maltreatment of 
 adults, and the maltreatment of minors, information from 
 juvenile courts as required in paragraph (c) for persons listed 
 in paragraph (c), clause (2), and information from the bureau of 
 criminal apprehension.  The commissioner may also review arrest 
 and investigative information from the bureau of criminal 
 apprehension, the commissioner of health, a county attorney, 
 county sheriff, county agency, local chief of police, other 
 states, the courts, or the Federal Bureau of Investigation if 
 the commissioner has reasonable cause to believe the information 
 is pertinent to the disqualification of an individual listed in 
 paragraph (c), clauses (1) to (5).  The commissioner is not 
 required to conduct more than one review of a subject's records 
 from the Federal Bureau of Investigation if a review of the 
 subject's criminal history with the Federal Bureau of 
 Investigation has already been completed by the commissioner and 
 there has been no break in the subject's affiliation with the 
 license holder who initiated the background studies. 

    When the commissioner has reasonable cause to believe that 
 further pertinent information may exist on the subject, the 
 subject shall provide a set of classifiable fingerprints 
 obtained from an authorized law enforcement agency.  For 
 purposes of requiring fingerprints, the commissioner shall be 
 considered to have reasonable cause under, but not limited to, 
 the following circumstances: 

    (1) information from the bureau of criminal apprehension 
 indicates that the subject is a multistate offender; 

    (2) information from the bureau of criminal apprehension 
 indicates that multistate offender status is undetermined; or 

    (3) the commissioner has received a report from the subject 
 or a third party indicating that the subject has a criminal 
 history in a jurisdiction other than Minnesota. 

    (g) An applicant's or license holder's failure or refusal 
 to cooperate with the commissioner is reasonable cause to 
 disqualify a subject, deny a license application or immediately 
 suspend, suspend, or revoke a license.  Failure or refusal of an 
 individual to cooperate with the study is just cause for denying 
 or terminating employment of the individual if the individual's 
 failure or refusal to cooperate could cause the applicant's 
 application to be denied or the license holder's license to be 
 immediately suspended, suspended, or revoked. 

    (h) The commissioner shall not consider an application to 
 be complete until all of the information required to be provided 
 under this subdivision has been received.  

    (i) No person in paragraph (c), clause (1), (2), (3), (4), 
 or (5) who is disqualified as a result of this section may be 
 retained by the agency in a position involving direct contact 
 with persons served by the program. 

    (j) Termination of persons in paragraph (c), clause (1), 
 (2), (3), (4), or (5), made in good faith reliance on a notice 
 of disqualification provided by the commissioner shall not 
 subject the applicant or license holder to civil liability. 

    (k) The commissioner may establish records to fulfill the 
 requirements of this section. 

    (l) The commissioner may not disqualify an individual 
 subject to a study under this section because that person has, 
 or has had, a mental illness as defined in section 245.462, 
 subdivision 20. 

    (m) An individual subject to disqualification under this 
 subdivision has the applicable rights in subdivision 3a, 3b, or 
 3c. 

    (n) For the purposes of background studies completed by 
 tribal organizations performing licensing activities otherwise 
 required of the commissioner under this chapter, after obtaining 
 consent from the background study subject, tribal licensing 
 agencies shall have access to criminal history data in the same 
 manner as county licensing agencies and private licensing 
 agencies under this chapter. 

    Subd. 3a.    Notification to subject and license holder of 
 study results; determination of risk of harm.  (a) The 
 commissioner shall notify the applicant or license holder and 
 the individual who is the subject of the study, in writing or by 
 electronic transmission, of the results of the study.  When the 
 study is completed, a notice that the study was undertaken and 
 completed shall be maintained in the personnel files of the 
 program.  For studies on individuals pertaining to a license to 
 provide family day care or group family day care, foster care 
 for children in the provider's own home, or foster care or day 
 care services for adults in the provider's own home, the 
 commissioner is not required to provide a separate notice of the 
 background study results to the individual who is the subject of 
 the study unless the study results in a disqualification of the 
 individual. 

    The commissioner shall notify the individual studied if the 
 information in the study indicates the individual is 
 disqualified from direct contact with persons served by the 
 program.  The commissioner shall disclose the information 
 causing disqualification and instructions on how to request a 
 reconsideration of the disqualification to the individual 
 studied.  An applicant or license holder who is not the subject 
 of the study shall be informed that the commissioner has found 
 information that disqualifies the subject from direct contact 
 with persons served by the program.  However, only the 
 individual studied must be informed of the information contained 
 in the subject's background study unless the only basis for the 
 disqualification is failure to cooperate, the Data Practices Act 
 provides for release of the information, or the individual 
 studied authorizes the release of the information. 

    (b) If the commissioner determines that the individual 
 studied has a disqualifying characteristic, the commissioner 
 shall review the information immediately available and make a 
 determination as to the subject's immediate risk of harm to 
 persons served by the program where the individual studied will 
 have direct contact.  The commissioner shall consider all 
 relevant information available, including the following factors 
 in determining the immediate risk of harm:  the recency of the 
 disqualifying characteristic; the recency of discharge from 
 probation for the crimes; the number of disqualifying 
 characteristics; the intrusiveness or violence of the 
 disqualifying characteristic; the vulnerability of the victim 
 involved in the disqualifying characteristic; and the similarity 
 of the victim to the persons served by the program where the 
 individual studied will have direct contact.  The commissioner 
 may determine that the evaluation of the information immediately 
 available gives the commissioner reason to believe one of the 
 following: 

    (1) The individual poses an imminent risk of harm to 
 persons served by the program where the individual studied will 
 have direct contact.  If the commissioner determines that an 
 individual studied poses an imminent risk of harm to persons 
 served by the program where the individual studied will have 
 direct contact, the individual and the license holder must be 
 sent a notice of disqualification.  The commissioner shall order 
 the license holder to immediately remove the individual studied 
 from direct contact.  The notice to the individual studied must 
 include an explanation of the basis of this determination. 

    (2) The individual poses a risk of harm requiring 
 continuous supervision while providing direct contact services 
 during the period in which the subject may request a 
 reconsideration.  If the commissioner determines that an 
 individual studied poses a risk of harm that requires continuous 
 supervision, the individual and the license holder must be sent 
 a notice of disqualification.  The commissioner shall order the 
 license holder to immediately remove the individual studied from 
 direct contact services or assure that the individual studied is 
 within sight or hearing of another staff person when providing 
 direct contact services during the period in which the 
 individual may request a reconsideration of the 
 disqualification.  If the individual studied does not submit a 
 timely request for reconsideration, or the individual submits a 
 timely request for reconsideration, but the disqualification is 
 not set aside for that license holder, the license holder will 
 be notified of the disqualification and ordered to immediately 
 remove the individual from any position allowing direct contact 
 with persons receiving services from the license holder. 

    (3) The individual does not pose an imminent risk of harm 
 or a risk of harm requiring continuous supervision while 
 providing direct contact services during the period in which the 
 subject may request a reconsideration.  If the commissioner 
 determines that an individual studied does not pose a risk of 
 harm that requires continuous supervision, only the individual 
 must be sent a notice of disqualification.  The license holder 
 must be sent a notice that more time is needed to complete the 
 individual's background study.  If the individual studied 
 submits a timely request for reconsideration, and if the 
 disqualification is set aside for that license holder, the 
 license holder will receive the same notification received by 
 license holders in cases where the individual studied has no 
 disqualifying characteristic.  If the individual studied does 
 not submit a timely request for reconsideration, or the 
 individual submits a timely request for reconsideration, but the 
 disqualification is not set aside for that license holder, the 
 license holder will be notified of the disqualification and 
 ordered to immediately remove the individual from any position 
 allowing direct contact with persons receiving services from the 
 license holder.  

    (c) County licensing agencies performing duties under this 
 subdivision may develop an alternative system for determining 
 the subject's immediate risk of harm to persons served by the 
 program, providing the notices under paragraph (b), and 
 documenting the action taken by the county licensing agency.  
 Each county licensing agency's implementation of the alternative 
 system is subject to approval by the commissioner.  
 Notwithstanding this alternative system, county licensing 
 agencies shall complete the requirements of paragraph (a). 

    Subd. 3b.    Reconsideration of disqualification.  (a) 
 The individual who is the subject of the disqualification may 
 request a reconsideration of the disqualification.  

    The individual must submit the request for reconsideration 
 to the commissioner in writing.  A request for reconsideration 
 for an individual who has been sent a notice of disqualification 
 under subdivision 3a, paragraph (b), clause (1) or (2), must be 
 submitted within 30 calendar days of the disqualified 
 individual's receipt of the notice of disqualification.  A 
 request for reconsideration for an individual who has been sent 
 a notice of disqualification under subdivision 3a, paragraph 
 (b), clause (3), must be submitted within 15 calendar days of 
 the disqualified individual's receipt of the notice of 
 disqualification.  Removal of a disqualified individual from 
 direct contact shall be ordered if the individual does not 
 request reconsideration within the prescribed time, and for an 
 individual who submits a timely request for reconsideration, if 
 the disqualification is not set aside.  The individual must 
 present information showing that: 

    (1) the information the commissioner relied upon is 
 incorrect or inaccurate.  If the basis of a reconsideration 
 request is that a maltreatment determination or disposition 
 under section 626.556 or 626.557 is incorrect, and the 
 commissioner has issued a final order in an appeal of that 
 determination or disposition under section 256.045, the 
 commissioner's order is conclusive on the issue of maltreatment; 
 or 

    (2) the subject of the study does not pose a risk of harm 
 to any person served by the applicant or license holder. 

    (b) The commissioner may set aside the disqualification 
 under this section if the commissioner finds that the 
 information the commissioner relied upon is incorrect or the 
 individual does not pose a risk of harm to any person served by 
 the applicant or license holder.  In determining that an 
 individual does not pose a risk of harm, the commissioner shall 
 consider the consequences of the event or events that lead to 
 disqualification, whether there is more than one disqualifying 
 event, the vulnerability of the victim at the time of the event, 
 the time elapsed without a repeat of the same or similar event, 
 documentation of successful completion by the individual studied 
 of training or rehabilitation pertinent to the event, and any 
 other information relevant to reconsideration.  In reviewing a 
 disqualification under this section, the commissioner shall give 
 preeminent weight to the safety of each person to be served by 
 the license holder or applicant over the interests of the 
 license holder or applicant. 

    (c) Unless the information the commissioner relied on in 
 disqualifying an individual is incorrect, the commissioner may 
 not set aside the disqualification of an individual in 
 connection with a license to provide family day care for 
 children, foster care for children in the provider's own home, 
 or foster care or day care services for adults in the provider's 
 own home if: 

    (1) less than ten years have passed since the discharge of 
 the sentence imposed for the offense; and the individual has 
 been convicted of a violation of any offense listed in sections 
 609.20 (manslaughter in the first degree), 609.205 (manslaughter 
 in the second degree), criminal vehicular homicide under 609.21 
 (criminal vehicular homicide and injury), 609.215 (aiding 
 suicide or aiding attempted suicide), felony violations under 
 609.221 to 609.2231 (assault in the first, second, third, or 
 fourth degree), 609.713 (terroristic threats), 609.235 (use of 
 drugs to injure or to facilitate crime), 609.24 (simple 
 robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 
 609.255 (false imprisonment), 609.561 or 609.562 (arson in the 
 first or second degree), 609.71 (riot), burglary in the first or 
 second degree under 609.582 (burglary), 609.66 (dangerous 
 weapon), 609.665 (spring guns), 609.67 (machine guns and 
 short-barreled shotguns), 609.749 (harassment; stalking), 
 152.021 or 152.022 (controlled substance crime in the first or 
 second degree), 152.023, subdivision 1, clause (3) or (4), or 
 subdivision 2, clause (4) (controlled substance crime in the 
 third degree), 152.024, subdivision 1, clause (2), (3), or (4) 
 (controlled substance crime in the fourth degree), 609.224, 
 subdivision 2, paragraph (c) (fifth-degree assault by a 
 caregiver against a vulnerable adult), 609.228 (great bodily 
 harm caused by distribution of drugs), 609.23 (mistreatment of 
 persons confined), 609.231 (mistreatment of residents or 
 patients), 609.2325 (criminal abuse of a vulnerable adult), 
 609.233 (criminal neglect of a vulnerable adult), 609.2335 
 (financial exploitation of a vulnerable adult), 609.234 (failure 
 to report), 609.265 (abduction), 609.2664 to 609.2665 
 (manslaughter of an unborn child in the first or second degree), 
 609.267 to 609.2672 (assault of an unborn child in the first, 
 second, or third degree), 609.268 (injury or death of an unborn 
 child in the commission of a crime), 617.293 (disseminating or 
 displaying harmful material to minors), a gross misdemeanor 
 offense under 609.324, subdivision 1 (other prohibited acts), a 
 gross misdemeanor offense under 609.378 (neglect or endangerment 
 of a child), a gross misdemeanor offense under 609.377 
 (malicious punishment of a child), 609.72, subdivision 3 
 (disorderly conduct against a vulnerable adult); or an attempt 
 or conspiracy to commit any of these offenses, as each of these 
 offenses is defined in Minnesota Statutes; or an offense in any 
 other state, the elements of which are substantially similar to 
 the elements of any of the foregoing offenses; 

    (2) regardless of how much time has passed since the 
 discharge of the sentence imposed for the offense, the 
 individual was convicted of a violation of any offense listed in 
 sections 609.185 to 609.195 (murder in the first, second, or 
 third degree), 609.2661 to 609.2663 (murder of an unborn child 
 in the first, second, or third degree), a felony offense under 
 609.377 (malicious punishment of a child), a felony offense 
 under 609.324, subdivision 1 (other prohibited acts), a felony 
 offense under 609.378 (neglect or endangerment of a child), 
 609.322 (solicitation, inducement, and promotion of 
 prostitution), 609.342 to 609.345 (criminal sexual conduct in 
 the first, second, third, or fourth degree), 609.352 
 (solicitation of children to engage in sexual conduct), 617.246 
 (use of minors in a sexual performance), 617.247 (possession of 
 pictorial representations of a minor), 609.365 (incest), a 
 felony offense under sections 609.2242 and 609.2243 (domestic 
 assault), a felony offense of spousal abuse, a felony offense of 
 child abuse or neglect, a felony offense of a crime against 
 children, or an attempt or conspiracy to commit any of these 
 offenses as defined in Minnesota Statutes, or an offense in any 
 other state, the elements of which are substantially similar to 
 any of the foregoing offenses; 

    (3) within the seven years preceding the study, the 
 individual committed an act that constitutes maltreatment of a 
 child under section 626.556, subdivision 10e, and that resulted 
 in substantial bodily harm as defined in section 609.02, 
 subdivision 7a, or substantial mental or emotional harm as 
 supported by competent psychological or psychiatric evidence; or 

    (4) within the seven years preceding the study, the 
 individual was determined under section 626.557 to be the 
 perpetrator of a substantiated incident of maltreatment of a 
 vulnerable adult that resulted in substantial bodily harm as 
 defined in section 609.02, subdivision 7a, or substantial mental 
 or emotional harm as supported by competent psychological or 
 psychiatric evidence. 

    In the case of any ground for disqualification under 
 clauses (1) to (4), if the act was committed by an individual 
 other than the applicant or license holder residing in the 
 applicant's or license holder's home, the applicant or license 
 holder may seek reconsideration when the individual who 
 committed the act no longer resides in the home.  

    The disqualification periods provided under clauses (1), 
 (3), and (4) are the minimum applicable disqualification 
 periods.  The commissioner may determine that an individual 
 should continue to be disqualified from licensure because the 
 license holder or applicant poses a risk of harm to a person 
 served by that individual after the minimum disqualification 
 period has passed. 

    (d) The commissioner shall respond in writing or by 
 electronic transmission to all reconsideration requests for 
 which the basis for the request is that the information relied 
 upon by the commissioner to disqualify is incorrect or 
 inaccurate within 30 working days of receipt of a request and 
 all relevant information.  If the basis for the request is that 
 the individual does not pose a risk of harm, the commissioner 
 shall respond to the request within 15 working days after 
 receiving the request for reconsideration and all relevant 
 information.  If the disqualification is set aside, the 
 commissioner shall notify the applicant or license holder in 
 writing or by electronic transmission of the decision. 

    (e) Except as provided in subdivision 3c, the 
 commissioner's decision to disqualify an individual, including 
 the decision to grant or deny a rescission or set aside a 
 disqualification under this section, is the final administrative 
 agency action and shall not be subject to further review in a 
 contested case under chapter 14 involving a negative licensing 
 appeal taken in response to the disqualification or involving an 
 accuracy and completeness appeal under section 13.04. 

    Subd. 3c.    Contested case.  If a disqualification is 
 not set aside, a person who is an employee of an employer, as 
 defined in section 179A.03, subdivision 15, may request a 
 contested case hearing under chapter 14.  Rules adopted under 
 this chapter may not preclude an employee in a contested case 
 hearing for disqualification from submitting evidence concerning 
 information gathered under subdivision 3, paragraph (e). 

    Subd. 3d.    Disqualification.  (a) Except as provided 
 in paragraph (b), when a background study completed under 
 subdivision 3 shows any of the following:  a conviction of one 
 or more crimes listed in clauses (1) to (4); the individual has 
 admitted to or a preponderance of the evidence indicates the 
 individual has committed an act or acts that meet the definition 
 of any of the crimes listed in clauses (1) to (4); or an 
 administrative determination listed under clause (4), the 
 individual shall be disqualified from any position allowing 
 direct contact with persons receiving services from the license 
 holder: 

    (1) regardless of how much time has passed since the 
 discharge of the sentence imposed for the offense, and unless 
 otherwise specified, regardless of the level of the conviction, 
 the individual was convicted of any of the following offenses:  
 sections 609.185 (murder in the first degree); 609.19 (murder in 
 the second degree); 609.195 (murder in the third degree); 
 609.2661 (murder of an unborn child in the first degree); 
 609.2662 (murder of an unborn child in the second degree); 
 609.2663 (murder of an unborn child in the third degree); 
 609.322 (solicitation, inducement, and promotion of 
 prostitution); 609.342 (criminal sexual conduct in the first 
 degree); 609.343 (criminal sexual conduct in the second degree); 
 609.344 (criminal sexual conduct in the third degree); 609.345 
 (criminal sexual conduct in the fourth degree); 609.352 
 (solicitation of children to engage in sexual conduct); 609.365 
 (incest); felony offense under 609.377 (malicious punishment of 
 a child); a felony offense under 609.378 (neglect or 
 endangerment of a child); a felony offense under 609.324, 
 subdivision 1 (other prohibited acts); 617.246 (use of minors in 
 sexual performance prohibited); 617.247 (possession of pictorial 
 representations of minors); a felony offense under sections 
 609.2242 and 609.2243 (domestic assault), a felony offense of 
 spousal abuse, a felony offense of child abuse or neglect, a 
 felony offense of a crime against children; or attempt or 
 conspiracy to commit any of these offenses as defined in 
 Minnesota Statutes, or an offense in any other state or country, 
 where the elements are substantially similar to any of the 
 offenses listed in this clause; 

    (2) if less than 15 years have passed since the discharge 
 of the sentence imposed for the offense; and the individual has 
 received a felony conviction for a violation of any of these 
 offenses:  sections 609.20 (manslaughter in the first degree); 
 609.205 (manslaughter in the second degree); 609.21 (criminal 
 vehicular homicide and injury); 609.215 (suicide); 609.221 to 
 609.2231 (assault in the first, second, third, or fourth 
 degree); repeat offenses under 609.224 (assault in the fifth 
 degree); repeat offenses under 609.3451 (criminal sexual conduct 
 in the fifth degree); 609.713 (terroristic threats); 609.235 
 (use of drugs to injure or facilitate crime); 609.24 (simple 
 robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 
 609.255 (false imprisonment); 609.561 (arson in the first 
 degree); 609.562 (arson in the second degree); 609.563 (arson in 
 the third degree); repeat offenses under 617.23 (indecent 
 exposure; penalties); repeat offenses under 617.241 (obscene 
 materials and performances; distribution and exhibition 
 prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 
 609.67 (machine guns and short-barreled shotguns); 609.749 
 (harassment; stalking; penalties); 609.228 (great bodily harm 
 caused by distribution of drugs); 609.2325 (criminal abuse of a 
 vulnerable adult); 609.2664 (manslaughter of an unborn child in 
 the first degree); 609.2665 (manslaughter of an unborn child in 
 the second degree); 609.267 (assault of an unborn child in the 
 first degree); 609.2671 (assault of an unborn child in the 
 second degree); 609.268 (injury or death of an unborn child in 
 the commission of a crime); 609.52 (theft); 609.2335 (financial 
 exploitation of a vulnerable adult); 609.521 (possession of 
 shoplifting gear); 609.582 (burglary); 609.625 (aggravated 
 forgery); 609.63 (forgery); 609.631 (check forgery; offering a 
 forged check); 609.635 (obtaining signature by false pretense); 
 609.27 (coercion); 609.275 (attempt to coerce); 609.687 
 (adulteration); 260C.301 (grounds for termination of parental 
 rights); and chapter 152 (drugs; controlled substance).  An 
 attempt or conspiracy to commit any of these offenses, as each 
 of these offenses is defined in Minnesota Statutes; or an 
 offense in any other state or country, the elements of which are 
 substantially similar to the elements of the offenses in this 
 clause.  If the individual studied is convicted of one of the 
 felonies listed in this clause, but the sentence is a gross 
 misdemeanor or misdemeanor disposition, the lookback period for 
 the conviction is the period applicable to the disposition, that 
 is the period for gross misdemeanors or misdemeanors; 

    (3) if less than ten years have passed since the discharge 
 of the sentence imposed for the offense; and the individual has 
 received a gross misdemeanor conviction for a violation of any 
 of the following offenses:  sections 609.224 (assault in the 
 fifth degree); 609.2242 and 609.2243 (domestic assault); 
 violation of an order for protection under 518B.01, subdivision 
 14; 609.3451 (criminal sexual conduct in the fifth degree); 
 repeat offenses under 609.746 (interference with privacy); 
 repeat offenses under 617.23 (indecent exposure); 617.241 
 (obscene materials and performances); 617.243 (indecent 
 literature, distribution); 617.293 (harmful materials; 
 dissemination and display to minors prohibited); 609.71 (riot); 
 609.66 (dangerous weapons); 609.749 (harassment; stalking; 
 penalties); 609.224, subdivision 2, paragraph (c) (assault in 
 the fifth degree by a caregiver against a vulnerable adult); 
 609.23 (mistreatment of persons confined); 609.231 (mistreatment 
 of residents or patients); 609.2325 (criminal abuse of a 
 vulnerable adult); 609.233 (criminal neglect of a vulnerable 
 adult); 609.2335 (financial exploitation of a vulnerable adult); 
 609.234 (failure to report maltreatment of a vulnerable adult); 
 609.72, subdivision 3 (disorderly conduct against a vulnerable 
 adult); 609.265 (abduction); 609.378 (neglect or endangerment of 
 a child); 609.377 (malicious punishment of a child); 609.324, 
 subdivision 1a (other prohibited acts; minor engaged in 
 prostitution); 609.33 (disorderly house); 609.52 (theft); 
 609.582 (burglary); 609.631 (check forgery; offering a forged 
 check); 609.275 (attempt to coerce); or an attempt or conspiracy 
 to commit any of these offenses, as each of these offenses is 
 defined in Minnesota Statutes; or an offense in any other state 
 or country, the elements of which are substantially similar to 
 the elements of any of the offenses listed in this clause.  If 
 the defendant is convicted of one of the gross misdemeanors 
 listed in this clause, but the sentence is a misdemeanor 
 disposition, the lookback period for the conviction is the 
 period applicable to misdemeanors; or 

    (4) if less than seven years have passed since the 
 discharge of the sentence imposed for the offense; and the 
 individual has received a misdemeanor conviction for a violation 
 of any of the following offenses:  sections 609.224 (assault in 
 the fifth degree); 609.2242 (domestic assault); violation of an 
 order for protection under 518B.01 (Domestic Abuse Act); 
 violation of an order for protection under 609.3232 (protective 
 order authorized; procedures; penalties); 609.746 (interference 
 with privacy); 609.79 (obscene or harassing phone calls); 
 609.795 (letter, telegram, or package; opening; harassment); 
 617.23 (indecent exposure; penalties); 609.2672 (assault of an 
 unborn child in the third degree); 617.293 (harmful materials; 
 dissemination and display to minors prohibited); 609.66 
 (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
 exploitation of a vulnerable adult); 609.234 (failure to report 
 maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
 (coercion); or an attempt or conspiracy to commit any of these 
 offenses, as each of these offenses is defined in Minnesota 
 Statutes; or an offense in any other state or country, the 
 elements of which are substantially similar to the elements of 
 any of the offenses listed in this clause; failure to make 
 required reports under section 626.556, subdivision 3, or 
 626.557, subdivision 3, for incidents in which:  (i) the final 
 disposition under section 626.556 or 626.557 was substantiated 
 maltreatment, and (ii) the maltreatment was recurring or 
 serious; or substantiated serious or recurring maltreatment of a 
 minor under section 626.556 or of a vulnerable adult under 
 section 626.557 for which there is a preponderance of evidence 
 that the maltreatment occurred, and that the subject was 
 responsible for the maltreatment. 

    For the purposes of this section, "serious maltreatment" 
 means sexual abuse; maltreatment resulting in death; or 
 maltreatment resulting in serious injury which reasonably 
 requires the care of a physician whether or not the care of a 
 physician was sought; or abuse resulting in serious injury.  For 
 purposes of this section, "abuse resulting in serious injury" 
 means:  bruises, bites, skin laceration or tissue damage; 
 fractures; dislocations; evidence of internal injuries; head 
 injuries with loss of consciousness; extensive second-degree or 
 third-degree burns and other burns for which complications are 
 present; extensive second-degree or third-degree frostbite, and 
 others for which complications are present; irreversible 
 mobility or avulsion of teeth; injuries to the eyeball; 
 ingestion of foreign substances and objects that are harmful; 
 near drowning; and heat exhaustion or sunstroke.  For purposes 
 of this section, "care of a physician" is treatment received or 
 ordered by a physician, but does not include diagnostic testing, 
 assessment, or observation.  For the purposes of this section, 
 "recurring maltreatment" means more than one incident of 
 maltreatment for which there is a preponderance of evidence that 
 the maltreatment occurred, and that the subject was responsible 
 for the maltreatment. 

    (b) If the subject of a background study is licensed by a 
 health-related licensing board, the board shall make the 
 determination regarding a disqualification under this 
 subdivision based on a finding of substantiated maltreatment 
 under section 626.556 or 626.557.  The commissioner shall notify 
 the health-related licensing board if a background study shows 
 that a licensee would be disqualified because of substantiated 
 maltreatment and the board shall make a determination under 
 section 214.104. 

    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; and 

    (4) observation of the program in operation. 

    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.  

    Subd. 5.    Commissioner's right of access.  When the 
 commissioner is exercising the powers conferred by this chapter, 
 the commissioner must be given access to the physical plant and 
 grounds where the program is provided, documents, persons served 
 by the program, and staff whenever the program is in operation 
 and the information is relevant to inspections or investigations 
 conducted by the commissioner.  The commissioner must be given 
 access without prior notice and as often as the commissioner 
 considers necessary if the commissioner is conducting an 
 investigation of allegations of maltreatment or other violation 
 of applicable laws or rules.  In conducting inspections, the 
 commissioner may request and shall receive assistance from other 
 state, county, and municipal governmental agencies and 
 departments.  The applicant or license holder shall allow the 
 commissioner to photocopy, photograph, and make audio and video 
 tape recordings during the inspection of the program at the 
 commissioner's expense.  The commissioner shall obtain a court 
 order or the consent of the subject of the records or the 
 parents or legal guardian of the subject before photocopying 
 hospital medical records.  

    Persons served by the program have the right to refuse to 
 consent to be interviewed, photographed, or audio or videotaped. 
 Failure or refusal of an applicant or license holder to fully 
 comply with this subdivision is reasonable cause for the 
 commissioner to deny the application or immediately suspend or 
 revoke the license. 

    Subd. 6.    Commissioner's evaluation.  Before granting, 
 suspending, revoking, or making conditional a license, the 
 commissioner shall evaluate information gathered under this 
 section.  The commissioner's evaluation shall consider facts, 
 conditions, or circumstances concerning the program's operation, 
 the well-being of persons served by the program, available 
 consumer evaluations of the program, and information about the 
 qualifications of the personnel employed by the applicant or 
 license holder. 

    The commissioner shall evaluate the results of the study 
 required in subdivision 3 and determine whether a risk of harm 
 to the persons served by the program exists.  In conducting this 
 evaluation, the commissioner shall apply the disqualification 
 standards set forth in rules adopted under this chapter.  

    Subd. 7.    Issuance of a license; extension of a license. 
  (a) If the commissioner determines that the program complies 
 with all applicable rules and laws, the commissioner shall issue 
 a license.  At minimum, the license shall state:  

    (1) the name of the license holder; 

    (2) the address of the program; 

    (3) the effective date and expiration date of the license; 

    (4) the type of license; 

    (5) the maximum number and ages of persons that may receive 
 services from the program; and 

    (6) any special conditions of licensure. 

    (b) The commissioner may issue an initial license for a 
 period not to exceed two years if:  

    (1) the commissioner is unable to conduct the evaluation or 
 observation required by subdivision 4, paragraph (a), clauses (3)
 and (4), because the program is not yet operational; 

    (2) certain records and documents are not available because 
 persons are not yet receiving services from the program; and 

    (3) the applicant complies with applicable laws and rules 
 in all other respects.  

    (c) A decision by the commissioner to issue a license does 
 not guarantee that any person or persons will be placed or cared 
 for in the licensed program.  A license shall not be 
 transferable to another individual, corporation, partnership, 
 voluntary association, other organization, or controlling or to 
 another location. 

    For purposes of reimbursement for meals only, under the 
 Child and Adult Care Food Program, Code of Federal Regulations, 
 title 7, subtitle B, chapter II, subchapter A, part 226, 
 relocation within the same county by a licensed family day care 
 provider, shall be considered an extension of the license for a 
 period of no more than 30 calendar days or until the new license 
 is issued, whichever occurs first, provided the county agency 
 has determined the family day care provider meets licensure 
 requirements at the new location. 

    Unless otherwise specified by statute, all licenses expire 
 at 12:01 a.m. on the day after the expiration date stated on the 
 license.  A license holder must apply for and be granted a new 
 license to operate the program or the program must not be 
 operated after the expiration date.  

    Subd. 8.    Hospital inspections.  Licensing authority 
 granted under this section shall not modify the presumption 
 regarding routine hospital inspections under section 144.55, 
 subdivision 4. 

    Subd. 9.    Variances.  The commissioner may grant 
 variances to rules that do not affect the health or safety of 
 persons in a licensed program if the following conditions are 
 met:  

    (1) the variance must be requested by an applicant or 
 license holder on a form and in a manner prescribed by the 
 commissioner; 

    (2) the request for a variance must include the reasons 
 that the applicant or license holder cannot comply with a 
 requirement as stated in the rule and the alternative equivalent 
 measures that the applicant or license holder will follow to 
 comply with the intent of the rule; and 

    (3) the request must state the period of time for which the 
 variance is requested.  

    The commissioner may grant a permanent variance when 
 conditions under which the variance is requested do not affect 
 the health or safety of persons being served by the licensed 
 program, nor compromise the qualifications of staff to provide 
 services.  The permanent variance shall expire as soon as the 
 conditions that warranted the variance are modified in any way.  
 Any applicant or license holder must inform the commissioner of 
 any changes or modifications that have occurred in the 
 conditions that warranted the permanent variance.  Failure to 
 advise the commissioner shall result in revocation of the 
 permanent variance and may be cause for other sanctions under 
 sections 245A.06 and 245A.07. 

    The commissioner's decision to grant or deny a variance 
 request is final and not subject to appeal under the provisions 
 of chapter 14. 

    Subd. 10.    Adoption agency; additional requirements.  
 In addition to the other requirements of this section, an 
 individual, corporation, partnership, voluntary association, 
 other organization, or controlling individual applying for a 
 license to place children for adoption must: 

    (1) incorporate as a nonprofit corporation under chapter 
 317A; 

    (2) file with the application for licensure a copy of the 
 disclosure form required under section 259.37, subdivision 2; 

    (3) provide evidence that a bond has been obtained and will 
 be continuously maintained throughout the entire operating 
 period of the agency, to cover the cost of transfer of records 
 to and storage of records by the agency which has agreed, 
 according to rule established by the commissioner, to receive 
 the applicant agency's records if the applicant agency 
 voluntarily or involuntarily ceases operation and fails to 
 provide for proper transfer of the records.  The bond must be 
 made in favor of the agency which has agreed to receive the 
 records; and 

    (4) submit a certified audit to the commissioner each year 
 the license is renewed as required under section 245A.03, 
 subdivision 1. 

    Subd. 11.    Education program; additional requirement.  
 The education program offered in a residential or nonresidential 
 program, except for child care, foster care, or services for 
 adults, must be approved by the commissioner of children, 
 families, and learning before the commissioner of human services 
 may grant a license to the program. 

    HIST: 1987 c 333 s 4; 1988 c 411 s 3,4; 1988 c 608 s 2; 1989 c 
 282 art 2 s 69-76; 1990 c 542 s 7; 1990 c 568 art 2 s 42-44; 
 1991 c 38 s 1; 1992 c 513 art 9 s 10; 1993 c 171 s 3,4; 1993 c 
 306 s 1; 1993 c 338 s 5; 1993 c 351 s 29; 1994 c 434 s 1-3; 1994 
 c 465 art 1 s 29; 1994 c 631 s 5,31; 1995 c 207 art 2 s 7-10; 
 1995 c 229 art 3 s 5; art 4 s 11; 1996 c 408 art 10 s 5; 1997 c 
 177 s 1; 1997 c 248 s 10-18; 1998 c 367 art 2 s 32; 1998 c 406 
 art 1 s 6,7,37; 1998 c 407 art 9 s 6,7; 1999 c 139 art 4 s 2; 
 1999 c 241 art 2 s 53; 1999 c 245 art 4 s 9; 2000 c 260 s 29; 
 2000 c 319 s 1; 2000 c 327 s 3-6 

     245A.05 Denial of application. 

    An applicant whose application has been denied by the 
 commissioner must be given notice of the denial.  Notice must be 
 given by certified mail.  The notice must state the reasons the 
 application was denied and must inform the applicant of the 
 right to a contested case hearing under chapter 14.  The 
 applicant may appeal the denial by notifying the commissioner in 
 writing by certified mail within 20 calendar days after 
 receiving notice that the application was denied.  Section 
 245A.08 applies to hearings held to appeal the commissioner's 
 denial of an application. 

    HIST: 1987 c 333 s 5 

     245A.06 Correction order and fines. 

    Subdivision 1.    Contents of correction orders or fines. 
  (a) 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 to or impose a fine on the 
 applicant or license holder.  The correction order or fine must 
 state: 

    (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 fine is imposed, the amount of the fine. 

    (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 fine. 

    Subd. 2.    Reconsideration of correction orders.  If 
 the applicant or license holder believes that the contents of 
 the commissioner's correction order are in error, the applicant 
 or license holder may ask the department of human services to 
 reconsider the parts of the correction order that are alleged to 
 be in error.  The request for reconsideration must be in writing 
 and received by the commissioner within 20 calendar days after 
 receipt of the correction order by the applicant or license 
 holder, and: 

    (1) specify the parts of the correction 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 request for reconsideration does not stay any provisions 
 or requirements of the correction order.  The commissioner's 
 disposition of a request for reconsideration is final and not 
 subject to appeal under chapter 14. 

    Subd. 3.    Failure to comply.  If the commissioner 
 finds that the applicant or license holder has not corrected the 
 violations specified in the correction order, the commissioner 
 may impose a fine.  If a fine was imposed and the violation was 
 not corrected, the commissioner may impose an additional fine.  
 This section does not prohibit the commissioner from seeking a 
 court order, denying an application, or suspending, revoking, or 
 making conditional the license in addition to imposing a fine. 

    Subd. 4.    Notice of fine; reconsideration of fine.  A 
 license holder who is ordered to pay a fine must be notified of 
 the order by certified mail.  The notice must be mailed to the 
 address shown on the application or the last known address of 
 the license holder.  The notice must state the reasons the fine 
 was ordered and must inform the license holder of the 
 responsibility for payment of fines in subdivision 7 and the 
 right to request reconsideration of the fine.  The license 
 holder may request reconsideration of the order to forfeit a 
 fine by notifying the commissioner by certified mail within 20 
 calendar days after receiving the order.  A timely request for 
 reconsideration shall stay forfeiture of the fine until the 
 commissioner issues a decision on the request for 
 reconsideration.  The request for reconsideration must be in 
 writing and: 

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

    (2) explain why they are in error; 

    (3) include documentation to support the allegation of 
 error; and 

    (4) any other information relevant to the fine or the 
 amount of the fine. 

    The commissioner's disposition of a request for 
 reconsideration is final and not subject to appeal under chapter 
 14. 

    Subd. 5.    Forfeiture of fines.  The license holder 
 shall pay the fines assessed on or before the payment date 
 specified in the commissioner's order.  If the license holder 
 fails to fully comply with the order, the commissioner shall 
 issue a second fine or suspend the license until the license 
 holder complies.  If the license holder receives state funds, 
 the state, county, or municipal agencies or departments 
 responsible for administering the funds shall withhold payments 
 and recover any payments made while the license is suspended for 
 failure to pay a fine.  

    Subd. 5a.    Accrual of fines.  A license holder shall 
 promptly notify the commissioner of human services, in writing, 
 when a violation specified in an order to forfeit is corrected.  
 If upon reinspection the commissioner determines that a 
 violation has not been corrected as indicated by the order to 
 forfeit, the commissioner may issue a second fine.  The 
 commissioner shall notify the license holder by certified mail 
 that a second fine has been assessed.  The license holder may 
 request reconsideration of the second fine under the provisions 
 of subdivision 4. 

    Subd. 6.    Amount of fines.  Fines shall be assessed as 
 follows: 

    (1) the license holder shall forfeit $1,000 for each 
 occurrence of violation of law or rule prohibiting the 
 maltreatment of children or the maltreatment of vulnerable 
 adults, including but not limited to corporal punishment, 
 illegal or unauthorized use of physical, mechanical, or chemical 
 restraints, and illegal or unauthorized use of aversive or 
 deprivation procedures; 

    (2) the license holder shall forfeit $200 for each 
 occurrence of a violation of law or rule governing matters of 
 health, safety, or supervision, including but not limited to the 
 provision of adequate staff to child or adult ratios; and 

    (3) the license holder shall forfeit $100 for each 
 occurrence of a violation of law or rule other than those 
 included in clauses (1) and (2). 

    For the purposes of this section, "occurrence" means each 
 violation identified in the commissioner's forfeiture order. 

    Subd. 7.    Responsibility for payment of fines.  When a 
 fine has been assessed, the license holder may not avoid payment 
 by closing, selling, or otherwise transferring the licensed 
 program to a third party.  In such an event, the license holder 
 will be personally liable for payment.  In the case of a 
 corporation, each controlling individual is personally and 
 jointly liable for payment. 

    Fines for child care centers must be assessed according to 
 this section. 

    HIST: 1987 c 333 s 6; 1989 c 282 art 2 s 77-79; 1993 c 338 s 
 6; 1995 c 207 art 2 s 11-13; 1997 c 248 s 19-25 

     245A.07 Sanctions. 

    Subdivision 1.    Sanctions available.  In addition to 
 ordering forfeiture of fines, the commissioner may propose to 
 suspend, revoke, or make conditional the license or secure an 
 injunction against the continuing operation of the program of a 
 license holder who does not comply with applicable law or rule.  
 When applying sanctions authorized under this section, 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. 

    Subd. 2.    Immediate suspension in cases of imminent 
 danger to health, safety, or rights.  If the license holder's 
 failure to comply with applicable law or rule has placed the 
 health, safety, or rights of persons served by the program in 
 imminent danger, the commissioner shall act immediately to 
 suspend the license.  No state funds shall be made available or 
 be expended by any agency or department of state, county, or 
 municipal government for use by a license holder regulated under 
 this chapter while a license is under immediate suspension.  A 
 notice stating the reasons for the immediate suspension and 
 informing the license holder of the right to a contested case 
 hearing under chapter 14 must be delivered by personal service 
 to the address shown on the application or the last known 
 address of the license holder.  The license holder may appeal an 
 order immediately suspending a license.  The appeal of an order 
 immediately suspending a license must be made in writing by 
 certified mail and must be received by the commissioner within 
 five calendar days after the license holder receives notice that 
 the license has been immediately suspended.  A license holder 
 and any controlling individual shall discontinue operation of 
 the program upon receipt of the commissioner's order to 
 immediately suspend the license. 

    Subd. 3.    License suspension, revocation, denial or 
 conditional license.  The commissioner may suspend, revoke, 
 make conditional, or deny a license if an applicant or a license 
 holder fails to comply fully with applicable laws or rules, or 
 knowingly withholds relevant information from or gives false or 
 misleading information to the commissioner in connection with an 
 application for a license or during an investigation.  A license 
 holder who has had a license suspended, revoked, or made 
 conditional must be given notice of the action by certified 
 mail.  The notice must be mailed to the address shown on the 
 application or the last known address of the license holder.  
 The notice must state the reasons the license was suspended, 
 revoked, or made conditional. 

    (a) If the license was suspended or revoked, the notice 
 must inform the license holder of the right to a contested case 
 hearing under chapter 14.  The license holder may appeal an 
 order suspending or revoking a license.  The appeal of an order 
 suspending or revoking a license must be made in writing by 
 certified mail and must be received by the commissioner within 
 ten calendar days after the license holder receives notice that 
 the license has been suspended or revoked.  

    (b) If the license was made conditional, the notice must 
 inform the license holder of the right to request a 
 reconsideration by the commissioner.  The request for 
 reconsideration must be made in writing by certified mail and 
 must be received by the commissioner within ten calendar days 
 after the license holder receives notice that the license has 
 been made conditional.  The license holder may submit with the 
 request for reconsideration written argument or evidence in 
 support of the request for reconsideration.  The commissioner's 
 disposition of a request for reconsideration is final and is not 
 subject to appeal under chapter 14.  

    Subd. 4.    Adoption agency violations.  If a license 
 holder licensed to place children for adoption fails to provide 
 services as described in the disclosure form required by section 
 259.37, subdivision 2, the sanctions under this section may be 
 imposed. 

    HIST: 1987 c 333 s 7; 1989 c 282 art 2 s 80; 1990 c 568 art 2 
 s 45; 1992 c 513 art 9 s 11,12; 1994 c 631 s 6,31; 1995 c 207 
 art 2 s 14; 1997 c 248 s 26,27; 2000 c 327 s 6 

     245A.08 Hearings. 

    Subdivision 1.    Receipt of appeal; conduct of hearing. 
  Upon receiving a timely appeal or petition pursuant to 
 section 245A.05 or 245A.07, the commissioner shall issue a 
 notice of and order for hearing to the appellant under chapter 
 14. 

    Subd. 2.    Conduct of hearings.  At any hearing 
 provided for by section 245A.05 or 245A.07, the appellant may be 
 represented by counsel and has the right to call, examine, and 
 cross-examine witnesses.  The administrative law judge may 
 require the presence of witnesses and evidence by subpoena on 
 behalf of any party.  

    Subd. 3.    Burden of proof.  (a) At a hearing regarding 
 suspension, immediate suspension, or revocation of a license for 
 family day care or foster care, the commissioner may demonstrate 
 reasonable cause for action taken by submitting statements, 
 reports, or affidavits to substantiate the allegations that the 
 license holder failed to comply fully with applicable law or 
 rule.  If the commissioner demonstrates that reasonable cause 
 existed, the burden of proof in hearings involving suspension, 
 immediate suspension, or revocation of a family day care or 
 foster care license shifts to the license holder to demonstrate 
 by a preponderance of the evidence that the license holder was 
 in full compliance with those laws or rules that the 
 commissioner alleges the license holder violated, at the time 
 that the commissioner alleges the violations of law or rules 
 occurred. 

    (b) At a hearing on denial of an application, the applicant 
 bears the burden of proof to demonstrate by a preponderance of 
 the evidence that the appellant has complied fully with sections 
 245A.01 to 245A.15 and other applicable law or rule and that the 
 application should be approved and a license granted. 

    (c) At all other hearings under this section, the 
 commissioner bears the burden of proof to demonstrate, by a 
 preponderance of the evidence, that the violations of law or 
 rule alleged by the commissioner occurred. 

    Subd. 4.    Recommendation of administrative law judge.  
 The administrative law judge shall recommend whether or not the 
 commissioner's order should be affirmed.  The recommendations 
 must be consistent with this chapter and the rules of the 
 commissioner.  The recommendations must be in writing and 
 accompanied by findings of fact and conclusions and must be 
 mailed to the parties by certified mail to their last known 
 addresses as shown on the license or application. 

    Subd. 5.    Notice of the commissioner's final order.  
 After considering the findings of fact, conclusions, and 
 recommendations of the administrative law judge, the 
 commissioner shall issue a final order.  The commissioner shall 
 consider, but shall not be bound by, the recommendations of the 
 administrative law judge.  The appellant must be notified of the 
 commissioner's final order as required by chapter 14.  The 
 notice must also contain information about the appellant's 
 rights under chapter 14.  The institution of proceedings for 
 judicial review of the commissioner's final order shall not stay 
 the enforcement of the final order except as provided in section 
 14.65.  A license holder and each controlling individual of a 
 license holder whose license has been revoked because of 
 noncompliance with applicable law or rule must not be granted a 
 license for five years following the revocation.  An applicant 
 whose application was denied must not be granted a license for 
 two years following a denial, unless the applicant's subsequent 
 application contains new information which constitutes a 
 substantial change in the conditions that caused the previous 
 denial. 

    HIST: 1987 c 333 s 8; 1989 c 282 art 2 s 81; 1990 c 568 art 2 
 s 46; 1997 c 248 s 28,29; 1999 c 245 art 4 s 10; 2000 c 327 s 6 

     245A.09 Rules. 

    Subdivision 1.    Commissioner's authority.  The 
 commissioner shall adopt rules under chapter 14 to govern the 
 operation, maintenance, and licensure of programs subject to 
 licensure under this chapter.  The commissioner shall not adopt 
 any rules that are inconsistent with or duplicative of existing 
 state or federal regulations.  Nothing in this subdivision shall 
 be construed to prohibit the commissioner from incorporating 
 existing state or federal regulations or accreditation standards 
 by reference. 

    Subd. 2.    Standards and regulatory methods.  This 
 subdivision applies to rules governing this chapter that are 
 adopted after July 1, 1987.  As appropriate for each type of 
 license:  

    (a) The commissioner shall give preference in rule to 
 standards that describe program outcomes and the practices that 
 have been shown to result in the desired program outcomes.  

    (b) The rules may include model program standards for each 
 type of program licensed by the commissioner.  

    (c) The rules shall include basic licensing standards 
 governing licensure of each type of program licensed by the 
 commissioner.  The basic licensing standards must be met by all 
 applicants and license holders.  Basic licensing standards must 
 include, but are not limited to: 

    (1) standards for adequate staff that take into account the 
 age distribution and severity of handicap of persons served by 
 the program; 

    (2) safety standards that take into account the size and 
 conditions of the physical plant and studies of fire safety 
 including studies of the interaction between fire detection 
 factors, fire spread factors, and evacuation factors in case of 
 a fire; 

    (3) standards for program services that describe, when 
 appropriate, adequate levels of shelter, nutrition, planned 
 activities, materials, and qualifications of individuals 
 responsible for administering and delivering program services; 

    (4) standards that describe the characteristics of the 
 settings where program services are to be delivered; and 

    (5) health and sanitation standards. 

    Subd. 3.    Reduction of fees.  The commissioner may 
 adopt rules under subdivision 1 to provide for the reduction of 
 fees established under section 245A.10 when a license holder 
 substantially exceeds the basic standards for licensure. 

    Subd. 4.    Evaluation of rules.  For rules adopted 
 under this section after July 1, 1987, the commissioner shall 
 evaluate the effects of the rules within three years after the 
 date of adoption and at least once every five years thereafter.  
 The evaluation must include an assessment of any discrepancies 
 between the actual and intended effects of the rules, 
 identification of necessary revisions, if any, and a discussion 
 of the rules' effect on the availability and quality of licensed 
 programs.  The commissioner shall consider the results of the 
 evaluation in amending and writing rules. 

    Subd. 5.    Other duties of the commissioner.  For rules 
 adopted after July 1, 1987, the commissioner shall: 

    (1) summarize the rules in language understandable to the 
 general public and inform license holders and applicants where 
 they may obtain a copy of the rules and the summary; 

    (2) develop and provide each applicant with information 
 describing the services offered to applicants by the 
 commissioner and explaining the penalties for operating an 
 unlicensed program or failing to fully comply with the 
 commissioner's correction orders or applicable laws or rules; 

    (3) upon request, interpret rules for applicants and 
 license holders; and 

    (4) take measures to ensure that rules are enforced 
 uniformly throughout the state. 

    Subd. 6.    Consultation with affected parties.  In 
 developing rules, the commissioner shall request and receive 
 consultation from:  other state departments and agencies; 
 counties and other affected political subdivisions that reflect 
 the diversity of political subdivisions affected by the rule; 
 persons and relatives of persons using the program governed by 
 the rule; advocacy groups; and representatives of license 
 holders affected by the rule.  In choosing parties for 
 consultation, the commissioner shall choose individuals and 
 representatives of groups that reflect a cross section of urban, 
 suburban, and rural areas of the state. 

    Subd. 7.    Regulatory methods.  (a) Where appropriate 
 and feasible the commissioner shall identify and implement 
 alternative methods of regulation and enforcement to the extent 
 authorized in this subdivision.  These methods shall include: 

    (1) expansion of the types and categories of licenses that 
 may be granted; 

    (2) when the standards of another state or federal 
 governmental agency or an independent accreditation body have 
 been shown to predict compliance with the rules, the 
 commissioner shall consider compliance with the governmental or 
 accreditation standards to be equivalent to partial compliance 
 with the rules; and 

    (3) use of an abbreviated inspection that employs key 
 standards that have been shown to predict full compliance with 
 the rules. 

    (b) The commissioner shall work with the commissioners of 
 health, public safety, administration, and children, families, 
 and learning in consolidating duplicative licensing and 
 certification rules and standards if the commissioner determines 
 that consolidation is administratively feasible, would 
 significantly reduce the cost of licensing, and would not reduce 
 the protection given to persons receiving services in licensed 
 programs.  Where administratively feasible and appropriate, the 
 commissioner shall work with the commissioners of health, public 
 safety, administration, and children, families, and learning in 
 conducting joint agency inspections of programs. 

    (c) The commissioner shall work with the commissioners of 
 health, public safety, administration, and children, families, 
 and learning in establishing a single point of application for 
 applicants who are required to obtain concurrent licensure from 
 more than one of the commissioners listed in this clause. 

    (d) The commissioner may specify in rule periods of 
 licensure up to two years. 

    Subd. 8.    Interpretive guidelines; authority.  The 
 commissioner of human services may develop and publish 
 interpretive guidelines. 

    Subd. 9.    Effect of interpretive guidelines.  
 Interpretive guidelines do not have the force and effect of law 
 and have no precedential effect, but may be relied on by 
 consumers, providers of service, county agencies, the department 
 of human services, and others concerned until revoked or 
 modified.  A guideline may be expressly revoked or modified by 
 the commissioner, by the issuance of another interpretive 
 guideline, but may not be revoked or modified retroactively to 
 the detriment of consumers, providers of service, county 
 agencies, the department of human services, or others 
 concerned.  A change in the law or an interpretation of the law 
 occurring after the interpretive guidelines are issued, whether 
 in the form of a statute, court decision, administrative ruling, 
 or subsequent interpretive guideline, results in the revocation 
 or modification of the previously adopted guidelines to the 
 extent that the change affects the guidelines. 

    Subd. 10.    Rulemaking process; commissioner exempted.  
 When developing, making, adopting, and issuing interpretive 
 guidelines under the authority granted under subdivision 8, the 
 commissioner is exempt from the rulemaking provisions of chapter 
 14 until July 1, 1998. 

    Subd. 11.    Issuance; discretion of the commissioner.  
 The issuance of interpretive guidelines is at the discretion of 
 the commissioner of human services. 

    Subd. 12.    Publication of guidelines.  The 
 commissioner shall publish notice of interpretive guidelines 
 availability in the State Register.  The commissioner may 
 publish or make available the interpretive guidelines in any 
 manner determined by the commissioner, provided they are 
 accessible to the general public.  The commissioner may charge a 
 reasonable fee for copies of the guidelines requested by 
 interested parties when they are provided by the commissioner. 

    HIST: 1987 c 333 s 9; 1993 c 338 s 7; 1995 c 207 art 2 s 
 15-19; 1Sp1995 c 3 art 16 s 13; 1997 c 187 art 4 s 7; 1997 c 248 
 s 30; 2000 c 327 s 6 

  245A.091 Repealed, 1997 c 248 s 51 

     245A.095 Review of rules for programs serving persons 
  with mental illnesses. 

    Subdivision 1.    License required.  Residential 
 programs with five or more persons with a mental illness must be 
 licensed under this chapter.  To assure that this requirement is 
 met, the commissioner of health, in cooperation with the 
 commissioner of human services, shall monitor licensed boarding 
 care homes, board and lodging houses, and supervised living 
 facilities. 

    By January 1, 1989, the commissioner of health shall 
 recommend to the legislature an appropriate method for enforcing 
 this requirement. 

    Subd. 1a.    Rules.  In developing rules for serving 
 persons with mental illness, the commissioner of human services 
 shall assure that persons with mental illness are provided with 
 needed treatment or support in the least restrictive, most 
 appropriate environment, that supportive residential care in 
 small homelike settings is available for persons needing that 
 care, and that a mechanism is developed to ensure that no person 
 is placed in a care or treatment setting inappropriate for 
 meeting the person's needs.  To the maximum extent possible, the 
 rule shall assure that length of stay is governed solely by 
 client need and shall allow for a variety of innovative and 
 flexible approaches in meeting residential and support needs of 
 persons with mental illness.  

    Subd. 2.    Specific review of rules.  The commissioner 
 shall: 

    (1) provide in rule for additional types of programs and 
 services, including but not limited to supportive small group 
 residential care, semi-independent and apartment living 
 services, and crisis and respite services, to address the 
 residential treatment and support needs of persons with mental 
 illness; 

    (2) review category I and II programs established in 
 Minnesota Rules, parts 9520.0500 to 9520.0690 to ensure that the 
 categories of programs provide a continuum of residential 
 service programs for persons with mental illness, including but 
 not limited to programs meeting needs for intensive treatment, 
 crisis and respite care, and rehabilitation and training; 

    (3) provide in rule for a definition of the term 
 "treatment" as used in relation to persons with mental illness; 

    (4) adjust funding mechanisms by rule as needed to reflect 
 the requirements established by rule for services being 
 provided; 

    (5) review and recommend staff educational requirements and 
 staff training as needed; 

    (6) review and make changes in rules relating to 
 residential care and service programs for persons with mental 
 illness as the commissioner may determine necessary; and 

    (7) the commissioner shall report to the legislature by 
 February 15, 1990, on the status of rulemaking with respect to 
 clauses (1) to (6).  

    Subd. 3. Repealed, 1989 c 282 art 4 s 64; 2000 c 327 s 6 

    HIST: 1987 c 333 s 10; 1988 c 411 s 5; 1989 c 282 art 4 s 61; 
 2000 c 327 s 6 

     245A.10 Fees. 

    The commissioner shall charge a fee for evaluation of 
 applications and inspection of programs, other than family day 
 care and foster care, which are licensed under this chapter.  
 The commissioner may charge a fee for the licensing of school 
 age child care programs, in an amount sufficient to cover the 
 cost to the state agency of processing the license. 

    HIST: 1987 c 333 s 11; 1995 c 158 s 4; 2000 c 327 s 6 

     245A.11 Special conditions for residential programs. 

    Subdivision 1.    Policy statement.  It is the policy of 
 the state that persons shall not be excluded by municipal zoning 
 ordinances or other land use regulations from the benefits of 
 normal residential surroundings. 

    Subd. 2.    Permitted single-family residential use.  
 Residential programs with a licensed capacity of six or fewer 
 persons shall be considered a permitted single-family 
 residential use of property for the purposes of zoning and other 
 land use regulations, except that a residential program whose 
 primary purpose is to treat juveniles who have violated criminal 
 statutes relating to sex offenses or have been adjudicated 
 delinquent on the basis of conduct in violation of criminal 
 statutes relating to sex offenses shall not be considered a 
 permitted use.  This exception shall not apply to residential 
 programs licensed before July 1, 1995.  Programs otherwise 
 allowed under this subdivision shall not be prohibited by 
 operation of restrictive covenants or similar restrictions, 
 regardless of when entered into, which cannot be met because of 
 the nature of the licensed program, including provisions which 
 require the home's occupants be related, and that the home must 
 be occupied by the owner, or similar provisions. 

    Subd. 2a.    Adult foster care license capacity.  An 
 adult foster care license holder may have a maximum license 
 capacity of five if all persons in care are age 60 or over and 
 do not have a serious and persistent mental illness or a 
 developmental disability.  The commissioner may grant variances 
 to this subdivision to allow the use of a fifth bed for 
 emergency crisis services for a person with serious and 
 persistent mental illness or a developmental disability, 
 regardless of age, provided the variance complies with the 
 provisions in section 245A.04, subdivision 9, and approval of 
 the variance is recommended by the county in which the licensed 
 foster care provider is located. 

    Subd. 2b.    Adult foster care; family adult day care.  
 An adult foster care license holder licensed under the 
 conditions in subdivision 2a may also provide family adult day 
 care for adults age 60 or over if no persons in the adult foster 
 or adult family day care program have a serious and persistent 
 mental illness or a developmental disability.  The maximum 
 combined capacity for adult foster care and family adult day 
 care is five adults.  A separate license is not required to 
 provide family adult day care under this subdivision.  Adult 
 foster care homes providing services to five adults under this 
 section shall not be subject to licensure by the commissioner of 
 health under the provisions of chapter 144, 144A, 157, or any 
 other law requiring facility licensure by the commissioner of 
 health. 

    Subd. 3.    Permitted multifamily residential use.  
 Unless otherwise provided in any town, municipal, or county 
 zoning regulation, a licensed residential program with a 
 licensed capacity of seven to 16 persons shall be considered a 
 permitted multifamily residential use of property for the 
 purposes of zoning and other land use regulations.  A town, 
 municipal, or county zoning authority may require a conditional 
 use or special use permit to assure proper maintenance and 
 operation of a residential program.  Conditions imposed on the 
 residential program must not be more restrictive than those 
 imposed on other conditional uses or special uses of residential 
 property in the same zones, unless the additional conditions are 
 necessary to protect the health and safety of the persons being 
 served by the program.  Nothing in this chapter shall be 
 construed to exclude or prohibit residential programs from 
 single-family zones if otherwise permitted by local zoning 
 regulations. 

    Subd. 4.    Location of residential programs.  In 
 determining whether to grant a license, the commissioner shall 
 specifically consider the population, size, land use plan, 
 availability of community services, and the number and size of 
 existing licensed residential programs in the town, 
 municipality, or county in which the applicant seeks to operate 
 a residential program.  The commissioner shall not grant an 
 initial license to any residential program if the residential 
 program will be within 1,320 feet of an existing residential 
 program unless one of the following conditions apply:  (1) the 
 existing residential program is located in a hospital licensed 
 by the commissioner of health; (2) the town, municipality, or 
 county zoning authority grants the residential program a 
 conditional use or special use permit; (3) the program serves 
 six or fewer persons and is not located in a city of the first 
 class; or (4) the program is foster care. 

    Subd. 5.    Overconcentration and dispersal.  (a) Before 
 January 1, 1985, each county having two or more group 
 residential programs within 1,320 feet of each other shall 
 submit to the department of human services a plan to promote 
 dispersal of group residential programs.  In formulating its 
 plan, the county shall solicit the participation of affected 
 persons, programs, municipalities having highly concentrated 
 residential program populations, and advocacy groups.  For the 
 purposes of this subdivision, "highly concentrated" means having 
 a population in residential programs serving seven or more 
 persons that exceeds one-half of one percent of the population 
 of a recognized planning district or other administrative 
 subdivision. 

    (b) Within 45 days after the county submits the plan, the 
 commissioner shall certify whether the plan fulfills the 
 purposes and requirements of this subdivision including the 
 following requirements: 

    (1) a new program serving seven or more persons must not be 
 located in any recognized planning district or other 
 administrative subdivision where the population in residential 
 programs is highly concentrated; 

    (2) the county plan must promote dispersal of highly 
 concentrated residential program populations; 

    (3) the county plan shall promote the development of 
 residential programs in areas that are not highly concentrated; 

    (4) no person in a residential program shall be displaced 
 as a result of this section until a relocation plan has been 
 implemented that provides for an acceptable alternative 
 placement; 

    (5) if the plan provides for the relocation of residential 
 programs, the relocation must be completed by January 1, 1990.  
 If the commissioner certifies that the plan does not do so, the 
 commissioner shall state the reasons, and the county has 30 days 
 to submit a plan amended to comply with the requirements of the 
 commissioner. 

    (c) After July 1, 1985, the commissioner may reduce grants 
 under section 245.73 to a county required to have an approved 
 plan under paragraph (a) if the county does not have a plan 
 approved by the commissioner or if the county acts in disregard 
 of its approved plan.  The county board has the right to be 
 provided with advance notice and to appeal the commissioner's 
 decision.  If the county requests a hearing within 30 days of 
 the notification of intent to reduce grants, the commissioner 
 shall not certify any reduction in grants until a hearing is 
 conducted and a decision made in accordance with the contested 
 case provisions of chapter 14. 

    Subd. 5a.    Integration of residential programs.  The 
 commissioner of human services shall seek input from counties 
 and municipalities on methods for integrating all residential 
 programs into the community. 

    Subd. 6.    Hospitals; exemption.  Residential programs 
 located in hospitals shall be exempt from the provisions of this 
 section. 

    HIST: 1987 c 333 s 12; 1988 c 411 s 6; 1990 c 568 art 2 s 47; 
 1992 c 513 art 9 s 14; 1993 c 10 s 1; 1995 c 224 s 79; 1997 c 
 203 art 7 s 4; 1997 c 248 s 31; 2000 c 327 s 6 

     245A.12 Voluntary receivership for residential programs. 

    Subdivision 1.    Definitions.  For purposes of this 
 section and section 245A.13, the following terms have the 
 meanings given them. 

    (a) "Controlling individual" has the meaning in section 
 245A.02, subdivision 5a.  When used in this section and section 
 245A.13, it means only those individuals controlling the 
 residential program prior to the commencement of the 
 receivership period. 

    (b) "Physical plant" means the building or buildings in 
 which a residential program is located; all equipment affixed to 
 the building and not easily subject to transfer as specified in 
 the building and fixed equipment tables of the depreciation 
 guidelines; and auxiliary buildings in the nature of sheds, 
 garages, and storage buildings located on the same site if used 
 for purposes related to resident care. 

    (c) "Related party" means a person who is a close relative 
 of a provider or a provider group; an affiliate of a provider or 
 a provider group; a close relative of an affiliate of a provider 
 or provider group; or an affiliate of a close relative of an 
 affiliate of a provider or provider group.  For the purposes of 
 this paragraph, the following terms have the meanings given them.

    (1) "Affiliate" means a person that directly, or indirectly 
 through one or more intermediaries, controls, or is controlled 
 by, or is under common control with another person. 

    (2) "Person" means an individual, a corporation, a 
 partnership, an association, a trust, an unincorporated 
 organization, or a government or political subdivision. 

    (3) "Close relative of an affiliate of a provider or 
 provider group" means an individual whose relationship by blood, 
 marriage, or adoption to an individual who is an affiliate to a 
 provider or a provider group is no more remote than first cousin.

    (4) "Control" includes the terms "controlling," "controlled 
 by," and "under common control with" and means the possession, 
 direct or indirect, of the power to direct or cause the 
 direction of the management, operations, or policies of a 
 person, whether through the ownership of voting securities, by 
 contract, or otherwise. 

    (5) "Provider or provider group" means the license holder 
 or controlling individual prior to the effective date of the 
 receivership. 

    Subd. 2.    Receivership agreement.  A majority of 
 controlling individuals of a residential program may at any time 
 ask the commissioner to assume operation of the residential 
 program through appointment of a receiver.  On receiving the 
 request for a receiver, the commissioner may enter into an 
 agreement with a majority of controlling individuals and become 
 the receiver and operate the residential program under 
 conditions acceptable to both the commissioner and the majority 
 of controlling individuals.  The agreement must specify the 
 terms and conditions of the receivership and preserve the rights 
 of the persons being served by the residential program.  A 
 receivership set up under this section terminates at the time 
 specified by the parties to the agreement. 

    Subd. 3.    Management agreement.  When the commissioner 
 agrees to become the receiver of a residential program, the 
 commissioner may enter into a management agreement with another 
 entity or group to act as the managing agent during the 
 receivership period.  The managing agent will be responsible for 
 the day-to-day operations of the residential program subject at 
 all times to the review and approval of the commissioner.  A 
 reasonable fee may be paid to the managing agent for the 
 performance of these services. 

    Subd. 4.    Rate adjustment.  The provisions of section 
 245A.13, subdivisions 7 and 8, shall also apply to voluntary 
 receiverships. 

    Subd. 5.    Controlling individuals; restrictions on 
 licensure.  No controlling individual of a residential program 
 placed into receivership under this section shall apply for or 
 receive a license to operate a residential program for five 
 years from the commencement of the receivership period.  This 
 subdivision does not apply to residential programs that are 
 owned or operated by controlling individuals, that were in 
 existence prior to the date of the receivership agreement, and 
 that have not been placed into receivership. 

    Subd. 6.    Liability.  The controlling individuals of a 
 residential program placed into receivership remain liable for 
 any claims made against the residential program that arose from 
 incidents or events that occurred prior to the commencement of 
 the receivership period.  Neither the commissioner nor the 
 managing agent of the commissioner assumes this liability. 

    Subd. 7.    Liability for financial obligations.  
 Neither the commissioner nor the managing agent of the 
 commissioner shall be liable for payment of any financial 
 obligations of the residential program or of its controlling 
 individuals incurred prior to the commencement of the 
 receivership period unless such liability is expressly assumed 
 in the receivership agreement.  Those financial obligations 
 remain the liability of the residential program and its 
 controlling individuals.  Financial obligations of the 
 residential program incurred after the commencement of the 
 receivership period are the responsibility of the commissioner 
 or the managing agent of the commissioner to the extent such 
 obligations are expressly assumed by each in the receivership or 
 management agreements.  The controlling individuals of the 
 residential program remain liable for any financial obligations 
 incurred after the commencement of the receivership period to 
 the extent these obligations are not reimbursed in the rate paid 
 to the residential program and are reasonable and necessary to 
 the operation of the residential program.  These financial 
 obligations, or any other financial obligations incurred by the 
 residential program prior to the commencement of the 
 receivership period which are necessary to the continued 
 operation of the residential program, may be deducted from any 
 rental payments owed to the controlling individuals of the 
 residential program as part of the receivership agreement. 

    Subd. 8.    Physical plant of the residential program.  
 Occupation of the physical plant after commencement of the 
 receivership period shall be controlled by paragraphs (a) and 
 (b). 

    (a) If the physical plant of a residential program placed 
 in receivership is owned by a controlling individual or related 
 party, the physical plant may be used by the commissioner or the 
 managing agent for purposes of the receivership as long as the 
 receivership period continues.  A fair monthly rental for the 
 physical plant shall be paid by the commissioner or managing 
 agent to the owner of the physical plant.  This fair monthly 
 rental shall be determined by considering all relevant factors 
 necessary to meet required arms-length obligations of 
 controlling individuals such as the mortgage payments owed on 
 the physical plant, the real estate taxes, and special 
 assessments.  This rental shall not include any allowance for 
 profit or be based on any formula that includes an allowance for 
 profit. 

    (b) If the owner of the physical plant of a residential 
 program placed in receivership is not a related party, the 
 controlling individual shall continue as the lessee of the 
 property.  However, during the receivership period, rental 
 payments shall be made to the owner of the physical plant by the 
 commissioner or the managing agent on behalf of the controlling 
 individual.  Neither the commissioner nor the managing agent 
 assumes the obligations of the lease unless expressly stated in 
 the receivership agreement.  Should the lease expire during the 
 receivership, the commissioner or the managing agent may 
 negotiate a new lease for the term of the receivership period. 

    Subd. 9.    Receivership accounting.  The commissioner 
 may use the medical assistance account and funds for 
 receivership cash flow and accounting purposes. 

    Subd. 10.    Receivership costs.  The commissioner may 
 use the accounts and funds that would have been available for 
 the room and board, services, and program costs of persons in 
 the residential program for costs, cash flow, and accounting 
 purposes related to the receivership. 

    HIST: 1987 c 333 s 13; 1989 c 282 art 2 s 82; 1990 c 568 art 2 
 s 48; 1994 c 434 s 4 

     245A.13 Involuntary receivership for residential 
  programs. 

    Subdivision 1.    Application.  In addition to any other 
 remedy provided by law, the commissioner may petition the 
 district court in Ramsey county for an order directing the 
 controlling individuals of the residential program to show cause 
 why the commissioner should not be appointed receiver to operate 
 the residential program.  The petition to the district court 
 must contain proof by affidavit:  (1) that the commissioner has 
 either begun license suspension or revocation proceedings, 
 suspended or revoked a license, or has decided to deny an 
 application for licensure of the residential program; or (2) it 
 appears to the commissioner that the health, safety, or rights 
 of the residents may be in jeopardy because of the manner in 
 which the residential program may close, the residential 
 program's financial condition, or violations committed by the 
 residential program of federal or state laws or rules.  If the 
 license holder, applicant, or controlling individual operates 
 more than one residential program, the commissioner's petition 
 must specify and be limited to the residential program for which 
 it seeks receivership.  The affidavit submitted by the 
 commissioner must set forth alternatives to receivership that 
 have been considered, including rate adjustments.  The order to 
 show cause is returnable not less than five days after service 
 is completed and must provide for personal service of a copy to 
 the residential program administrator and to the persons 
 designated as agents by the controlling individuals to accept 
 service on their behalf. 

    Subd. 2.    Appointment of receiver.  If the court finds 
 that involuntary receivership is necessary as a means of 
 protecting the health, safety, or rights of persons being served 
 by the residential program, the court shall appoint the 
 commissioner as receiver to operate the residential program.  
 The commissioner as receiver may contract with another entity or 
 group to act as the managing agent during the receivership 
 period.  The managing agent will be responsible for the 
 day-to-day operations of the residential program subject at all 
 times to the review and approval of the commissioner.  

    Subd. 3.    Powers and duties of the receiver.  Within 
 36 months after the receivership order, the receiver shall 
 provide for the orderly transfer of the persons served by the 
 residential program to other residential programs or make other 
 provisions to protect their health, safety, and rights.  The 
 receiver or the managing agent shall correct or eliminate 
 deficiencies in the residential program that the commissioner 
 determines endanger the health, safety, or welfare of the 
 persons being served by the residential program unless the 
 correction or elimination of deficiencies involves major 
 alteration in the structure of the physical plant.  If the 
 correction or elimination of the deficiencies requires major 
 alterations in the structure of the physical plant, the receiver 
 shall take actions designed to result in the immediate transfer 
 of persons served by the residential program.  During the period 
 of the receivership, the receiver and the managing agent shall 
 operate the residential program in a manner designed to preserve 
 the health, safety, rights, adequate care, and supervision of 
 the persons served by the residential program.  The receiver or 
 the managing agent may make contracts and incur lawful 
 expenses.  The receiver or the managing agent shall collect 
 incoming payments from all sources and apply them to the cost 
 incurred in the performance of the functions of the receivership 
 including the fee set under subdivision 4.  No security interest 
 in any real or personal property comprising the residential 
 program or contained within it, or in any fixture of the 
 physical plant, shall be impaired or diminished in priority by 
 the receiver or the managing agent.  

    Subd. 3a.    Liability.  The provisions contained in 
 section 245A.12, subdivision 6, shall also apply to 
 receiverships ordered according to this section. 

    Subd. 3b.    Liability for financial obligations.  The 
 provisions contained in section 245A.12, subdivision 7, also 
 apply to receiverships ordered according to this section. 

    Subd. 3c.    Physical plant of the residential program.  
 Occupation of the physical plant under an involuntary 
 receivership shall be governed by paragraphs (a) and (b). 

    (a) The physical plant owned by a controlling individual of 
 the residential program or related party must be made available 
 for the use of the residential program throughout the 
 receivership period.  The court shall determine a fair monthly 
 rental for the physical plant, taking into account all relevant 
 factors necessary to meet required arms-length obligations of 
 controlling individuals such as mortgage payments, real estate 
 taxes, and special assessments.  The rental fee must be paid by 
 the receiver to the appropriate controlling individuals or 
 related parties for each month that the receivership remains in 
 effect.  No payment made to a controlling individual or related 
 party by the receiver or the managing agent or any state agency 
 during a period of the receivership shall include any allowance 
 for profit or be based on any formula that includes an allowance 
 for profit. 

    (b) If the owner of the physical plant of a residential 
 program is not a related party, the court shall order the 
 controlling individual to continue as the lessee of the property 
 during the receivership period.  Rental payments during the 
 receivership period shall be made to the owner of the physical 
 plant by the commissioner or the managing agent on behalf of the 
 controlling individual. 

    Subd. 4.    Fee.  A receiver appointed under an 
 involuntary receivership or the managing agent is entitled to a 
 reasonable fee as determined by the court.  

    Subd. 5.    Termination.  An involuntary receivership 
 terminates 36 months after the date on which it was ordered or 
 at any other time designated by the court or when any of the 
 following events occurs: 

    (1) the commissioner determines that the residential 
 program's license application should be granted or should not be 
 suspended or revoked; 

    (2) a new license is granted to the residential program; 

    (3) the commissioner determines that all persons residing 
 in the residential program have been provided with alternative 
 residential programs; or 

    (4) the residential program closes. 

    Subd. 6.    Emergency procedure.  If it appears from the 
 petition filed under subdivision 1, from an affidavit or 
 affidavits filed with the petition, or from testimony of 
 witnesses under oath if the court determines it necessary, that 
 there is probable cause to believe that an emergency exists in a 
 residential program, the court shall issue a temporary order for 
 appointment of a receiver within five days after receipt of the 
 petition.  Notice of the petition must be served on the 
 residential program administrator and on the persons designated 
 as agents by the controlling individuals to accept service on 
 their behalf.  A hearing on the petition must be held within 
 five days after notice is served unless the administrator or 
 designated agent consents to a later date.  After the hearing, 
 the court may continue, modify, or terminate the temporary order.

    Subd. 7.    Rate recommendation.  The commissioner of 
 human services may review rates of a residential program 
 participating in the medical assistance program which is in 
 receivership and that has needs or deficiencies documented by 
 the department of health or the department of human services.  
 If the commissioner of human services determines that a review 
 of the rate established under section 256B.501 is needed, the 
 commissioner shall: 

    (1) review the order or determination that cites the 
 deficiencies or needs; and 

    (2) determine the need for additional staff, additional 
 annual hours by type of employee, and additional consultants, 
 services, supplies, equipment, repairs, or capital assets 
 necessary to satisfy the needs or deficiencies. 

    Subd. 8.    Adjustment to the rate.  Upon review of 
 rates under subdivision 7, the commissioner may adjust the 
 residential program's payment rate.  The commissioner shall 
 review the circumstances, together with the residential program 
 cost report, to determine whether or not the deficiencies or 
 needs can be corrected or met by reallocating residential 
 program staff, costs, revenues, or other resources including any 
 investments, efficiency incentives, or allowances.  If the 
 commissioner determines that any deficiency cannot be corrected 
 or the need cannot be met with the payment rate currently being 
 paid, the commissioner shall determine the payment rate 
 adjustment by dividing the additional annual costs established 
 during the commissioner's review by the residential program's 
 actual resident days from the most recent desk-audited cost 
 report or the estimated resident days in the projected 
 receivership period.  The payment rate adjustment must meet the 
 conditions in Minnesota Rules, parts 9553.0010 to 9553.0080, and 
 remains in effect during the period of the receivership or until 
 another date set by the commissioner.  Upon the subsequent sale 
 or transfer of the residential program, the commissioner may 
 recover amounts that were paid as payment rate adjustments under 
 this subdivision.  The buyer or transferee shall repay this 
 amount to the commissioner within 60 days after the commissioner 
 notifies the buyer or transferee of the obligation to repay.  
 This provision does not limit the liability of the seller to the 
 commissioner pursuant to section 256B.0641. 

    Subd. 9.    Receivership accounting.  The commissioner 
 may use the medical assistance account and funds for 
 receivership cash flow and accounting purposes. 

    Subd. 10.    Receivership costs.  The commissioner may 
 use the accounts and funds that would have been available for 
 the room and board, services, and program costs of persons in 
 the residential program for costs, cash flow, and accounting 
 purposes related to the receivership. 

    Subd. 11.    Controlling individuals; restrictions on 
 licensure.  No controlling individual of a residential program 
 placed into receivership under this section may apply for or 
 receive a license to operate a residential program for five 
 years from the commencement of the receivership period.  This 
 subdivision does not apply to residential programs that are 
 owned or operated by controlling individuals that were in 
 existence before the date of the receivership agreement, and 
 that have not been placed into receivership. 

    HIST: 1987 c 333 s 14; 1988 c 411 s 7; 1989 c 282 art 2 s 83; 
 1990 c 568 art 2 s 49; 1992 c 513 art 9 s 15; 1994 c 434 s 5-7 

     245A.14 Special conditions for nonresidential programs. 

    Subdivision 1.    Permitted single-family residential use. 
  A licensed nonresidential program with a licensed capacity of 
 12 or fewer persons and a group family day care facility 
 licensed under Minnesota Rules, parts 9502.0315 to 9502.0445, to 
 serve 14 or fewer children shall be considered a permitted 
 single-family residential use of property for the purposes of 
 zoning and other land use regulations. 

    Subd. 2.    Permitted multifamily use.  Except as 
 otherwise provided in subdivision 1 or in a town, municipal, or 
 county regulation, a licensed nonresidential program with a 
 licensed capacity of 13 to 16 persons shall be considered a 
 permitted multifamily residential use of property for purposes 
 of zoning.  A town, municipal, or county zoning authority may 
 require a conditional use or special use permit in order to 
 assure proper maintenance and operation of the program.  
 Conditions imposed on the nonresidential program must not be 
 more restrictive than those imposed on other conditional uses or 
 special uses of residential property in the same zones unless 
 the additional conditions are necessary to protect the health 
 and safety of the persons being served by the nonresidential 
 program.  Nothing in this chapter shall be construed to exclude 
 or prohibit nonresidential programs from single-family zones if 
 otherwise permitted by local zoning regulations. 

    Subd. 3.    Conditional license.  Until such time as the 
 commissioner adopts appropriate rules for conditional licenses, 
 no license holder or applicant for a family or group family day 
 care license is required to spend more than $100 to meet fire 
 safety rules in excess of those required to meet Group "R" 
 occupancies under the Uniform Building Code, chapter 12, as 
 incorporated by reference in Minnesota Rules, part 1305.0100. 

    When the commissioner determines that an applicant or 
 license holder of a family or group family day care license 
 would be required to spend over $100 for physical changes to 
 ensure fire safety, the commissioner may issue a conditional 
 license when all of the following conditions have been met: 

    (a)  The commissioner shall notify the license holder or 
 applicant in writing of the fire safety deficiencies. 

    (b) The commissioner shall notify the license holder or 
 applicant in writing of alternative compliance standards that 
 would correct deficiencies, if available. 

    (c) The license holder or applicant agrees in writing to 
 notify each parent, on a form prescribed by the commissioner 
 that requires the signature of the parent, of the fire safety 
 deficiencies, and the existence of the conditional license. 

    Subd. 4.    Special family day care homes.  
 Nonresidential child care programs serving 14 or fewer children 
 that are conducted at a location other than the license holder's 
 own residence shall be licensed under this section and the rules 
 governing family day care or group family day care if:  

    (a) the license holder is the primary provider of care and 
 the nonresidential child care program is conducted in a dwelling 
 that is located on a residential lot; 

    (b) the license holder is an employer who may or may not be 
 the primary provider of care, and the purpose for the child care 
 program is to provide child care services to children of the 
 license holder's employees; or 

    (c) the license holder is a church or religious 
 organization. 

    Subd. 5. Repealed, 1992 c 513 art 9 s 44 

    Subd. 6.    Drop-in and school age child care programs.  
 (a) Except as expressly set forth in this subdivision, drop-in 
 and school age child care programs must be licensed as a drop-in 
 or school age program under the rules governing child care 
 programs operated in a center.  

    (b) Drop-in and school age child care programs are exempt 
 from the following Minnesota Rules: 

    (1) part 9503.0040; 

    (2) part 9503.0045, subpart 1, items F and G; 

    (3) part 9503.0050, subpart 6, except for children less 
 than 2-1/2 years old; 

    (4) one-half the requirements of part 9503.0060, subpart 4, 
 item A, subitems (2), (5), and (8), subpart 5, item A, subitems 
 (2), (3), and (7), and subpart 6, item A, subitems (3) and (6); 

    (5) part 9503.0070; and 

    (6) part 9503.0090, subpart 2.  

    (c) A drop-in and school age child care program must be 
 operated under the supervision of a person qualified as a 
 director and a teacher.  

    (d) A drop-in and school age child care program must have 
 at least two persons on staff whenever the program is operating, 
 except that the commissioner may permit variances from this 
 requirement under specified circumstances for parent cooperative 
 programs, as long as all other staff-to-child ratios are met.  

    (e) Whenever the total number of children present to be 
 cared for at a drop-in child care center is more than 20, 
 children that are younger than age 2-1/2 must be in a separate 
 group.  This group may contain children up to 60 months old.  
 This group must be cared for in an area that is physically 
 separated from older children. 

    (f) A drop-in child care program must maintain a minimum 
 staff ratio for children age 2-1/2 or greater of one staff 
 person for each ten children.  A school age child care program 
 must maintain a minimum staff ratio of one staff person for 
 every 15 children. 

    (g) If the drop-in child care program has additional staff 
 who are on call as a mandatory condition of their employment, 
 the minimum child-to-staff ratio may be exceeded only for 
 children age 2-1/2 or greater, by a maximum of four children, 
 for no more than 20 minutes while additional staff are in 
 transit.  

    (h) In a drop-in child care program, the minimum 
 staff-to-child ratio for infants up to 16 months of age is one 
 staff person for every four infants.  The minimum staff-to-child 
 ratio for children age 17 months to 30 months is one staff for 
 every seven children.  

    (i) In drop-in care programs that serve both infants and 
 older children, children up to age 2-1/2 may be supervised by 
 assistant teachers, as long as other staff are present in 
 appropriate ratios.  

    (j) The minimum staff distribution pattern for a drop-in 
 child care program serving children age 2-1/2 or greater and a 
 school age child care program serving school age children is:  
 the first staff member must be a teacher; the second, third, and 
 fourth staff members must have at least the qualifications of a 
 child care aide; the fifth staff member must have at least the 
 qualifications of an assistant teacher; the sixth, seventh, and 
 eighth staff members must have at least the qualifications of a 
 child care aide; and the ninth staff person must have at least 
 the qualifications of an assistant teacher.  

    (k) A drop-in child care program may care for siblings 16 
 months or older together in any group.  For purposes of this 
 subdivision, sibling is defined as sister or brother, 
 half-sister or half-brother, or stepsister or stepbrother. 

    (l) The commissioner may grant a variance to any of the 
 requirements in paragraphs (a) to (k), as long as the health and 
 safety of the persons served by the program are not affected.  
 The request for a variance shall comply with the provisions in 
 section 245A.04, subdivision 9. 

    Subd. 7.    Cultural dynamics and disabilities training 
 for child care providers.  (a) The training required of 
 licensed child care center staff and family and group family 
 child care providers and staff shall include training in the 
 cultural dynamics of early childhood development and child care. 

    (b) The cultural dynamics and disabilities training and 
 skills development of child care providers shall be designed to 
 achieve outcomes for providers of child care that include, but 
 are not limited to: 

    (1) an understanding and support of the importance of 
 culture and differences in ability in children's identity 
 development; 

    (2) understanding the importance of awareness of cultural 
 differences and similarities in working with children and their 
 families; 

    (3) understanding and support of the needs of families and 
 children with differences in ability; 

    (4) developing skills to help children develop unbiased 
 attitudes about cultural differences and differences in ability; 

    (5) developing skills in culturally appropriate caregiving; 
 and 

    (6) developing skills in appropriate caregiving for 
 children of different abilities.  

    Curriculum for cultural dynamics and disability training 
 shall be approved by the commissioner. 

    (c) The commissioner shall amend current rules relating to 
 the training of the licensed child care center staff and 
 licensed providers of family and group family child care and 
 staff to require cultural dynamics training.  Timelines 
 established in the rule amendments for complying with the 
 cultural dynamics training requirements shall be based on the 
 commissioner's determination that curriculum materials and 
 trainers are available statewide. 

    Subd. 8.    Experienced aides; child care centers.  (a) 
 An individual employed as an aide at a child care center may 
 work with children without being directly supervised for up to 
 25 percent of the individual's daily work shift if: 

    (1) a teacher is in the building; 

    (2) the individual has received first aid training within 
 the last three years; and 

    (3) the individual is at least 20 years old and has at 
 least 4,160 hours of child care experience as defined in section 
 245A.02, subdivision 6b. 

    (b) The use of an experienced aide working without direct 
 supervision under paragraph (a) is limited to 25 percent of each 
 classroom's daily hours of operation. 

    (c) A child care center that uses experienced aides under 
 this subdivision must notify the commissioner once per year.  
 The notification must indicate the approximate number of hours 
 per classroom per month that this subdivision is used.  Upon 
 enrollment and once each year, child care centers must report to 
 parents or guardians if they use experienced aides under this 
 subdivision. 

    (d) This subdivision sunsets June 30, 2003. 

    Subd. 9.    Inservice training; child care centers.  (a) 
 A teacher at a child care center must complete one percent of 
 working hours of inservice training annually if the teacher: 

    (1) possesses a baccalaureate or masters degree in early 
 childhood education, or school age care; 

    (2) is licensed in Minnesota as a prekindergarten teacher, 
 an early childhood educator, a kindergarten to sixth grade 
 teacher with a prekindergarten specialty, an early childhood 
 special education teacher, or an elementary teacher with a 
 kindergarten endorsement; or 

    (3) possesses a baccalaureate degree with a Montessori 
 certificate. 

    (b) A teacher or assistant teacher at a child care center 
 must complete 1-1/2 percent of working hours of in-service 
 training annually if the individual is: 

    (1) a registered nurse or licensed practical nurse with 
 experience working with infants; 

    (2) possesses a Montessori certificate, a technical college 
 certificate in early childhood development, or a child 
 development associate certificate; or 

    (3) possesses an associate of arts degree in early 
 childhood education, a baccalaureate degree in child 
 development, or a technical college diploma in early childhood 
 development. 

    (c) Except as provided in paragraphs (a) and (b), all other 
 teachers, assistant teachers, or aides must have two percent of 
 working hours of in-service training annually. 

    (d) The number of required training hours may be prorated 
 for individuals not employed full time or for an entire year.  
 This subdivision supersedes Minnesota Rules, part 9503.0035, 
 subpart 4, item B, for teachers, assistant teachers, and aides.  
 The remainder of Minnesota Rules, part 9503.0035, subpart 4, 
 remains in effect unless superseded by other law. 

    HIST: 1987 c 333 s 15; 1988 c 608 s 3,4; 1989 c 282 art 2 s 
 84,85; 1Sp1989 c 2 s 10; 1990 c 426 art 1 s 28; 1990 c 568 art 2 
 s 50,51; 1991 c 142 s 2; 1991 c 143 s 1; 1993 c 338 s 8; 1995 c 
 158 s 5; 1995 c 207 art 2 s 20; art 4 s 1; 1998 c 407 art 6 s 5; 
 2000 c 327 s 6; 2000 c 489 art 1 s 20-22 

     245A.15 Regulation of family day care by local 
  government. 

    The authority of local units of government to establish 
 requirements for family day care programs is limited by section 
 299F.011, subdivision 4a, clauses (1) and (2). 

    HIST: 1987 c 333 s 16 

     245A.155 Requirements for foster care agencies and 
  foster care providers related to individuals who rely on medical 
  equipment to sustain life or monitor a medical condition. 

    Subdivision 1.    Licensed foster care and respite care. 
  This section applies to foster care agencies and licensed 
 foster care providers who place, supervise, or care for 
 individuals who rely on medical monitoring equipment to sustain 
 life or monitor a medical condition in respite care or foster 
 care. 

    Subd. 2.    Foster care agency requirements.  In order 
 for an agency to place an individual who relies on medical 
 equipment to sustain life or monitor a medical condition with a 
 foster care provider, the agency must ensure that the foster 
 care provider has received the training to operate such 
 equipment as observed and confirmed by a qualified source, and 
 that the provider: 

    (1) is currently caring for an individual who is using the 
 same equipment in the foster home; or 

    (2) has written documentation that the foster care provider 
 has cared for an individual who relied on such equipment within 
 the past six months; or 

    (3) has successfully completed training with the individual 
 being placed with the provider. 

    Subd. 3.    Foster care provider requirements.  A foster 
 care provider shall not care for an individual who relies on 
 medical equipment to sustain life or monitor a medical condition 
 unless the provider has received the training to operate such 
 equipment as observed and confirmed by a qualified source, and:  

    (1) is currently caring for an individual who is using the 
 same equipment in the foster home; or 

    (2) has written documentation that the foster care provider 
 has cared for an individual who relied on such equipment within 
 the past six months; or 

    (3) has successfully completed training with the individual 
 being placed with the provider. 

    Subd. 4.    Qualified source definition.  For purposes 
 of this section, a "qualified source" includes a health care 
 professional or an individual who provides training on such 
 equipment. 

    Subd. 5.    Foster care provider training and skills form. 
  The agency supervising the foster care provider shall keep a 
 training and skills form on file for each foster care provider 
 and update the form annually.  The agency placing the individual 
 shall obtain a copy of the training and skills form from the 
 foster care provider or the agency supervising the foster care 
 provider and shall keep it and any updated information on file 
 for the duration of the placement.  The form must be made 
 available to the parents or the primary caregiver and social 
 worker of the individual, or the individual, whichever is 
 applicable, in order to make an informed placement decision.  
 The agency shall use the training and skills form developed by 
 the commissioner of human services. 

    HIST: 2000 c 338 s 1 

     245A.16 Standards for county agencies and private 
  agencies. 

    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, to recommend 
 denial of applicants under section 245A.05, to issue correction 
 orders, to issue variances, and recommend fines under section 
 245A.06, or to recommend suspending, revoking, and making 
 licenses probationary under section 245A.07, shall comply with 
 rules and directives of the commissioner governing those 
 functions and with this section. 

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

    Subd. 2.    Investigations.  (a) The county or private 
 agency shall conduct timely investigations of allegations of 
 maltreatment of children or adults in programs for which the 
 county or private agency is the commissioner's designated 
 representative and record a disposition of each complaint in 
 accordance with applicable law or rule.  The county or private 
 agency shall conduct similar investigations of allegations of 
 violations of rules governing licensure of the program. 

    (b) If an investigation conducted under clause (a) results 
 in evidence that the commissioner should deny an application or 
 suspend, revoke, or make conditional a license, the county or 
 private agency shall make that recommendation to the 
 commissioner within ten working days. 

    Subd. 3.    Recommendations to the commissioner.  The 
 county or private agency shall not make recommendations to the 
 commissioner regarding licensure without first conducting an 
 inspection, study of the applicant, and evaluation pursuant to 
 section 245A.04, subdivisions 3 and 4.  The county or private 
 agency must forward its recommendation to the commissioner 
 regarding the appropriate licensing action within 20 working 
 days of receipt of a completed application. 

    Subd. 4.    Enforcement of the commissioner's orders.  
 The county or private agency shall enforce the commissioner's 
 orders under sections 245A.07 and 245A.08, subdivision 5, 
 according to the instructions of the commissioner.  The county 
 attorney shall assist the county agency in the enforcement and 
 defense of the commissioner's orders under sections 245A.07 and 
 245A.08 according to the instructions of the commissioner, 
 unless a conflict of interest exists between the county attorney 
 and the commissioner. 

    Subd. 5.    Instruction and technical assistance.  The 
 commissioner shall provide instruction and technical assistance 
 to county and private agencies that are subject to this section. 
 County and private agencies shall cooperate with the 
 commissioner in carrying out this section by ensuring that 
 affected employees participate in instruction and technical 
 assistance provided by the commissioner. 

    Subd. 6.    Certification by the commissioner.  The 
 commissioner shall ensure that rules are uniformly enforced 
 throughout the state by reviewing each county and private agency 
 for compliance with this section and other applicable laws and 
 rules at least every four years.  County agencies that comply 
 with this section shall be certified by the commissioner.  If a 
 county agency fails to be certified by the commissioner, the 
 commissioner shall certify a reduction of up to 20 percent of 
 the county's Community Social Services Act funding or an 
 equivalent amount from state administrative aids. 

    HIST: 1987 c 333 s 17; 1989 c 282 art 2 s 86; 1990 c 568 art 2 
 s 52,53; 1991 c 142 s 3; 1992 c 513 art 9 s 16; 1993 c 338 s 9; 
 1997 c 248 s 32 

  245A.17 Repealed, 1992 c 513 art 9 s 44 

     245A.18 Seat belt use required. 

    (a) When a nonresidential license holder provides or 
 arranges for transportation for children served by the license 
 holder, children four years old and older must be restrained by 
 a properly adjusted and fastened seat belt and children under 
 age four must be properly fastened in a child passenger 
 restraint system meeting federal motor vehicle safety 
 standards.  A child passenger restraint system is not required 
 for a child who, in the judgment of a licensed physician, cannot 
 be safely transported in a child passenger restraint system 
 because of a medical condition, body size, or physical 
 disability, if the license holder possesses a written statement 
 from the physician that satisfies the requirements in section 
 169.685, subdivision 6, paragraph (b). 

    (b) Paragraph (a) does not apply to transportation of 
 children in a school bus inspected under section 169.451 that 
 has a gross vehicle weight rating of more than 10,000 pounds, is 
 designed for carrying more than ten persons, and was 
 manufactured after 1977. 

    HIST: 1990 c 568 art 2 s 54; 1993 c 13 art 1 s 31 

     245A.19 HIV training in chemical dependency treatment 
  program. 

    (a) Applicants and license holders for chemical dependency 
 residential and nonresidential programs must demonstrate 
 compliance with HIV minimum standards prior to their application 
 being complete.  The HIV minimum standards contained in the 
 HIV-1 Guidelines for chemical dependency treatment and care 
 programs in Minnesota are not subject to rulemaking. 

    (b) Ninety days after April 29, 1992, the applicant or 
 license holder shall orient all chemical dependency treatment 
 staff and clients to the HIV minimum standards.  Thereafter, 
 orientation shall be provided to all staff and clients, within 
 72 hours of employment or admission to the program.  In-service 
 training shall be provided to all staff on at least an annual 
 basis and the license holder shall maintain records of training 
 and attendance. 

    (c) The license holder shall maintain a list of referral 
 sources for the purpose of making necessary referrals of clients 
 to HIV-related services.  The list of referral services shall be 
 updated at least annually. 

    (d) Written policies and procedures, consistent with HIV 
 minimum standards, shall be developed and followed by the 
 license holder.  All policies and procedures concerning HIV 
 minimum standards shall be approved by the commissioner.  The 
 commissioner shall provide training on HIV minimum standards to 
 applicants. 

    (e) The commissioner may permit variances from the 
 requirements in this section.  License holders seeking variances 
 must follow the procedures in section 245A.04, subdivision 9. 

    HIST: 1992 c 513 art 9 s 17 

  245A.20 Repealed, 1997 c 248 s 51 

  245A.21 Repealed, 1997 c 248 s 51 

     245A.22 Independent living assistance for youth. 

    Subdivision 1.    Independent living assistance for youth. 
  "Independent living assistance for youth" means a 
 nonresidential program that provides a system of services that 
 includes training, counseling, instruction, supervision, and 
 assistance provided to youth according to the youth's 
 independent living plan, when the placements in the program are 
 made by the county agency.  Services may include assistance in 
 locating housing, budgeting, meal preparation, shopping, 
 personal appearance, counseling, and related social support 
 services needed to meet the youth's needs and improve the 
 youth's ability to conduct such tasks independently.  Such 
 services shall not extend to youths needing 24-hour per day 
 supervision and services.  Youths needing a 24-hour per day 
 program of supervision and services shall not be accepted or 
 retained in an independent living assistance program. 

    Subd. 2.    Admission.  The license holder shall accept 
 as clients in the independent living assistance program only 
 individuals specified under section 256E.115. 

    Subd. 3.    Independent living plan.  Unless an 
 independent living plan has been developed by the local agency, 
 the license holder shall develop a plan based on the client's 
 individual needs that specifies objectives for the client.  The 
 services provided shall include those specified in this section 
 and the services specified under section 256E.115, subdivision 
 2, paragraph (a).  The plan shall identify the persons 
 responsible for implementation of each part of the plan.  The 
 plan shall be reviewed as necessary, but at least annually. 

    Subd. 4.    Records.  The license holder shall maintain 
 a record for each client. 

    (a)    Required records.  For each client the record 
 maintained by the license holder shall document the following: 

    (1) admission information; 

    (2) the independent living plan; 

    (3) delivery of the services required of the license holder 
 in the independent living plan; 

    (4) the client's progress toward obtaining the objectives 
 identified in the independent living plan; and 

    (5) a termination summary after service is terminated. 

    (b)    Money records.  If the license holder manages the 
 client's money, the record maintained by the license holder 
 shall also include the following: 

    (1) written permission from the client or the client's 
 legal guardian to manage the client's money; 

    (2) the reasons the license holder is to manage the 
 client's money; and 

    (3) a complete record of the use of the client's money and 
 reconciliation of the account. 

    Subd. 5.    Service termination plan.  The license 
 holder, in conjunction with the county agency, shall establish a 
 service termination plan that specifies how independent living 
 assistance services will be terminated and the actions to be 
 performed by the involved agencies, including necessary 
 referrals for other ongoing services. 

    Subd. 6.    Place of residence provided by program.  
 When a client's place of residence is provided by the license 
 holder as part of the independent living assistance program, the 
 place of residence is not subject to separate licensure. 

    Subd. 7.    General licensing requirements apply.  In 
 addition to the requirements of this section, providers of 
 independent living assistance are subject to general licensing 
 requirements of this chapter. 

    HIST: 1997 c 248 s 33 

     245A.30 Licensing prohibition for certain juvenile 
  facilities. 

    The commissioner may not: 

    (1) issue any license under Minnesota Rules, parts 
 9545.0905 to 9545.1125, for the residential placement of 
 juveniles at a facility if the facility accepts juveniles who 
 reside outside of Minnesota without an agreement with the entity 
 placing the juvenile at the facility that obligates the entity 
 to pay the educational and medical expenses of the juvenile; or 

    (2) renew a license under Minnesota Rules, parts 9545.0905 
 to 9545.1125, for the residential placement of juveniles if the 
 facility accepts juveniles who reside outside of Minnesota 
 without an agreement with the entity placing the juvenile at the 
 facility that obligates the entity to pay the educational and 
 medical expenses of the juvenile. 

    HIST: 1998 c 367 art 10 s 3; 1999 c 245 art 8 s 2 

     245A.65 License holder requirements governing 
  maltreatment of vulnerable adults. 

    Subdivision 1.    License holder requirements.  All 
 license holders serving vulnerable adults shall establish and 
 enforce written policies and procedures related to suspected or 
 alleged maltreatment, and shall orient clients and mandated 
 reporters who are under the control of the license holder to 
 these procedures, as defined in section 626.5572, subdivision 16.

    (a) License holders must establish policies and procedures 
 allowing but not mandating the internal reporting of alleged or 
 suspected maltreatment.  License holders shall ensure that the 
 policies and procedures on internal reporting: 

    (1) meet all the requirements identified for the optional 
 internal reporting policies and procedures in section 626.557, 
 subdivision 4a; and 

    (2) identify the primary and secondary person or position 
 to whom internal reports may be made and the primary and 
 secondary person or position responsible for forwarding internal 
 reports to the common entry point as defined in section 
 626.5572, subdivision 5.  The secondary person must be involved 
 when there is reason to believe that the primary person was 
 involved in the alleged or suspected maltreatment. 

    (b) The license holder shall:  

    (1) establish and maintain policies and procedures to 
 ensure that an internal review is completed when the facility 
 has reason to know that an internal or external report of 
 alleged or suspected maltreatment has been made.  The review 
 must include an evaluation of whether related policies and 
 procedures were followed, whether the policies and procedures 
 were adequate, whether there is a need for additional staff 
 training, and whether there is a need for any further action to 
 be taken by the facility to protect the health and safety of 
 vulnerable adults; 

    (2) identify the primary and secondary person or position 
 who will ensure that, when required, internal reviews are 
 completed.  The secondary person shall be involved when there is 
 reason to believe that the primary person was involved in the 
 alleged or suspected maltreatment; and 

    (3) document and make internal reviews accessible to the 
 commissioner upon the commissioner's request. 

    (c) The license holder shall provide an orientation to the 
 internal and external reporting procedures to all persons 
 receiving services.  The orientation shall include the telephone 
 number for the license holder's common entry point as defined in 
 section 626.5572, subdivision 5.  If applicable, the person's 
 legal representative must be notified of the orientation.  The 
 program shall provide this orientation for each new person 
 within 24 hours of admission, or for persons who would benefit 
 more from a later orientation, the orientation may take place 
 within 72 hours. 

    (d) The license holder shall post a copy of the internal 
 and external reporting policies and procedures, including the 
 telephone number of the common entry point as defined in section 
 626.5572, subdivision 5, in a prominent location in the program 
 and have it available upon request to mandated reporters, 
 persons receiving services, and the person's legal 
 representatives. 

    Subd. 2.    Abuse prevention plans.  All license holders 
 shall establish and enforce ongoing written program abuse 
 prevention plans and individual abuse prevention plans as 
 required under section 626.557, subdivision 14. 

    (a) The scope of the program abuse prevention plan is 
 limited to the population, physical plant, and environment 
 within the control of the license holder and the location where 
 licensed services are provided.  In addition to the requirements 
 in section 626.557, subdivision 14, the program abuse prevention 
 plan shall meet the requirements in clauses (1) to (5). 

    (1) The assessment of the population shall include an 
 evaluation of the following factors:  age, gender, mental 
 functioning, physical and emotional health or behavior of the 
 client; the need for specialized programs of care for clients; 
 the need for training of staff to meet identified individual 
 needs; and the knowledge a license holder may have regarding 
 previous abuse that is relevant to minimizing risk of abuse for 
 clients. 

    (2) The assessment of the physical plant where the licensed 
 services are provided shall include an evaluation of the 
 following factors:  the condition and design of the building as 
 it relates to the safety of the clients; and the existence of 
 areas in the building which are difficult to supervise. 

    (3) The assessment of the environment for each facility and 
 for each site when living arrangements are provided by the 
 agency shall include an evaluation of the following factors:  
 the location of the program in a particular neighborhood or 
 community; the type of grounds and terrain surrounding the 
 building; the type of internal programming; and the program's 
 staffing patterns. 

    (4) The license holder shall provide an orientation to the 
 program abuse prevention plan for clients receiving services.  
 If applicable, the client's legal representative must be 
 notified of the orientation.  The license holder shall provide 
 this orientation for each new person within 24 hours of 
 admission, or for persons who would benefit more from a later 
 orientation, the orientation may take place within 72 hours. 

    (5) The license holder's governing body shall review the 
 plan at least annually using the assessment factors in the plan 
 and any substantiated maltreatment findings that occurred since 
 the last review.  The governing body shall revise the plan, if 
 necessary, to reflect the review results. 

    (6) A copy of the program abuse prevention plan shall be 
 posted in a prominent location in the program and be available 
 upon request to mandated reporters, persons receiving services, 
 and legal representatives. 

    (b) In addition to the requirements in section 626.557, 
 subdivision 14, the individual abuse prevention plan shall meet 
 the requirements in clauses (1) and (2).  

    (1) The plan shall include a statement of measures that 
 will be taken to minimize the risk of abuse to the vulnerable 
 adult when the individual assessment required in section 
 626.557, subdivision 14, paragraph (b), indicates the need for 
 measures in addition to the specific measures identified in the 
 program abuse prevention plan.  The measures shall include the 
 specific actions the program will take to minimize the risk of 
 abuse within the scope of the licensed services, and will 
 identify referrals made when the vulnerable adult is susceptible 
 to abuse outside the scope or control of the licensed services.  
 When the assessment indicates that the vulnerable adult does not 
 need specific risk reduction measures in addition to those 
 identified in the program abuse prevention plan, the individual 
 abuse prevention plan shall document this determination. 

    (2) An individual abuse prevention plan shall be developed 
 for each new person as part of the initial individual program 
 plan or service plan required under the applicable licensing 
 rule.  The review and evaluation of the individual abuse 
 prevention plan shall be done as part of the review of the 
 program plan or service plan.  The person receiving services 
 shall participate in the development of the individual abuse 
 prevention plan to the full extent of the person's abilities.  
 If applicable, the person's legal representative shall be given 
 the opportunity to participate with or for the person in the 
 development of the plan.  The interdisciplinary team shall 
 document the review of all abuse prevention plans at least 
 annually, using the individual assessment and any reports of 
 abuse relating to the person.  The plan shall be revised to 
 reflect the results of this review. 

    Subd. 3.    Orientation of mandated reporters.  The 
 license holder shall ensure that each new mandated reporter, as 
 defined in section 626.5572, subdivision 16, who is under the 
 control of the license holder, receives an orientation within 72 
 hours of first providing direct contact services as defined in 
 section 245A.04, subdivision 3, to a vulnerable adult and 
 annually thereafter.  The orientation and annual review shall 
 inform the mandated reporters of the reporting requirements and 
 definitions in sections 626.557 and 626.5572, the requirements 
 of this section, the license holder's program abuse prevention 
 plan, and all internal policies and procedures related to the 
 prevention and reporting of maltreatment of individuals 
 receiving services. 

    HIST: 1997 c 248 s 34