2005 Minnesota Statutes

CHAPTER 245C. Human services background studies

     245C.01 Title. 

    This chapter may be cited as the "Department of Human 
 Services Background Studies Act." 

    HIST: 2003 c 15 art 1 s 1 

     245C.02 Definitions. 

    Subdivision 1.    Scope.  The definitions in this 
 section apply to this chapter. 

    Subd. 2.    Access to persons served by a program.  
 "Access to persons served by a program" means physical access to 
 persons receiving services or the persons' personal property 
 without continuous, direct supervision, as defined in 
 subdivision 8. 

    Subd. 3.    Annual or annually.  "Annual" or "annually" 
 has the meaning given in section 245A.02, subdivision 2b. 

    Subd. 4.    Applicant.  "Applicant" has the meaning 
 given in section 245A.02, subdivision 3. 

    Subd. 5.    Background study.  "Background study" means 
 the review of records conducted by the commissioner to determine 
 whether a subject is disqualified from direct contact with 
 persons served by a program and, where specifically provided in 
 statutes, whether a subject is disqualified from having access 
 to persons served by a program. 

    Subd. 6.    Child.  "Child" has the meaning given in 
 section 245A.02, subdivision 4. 

    Subd. 7.    Commissioner.  "Commissioner" has the 
 meaning given in section 245A.02, subdivision 5. 

    Subd. 8.    Continuous, direct supervision.  
 "Continuous, direct supervision" means an individual is within 
 sight or hearing of the program's supervising individual to the 
 extent that the program's supervising individual is capable at 
 all times of intervening to protect the health and safety of the 
 persons served by the program. 

    Subd. 9.    Contractor.  "Contractor" means any 
 individual, regardless of employer, who is providing program 
 services for hire under the control of the provider. 

    Subd. 10.    County agency.  "County agency" has the 
 meaning given in section 245A.02, subdivision 6. 

    Subd. 11.    Direct contact.  "Direct contact" means 
 providing face-to-face care, training, supervision, counseling, 
 consultation, or medication assistance to persons served by the 
 program. 

    Subd. 12.    License.  "License" has the meaning given 
 in section 245A.02, subdivision 8. 

    Subd. 13.    License holder.  "License holder" has the 
 meaning given in section 245A.02, subdivision 9. 

    Subd. 14.    Person.  "Person" means a child as defined 
 in subdivision 6 or an adult as defined in section 245A.02, 
 subdivision 2. 

    Subd. 15.    Reasonable cause.  "Reasonable cause" means 
 information or circumstances exist which provide the 
 commissioner with articulable suspicion that further pertinent 
 information may exist concerning a subject.  The commissioner 
 has reasonable cause when, but not limited to, the commissioner 
 has received a report from the subject, the license holder, or a 
 third party indicating that the subject has a history that would 
 disqualify the individual or that may pose a risk to the health 
 or safety of persons receiving services. 

    Subd. 16.    Recurring maltreatment.  "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. 

    Subd. 17. Repealed, 2004 c 288 art 1 s 83 

    Subd. 18.    Serious maltreatment.  (a) "Serious 
 maltreatment" means sexual abuse, maltreatment resulting in 
 death, 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. 

    (b) For purposes of this definition, "care of a physician" 
 is treatment received or ordered by a physician but does not 
 include diagnostic testing, assessment, or observation. 

    (c) For purposes of this definition, "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 other frostbite for which 
 complications are present; irreversible mobility or avulsion of 
 teeth; injuries to the eyes; ingestion of foreign substances and 
 objects that are harmful; near drowning; and heat exhaustion or 
 sunstroke. 

    (d) Serious maltreatment includes neglect when it results 
 in criminal sexual conduct against a child or vulnerable adult. 

    Subd. 19.    Subject of a background study.  "Subject of 
 a background study" means an individual on whom a background 
 study is required or completed. 

    HIST: 2003 c 15 art 1 s 2; 2004 c 288 art 1 s 38 

     245C.03 Background study; individuals to be studied. 

    Subdivision 1.    Licensed programs.  (a) The 
 commissioner shall conduct a background study on: 

    (1) the person or persons applying for a license; 

    (2) an individual age 13 and over living in the household 
 where the licensed program will be provided; 

    (3) current or prospective 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 will have direct 
 contact with persons served by the program to provide program 
 services if the contact is not under the continuous, direct 
 supervision by an individual listed in clause (1) or (3); 

    (5) an individual age ten to 12 living in the household 
 where the licensed services will be provided when the 
 commissioner has reasonable cause; 

    (6) an individual who, without providing direct contact 
 services at a licensed program, may have unsupervised access to 
 children or vulnerable adults receiving services from a program, 
 when the commissioner has reasonable cause; and 

    (7) all managerial officials as defined under section 
 245A.02, subdivision 5a. 

    (b) For family child foster care settings, a short-term 
 substitute caregiver providing direct contact services for a 
 child for less than 72 hours of continuous care is not required 
 to receive a background study under this chapter. 

    Subd. 2.    Personal care provider organizations.  The 
 commissioner shall conduct background studies on any individual 
 required under sections 256B.0651 and 256B.0653 to 256B.0656 to 
 have a background study completed under this chapter. 

    Subd. 3.    Supplemental nursing services agencies.  The 
 commissioner shall conduct all background studies required under 
 this chapter and initiated by supplemental nursing services 
 agencies registered under section 144A.71, subdivision 1. 

    Subd. 4.    Personnel agencies; educational programs; 
 professional services agencies.  The commissioner also may 
 conduct studies on individuals specified in subdivision 1, 
 clauses (3) and (4), when the studies are initiated by: 

    (1) personnel pool agencies; 

    (2) temporary personnel agencies; 

    (3) educational programs that train individuals by 
 providing direct contact services in licensed programs; and 

    (4) 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. 

    Subd. 5.    Other state agencies.  The commissioner 
 shall conduct background studies on applicants and license 
 holders under the jurisdiction of other state agencies who are 
 required in other statutory sections to initiate background 
 studies under this chapter, including the applicant's or license 
 holder's employees, contractors, and volunteers when required 
 under other statutory sections. 

    HIST: 2003 c 15 art 1 s 3; 2004 c 288 art 1 s 39,40; 1Sp2005 c 
 4 art 1 s 26 

     245C.04 When background study must occur. 

    Subdivision 1.    Licensed programs.  (a) The 
 commissioner shall conduct a background study of an individual 
 required to be studied under section 245C.03, subdivision 1, at 
 least upon application for initial license for all license types.

    (b) The commissioner shall conduct a background study of an 
 individual required to be studied under section 245C.03, 
 subdivision 1, at reapplication for a license for family child 
 care, child foster care, and adult foster care. 

    (c) The commissioner is not required to conduct a study of 
 an individual at the time of reapplication for a license if the 
 individual's background study was completed by the commissioner 
 of human services for an adult foster care license holder that 
 is also: 

    (1) registered under chapter 144D; or 

    (2) licensed to provide home and community-based services 
 to people with disabilities at the foster care location and the 
 license holder does not reside in the foster care residence; and 

    (3) the following conditions are met: 

    (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 last study of the individual was conducted on or 
 after October 1, 1995. 

    (d) Applicants for licensure, license holders, and other 
 entities as provided in this chapter must submit completed 
 background study forms to the commissioner before individuals 
 specified in section 245C.03, subdivision 1, begin positions 
 allowing direct contact in any licensed program. 

    (e) For 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. 

    Subd. 2.    Other state agencies.  Applicants and 
 license holders under the jurisdiction of other state agencies 
 who are required in other statutory sections to initiate 
 background studies under this chapter must submit completed 
 background study forms to the commissioner before the background 
 study subject begins in a position allowing direct contact in 
 the licensed program or, where applicable, prior to being 
 employed. 

    Subd. 3.    Personal care provider organizations.  (a) 
 The commissioner shall conduct a background study of an 
 individual required to be studied under section 245C.03, 
 subdivision 2, at least upon application for initial enrollment 
 under sections 256B.0651 and 256B.0653 to 256B.0656. 

    (b) Organizations required to initiate background studies 
 under sections 256B.0651 and 256B.0653 to 256B.0656 for 
 individuals described in section 245C.03, subdivision 2, must 
 submit a completed background study form to the commissioner 
 before those individuals begin a position allowing direct 
 contact with persons served by the organization. 

    Subd. 4.    Supplemental nursing services agencies.  (a) 
 The commissioner shall conduct a background study of an 
 individual required to be studied under section 245C.03, 
 subdivision 3, at least upon application for registration under 
 section 144A.71, subdivision 1. 

    (b) Each supplemental nursing services agency must initiate 
 background studies before an individual begins a position 
 allowing direct contact with persons served by the agency and 
 annually thereafter. 

    Subd. 5.    Personnel agencies; educational programs; 
 professional services agencies.  Agencies, programs, and 
 individuals who initiate background studies under section 
 245C.03, subdivision 4, must initiate the studies annually. 

    HIST: 2003 c 15 art 1 s 4 

     245C.05 Background study; information and data provided 
  to commissioner. 

    Subdivision 1.    Individual studied.  (a) The 
 individual who is the subject of the background study must 
 provide the applicant, license holder, or other entity under 
 section 245C.04 with sufficient information to ensure an 
 accurate study, including: 

    (1) the individual's first, middle, and last name and all 
 other names by which the individual has been known; 

    (2) home address, city, and state of residence; 

    (3) zip code; 

    (4) sex; 

    (5) date of birth; and 

    (6) Minnesota driver's license number or state 
 identification number. 

    (b) Every subject of a background study conducted by 
 counties or private agencies under this chapter must also 
 provide the home address, city, county, and state of residence 
 for the past five years. 

    Subd. 2.    Applicant, license holder, or other entity.  
 The applicant, license holder, or other entities as provided in 
 this chapter shall provide the information collected under 
 subdivision 1 about an individual who is the subject of the 
 background study on forms or in a format prescribed by the 
 commissioner. 

    Subd. 3.    Additional information from individual 
 studied.  The commissioner may request additional information 
 of the individual, such as the individual's Social Security 
 number or race.  The individual is not required to provide this 
 information to the commissioner. 

    Subd. 4.    Electronic transmission.  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. 

    Subd. 5.    Fingerprints.  (a) For any background study 
 completed under this chapter, when the commissioner has 
 reasonable cause to believe that further pertinent information 
 may exist on the subject of the background study, the subject 
 shall provide the commissioner with a set of classifiable 
 fingerprints obtained from an authorized law enforcement agency. 

    (b) For purposes of requiring fingerprints, the 
 commissioner has reasonable cause when, but not limited to, the: 

    (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) 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. 

    Subd. 6.    Applicant, license holder, other entities, and 
 agencies.  (a) The applicant, license holder, other entities 
 as provided in this chapter, Bureau of Criminal Apprehension, 
 commissioner of health, and county agencies 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 substantiated 
 under section 626.556. 

    (b) If a background study is initiated by an applicant, 
 license holder, or other entities as provided in this chapter, 
 and the applicant, license holder, or other entity receives 
 information about the possible criminal or maltreatment history 
 of an individual who is the subject of the background study, the 
 applicant, license holder, or other entity must immediately 
 provide the information to the commissioner. 

    (c) The program or county or other agency must provide 
 written notice to the individual who is the subject of the 
 background study of the requirements under this subdivision. 

    Subd. 7.    Probation officer and corrections agent.  
 (a) A probation officer or corrections agent shall notify the 
 commissioner of an individual's conviction if the individual is: 

    (1) affiliated with a program or facility regulated by the 
 Department of Human Services or Department of Health, a facility 
 serving children or youth licensed by the Department of 
 Corrections, or any type of home care agency or provider of 
 personal care assistance services; and 

    (2) convicted of a crime constituting a disqualification 
 under section 245C.14. 

    (b) For the purpose of this subdivision, "conviction" has 
 the meaning given it in section 609.02, subdivision 5. 

    (c) The commissioner, in consultation with the commissioner 
 of corrections, shall develop forms and information necessary to 
 implement this subdivision and shall provide the forms and 
 information to the commissioner of corrections for distribution 
 to local probation officers and corrections agents. 

    (d) 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. 

    (e) 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 subdivision.

    (f) Upon receipt of disqualifying information, the 
 commissioner shall provide the notice required under section 
 245C.17, 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. 

    (g) This subdivision does not apply to family child care 
 and child foster care programs. 

    HIST: 2003 c 15 art 1 s 5; 1Sp2003 c 14 art 6 s 5; 2004 c 288 
 art 1 s 41-44 

     245C.06 Individual previously studied. 

    Subdivision 1.    Facility request.  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: 

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

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

    (i) 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 

    (ii) the individual is affiliated only with a personnel 
 pool agency, a temporary personnel agency, an educational 
 program that trains individuals 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 

    (3) the facility provides notices to the individual as 
 required under section 245C.05, subdivision 6, paragraph (c), 
 and that the facility is requesting written notification of the 
 individual's background study status from the commissioner. 

    Subd. 2.    Commissioner's response.  The commissioner 
 shall respond to each request under subdivision 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 commissioner shall complete the study without 
 further request from a licensed agency or notifications to the 
 study subject. 

    HIST: 2003 c 15 art 1 s 6 

     245C.07 Study subject affiliated with multiple 
  facilities. 

    (a) When a license holder owns multiple facilities that are 
 licensed by the Department of Human Services, only one 
 background study is required for an individual who provides 
 direct contact services in one or more of the licensed 
 facilities if: 

    (1) the license holder designates one individual with one 
 address and telephone number as the person to receive sensitive 
 background study information for the multiple licensed programs 
 that depend on the same background study; and 

    (2) the individual designated to receive the sensitive 
 background study information is capable of determining, upon 
 request of the department, whether a background study subject is 
 providing direct contact services in one or more of the license 
 holder's programs and, if so, at which location or locations. 

    (b) 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 a notice, the commissioner 
 shall notify each facility identified by the background study 
 subject of the study results. 

    The background study notice the commissioner sends to the 
 subsequent agencies shall satisfy those facilities' 
 responsibilities for initiating a background study on that 
 individual. 

    HIST: 2003 c 15 art 1 s 7; 1Sp2005 c 4 art 1 s 27 

     245C.08 Background study; information commissioner 
  reviews. 

    Subdivision 1.    Background studies conducted by 
 commissioner of human services.  (a) For a background study 
 conducted by the commissioner, the commissioner shall review: 

    (1) 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); 

    (2) the commissioner's records relating to the maltreatment 
 of minors in licensed programs, and from county agency findings 
 of maltreatment of minors as indicated through the social 
 service information system; 

    (3) information from juvenile courts as required in 
 subdivision 4 for individuals listed in section 245C.03, 
 subdivision 1, clauses (2), (5), and (6); and 

    (4) information from the Bureau of Criminal Apprehension. 

    (b) Notwithstanding expungement by a court, the 
 commissioner may consider information obtained under paragraph 
 (a), clauses (3) and (4), unless the commissioner received 
 notice of the petition for expungement and the court order for 
 expungement is directed specifically to the commissioner. 

    Subd. 2.    Background studies conducted by a county or 
 private agency.  (a) For a background study conducted by a 
 county or private agency for child foster care, adult foster 
 care, and family child care homes, the commissioner shall review:

    (1) information from the county agency's record of 
 substantiated maltreatment of adults and the maltreatment of 
 minors; 

    (2) information from juvenile courts as required in 
 subdivision 4 for individuals listed in section 245C.03, 
 subdivision 1, clauses (2), (5), and (6); 

    (3) information from the Bureau of Criminal Apprehension; 
 and 

    (4) arrest and investigative records maintained by the 
 Bureau of Criminal Apprehension, county attorneys, county 
 sheriffs, courts, county agencies, local police, the National 
 Criminal Records Repository, and criminal records from other 
 states. 

    (b) If the individual has resided in the county for less 
 than five years, the study shall include the records specified 
 under paragraph (a) for the previous county or counties of 
 residence for the past five years. 

    (c) Notwithstanding expungement by a court, the county or 
 private agency may consider information obtained under paragraph 
 (a), clauses (3) and (4), unless the commissioner received 
 notice of the petition for expungement and the court order for 
 expungement is directed specifically to the commissioner. 

    Subd. 3.    Arrest and investigative information.  (a) 
 For any background study completed under this section, if the 
 commissioner has reasonable cause to believe the information is 
 pertinent to the disqualification of an individual, the 
 commissioner also may review arrest and investigative 
 information from: 

    (1) the Bureau of Criminal Apprehension; 

    (2) the commissioner of health; 

    (3) a county attorney; 

    (4) a county sheriff; 

    (5) a county agency; 

    (6) a local chief of police; 

    (7) other states; 

    (8) the courts; or 

    (9) the Federal Bureau of Investigation. 

    (b) 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 
 study. 

    Subd. 4.    Juvenile court records.  (a) The 
 commissioner shall review records from the juvenile courts for 
 an individual studied under section 245C.03, subdivision 1, 
 clauses (2) and (5). 

    (b) For individuals studied under section 245C.03, 
 subdivision 1, clauses (1), (3), (4), and (6), and subdivision 
 2, who are ages 13 to 17, the commissioner shall review records 
 from the juvenile courts when the commissioner has reasonable 
 cause. 

    (c) The juvenile courts shall help with the study by giving 
 the commissioner existing juvenile court records on individuals 
 described in section 245C.03, subdivision 1, clauses (2), (5), 
 and (6), relating to delinquency proceedings held within either 
 the five years immediately preceding the background study or the 
 five years immediately preceding the individual's 18th birthday, 
 whichever time period is longer. 

    (d) For purposes of this chapter, a finding that a 
 delinquency petition is proven in juvenile court shall be 
 considered a conviction in state district court. 

    (e) The commissioner shall destroy juvenile court records 
 obtained under this subdivision when the subject of the records 
 reaches age 23. 

    HIST: 2003 c 15 art 1 s 8; 1Sp2003 c 14 art 6 s 5; 2004 c 288 
 art 1 s 45-47; 1Sp2005 c 4 art 1 s 28,29 

     245C.09 Failure or refusal to cooperate with background 
  study. 

    Subdivision 1.    Disqualification; licensing action.  
 An applicant's, license holder's, or other entity's failure or 
 refusal to cooperate with the commissioner is reasonable cause 
 to disqualify a subject, deny a license application, or 
 immediately suspend or revoke a license or registration. 

    Subd. 2.    Employment action.  An individual's failure 
 or refusal to cooperate with the background 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 or revoked. 

    HIST: 2003 c 15 art 1 s 9; 2004 c 288 art 1 s 48 

     245C.10 Background study; fees. 

    Subdivision 1.    Subject of background study.  No 
 applicant, license holder, or individual who is the subject of a 
 background study shall pay any fees required to conduct the 
 study. 

    Subd. 2.    Supplemental nursing services agencies.  The 
 commissioner shall recover the cost of the background studies 
 initiated by supplemental nursing services agencies registered 
 under section 144A.71, subdivision 1, through a fee of no more 
 than $20 per study charged to the agency.  The fees collected 
 under this subdivision are appropriated to the commissioner for 
 the purpose of conducting background studies. 

    Subd. 3.    Personal care provider organizations.  The 
 commissioner shall recover the cost of background studies 
 initiated by a personal care provider organization under 
 sections 256B.0651 and 256B.0653 to 256B.0656 through a fee of 
 no more than $20 per study charged to the organization 
 responsible for submitting the background study form.  The fees 
 collected under this subdivision are appropriated to the 
 commissioner for the purpose of conducting background studies. 

    HIST: 2003 c 15 art 1 s 10; 1Sp2005 c 4 art 5 s 7,8 

     245C.11 Background study; county agencies. 

    Subdivision 1.    Foster care; criminal conviction data. 
  For individuals who are required to have background studies 
 under section 245C.03, subdivisions 1 and 2, 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 chapter. 

    Subd. 2.    Jointly licensed programs.  A county agency 
 may accept a background study completed by the commissioner 
 under this chapter in place of the background study required 
 under section 245A.16, subdivision 3, 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 and the 
 subject of the study has been continuously affiliated with the 
 license holder since the date of the commissioner's study. 

    Subd. 3.    Criminal history data.  County agencies 
 shall have access to the criminal history data in the same 
 manner as county licensing agencies under this chapter for 
 purposes of background studies completed by county agencies on 
 legal nonlicensed child care providers to determine eligibility 
 for child care funds under chapter 119B. 

    HIST: 2003 c 15 art 1 s 11 

     245C.12 Background study; tribal organizations. 

    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. 

    HIST: 2003 c 15 art 1 s 12 

     245C.13 Background study form processing. 

    Subdivision 1.    Timing.  Upon receipt of the 
 background study forms from an applicant, license holder, or 
 other entity as provided in this chapter required to initiate a 
 background study under section 245C.04, the commissioner shall 
 complete the background study and provide the notice required 
 under section 245C.17, subdivision 1, within 15 working days. 

    Subd. 2.    Direct contact pending completion of 
 background study.  The subject of a background study may not 
 perform any activity requiring a background study under 
 paragraph (b) until the commissioner has issued one of the 
 notices under paragraph (a). 

    (a) Notices from the commissioner required prior to 
 activity under paragraph (b) include: 

    (1) a notice of the study results under section 245C.17 
 stating that: 

    (i) the individual is not disqualified; or 

    (ii) more time is needed to complete the study but the 
 individual is not required to be removed from direct contact or 
 access to people receiving services prior to completion of the 
 study as provided under section 245A.17, paragraph (c); 

    (2) a notice that a disqualification has been set aside 
 under section 245C.23; or 

    (3) a notice that a variance has been granted related to 
 the individual under section 245C.30. 

    (b) Activities prohibited prior to receipt of notice under 
 paragraph (a) include: 

    (1) being issued a license; 

    (2) living in the household where the licensed program will 
 be provided; 

    (3) providing direct contact services to persons served by 
 a program unless the subject is under continuous direct 
 supervision; or 

    (4) having access to persons receiving services if the 
 background study was completed under section 144.057, 
 subdivision 1, or 245C.03, subdivision 1, paragraph (a), clause 
 (2), (5), or (6), unless the subject is under continuous direct 
 supervision. 

    HIST: 2003 c 15 art 1 s 13; 2004 c 288 art 1 s 49; 2005 c 136 
 art 6 s 1 

     245C.14 Disqualification. 

    Subdivision 1.    Disqualification from direct contact.  
 (a) The commissioner shall disqualify an individual who is the 
 subject of a background study from any position allowing direct 
 contact with persons receiving services from the license holder 
 or entity identified in section 245C.03, upon receipt of 
 information showing, or when a background study completed under 
 this chapter shows any of the following: 

    (1) a conviction of or admission to one or more crimes 
 listed in section 245C.15, regardless of whether the conviction 
 or admission is a felony, gross misdemeanor, or misdemeanor 
 level crime; 

    (2) 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 section 245C.15, regardless of 
 whether the preponderance of the evidence is for a felony, gross 
 misdemeanor, or misdemeanor level crime; or 

    (3) an investigation results in an administrative 
 determination listed under section 245C.15, subdivision 4, 
 paragraph (b). 

    (b) No individual who is disqualified following a 
 background study under section 245C.03, subdivisions 1 and 2, 
 may be retained in a position involving direct contact with 
 persons served by a program or entity identified in section 
 245C.03, unless the commissioner has provided written notice 
 under section 245C.17 stating that: 

    (1) the individual may remain in direct contact during the 
 period in which the individual may request reconsideration as 
 provided in section 245C.21, subdivision 2; 

    (2) the commissioner has set aside the individual's 
 disqualification for that program or entity identified in 
 section 245C.03, as provided in section 245C.22, subdivision 4; 
 or 

    (3) the license holder has been granted a variance for the 
 disqualified individual under section 245C.30. 

    Subd. 2.    Disqualification from access.  (a) If an 
 individual who is studied under section 245C.03, subdivision 1, 
 clauses (2), (5), and (6), is disqualified from direct contact 
 under subdivision 1, the commissioner shall also disqualify the 
 individual from access to a person receiving services from the 
 license holder. 

    (b) No individual who is disqualified following a 
 background study under section 245C.03, subdivision 1, clauses 
 (2), (5), and (6), or as provided elsewhere in statute who is 
 disqualified as a result of this section, may be allowed access 
 to persons served by the program unless the commissioner has 
 provided written notice under section 245C.17 stating that: 

    (1) the individual may remain in direct contact during the 
 period in which the individual may request reconsideration as 
 provided in section 245C.21, subdivision 2; 

    (2) the commissioner has set aside the individual's 
 disqualification for that licensed program or entity identified 
 in section 245C.03 as provided in section 245C.22, subdivision 
 4; or 

    (3) the license holder has been granted a variance for the 
 disqualified individual under section 245C.30. 

    HIST: 2003 c 15 art 1 s 14; 2004 c 288 art 1 s 50 

     245C.15 Disqualifying crimes or conduct. 

    Subdivision 1.    Permanent disqualification.  (a) An 
 individual is disqualified under section 245C.14 if:  (1) 
 regardless of how much time has passed since the discharge of 
 the sentence imposed, if any, for the offense; and (2) unless 
 otherwise specified, regardless of the level of the offense, the 
 individual has committed 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); 609.20 
 (manslaughter in the first degree); 609.205 (manslaughter in the 
 second degree); 609.221 or 609.222 (assault in the first or 
 second degree); a felony offense under sections 609.2242 and 
 609.2243 (domestic assault), spousal abuse, child abuse or 
 neglect, or a crime against children; 609.228 (great bodily harm 
 caused by distribution of drugs); 609.245 (aggravated robbery); 
 609.25 (kidnapping); 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); a felony offense under 609.324, subdivision 1 
 (other prohibited acts); 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); 609.3451 
 (criminal sexual conduct in the fifth degree); 609.3453 
 (criminal sexual predatory conduct); 609.352 (solicitation of 
 children to engage in sexual conduct); 609.365 (incest); a 
 felony offense under 609.377 (malicious punishment of a child); 
 a felony offense under 609.378 (neglect or endangerment of a 
 child); 609.561 (arson in the first degree); 609.66, subdivision 
 1e (drive-by shooting); 609.749, subdivision 3, 4, or 5 
 (felony-level harassment; stalking); 609.855, subdivision 5 
 (shooting at or in a public transit vehicle or facility); 
 617.246 (use of minors in sexual performance prohibited); or 
 617.247 (possession of pictorial representations of minors).  An 
 individual also is disqualified under section 245C.14 regardless 
 of how much time has passed since the involuntary termination of 
 the individual's parental rights under section 260C.301. 

    (b) An individual's aiding and abetting, attempt, or 
 conspiracy to commit any of the offenses listed in paragraph 
 (a), as each of these offenses is defined in Minnesota Statutes, 
 permanently disqualifies the individual under section 245C.14. 

    (c) An individual's offense in any other state or country, 
 where the elements of the offense are substantially similar to 
 any of the offenses listed in paragraph (a), permanently 
 disqualifies the individual under section 245C.14. 

    (d) When a disqualification is based on a judicial 
 determination other than a conviction, the disqualification 
 period begins from the date of the court order.  When a 
 disqualification is based on an admission, the disqualification 
 period begins from the date of an admission in court.  When a 
 disqualification is based on a preponderance of evidence of a 
 disqualifying act, the disqualification date begins from the 
 date of the dismissal, the date of discharge of the sentence 
 imposed for a conviction for a disqualifying crime of similar 
 elements, or the date of the incident, whichever occurs last. 

    Subd. 2.    15-year disqualification.  (a) An individual 
 is disqualified under section 245C.14 if:  (1) less than 15 
 years have passed since the discharge of the sentence imposed, 
 if any, for the offense; and (2) the individual has committed a 
 felony-level violation of any of the following offenses:  
 sections 256.98 (wrongfully obtaining assistance); 268.182 
 (false representation; concealment of facts); 393.07, 
 subdivision 10, paragraph (c) (federal Food Stamp Program 
 fraud); 609.165 (felon ineligible to possess firearm); 609.21 
 (criminal vehicular homicide and injury); 609.215 (suicide); 
 609.223 or 609.2231 (assault in the third or fourth degree); 
 repeat offenses under 609.224 (assault in the fifth degree); 
 609.2325 (criminal abuse of a vulnerable adult); 609.2335 
 (financial exploitation of a vulnerable adult); 609.235 (use of 
 drugs to injure or facilitate crime); 609.24 (simple robbery); 
 609.255 (false imprisonment); 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); 609.27 
 (coercion); 609.275 (attempt to coerce); repeat offenses under 
 609.3451 (criminal sexual conduct in the fifth degree); 609.466 
 (medical assistance fraud); 609.498, subdivision 1 or 1b 
 (aggravated first degree or first degree tampering with a 
 witness); 609.52 (theft); 609.521 (possession of shoplifting 
 gear); 609.525 (bringing stolen goods into Minnesota); 609.527 
 (identity theft); 609.53 (receiving stolen property); 609.535 
 (issuance of dishonored checks); 609.562 (arson in the second 
 degree); 609.563 (arson in the third degree); 609.582 
 (burglary); 609.611 (insurance fraud); 609.625 (aggravated 
 forgery); 609.63 (forgery); 609.631 (check forgery; offering a 
 forged check); 609.635 (obtaining signature by false pretense); 
 609.66 (dangerous weapons); 609.67 (machine guns and 
 short-barreled shotguns); 609.687 (adulteration); 609.71 (riot); 
 609.713 (terroristic threats); 609.82 (fraud in obtaining 
 credit); 609.821 (financial transaction card fraud); repeat 
 offenses under 617.23 (indecent exposure; penalties); repeat 
 offenses under 617.241 (obscene materials and performances; 
 distribution and exhibition prohibited; penalty); chapter 152 
 (drugs; controlled substance); or a felony-level conviction 
 involving alcohol or drug use. 

    (b) An individual is disqualified under section 245C.14 if 
 less than 15 years has passed since the individual's aiding and 
 abetting, attempt, or conspiracy to commit any of the offenses 
 listed in paragraph (a), as each of these offenses is defined in 
 Minnesota Statutes. 

    (c) For foster care and family child care an individual is 
 disqualified under section 245C.14 if less than 15 years has 
 passed since the individual's voluntary termination of the 
 individual's parental rights under section 260C.301, subdivision 
 1, paragraph (b), or 260C.301, subdivision 3. 

    (d) An individual is disqualified under section 245C.14 if 
 less than 15 years has passed since the discharge of the 
 sentence imposed for an offense in any other state or country, 
 the elements of which are substantially similar to the elements 
 of the offenses listed in paragraph (a). 

    (e) If the individual studied is convicted of one of the 
 felonies listed in paragraph (a), but the sentence is a gross 
 misdemeanor or misdemeanor disposition, the individual is 
 disqualified but the disqualification lookback period for the 
 conviction is the period applicable to the gross misdemeanor or 
 misdemeanor disposition. 

    (f) When a disqualification is based on a judicial 
 determination other than a conviction, the disqualification 
 period begins from the date of the court order.  When a 
 disqualification is based on an admission, the disqualification 
 period begins from the date of an admission in court.  When a 
 disqualification is based on a preponderance of evidence of a 
 disqualifying act, the disqualification date begins from the 
 date of the dismissal, the date of discharge of the sentence 
 imposed for a conviction for a disqualifying crime of similar 
 elements, or the date of the incident, whichever occurs last. 

    Subd. 3.    Ten-year disqualification.  (a) An 
 individual is disqualified under section 245C.14 if:  (1) less 
 than ten years have passed since the discharge of the sentence 
 imposed, if any, for the offense; and (2) the individual has 
 committed a gross misdemeanor-level violation of any of the 
 following offenses:  sections 256.98 (wrongfully obtaining 
 assistance); 268.182 (false representation; concealment of 
 facts); 393.07, subdivision 10, paragraph (c) (federal Food 
 Stamp Program fraud); 609.224 (assault in the fifth degree); 
 609.224, subdivision 2, paragraph (c) (assault in the fifth 
 degree by a caregiver against a vulnerable adult); 609.2242 and 
 609.2243 (domestic assault); 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); 609.265 (abduction); 
 609.275 (attempt to coerce); 609.324, subdivision 1a (other 
 prohibited acts; minor engaged in prostitution); 609.33 
 (disorderly house); 609.3451 (criminal sexual conduct in the 
 fifth degree); 609.377 (malicious punishment of a child); 
 609.378 (neglect or endangerment of a child); 609.446 (medical 
 assistance fraud); 609.52 (theft); 609.525 (bringing stolen 
 goods into Minnesota); 609.527 (identity theft); 609.53 
 (receiving stolen property); 609.535 (issuance of dishonored 
 checks); 609.582 (burglary); 609.611 (insurance fraud); 609.631 
 (check forgery; offering a forged check); 609.66 (dangerous 
 weapons); 609.71 (riot); 609.72, subdivision 3 (disorderly 
 conduct against a vulnerable adult); repeat offenses under 
 609.746 (interference with privacy); 609.749, subdivision 2 
 (harassment; stalking); 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); or violation of 
 an order for protection under section 518B.01, subdivision 14. 

    (b) An individual is disqualified under section 245C.14 if 
 less than ten years has passed since the individual's aiding and 
 abetting, attempt, or conspiracy to commit any of the offenses 
 listed in paragraph (a), as each of these offenses is defined in 
 Minnesota Statutes. 

    (c) An individual is disqualified under section 245C.14 if 
 less than ten years has passed since the discharge of the 
 sentence imposed for 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 paragraph (a). 

    (d) If the defendant is convicted of one of the gross 
 misdemeanors listed in paragraph (a), but the sentence is a 
 misdemeanor disposition, the individual is disqualified but the 
 disqualification lookback period for the conviction is the 
 period applicable to misdemeanors. 

    (e) When a disqualification is based on a judicial 
 determination other than a conviction, the disqualification 
 period begins from the date of the court order.  When a 
 disqualification is based on an admission, the disqualification 
 period begins from the date of an admission in court.  When a 
 disqualification is based on a preponderance of evidence of a 
 disqualifying act, the disqualification date begins from the 
 date of the dismissal, the date of discharge of the sentence 
 imposed for a conviction for a disqualifying crime of similar 
 elements, or the date of the incident, whichever occurs last. 

    Subd. 4.    Seven-year disqualification.  (a) An 
 individual is disqualified under section 245C.14 if:  (1) less 
 than seven years has passed since the discharge of the sentence 
 imposed, if any, for the offense; and (2) the individual has 
 committed a misdemeanor-level violation of any of the following 
 offenses:  sections 256.98 (wrongfully obtaining assistance); 
 268.182 (false representation; concealment of facts); 393.07, 
 subdivision 10, paragraph (c) (federal Food Stamp Program 
 fraud); 609.224 (assault in the fifth degree); 609.2242 
 (domestic assault); 609.2335 (financial exploitation of a 
 vulnerable adult); 609.234 (failure to report maltreatment of a 
 vulnerable adult); 609.2672 (assault of an unborn child in the 
 third degree); 609.27 (coercion); violation of an order for 
 protection under 609.3232 (protective order authorized; 
 procedures; penalties); 609.466 (medical assistance fraud); 
 609.52 (theft); 609.525 (bringing stolen goods into Minnesota); 
 609.527 (identity theft); 609.53 (receiving stolen property); 
 609.535 (issuance of dishonored checks); 609.611 (insurance 
 fraud); 609.66 (dangerous weapons); 609.665 (spring guns); 
 609.746 (interference with privacy); 609.79 (obscene or 
 harassing telephone calls); 609.795 (letter, telegram, or 
 package; opening; harassment); 609.82 (fraud in obtaining 
 credit); 609.821 (financial transaction card fraud); 617.23 
 (indecent exposure; penalties); 617.293 (harmful materials; 
 dissemination and display to minors prohibited); or violation of 
 an order for protection under section 518B.01 (Domestic Abuse 
 Act). 

    (b) An individual is disqualified under section 245C.14 if 
 less than seven years has passed since a determination or 
 disposition of the individual's: 

    (1) 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 

    (2) substantiated serious or recurring maltreatment of a 
 minor under section 626.556, a vulnerable adult under section 
 626.557, or serious or recurring maltreatment in any other 
 state, the elements of which are substantially similar to the 
 elements of maltreatment under section 626.556 or 626.557 for 
 which:  (i) there is a preponderance of evidence that the 
 maltreatment occurred, and (ii) the subject was responsible for 
 the maltreatment. 

    (c) An individual is disqualified under section 245C.14 if 
 less than seven years has passed since the individual's aiding 
 and abetting, attempt, or conspiracy to commit any of the 
 offenses listed in paragraphs (a) and (b), as each of these 
 offenses is defined in Minnesota Statutes. 

    (d) An individual is disqualified under section 245C.14 if 
 less than seven years has passed since the discharge of the 
 sentence imposed for 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 paragraphs (a) and (b). 

    (e) When a disqualification is based on a judicial 
 determination other than a conviction, the disqualification 
 period begins from the date of the court order.  When a 
 disqualification is based on an admission, the disqualification 
 period begins from the date of an admission in court.  When a 
 disqualification is based on a preponderance of evidence of a 
 disqualifying act, the disqualification date begins from the 
 date of the dismissal, the date of discharge of the sentence 
 imposed for a conviction for a disqualifying crime of similar 
 elements, or the date of the incident, whichever occurs last. 

    Subd. 5.    Mental illness.  The commissioner may not 
 disqualify an individual subject to a background study under 
 this chapter because that individual has, or has had, a mental 
 illness as defined in section 245.462, subdivision 20. 

    HIST: 2003 c 15 art 1 s 15; 1Sp2003 c 14 art 6 s 7; 2004 c 288 
 art 1 s 51-53; 2005 c 136 art 6 s 2; 1Sp2005 c 4 art 1 s 30-33 

     245C.16 Disqualified individual's risk of harm. 

    Subdivision 1.    Determining immediate risk of harm.  
 (a) 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. 

    (b) The commissioner shall consider all relevant 
 information available, including the following factors in 
 determining the immediate risk of harm: 

    (1) the recency of the disqualifying characteristic; 

    (2) the recency of discharge from probation for the crimes; 

    (3) the number of disqualifying characteristics; 

    (4) the intrusiveness or violence of the disqualifying 
 characteristic; 

    (5) the vulnerability of the victim involved in the 
 disqualifying characteristic; 

    (6) the similarity of the victim to the persons served by 
 the program where the individual studied will have direct 
 contact; and 

    (7) whether the individual has a disqualification from a 
 previous background study that has not been set aside. 

    (c) This section does not apply when the subject of a 
 background study is regulated by a health-related licensing 
 board as defined in chapter 214, and the subject is determined 
 to be responsible for substantiated maltreatment under section 
 626.556 or 626.557. 

    (d) If the commissioner has reason to believe, based on 
 arrest information or an active maltreatment investigation, that 
 an individual poses an imminent risk of harm to persons 
 receiving services, the commissioner may order that the person 
 be continuously supervised or immediately removed pending the 
 conclusion of the maltreatment investigation or criminal 
 proceedings. 

    Subd. 2.    Findings.  (a) After evaluating the 
 information immediately available under subdivision 1, the 
 commissioner may have 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; 

    (2) the individual poses a risk of harm requiring 
 continuous, direct supervision while providing direct contact 
 services during the period in which the subject may request a 
 reconsideration; or 

    (3) the individual does not pose an imminent risk of harm 
 or a risk of harm requiring continuous, direct supervision while 
 providing direct contact services during the period in which the 
 subject may request a reconsideration. 

    (b) After determining an individual's risk of harm under 
 this section, the commissioner must notify the subject of the 
 background study and the applicant or license holder as required 
 under section 245C.17. 

    Subd. 3.    County agency.  (a) County licensing 
 agencies performing duties under this section may develop an 
 alternative system for determining the subject's immediate risk 
 of harm to persons served by the program, providing the notices 
 under subdivision 2, paragraph (b), and documenting the action 
 taken by the county licensing agency. 

    (b) Each county licensing agency's implementation of the 
 alternative system is subject to approval by the commissioner. 

    (c) Notwithstanding this alternative system, county 
 licensing agencies shall complete the requirements of section 
 245C.17. 

    HIST: 2003 c 15 art 1 s 16; 2004 c 288 art 1 s 54 

     245C.17 Notice of background study results. 

    Subdivision 1.    Time frame for notice of study results. 
  (a) Within 15 working days after the commissioner's receipt 
 of the background study form, the commissioner shall notify the 
 individual who is the subject of the study in writing or by 
 electronic transmission of the results of the study or that more 
 time is needed to complete the study. 

    (b) Within 15 working days after the commissioner's receipt 
 of the background study form submitted on paper, the 
 commissioner shall notify the applicant, license holder, or 
 other entity as provided in this chapter in writing or by 
 electronic transmission of the results of the study or that more 
 time is needed to complete the study. 

    (c) Within three days after the commissioner's receipt of a 
 request for a background study submitted through the 
 commissioner's online system, the commissioner shall provide an 
 electronic notification to the applicant, license holder, or 
 other entity as provided in this chapter.  The electronic 
 notification shall disclose the results of the study or that 
 more time is needed to complete the study. 

    (d) When the commissioner has completed a prior background 
 study on an individual that resulted in an order for immediate 
 removal and more time is necessary to complete a subsequent 
 study, the notice that more time is needed that is issued under 
 paragraphs (a), (b), and (c) shall include an order for 
 immediate removal of the individual from any position allowing 
 direct contact with or access to people receiving services 
 pending completion of the background study. 

    Subd. 2.    Disqualification notice sent to subject.  
 (a) If the information in the study indicates the individual is 
 disqualified from direct contact with, or from access to, 
 persons served by the program, the commissioner shall disclose 
 to the individual studied: 

    (1) the information causing disqualification; 

    (2) instructions on how to request a reconsideration of the 
 disqualification; 

    (3) an explanation of any restrictions on the 
 commissioner's discretion to set aside the disqualification 
 under section 245C.24, when applicable to the individual; 

    (4) a statement indicating that if the individual's 
 disqualification is set aside or the facility is granted a 
 variance under section 245C.30, the individual's identity and 
 the reason for the individual's disqualification will become 
 public data under section 245C.22, subdivision 7, when 
 applicable to the individual; and 

    (5) the commissioner's determination of the individual's 
 immediate risk of harm under section 245C.16. 

    (b) If the commissioner determines under section 245C.16 
 that an individual poses an imminent risk of harm to persons 
 served by the program where the individual will have direct 
 contact, the commissioner's notice must include an explanation 
 of the basis of this determination. 

    (c) If the commissioner determines under section 245C.16 
 that an individual studied does not pose a risk of harm that 
 requires immediate removal, the individual shall be informed of 
 the conditions under which the agency that initiated the 
 background study may allow the individual to provide direct 
 contact services as provided under subdivision 3. 

    Subd. 3.    Disqualification notification.  (a) The 
 commissioner shall notify an applicant, license holder, or other 
 entity as provided in this chapter who is not the subject of the 
 study: 

    (1) that the commissioner has found information that 
 disqualifies the individual studied from direct contact with, or 
 from access to, persons served by the program; and 

    (2) the commissioner's determination of the individual's 
 risk of harm under section 245C.16. 

    (b) If the commissioner determines under section 245C.16 
 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 commissioner shall order the license 
 holder to immediately remove the individual studied from direct 
 contact. 

    (c) If the commissioner determines under section 245C.16 
 that an individual studied poses a risk of harm that requires 
 continuous, direct supervision, the commissioner shall order the 
 applicant, license holder, or other entities as provided in this 
 chapter to: 

    (1) immediately remove the individual studied from direct 
 contact services; or 

    (2) before allowing the disqualified individual to provide 
 direct contact services, the applicant, license holder, or other 
 entity, as provided in this chapter, must: 

    (i) obtain from the disqualified individual a copy of the 
 individual's notice of disqualification from the commissioner 
 that explains the reason for disqualification; 

    (ii) ensure that the individual studied is under 
 continuous, direct supervision when providing direct contact 
 services during the period in which the individual may request a 
 reconsideration of the disqualification under section 245C.21; 
 and 

    (iii) ensure that the disqualified individual requests 
 reconsideration within 30 days of receipt of the notice of 
 disqualification. 

    (d) If the commissioner determines under section 245C.16 
 that an individual studied does not pose a risk of harm that 
 requires continuous, direct supervision, the commissioner shall 
 order the applicant, license holder, or other entities as 
 provided in this chapter to: 

    (1) immediately remove the individual studied from direct 
 contact services; or 

    (2) before allowing the disqualified individual to provide 
 direct contact services, the applicant, license holder, or other 
 entity as provided in this chapter must:  

    (i) obtain from the disqualified individual a copy of the 
 individual's notice of disqualification from the commissioner 
 that explains the reason for disqualification; and 

    (ii) ensure that the disqualified individual requests 
 reconsideration within 15 days of receipt of the notice of 
 disqualification. 

    (e) The commissioner shall not notify the applicant, 
 license holder, or other entity as provided in this chapter of 
 the information contained in the subject's background study 
 unless: 

    (1) the basis for the disqualification is failure to 
 cooperate with the background study or substantiated 
 maltreatment under section 626.556 or 626.557; 

    (2) the Data Practices Act under chapter 13 provides for 
 release of the information; or 

    (3) the individual studied authorizes the release of the 
 information. 

    Subd. 4.    Disqualification notice to family child care 
 or foster care provider.  For studies on individuals 
 pertaining to a license to provide family child care or group 
 family child 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. 

    HIST: 2003 c 15 art 1 s 17; 2004 c 288 art 1 s 55,56; 2005 c 
 136 art 6 s 3-5 

     245C.18 Obligation to remove disqualified individual 
  from direct contact. 

    Upon receipt of notice from the commissioner, the license 
 holder must remove a disqualified individual from direct contact 
 with persons served by the licensed program if:  

    (1) the individual does not request reconsideration under 
 section 245C.21 within the prescribed time; 

    (2) the individual submits a timely request for 
 reconsideration, the commissioner does not set aside the 
 disqualification under section 245C.22, subdivision 4, and the 
 individual does not submit a timely request for a hearing under 
 sections 245C.27 and 256.045, or 245C.28 and chapter 14; or 

    (3) the individual submits a timely request for a hearing 
 under sections 245C.27 and 256.045, or 245C.28 and chapter 14, 
 and the commissioner does not set aside or rescind the 
 disqualification under section 245A.08, subdivision 5, or 
 256.045. 

    HIST: 2003 c 15 art 1 s 18; 2004 c 288 art 1 s 57 

     245C.19 Termination of affiliation based on 
  disqualification notice. 

    An applicant or license holder that terminates affiliation 
 with persons studied under section 245C.03, when the termination 
 is made in good faith reliance on a notice of disqualification 
 provided by the commissioner, shall not be subject to civil 
 liability. 

    HIST: 2003 c 15 art 1 s 19 

     245C.20 License holder record keeping. 

    A licensed program shall document the date the program 
 initiates a background study under this chapter in the program's 
 personnel files.  When a background study is completed under 
 this chapter, a licensed program shall maintain a notice that 
 the study was undertaken and completed in the program's 
 personnel files.  If a licensed program has not received a 
 response from the commissioner under section 245C.17 within 45 
 days of initiation of the background study request, the licensed 
 program must contact the commissioner to inquire about the 
 status of the study. 

    HIST: 2003 c 15 art 1 s 20; 2004 c 288 art 1 s 58 

     245C.21 Requesting reconsideration of disqualification. 

    Subdivision 1.    Who may request reconsideration.  An 
 individual who is the subject of a disqualification may request 
 a reconsideration of the disqualification.  The individual must 
 submit the request for reconsideration to the commissioner in 
 writing. 

    Subd. 2.    Time frame for requesting reconsideration.  
 (a) When the commissioner sends an individual a notice of 
 disqualification based on a finding under section 245C.16, 
 subdivision 2, paragraph (a), clause (1) or (2), the 
 disqualified individual must submit the request for a 
 reconsideration within 30 calendar days of the individual's 
 receipt of the notice of disqualification.  If mailed, the 
 request for reconsideration must be postmarked and sent to the 
 commissioner within 30 calendar days of the individual's receipt 
 of the notice of disqualification.  If a request for 
 reconsideration is made by personal service, it must be received 
 by the commissioner within 30 calendar days after the 
 individual's receipt of the notice of disqualification.  Upon 
 showing that the information under subdivision 3 cannot be 
 obtained within 30 days, the disqualified individual may request 
 additional time, not to exceed 30 days, to obtain the 
 information. 

    (b) When the commissioner sends an individual a notice of 
 disqualification based on a finding under section 245C.16, 
 subdivision 2, paragraph (a), clause (3), the disqualified 
 individual must submit the request for reconsideration within 15 
 calendar days of the individual's receipt of the notice of 
 disqualification.  If mailed, the request for reconsideration 
 must be postmarked and sent to the commissioner within 15 
 calendar days of the individual's receipt of the notice of 
 disqualification.  If a request for reconsideration is made by 
 personal service, it must be received by the commissioner within 
 15 calendar days after the individual's receipt of the notice of 
 disqualification. 

    (c) An individual who was determined to have maltreated a 
 child under section 626.556 or a vulnerable adult under section 
 626.557, and who is disqualified on the basis of serious or 
 recurring maltreatment, may request a reconsideration of both 
 the maltreatment and the disqualification determinations.  The 
 request must be submitted within 30 calendar days of the 
 individual's receipt of the notice of disqualification.  If 
 mailed, the request for reconsideration must be postmarked and 
 sent to the commissioner within 30 calendar days of the 
 individual's receipt of the notice of disqualification.  If a 
 request for reconsideration is made by personal service, it must 
 be received by the commissioner within 30 calendar days after 
 the individual's receipt of the notice of disqualification. 

    Subd. 3.    Information disqualified individuals must 
 provide when requesting reconsideration.  The disqualified 
 individual requesting reconsideration must submit information 
 showing that: 

    (1) the information the commissioner relied upon in 
 determining the underlying conduct that gave rise to the 
 disqualification is incorrect; 

    (2) for maltreatment, the information the commissioner 
 relied upon in determining that maltreatment was serious or 
 recurring is incorrect; or 

    (3) the subject of the study does not pose a risk of harm 
 to any person served by the applicant, license holder, or other 
 entities as provided in this chapter, by addressing the 
 information required under section 245C.22, subdivision 4. 

    Subd. 4.    Notice of request for reconsideration.  Upon 
 request, the commissioner may inform the applicant, license 
 holder, or other entities as provided in this chapter who 
 received a notice of the individual's disqualification under 
 section 245C.17, subdivision 3, or has the consent of the 
 disqualified individual, whether the disqualified individual has 
 requested reconsideration. 

    HIST: 2003 c 15 art 1 s 21; 2004 c 288 art 1 s 59,60; 1Sp2005 
 c 4 art 1 s 34 

     245C.22 Review and action on a reconsideration request. 

    Subdivision 1.    Commissioner's time frame for responding 
 to disqualification reconsideration requests.  (a) 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 the commissioner relied 
 upon to disqualify is incorrect or inaccurate within 30 working 
 days of receipt of a request and all relevant information. 

    (b) If the basis for a disqualified individual's 
 reconsideration 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. 

    (c) If the disqualified individual's reconsideration 
 request is based on both the correctness or accuracy of the 
 information the commissioner relied upon to disqualify the 
 individual and the individual's risk of harm, the commissioner 
 shall respond to the request within 45 working days after 
 receiving the request for reconsideration and all relevant 
 information. 

    Subd. 2.    Incorrect information; rescission.  The 
 commissioner shall rescind the disqualification if the 
 commissioner finds that the information relied upon to 
 disqualify the subject is incorrect. 

    Subd. 3.    Preeminent weight given to safety of persons 
 being served.  In reviewing a request for reconsideration of a 
 disqualification, the commissioner shall give preeminent weight 
 to the safety of each person served by the license holder, 
 applicant, or other entities as provided in this chapter over 
 the interests of the disqualified individual, license holder, 
 applicant, or other entity as provided in this chapter, and any 
 single factor under subdivision 4, paragraph (b), may be 
 determinative of the commissioner's decision whether to set 
 aside the individual's disqualification. 

    Subd. 4.    Risk of harm; set aside.  (a) The 
 commissioner may set aside the disqualification if the 
 commissioner finds that the individual has submitted sufficient 
 information to demonstrate that the individual does not pose a 
 risk of harm to any person served by the applicant, license 
 holder, or other entities as provided in this chapter. 

    (b) In determining whether the individual has met the 
 burden of proof by demonstrating the individual does not pose a 
 risk of harm, the commissioner shall consider: 

    (1) the nature, severity, and consequences of the event or 
 events that led to the disqualification; 

    (2) whether there is more than one disqualifying event; 

    (3) the age and vulnerability of the victim at the time of 
 the event; 

    (4) the harm suffered by the victim; 

    (5) the similarity between the victim and persons served by 
 the program; 

    (6) the time elapsed without a repeat of the same or 
 similar event; 

    (7) documentation of successful completion by the 
 individual studied of training or rehabilitation pertinent to 
 the event; and 

    (8) any other information relevant to reconsideration. 

    (c) If the individual requested reconsideration on the 
 basis that the information relied upon to disqualify the 
 individual was incorrect or inaccurate and the commissioner 
 determines that the information relied upon to disqualify the 
 individual is correct, the commissioner must also determine if 
 the individual poses a risk of harm to persons receiving 
 services in accordance with paragraph (b). 

    Subd. 5.    Scope of set aside.  If the commissioner 
 sets aside a disqualification under this section, the 
 disqualified individual remains disqualified, but may hold a 
 license and have direct contact with or access to persons 
 receiving services.  The commissioner's set aside of a 
 disqualification is limited solely to the licensed program, 
 applicant, or agency specified in the set aside notice under 
 section 245C.23, unless otherwise specified in the notice. 

    Subd. 6.    Recision of set aside.  The commissioner may 
 rescind a previous set aside of a disqualification under this 
 section based on new information that indicates the individual 
 may pose a risk of harm to persons served by the applicant, 
 license holder, or other entities as provided in this chapter.  
 If the commissioner rescinds a set aside of a disqualification 
 under this subdivision, the appeal rights under sections 
 245C.21, 245C.27, subdivision 1, and 245C.28, subdivision 3, 
 shall apply. 

    Subd. 7.    Classification of certain data.  (a) 
 Notwithstanding section 13.46, upon setting aside a 
 disqualification under this section, the identity of the 
 disqualified individual who received the set aside and the 
 individual's disqualifying characteristics are public data if 
 the set aside was: 

    (1) for any disqualifying characteristic under section 
 245C.15, when the set aside relates to a child care center or a 
 family child care provider licensed under chapter 245A; or 

    (2) for a disqualifying characteristic under section 
 245C.15, subdivision 2. 

    (b) Notwithstanding section 13.46, upon granting a variance 
 to a license holder under section 245C.30, the identity of the 
 disqualified individual who is the subject of the variance, the 
 individual's disqualifying characteristics under section 
 245C.15, and the terms of the variance are public data, when the 
 variance: 

    (1) is issued to a child care center or a family child care 
 provider licensed under chapter 245A; or 

    (2) relates to an individual with a disqualifying 
 characteristic under section 245C.15, subdivision 2. 

    (c) The identity of a disqualified individual and the 
 reason for disqualification remain private data when: 

    (1) a disqualification is not set aside and no variance is 
 granted; 

    (2) the data are not public under paragraph (a) or (b); 

    (3) the disqualification is rescinded because the 
 information relied upon to disqualify the individual is 
 incorrect; or 

    (4) the disqualification relates to a license to provide 
 relative child foster care.  As used in this clause, "relative" 
 has the meaning given it under section 260C.007, subdivision 27. 

    (d) Licensed family day care providers and child care 
 centers must notify parents considering enrollment of a child or 
 parents of a child attending the family day care or child care 
 center if the program employs or has living in the home any 
 individual who is the subject of either a set aside or variance. 

    HIST: 2003 c 15 art 1 s 22; 1Sp2003 c 14 art 6 s 6; 2004 c 288 
 art 1 s 61-64; 2005 c 136 art 6 s 6; 1Sp2005 c 4 art 1 s 35-37 

     245C.23 Commissioner's reconsideration notice. 

    Subdivision 1.    Disqualification that is rescinded or 
 set aside.  If the commissioner rescinds or sets aside a 
 disqualification, the commissioner shall notify the applicant, 
 license holder, or other entity in writing or by electronic 
 transmission of the decision.  In the notice from the 
 commissioner that a disqualification has been rescinded, the 
 commissioner must inform the applicant, license holder, or other 
 entity that the information relied upon to disqualify the 
 individual was incorrect.  In the notice from the commissioner 
 that a disqualification has been set aside, the commissioner 
 must inform the applicant, license holder, or other entity of 
 the reason for the individual's disqualification and that 
 information about which factors under section 245C.22, 
 subdivision 4, were the basis of the decision to set aside the 
 disqualification are available to the license holder upon 
 request without the consent of the background study subject. 

    Subd. 2.    Commissioner's notice of disqualification that 
 is not set aside.  (a) The commissioner shall notify the 
 license holder of the disqualification and order the license 
 holder to immediately remove the individual from any position 
 allowing direct contact with persons receiving services from the 
 license holder if:  

    (1) the individual studied does not submit a timely request 
 for reconsideration under section 245C.21; 

    (2) the individual submits a timely request for 
 reconsideration, but the commissioner does not set aside the 
 disqualification for that license holder under section 245C.22; 

    (3) an individual who has a right to request a hearing 
 under sections 245C.27 and 256.045, or 245C.28 and chapter 14 
 for a disqualification that has not been set aside, does not 
 request a hearing within the specified time; or 

    (4) an individual submitted a timely request for a hearing 
 under sections 245C.27 and 256.045, or 245C.28 and chapter 14, 
 but the commissioner does not set aside the disqualification 
 under section 245A.08, subdivision 5, or 256.045. 

    (b) If the commissioner does not set aside the 
 disqualification under section 245C.22, and the license holder 
 was previously ordered under section 245C.17 to immediately 
 remove the disqualified individual from direct contact with 
 persons receiving services or to ensure that the individual is 
 under continuous, direct supervision when providing direct 
 contact services, the order remains in effect pending the 
 outcome of a hearing under sections 245C.27 and 256.045, or 
 245C.28 and chapter 14. 

    HIST: 2003 c 15 art 1 s 23; 2004 c 288 art 1 s 65,66; 1Sp2005 
 c 4 art 1 s 38 

     245C.24 Disqualification; family child care and foster 
  care. 

    Subdivision 1.    Minimum disqualification periods.  The 
 disqualification periods under subdivisions 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 individual continues to 
 pose a risk of harm to persons served by that individual, even 
 after the minimum disqualification period has passed. 

    Subd. 2.    Permanent bar to set aside a disqualification. 
  The commissioner may not set aside the disqualification of 
 any individual disqualified pursuant to this chapter, regardless 
 of how much time has passed, if the individual was disqualified 
 for a crime or conduct listed in section 245C.15, subdivision 1. 

    Subd. 3.    Ten-year bar to set aside disqualification.  
 (a) The commissioner may not set aside the disqualification of 
 an individual in connection with a license to provide family 
 child care for children, foster care for children in the 
 provider's home, or foster care or day care services for adults 
 in the provider's home if:  (1) less than ten years has passed 
 since the discharge of the sentence imposed, if any, for the 
 offense; or (2) when disqualified based on a preponderance of 
 evidence determination under section 245A.14, subdivision 1, 
 paragraph (a), clause (2), or an admission under section 
 245A.14, subdivision 1, paragraph (a), clause (1), and less than 
 ten years has passed since the individual committed the act or 
 admitted to committing the act, whichever is later; and (3) the 
 individual has committed a violation of any of the following 
 offenses:  sections 609.165 (felon ineligible to possess 
 firearm); criminal vehicular homicide under 609.21 (criminal 
 vehicular homicide and injury); 609.215 (aiding suicide or 
 aiding attempted suicide); felony violations under 609.223 or 
 609.2231 (assault in the third or fourth degree); 609.713 
 (terroristic threats); 609.235 (use of drugs to injure or to 
 facilitate crime); 609.24 (simple robbery); 609.255 (false 
 imprisonment); 609.562 (arson in the second degree); 609.71 
 (riot); 609.498, subdivision 1 or 1b (aggravated first degree or 
 first degree tampering with a witness); 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, subdivision 2 (gross 
 misdemeanor 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); 609.23 (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 felony-level conviction involving 
 alcohol or drug use, 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); or 609.72, subdivision 3 (disorderly conduct against a 
 vulnerable adult). 

    (b) The commissioner may not set aside the disqualification 
 of an individual if less than ten years have passed since the 
 individual's aiding and abetting, attempt, or conspiracy to 
 commit any of the offenses listed in paragraph (a) as each of 
 these offenses is defined in Minnesota Statutes. 

    (c) The commissioner may not set aside the disqualification 
 of an individual if less than ten years have passed since the 
 discharge of the sentence imposed for 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 
 paragraph (a). 

    Subd. 4.    Seven-year bar to set aside disqualification. 
  The commissioner may not set aside the disqualification of an 
 individual in connection with a license to provide family child 
 care for children, foster care for children in the provider's 
 home, or foster care or day care services for adults in the 
 provider's home if within seven years preceding the study: 

    (1) the individual committed an act that constitutes 
 maltreatment of a child under section 626.556, subdivision 10e, 
 and the maltreatment 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 

    (2) 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. 

    HIST: 2003 c 15 art 1 s 24; 2005 c 136 art 6 s 7; 1Sp2005 c 4 
 art 1 s 39,40 

     245C.25 Consolidated reconsideration of maltreatment 
  determination and disqualification. 

    (a) If an individual is disqualified on the basis of a 
 determination of maltreatment under section 626.556 or 626.557, 
 which was serious or recurring, and the individual requests 
 reconsideration of the maltreatment determination under section 
 626.556, subdivision 10i, or 626.557, subdivision 9d, and also 
 requests reconsideration of the disqualification under section 
 245C.21, the commissioner shall consolidate the reconsideration 
 of the maltreatment determination and the disqualification into 
 a single reconsideration. 

    (b) For maltreatment and disqualification determinations 
 made by county agencies, the county agency shall conduct the 
 consolidated reconsideration.  If the county agency has 
 disqualified an individual on multiple bases, one of which is a 
 county maltreatment determination for which the individual has a 
 right to request reconsideration, the county shall conduct the 
 reconsideration of all disqualifications. 

    (c) If the county has previously conducted a consolidated 
 reconsideration under paragraph (b) of a maltreatment 
 determination and a disqualification based on serious or 
 recurring maltreatment, and the county subsequently disqualifies 
 the individual based on that determination, the county shall 
 conduct the reconsideration of the subsequent disqualification.  
 The scope of the subsequent disqualification shall be limited to 
 whether the individual poses a risk of harm in accordance with 
 section 245C.22, subdivision 4. 

    HIST: 2003 c 15 art 1 s 25; 2004 c 288 art 1 s 67 

     245C.26 Reconsideration of a disqualification for an 
  individual living in a licensed home. 

    In the case of any ground for disqualification under this 
 chapter, 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. 

    HIST: 2003 c 15 art 1 s 26; 2004 c 288 art 1 s 68 

     245C.27 Fair hearing rights. 

    Subdivision 1.    Fair hearing when disqualification is 
 not set aside.  (a) If the commissioner does not set aside a 
 disqualification of an individual under section 245C.22 who is 
 disqualified on the basis of a preponderance of evidence that 
 the individual committed an act or acts that meet the definition 
 of any of the crimes listed in section 245C.15; for a 
 determination under section 626.556 or 626.557 of substantiated 
 maltreatment that was serious or recurring under section 
 245C.15; or for failure to make required reports under section 
 626.556, subdivision 3; or 626.557, subdivision 3, pursuant to 
 section 245C.15, subdivision 4, paragraph (b), clause (1), the 
 individual may request a fair hearing under section 256.045, 
 unless the disqualification is deemed conclusive under section 
 245C.29. 

    (b) The fair hearing is the only administrative appeal of 
 the final agency determination for purposes of appeal by the 
 disqualified individual.  The disqualified individual does not 
 have the right to challenge the accuracy and completeness of 
 data under section 13.04. 

    (c) If the individual was disqualified based on a 
 conviction or admission to any crimes listed in section 245C.15, 
 subdivisions 1 to 4, the reconsideration decision under section 
 245C.22 is the final agency determination for purposes of appeal 
 by the disqualified individual and is not subject to a hearing 
 under section 256.045.  If the individual was disqualified based 
 on a judicial determination, that determination is treated the 
 same as a conviction for purposes of appeal. 

    (d) This subdivision does not apply to a public employee's 
 appeal of a disqualification under section 245C.28, subdivision 
 3. 

    (e) Notwithstanding paragraph (c), if the commissioner does 
 not set aside a disqualification of an individual who was 
 disqualified based on both a preponderance of evidence and a 
 conviction or admission, the individual may request a fair 
 hearing under section 256.045, unless the disqualifications are 
 deemed conclusive under section 245C.29.  The scope of the 
 hearing conducted under section 256.045 with regard to the 
 disqualification based on a conviction or admission shall be 
 limited solely to whether the individual poses a risk of harm, 
 according to section 256.045, subdivision 3b. 

    Subd. 2.    Consolidated fair hearing for maltreatment 
 determination and disqualification not set aside.  (a) If an 
 individual who is disqualified on the bases of serious or 
 recurring maltreatment requests a fair hearing on the 
 maltreatment determination under section 626.556, subdivision 
 10i, or 626.557, subdivision 9d, and requests a fair hearing 
 under this section on the disqualification, which has not been 
 set aside, the scope of the fair hearing under section 256.045 
 shall include the maltreatment determination and the 
 disqualification. 

    (b) A fair hearing is the only administrative appeal of the 
 final agency determination.  The disqualified individual does 
 not have the right to challenge the accuracy and completeness of 
 data under section 13.04. 

    (c) This subdivision does not apply to a public employee's 
 appeal of a disqualification under section 245C.28, subdivision 
 3. 

    HIST: 2003 c 15 art 1 s 27; 1Sp2003 c 14 art 6 s 6; 2004 c 288 
 art 1 s 69,70; 1Sp2005 c 4 art 1 s 41 

     245C.28 Contested case hearing rights. 

    Subdivision 1.    License holder.  (a) If a maltreatment 
 determination or a disqualification for which reconsideration 
 was requested and which was not set aside is the basis for a 
 denial of a license under section 245A.05 or a licensing 
 sanction under section 245A.07, the license holder has the right 
 to a contested case hearing under chapter 14 and Minnesota 
 Rules, parts 1400.8505 to 1400.8612. 

    (b) The license holder must submit the appeal in accordance 
 with section 245A.05 or 245A.07, subdivision 3.  As provided 
 under section 245A.08, subdivision 2a, the scope of the 
 consolidated contested case hearing must include the 
 disqualification and the licensing sanction or denial of a 
 license. 

    (c) If the disqualification was based on a determination of 
 substantiated serious or recurring maltreatment under section 
 626.556 or 626.557, the appeal must be submitted in accordance 
 with sections 245A.07, subdivision 3, and 626.556, subdivision 
 10i, or 626.557, subdivision 9d.  As provided for under section 
 245A.08, subdivision 2a, the scope of the contested case hearing 
 must include the maltreatment determination, the 
 disqualification, and the licensing sanction or denial of a 
 license.  In such cases, a fair hearing must not be conducted 
 under section 256.045. 

    Subd. 2.    Individual other than license holder.  If 
 the basis for the commissioner's denial of a license under 
 section 245A.05 or a licensing sanction under section 245A.07 is 
 a maltreatment determination or disqualification that was not 
 set aside under section 245C.22, and the disqualified subject is 
 an individual other than the license holder and upon whom a 
 background study must be conducted under section 245C.03, the 
 hearing of all parties may be consolidated into a single 
 contested case hearing upon consent of all parties and the 
 administrative law judge. 

    Subd. 3.    Employees of public employer.  (a) If the 
 commissioner does not set aside the disqualification of an 
 individual who is an employee of an employer, as defined in 
 section 179A.03, subdivision 15, the individual may request a 
 contested case hearing under chapter 14.  The request for a 
 contested case hearing must be made in writing and must be 
 postmarked and sent within 30 calendar days after the employee 
 receives notice that the disqualification has not been set 
 aside.  If the individual was disqualified based on a conviction 
 or admission to any crimes listed in section 245C.15, the scope 
 of the contested case hearing shall be limited solely to whether 
 the individual poses a risk of harm pursuant to section 245C.22. 

    (b) If the commissioner does not set aside a 
 disqualification that is based on a maltreatment determination, 
 the scope of the contested case hearing must include the 
 maltreatment determination and the disqualification.  In such 
 cases, a fair hearing must not be conducted under section 
 256.045. 

    (c) Rules adopted under this chapter may not preclude an 
 employee in a contested case hearing for a disqualification from 
 submitting evidence concerning information gathered under this 
 chapter. 

    (d) When an individual has been disqualified from multiple 
 licensed programs and the disqualifications have not been set 
 aside under section 245C.22, if at least one of the 
 disqualifications entitles the person to a contested case 
 hearing under this subdivision, the scope of the contested case 
 hearing shall include all disqualifications from licensed 
 programs which were not set aside. 

    (e) In determining whether the disqualification should be 
 set aside, the administrative law judge shall consider all of 
 the characteristics that cause the individual to be disqualified 
 in order to determine whether the individual poses a risk of 
 harm.  The administrative law judge's recommendation and the 
 commissioner's order to set aside a disqualification that is the 
 subject of the hearing constitutes a determination that the 
 individual does not pose a risk of harm and that the individual 
 may provide direct contact services in the individual program 
 specified in the set aside. 

    Subd. 4.    Final agency order.  The commissioner's 
 final order under section 245A.08, subdivision 5, is conclusive 
 on the issue of maltreatment and disqualification, including for 
 purposes of subsequent background studies.  The contested case 
 hearing under this section is the only administrative appeal of 
 the final agency determination, specifically, including a 
 challenge to the accuracy and completeness of data under section 
 13.04. 

    HIST: 2003 c 15 art 1 s 28; 2004 c 288 art 1 s 71-73; 1Sp2005 
 c 4 art 1 s 42 

     245C.29 Conclusive determinations or dispositions. 

    Subdivision 1.    Conclusive maltreatment determination or 
 disposition.  Unless otherwise specified in statute, a 
 maltreatment determination or disposition under section 626.556 
 or 626.557 is conclusive, if: 

    (1) the commissioner has issued a final order in an appeal 
 of that determination or disposition under section 245A.08, 
 subdivision 5, or 256.045; 

    (2) the individual did not request reconsideration of the 
 maltreatment determination or disposition under section 626.556 
 or 626.557; or 

    (3) the individual did not request a hearing of the 
 maltreatment determination or disposition under section 256.045. 

    Subd. 2.    Conclusive disqualification determination.  
 (a) Unless otherwise specified in statute, a determination that: 

    (1) the information the commissioner relied upon to 
 disqualify an individual under section 245C.14 was correct based 
 on serious or recurring maltreatment; 

    (2) a preponderance of the evidence shows that the 
 individual committed an act or acts that meet the definition of 
 any of the crimes listed in section 245C.15; or 

    (3) the individual failed to make required reports under 
 section 626.556, subdivision 3, or 626.557, subdivision 3, is 
 conclusive if: 

    (i) the commissioner has issued a final order in an appeal 
 of that determination under section 245A.08, subdivision 5, or 
 256.045, or a court has issued a final decision; 

    (ii) the individual did not request reconsideration of the 
 disqualification under section 245C.21; or 

    (iii) the individual did not request a hearing on the 
 disqualification under section 256.045 or chapter 14. 

    (b) When a licensing action under section 245A.05, 245A.06, 
 or 245A.07 is based on the disqualification of an individual in 
 connection with a license to provide family child care, foster 
 care for children in the provider's own home, or foster care 
 services for adults in the provider's own home, that 
 disqualification shall be conclusive for purposes of the 
 licensing action if a request for reconsideration was not 
 submitted within 30 calendar days of the individual's receipt of 
 the notice of disqualification. 

    (c) If a determination that the information relied upon to 
 disqualify an individual was correct and is conclusive under 
 this section, and the individual is subsequently disqualified 
 under section 245C.15, the individual has a right to request 
 reconsideration on the risk of harm under section 245C.21.  
 Subsequent determinations regarding the risk of harm shall be 
 made according to section 245C.22 and are not subject to another 
 hearing under section 256.045 or chapter 14. 

    HIST: 2003 c 15 art 1 s 29; 2004 c 288 art 1 s 74 

     245C.30 Variance for a disqualified individual. 

    Subdivision 1.    License holder variance.  (a) Except 
 for any disqualification under section 245C.15, subdivision 1, 
 when the commissioner has not set aside a background study 
 subject's disqualification, and there are conditions under which 
 the disqualified individual may provide direct contact services 
 or have access to people receiving services that minimize the 
 risk of harm to people receiving services, the commissioner may 
 grant a time-limited variance to a license holder. 

    (b) The variance shall state the reason for the 
 disqualification, the services that may be provided by the 
 disqualified individual, and the conditions with which the 
 license holder or applicant must comply for the variance to 
 remain in effect. 

    (c) Except for programs licensed to provide family child 
 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 variance must be requested by the license holder. 

    Subd. 2.    Disclosure of reason for disqualification.  
 (a) The commissioner may not grant a variance for a disqualified 
 individual unless the applicant or license holder requests the 
 variance and the disqualified individual provides written 
 consent for the commissioner to disclose to the applicant or 
 license holder the reason for the disqualification. 

    (b) This subdivision does not apply to programs licensed to 
 provide family child 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.  When the commissioner 
 grants a variance for a disqualified individual in connection 
 with a license to provide the services specified in this 
 paragraph, the disqualified individual's consent is not required 
 to disclose the reason for the disqualification to the license 
 holder in the variance issued under subdivision 1.  

    Subd. 3.    Consequences for failing to comply with 
 conditions of variance.  When a license holder permits a 
 disqualified individual to provide any services for which the 
 subject is disqualified without complying with the conditions of 
 the variance, the commissioner may terminate the variance 
 effective immediately and subject the license holder to a 
 licensing action under sections 245A.06 and 245A.07. 

    Subd. 4.    Termination of a variance.  The commissioner 
 may terminate a variance for a disqualified individual at any 
 time for cause. 

    Subd. 5.    Final decision.  The commissioner's decision 
 to grant or deny a variance is final and not subject to appeal 
 under the provisions of chapter 14. 

    HIST: 2003 c 15 art 1 s 30; 1Sp2005 c 4 art 1 s 43,44 

     245C.301 Notification of set-aside or variance. 

    Licensed family child care providers and child care centers 
 must provide a written notification to parents considering 
 enrollment of a child or parents of a child attending the family 
 child care or child care center if the program employs or has 
 living in the home any individual who is the subject of either a 
 set-aside or variance. 

    HIST: 1Sp2005 c 4 art 1 s 45 

     245C.31 Disqualification of individual regulated by a 
  health-related licensing board when disqualification based on 
  substantiated maltreatment. 

    Subdivision 1.    Board determines disciplinary or 
 corrective action.  (a) When the subject of a background study 
 is regulated by a health-related licensing board as defined in 
 chapter 214, and the commissioner determines that the regulated 
 individual is responsible for substantiated maltreatment under 
 section 626.556 or 626.557, instead of the commissioner making a 
 decision regarding disqualification, the board shall make a 
 determination whether to impose disciplinary or corrective 
 action under chapter 214. 

    (b) This section does not apply to a background study of an 
 individual regulated by a health-related licensing board if the 
 individual's study is related to child foster care, adult foster 
 care, or family child care licensure. 

    Subd. 2.    Commissioner's notice to board.  (a) The 
 commissioner shall notify the health-related licensing board: 

    (1) upon completion of a background study that produces a 
 record showing that the individual was determined to have been 
 responsible for substantiated maltreatment; 

    (2) upon the commissioner's completion of an investigation 
 that determined the individual was responsible for substantiated 
 maltreatment; or 

    (3) upon receipt from another agency of a finding of 
 substantiated maltreatment for which the individual was 
 responsible. 

    (b) The commissioner's notice to the health-related 
 licensing board shall indicate whether the commissioner would 
 have disqualified the individual for the substantiated 
 maltreatment if the individual were not regulated by the board. 

    (c) The commissioner shall concurrently send the notice 
 under this subdivision to the individual who is the subject of 
 the background study. 

    Subd. 3.    Commissioner's or local agency's referral to 
 board.  (a) When the commissioner or a local agency has reason 
 to believe that the direct contact services provided by an 
 individual may fall within the jurisdiction of a health-related 
 licensing board, the commissioner or local agency shall refer 
 the matter to the board as provided in this section. 

    (b) If, upon review of the information provided by the 
 commissioner, a health-related licensing board informs the 
 commissioner that the board does not have jurisdiction to take 
 disciplinary or corrective action, the commissioner shall make 
 the appropriate disqualification decision regarding the 
 individual as otherwise provided in this chapter. 

    Subd. 4.    Facility monitoring.  (a) The commissioner 
 has the authority to monitor the facility's compliance with any 
 requirements that the health-related licensing board places on 
 regulated individuals practicing in a facility either during the 
 period pending a final decision on a disciplinary or corrective 
 action or as a result of a disciplinary or corrective action.  
 The commissioner has the authority to order the immediate 
 removal of a regulated individual from direct contact or access 
 when a board issues an order of temporary suspension based on a 
 determination that the regulated individual poses an immediate 
 risk of harm to persons receiving services in a licensed 
 facility. 

    (b) A facility that allows a regulated individual to 
 provide direct contact services while not complying with the 
 requirements imposed by the health-related licensing board is 
 subject to action by the commissioner as specified under 
 sections 245A.06 and 245A.07. 

    (c) The commissioner shall notify a health-related 
 licensing board immediately upon receipt of knowledge of a 
 facility's or individual's noncompliance with requirements the 
 board placed on a facility or upon an individual regulated by 
 the board. 

    HIST: 2003 c 15 art 1 s 31 

     245C.32 Systems and records. 

    Subdivision 1.    Establishment.  The commissioner may 
 establish systems and records to fulfill the requirements of 
 this chapter. 

    Subd. 2.    Use.  (a) The commissioner may also use 
 these systems and records to obtain and provide criminal history 
 data from the Bureau of Criminal Apprehension, criminal history 
 data held by the commissioner, and data about substantiated 
 maltreatment under section 626.556 or 626.557, for other 
 purposes, provided that: 

    (1) the background study is specifically authorized in 
 statute; or 

    (2) the request is made with the informed consent of the 
 subject of the study as provided in section 13.05, subdivision 4.

    (b) An individual making a request under paragraph (a), 
 clause (2), must agree in writing not to disclose the data to 
 any other individual without the consent of the subject of the 
 data. 

    (c) The commissioner may recover the cost of obtaining and 
 providing background study data by charging the individual or 
 entity requesting the study a fee of no more than $20 per 
 study.  The fees collected under this paragraph are appropriated 
 to the commissioner for the purpose of conducting background 
 studies. 

    Subd. 3.    National records search.  (a) When 
 specifically required by statute, the commissioner shall also 
 obtain criminal history data from the National Criminal Records 
 Repository. 

    (b) To obtain criminal history data from the National 
 Criminal Records Repository, the commissioner shall require 
 classifiable fingerprints of the data subject and must submit 
 these fingerprint requests through the Bureau of Criminal 
 Apprehension. 

    (c) The commissioner may require the background study 
 subject to submit fingerprint images electronically.  The 
 commissioner may not require electronic fingerprint images until 
 the electronic recording and transfer system is available for 
 noncriminal justice purposes and the necessary equipment is in 
 use in the law enforcement agency in the background study 
 subject's local community. 

    (d) The commissioner may recover the cost of obtaining and 
 providing criminal history data from the National Criminal 
 Records Repository by charging the individual or entity 
 requesting the study a fee of no more than $30 per study.  The 
 fees collected under this subdivision are appropriated to the 
 commissioner for the purpose of obtaining criminal history data 
 from the National Criminal Records Repository. 

    HIST: 2003 c 12 art 2 s 4; 2003 c 15 art 1 s 32; 1Sp2005 c 4 
 art 5 s 9