2000 Minnesota Statutes

     465.797 Rule and law waiver requests. 

    Subdivision 1.    Generally.  (a) Except as provided in 
 paragraph (b), a local government unit may request the board of 
 government innovation and cooperation to grant a waiver from one 
 or more administrative rules or a temporary, limited exemption 
 from enforcement of state procedural laws governing delivery of 
 services by the local government unit.  Two or more local 
 government units may submit a joint application for a waiver or 
 exemption under this section if they propose to cooperate in 
 providing a service or program that is subject to the rule or 
 law.  Before submitting an application to the board, the 
 governing body of the local government unit must approve, in 
 concept, the proposed waiver or exemption at a meeting required 
 to be public under chapter 13D.  A local government unit or two 
 or more units acting jointly may apply for a waiver or exemption 
 on behalf of a nonprofit organization providing services to 
 clients whose costs are paid by the unit or units.  A waiver or 
 exemption granted to a nonprofit organization under this section 
 applies to services provided to all the organization's clients. 

    (b) A school district that is granted a variance from rules 
 of the commissioner of children, families, and learning under 
 section 122A.163, need not apply to the board for a waiver of 
 those rules under this section.  A school district may not seek 
 a waiver of rules under this section if the commissioner of 
 children, families, and learning has authority to grant a 
 variance to the rules under section 122A.163.  This paragraph 
 does not preclude a school district from being included in a 
 cooperative effort with another local government unit under this 
 section. 

    Subd. 2.    Application.  A local government unit 
 requesting a waiver of a rule or exemption from enforcement of a 
 law under this section shall present a written application to 
 the board.  The application must include: 

    (1) identification of the service or program at issue; 

    (2) identification of the administrative rule or the law 
 imposing a procedural requirement with respect to which the 
 waiver or exemption is sought; and 

    (3) a description of the improved service outcome sought, 
 including an explanation of the effect of the waiver or 
 exemption in accomplishing that outcome. 

    A copy of the application must be provided by the 
 requesting local government unit to the exclusive representative 
 certified under section 179A.12 to represent employees who 
 provide the service or program affected by the requested waiver 
 or exemption. 

    Subd. 3.    Review process.  (a) Upon receipt of an 
 application from a local government unit, the board shall review 
 the application.  The board shall dismiss an application if it 
 finds that the application proposes a waiver of rules or 
 exemption from enforcement of laws that would result in due 
 process violations, violations of federal law or the state or 
 federal constitution, or the loss of services to people who are 
 entitled to them.  

    (b) The board shall determine whether a law from which an 
 exemption for enforcement is sought is a procedural law, 
 specifying how a local government unit is to achieve an outcome, 
 rather than a substantive law prescribing the outcome or 
 otherwise establishing policy.  In making its determination, the 
 board shall consider whether the law specifies such requirements 
 as: 

    (1) who must deliver a service; 

    (2) where the service must be delivered; 

    (3) to whom and in what form reports regarding the service 
 must be made; and 

    (4) how long or how often the service must be made 
 available to a given recipient. 

    (c) If the commissioner of finance, the commissioner of 
 administration, or the state auditor has jurisdiction over a 
 rule or law affected by an application, the chief administrative 
 law judge, as soon as practicable after receipt of the 
 application, shall designate a third administrative law judge to 
 serve as a member of the board in place of that official while 
 the board is deciding whether to grant the waiver or exemption. 

    (d) If the application is submitted by a local government 
 unit in the metropolitan area or the unit requests a waiver of a 
 rule or temporary, limited exemptions from enforcement of a 
 procedural law over which the metropolitan council or a 
 metropolitan agency has jurisdiction, the board shall also 
 transmit a copy of the application to the council for review and 
 comment.  The council shall report its comments to the board 
 within 60 days of the date the application was transmitted to 
 the council.  The council may point out any resources or 
 technical assistance it may be able to provide a local 
 government submitting a request under this section.  

    (e) Within 15 days after receipt of the application, the 
 board shall transmit a copy of it to the commissioner of each 
 agency having jurisdiction over a rule or law from which a 
 waiver or exemption is sought.  The agency may mail a notice 
 that it has received an application for a waiver or exemption to 
 all persons who have registered with the agency under section 
 14.14, subdivision 1a, identifying the rule or law from which a 
 waiver or exemption is requested.  If no agency has jurisdiction 
 over the rule or law, the board shall transmit a copy of the 
 application to the attorney general.  The agency shall inform 
 the board of its agreement with or objection to and grounds for 
 objection to the waiver or exemption request within 60 days of 
 the date when the application was transmitted to it.  An 
 agency's failure to do so is considered agreement to the waiver 
 or exemption.  The board shall decide whether to grant a waiver 
 or exemption at its next regularly scheduled meeting following 
 its receipt of an agency's response or the end of the 60-day 
 response period.  If consideration of an application is not 
 concluded at that meeting, the matter may be carried over to the 
 next meeting of the board.  Interested persons may submit 
 written comments to the board on the waiver or exemption request 
 up to the time of its vote on the application.  

    (f) If the exclusive representative of the affected 
 employees of the requesting local government unit objects to the 
 waiver or exemption request it may inform the board of the 
 objection to and the grounds for the objection to the waiver or 
 exemption request within 60 days of the receipt of the 
 application. 

    Subd. 4.    Hearing.  If the agency or the exclusive 
 representative does not agree with the waiver or exemption 
 request, the board shall set a date for a hearing on the 
 application.  The hearing must be conducted informally at a 
 meeting of the board.  Persons representing the local government 
 unit shall present their case for the waiver or exemption, and 
 persons representing the agency shall explain the agency's 
 objection to it.  Members of the board may request additional 
 information from either party.  The board may also request, 
 either before or at the hearing, information or comments from 
 representatives of business, labor, local governments, state 
 agencies, consultants, and members of the public.  If necessary, 
 the hearing may be continued at a subsequent board meeting.  A 
 waiver or exemption must be granted by a vote of a majority of 
 the board members.  The board may modify the terms of the waiver 
 or exemption request in arriving at the agreement required under 
 subdivision 5. 

    Subd. 5.    Conditions of agreements.  (a) If the board 
 grants a request for a waiver or exemption, the board and the 
 local government unit shall enter into an agreement providing 
 for the delivery of the service or program that is the subject 
 of the application.  The agreement must specify desired outcomes 
 and the means of measurement by which the board will determine 
 whether the outcomes specified in the agreement have been met.  
 The agreement must specify the duration of the waiver or 
 exemption.  The duration of a waiver from an administrative rule 
 may be for no less than two years and no more than four years, 
 subject to renewal if both parties agree.  An exemption from 
 enforcement of a law terminates ten days after adjournment of 
 the regular legislative session held during the calendar year 
 following the year when the exemption is granted, unless the 
 legislature has acted to extend or make permanent the exemption. 

    (b) If the board grants a waiver or exemption, it must 
 report the waiver or exemption to the legislature, including the 
 chairs of the governmental operations and appropriate policy 
 committees in the house and senate, and the governor within 30 
 days. 

    (c) The board may reconsider or renegotiate the agreement 
 if the rule or law affected by the waiver or exemption is 
 amended or repealed during the term of the original agreement.  
 A waiver of a rule under this section has the effect of a 
 variance granted by an agency under section 14.05, subdivision 
 4.  A local unit of government that is granted an exemption from 
 enforcement of a procedural requirement in state law under this 
 section is exempt from that law for the duration of the 
 exemption.  The board may require periodic reports from the 
 local government unit, or conduct investigations of the service 
 or program. 

    Subd. 5a.    Exemptions granted.  Notwithstanding 
 subdivision 5, exemptions from enforcement of law granted by the 
 board during calendar year 1995 remain in effect until June 30, 
 1999.  An exemption granted by the board for Itasca county 
 during calendar year 1996 allowing the county to implement a 
 demonstration project to determine the feasibility of using a 
 managed care model for financing chemical dependency treatment 
 services remains in effect until June 30, 2001.  An exemption 
 granted by the board for Dakota, Ramsey, and Washington counties 
 during calendar year 1998 allowing the counties to forego 
 preadmission screenings for all applicants for admission to a 
 Medicaid certified nursing facility if the individual is being 
 released from an in-patient hospital into a nursing facility and 
 a physician certifies that the stay in the nursing facility is 
 expected to be 30 days' duration or less, remains in effect 
 until June 30, 2003.  This subdivision expires June 30, 2003. 

    Subd. 6.    Enforcement.  If the board finds that the 
 local government unit is failing to comply with the terms of the 
 agreement under subdivision 5, it may rescind the agreement.  
 Upon the rescission, the local unit of government becomes 
 subject to the rules and laws covered by the agreement. 

    Subd. 7.    Access to data.  If a local government unit, 
 through a cooperative program under this section, gains access 
 to data collected, created, received, or maintained by another 
 local government that is classified as not public, the unit 
 gaining access is governed by the same restrictions on access to 
 and use of the data as the unit that collected, created, 
 received, or maintained the data. 

    HIST: 1993 c 375 art 15 s 3; 1994 c 587 art 8 s 3-7; 1995 c 
 264 art 8 s 3; 1996 c 394 s 5; 1997 c 42 s 1; 1998 c 397 art 11 
 s 3; 1998 c 398 art 5 s 55; 1999 c 41 s 1; 2000 c 260 s 60,96