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Minnesota Legislature

Office of the Revisor of Statutes

CHAPTER 245C. HUMAN SERVICES BACKGROUND STUDIES

Table of Sections
SectionHeadnote
245C.01TITLE.
245C.02DEFINITIONS.
245C.03BACKGROUND STUDY; INDIVIDUALS TO BE STUDIED.
245C.04WHEN BACKGROUND STUDY MUST OCCUR.
245C.05BACKGROUND STUDY; INFORMATION AND DATA PROVIDED TO COMMISSIONER.
245C.06Repealed, 2007 c 112 s 59
245C.07245C.07 STUDY SUBJECT AFFILIATED WITH MULTIPLE FACILITIES.
245C.08BACKGROUND STUDY; COMMISSIONER REVIEWS.
245C.09FAILURE OR REFUSAL TO COOPERATE WITH BACKGROUND STUDY.
245C.10BACKGROUND STUDY; FEES.
245C.11BACKGROUND STUDY; COUNTY AGENCIES.
245C.12245C.12 BACKGROUND STUDY; TRIBAL ORGANIZATIONS.
245C.13BACKGROUND STUDY PROCESSING.
245C.14DISQUALIFICATION.
245C.15DISQUALIFYING CRIMES OR CONDUCT.
245C.16DISQUALIFIED INDIVIDUAL'S RISK OF HARM.
245C.17NOTICE OF BACKGROUND STUDY RESULTS.
245C.18OBLIGATION TO REMOVE DISQUALIFIED INDIVIDUAL FROM DIRECT CONTACT.
245C.19TERMINATION OF AFFILIATION BASED ON DISQUALIFICATION NOTICE.
245C.20LICENSE HOLDER RECORD KEEPING.
245C.21REQUESTING RECONSIDERATION OF DISQUALIFICATION.
245C.22REVIEW AND ACTION ON A RECONSIDERATION REQUEST.
245C.23COMMISSIONER'S RECONSIDERATION NOTICE.
245C.24DISQUALIFICATION; BAR TO SET ASIDE A DISQUALIFICATION; REQUEST FOR VARIANCE.
245C.25CONSOLIDATED RECONSIDERATION OF MALTREATMENT DETERMINATION AND DISQUALIFICATION.
245C.26RECONSIDERATION OF A DISQUALIFICATION FOR AN INDIVIDUAL LIVING IN A LICENSED HOME.
245C.27FAIR HEARING RIGHTS.
245C.28CONTESTED CASE HEARING RIGHTS.
245C.29CONCLUSIVE DETERMINATIONS OR DISPOSITIONS.
245C.30VARIANCE FOR A DISQUALIFIED INDIVIDUAL.
245C.301245C.301 NOTIFICATION OF SET-ASIDE OR VARIANCE.
245C.31INDIVIDUAL REGULATED BY A HEALTH-RELATED LICENSING BOARD; DISQUALIFICATION BASED ON MALTREATMENT.
245C.32SYSTEMS AND RECORDS.
245C.33245C.33 ADOPTION BACKGROUND STUDY REQUIREMENTS.
245C.34245C.34 ADOPTION AND CHILD FOSTER CARE BACKGROUND STUDIES; TRIBAL ORGANIZATIONS.
245C.01 TITLE.
This chapter may be cited as the "Department of Human Services Background Studies Act."
History: 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. 9a. Conviction. "Conviction" has the meaning given in section 609.02, subdivision 5.
    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. 14a. Private agency. "Private agency" has the meaning given in section 245A.02,
subdivision 12
.
    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.
History: 2003 c 15 art 1 s 2; 2004 c 288 art 1 s 38; 2007 c 112 s 26; 2007 c 147 art 3 s 5
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.
History: 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 adult foster care,
family adult day services, and family child 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) From July 1, 2007, to June 30, 2009, the commissioner of human services shall conduct a
study of an individual required to be studied under section 245C.03, at the time of reapplication
for a child foster care license. The county or private agency shall collect and forward to the
commissioner the information required under section 245C.05, subdivisions 1, paragraphs (a)
and (b), and 5, paragraphs (a) and (b). The background study conducted by the commissioner of
human services under this paragraph must include a review of the information required under
section 245C.08, subdivisions 1, paragraph (a), clauses (1) to (5), 3, and 4.
    (e) The commissioner of human services shall conduct a background study of an individual
specified under section 245C.03, subdivision 1, paragraph (a), clauses (2) to (6), who is newly
affiliated with a child foster care license holder. The county or private agency shall collect and
forward to the commissioner the information required under section 245C.05, subdivisions 1 and
5. The background study conducted by the commissioner of human services under this paragraph
must include a review of the information required under section 245C.08, subdivisions 1, 3, and 4.
    (f) 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.
    (g) 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.
History: 2003 c 15 art 1 s 4; 2007 c 147 art 3 s 6
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 or initiated 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.
    (c) Every subject of a background study related to private agency adoptions or related to
child foster care licensed through a private agency, who is 18 years of age or older, shall also
provide the commissioner a signed consent for the release of any information received from
national crime information databases to the private agency that initiated the background study.
    (d) The subject of a background study shall provide fingerprints as required in subdivision 5,
paragraph (c).
    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. 2a. County or private agency. For background studies related to child foster care,
county and private agencies must collect the information under subdivision 1 and forward it
to the commissioner.
    Subd. 3. Additional information from individual studied. (a) For purposes of completing
the background study, the commissioner may request the individual's Social Security number or
race. The individual is not required to provide this information to the commissioner.
    (b) The commissioner may also require additional information if the commissioner
determines the information is necessary to complete the background study. Failure to provide the
required information may result in a disqualification pursuant to section 245C.09.
    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;
    (2) background study results to the license holder; and
    (3) background study results to county and private agencies for background studies
conducted by the commissioner for child foster care.
    Subd. 5. Fingerprints. (a) Except as provided in paragraph (c), 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 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.
    (c) Except as specified under section 245C.04, subdivision 1, paragraph (d), for background
studies conducted by the commissioner for child foster care or adoptions, the subject of the
background study, who is 18 years of age or older, shall provide the commissioner with a set of
classifiable fingerprints obtained from an authorized agency.
    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 programs.
History: 2003 c 15 art 1 s 5; 1Sp2003 c 14 art 6 s 5; 2004 c 288 art 1 s 41-44; 2007 c
112 s 27; 2007 c 147 art 3 s 7-11
245C.06 [Repealed, 2007 c 112 s 59]
245C.07 STUDY SUBJECT AFFILIATED WITH MULTIPLE FACILITIES.
    (a) When a license holder, applicant, or other entity owns multiple programs or services that
are licensed by the Department of Human Services, Department of Health, or Department of
Corrections, only one background study is required for an individual who provides direct contact
services in one or more of the licensed programs or services 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
or services 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 or services and,
if so, at which location or locations.
    (b) When a background study is being initiated by a licensed program or service or a foster
care provider that is also registered under chapter 144D, a study subject affiliated with multiple
licensed programs or services may attach to the background study form a cover letter indicating
the additional names of the programs or services, addresses, and background study identification
numbers.
    When the commissioner receives a notice, the commissioner shall notify each program or
service identified by the background study subject of the study results.
    The background study notice the commissioner sends to the subsequent agencies shall satisfy
those programs' or services' responsibilities for initiating a background study on that individual.
History: 2003 c 15 art 1 s 7; 1Sp2005 c 4 art 1 s 27; 2007 c 112 s 28
245C.08 BACKGROUND STUDY; 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 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);
    (4) information from the Bureau of Criminal Apprehension;
    (5) except as provided in clause (6), information from the national crime information system
when the commissioner has reasonable cause as defined under section 245C.05, subdivision 5; and
    (6) for a background study related to a child foster care application for licensure or adoptions,
the commissioner shall also review:
    (i) information from the child abuse and neglect registry for any state in which the
background study subject has resided for the past five years; and
    (ii) information from national crime information databases, when the background study
object is 18 years of age or older.
    (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 agency. (a) For a background study
conducted by a county agency for adult foster care, family adult day services, and family child
care services, 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); and
    (3) information from the Bureau of Criminal Apprehension.
    (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 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;
    (9) the Federal Bureau of Investigation;
    (10) the National Criminal Records Repository; and
    (11) criminal records from other states.
    (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) Juvenile courts shall provide orders of involuntary and voluntary termination of parental
rights under section 260C.301 to the commissioner upon request for purposes of conducting a
background study under this chapter.
History: 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; 2007 c 112 s 29; 2007 c 147 art 3 s 12,13
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, including failure to provide
additional information required under section 245C.05, 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.
History: 2003 c 15 art 1 s 9; 2004 c 288 art 1 s 48; 2007 c 112 s 30
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.
    Subd. 4. Temporary personnel agencies, educational programs, and professional
services agencies. The commissioner shall recover the cost of the background studies initiated
by temporary personnel agencies, educational programs, and professional services agencies that
initiate background studies under section 245C.03, subdivision 4, 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.
History: 2003 c 15 art 1 s 10; 1Sp2005 c 4 art 5 s 7,8; 2007 c 147 art 3 s 14
245C.11 BACKGROUND STUDY; COUNTY AGENCIES.
    Subdivision 1. Adult 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 an adult foster care provider that is licensed in more than one
county, criminal conviction data may be shared among those counties in which the adult 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 adult 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.
    Subd. 4. Background study. 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, for educational programs that train individuals by providing direct
contact services in licensed programs.
History: 2003 c 15 art 1 s 11; 2007 c 112 s 31; 2007 c 147 art 3 s 15,16
245C.12 BACKGROUND STUDY; TRIBAL ORGANIZATIONS.
    (a) 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.
    (b) Tribal organizations may contract with the commissioner to obtain background study
data on individuals under tribal jurisdiction related to adoptions according to section 245C.34.
Tribal organizations may also contract with the commissioner to obtain background study data on
individuals under tribal jurisdiction related to child foster care according to section 245C.34.
History: 2003 c 15 art 1 s 12; 2007 c 147 art 3 s 17
245C.13 BACKGROUND STUDY 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 245C.17, subdivision 1, paragraph (b) or (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.
History: 2003 c 15 art 1 s 13; 2004 c 288 art 1 s 49; 2005 c 136 art 6 s 1; 2007 c 112 s 32
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, admission to, or Alford plea 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.
History: 2003 c 15 art 1 s 14; 2004 c 288 art 1 s 50; 2007 c 112 s 33
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 243.166 (violation
of predatory offender registration law); 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); a felony offense under 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; 609.2247
(domestic assault by strangulation); 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); 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); 617.23, subdivision 2, clause
(1), or subdivision 3, clause (1) (indecent exposure involving a minor); 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.
    (e) If the individual studied commits one of the offenses listed in paragraph (a) that
is specified as a felony-level only offense, but the sentence or level of offense is a gross
misdemeanor or misdemeanor, the individual is disqualified, but the disqualification look-back
period for the offense is the period applicable to gross misdemeanor or misdemeanor offenses.
    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); 609.229 (crimes committed for benefit of a gang);
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); 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); 609.59 (possession of burglary tools);
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); 617.23 (indecent exposure), not involving a minor; repeat offenses under
617.241 (obscene materials and performances; distribution and exhibition prohibited; penalty);
624.713 (certain persons not to possess firearms); 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 commits one of the offenses listed in paragraph (a), but the
sentence or level of offense is a gross misdemeanor or misdemeanor, the individual is disqualified
but the disqualification look-back period for the offense 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); 609.21 (criminal vehicular homicide and injury); 609.221 or 609.222
(assault in the first or second degree); 609.223 or 609.2231 (assault in the third or fourth degree);
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); 609.377
(malicious punishment of a child); 609.378 (neglect or endangerment of a child); 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); 609.582 (burglary); 609.59 (possession of burglary tools); 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); 609.82 (fraud
in obtaining credit); 609.821 (financial transaction card fraud); 617.23 (indecent exposure), not
involving a minor; 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 individual studied commits one of the offenses listed in paragraph (a), but the
sentence or level of offense is a misdemeanor disposition, the individual is disqualified but the
disqualification lookback period for the offense 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); 609.21 (criminal vehicular homicide and injury); 609.221 (assault in the first
degree); 609.222 (assault in the second degree); 609.223 (assault in the third degree); 609.2231
(assault in the fourth degree); 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), not involving a minor;
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.
    (f) An individual is disqualified under section 245C.14 if less than seven years has passed
since the individual was disqualified under section 256.98, subdivision 8.
    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.
History: 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; 2006 c 212 art 3 s 17; 2007 c 112 s 34-37
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
with, or access to, people receiving services.
    (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;
    (7) whether the individual has a disqualification from a previous background study that
has not been set aside; and
    (8) if the individual has a disqualification which may not be set aside because it is a
permanent bar under section 245C.24, subdivision 1, the commissioner may order the immediate
removal of the individual from any position allowing direct contact with, or access to, persons
receiving services from the program.
    (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) This section does not apply to a background study related to an initial application for
a child foster care license.
    (e) 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.
History: 2003 c 15 art 1 s 16; 2004 c 288 art 1 s 54; 2007 c 112 s 38; 2007 c 147 art 3 s 18
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 with, or access to, people receiving services, 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
have direct contact with, or access to, people receiving 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
being in a position allowing direct contact with, or access to, people 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 with, or access to, people served by the program, the commissioner shall order the
license holder to immediately remove the individual studied from any position allowing direct
contact with, or access to, people served by the program.
    (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 any position allowing direct contact
with, or access to, people receiving services; or
    (2) before allowing the disqualified individual to be in a position allowing direct contact
with, or access to, people receiving 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 in a
position allowing direct contact with, or access to, people receiving 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 any position allowing direct contact
with, or access to, people receiving services; or
    (2) before allowing the disqualified individual to be in any position allowing direct contact
with, or access to, people receiving 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.
    Subd. 5. Notice to county or private agency. For studies on individuals related to a license
to provide child foster care, the commissioner shall also provide a notice of the background study
results to the county or private agency that initiated the background study.
History: 2003 c 15 art 1 s 17; 2004 c 288 art 1 s 55,56; 2005 c 136 art 6 s 3-5; 2007 c
112 s 39,40; 2007 c 147 art 3 s 19
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.
History: 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.
History: 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.
History: 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. 1a. Submission of reconsideration request to county or private agency. (a) For
disqualifications related to studies conducted by county agencies, and for disqualifications related
to studies conducted by the commissioner for child foster care, the individual shall submit the
request for reconsideration to the county or private agency that initiated the background study.
    (b) A reconsideration request shall be submitted within 30 days of the individual's receipt of
the disqualification notice or the time frames specified in subdivision 2, whichever time frame
is shorter.
    (c) The county or private agency shall forward the individual's request for reconsideration
and provide the commissioner with a recommendation whether to set aside the individual's
disqualification.
    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.
    (d) Except for family child care and child foster care, reconsideration of a maltreatment
determination under sections 626.556, subdivision 10i, and 626.557, subdivision 9d, and
reconsideration of a disqualification under section 245C.22, shall not be conducted when:
    (1) a denial of a license under section 245A.05, or a licensing sanction under section
245A.07, is based on a determination that the license holder is responsible for maltreatment or the
disqualification of a license holder based on serious or recurring maltreatment;
    (2) the denial of a license or licensing sanction is issued at the same time as the maltreatment
determination or disqualification; and
    (3) the license holder appeals the maltreatment determination, disqualification, and denial of
a license or licensing sanction. In such cases, a fair hearing under section 256.045 must not be
conducted under sections 245C.27, 626.556, subdivision 10i, and 626.557, subdivision 9d. Under
section 245A.08, subdivision 2a, the scope of the consolidated contested case hearing must include
the maltreatment determination, disqualification, and denial of a license or licensing sanction.
    Notwithstanding clauses (1) to (3), if the license holder appeals the maltreatment
determination or disqualification, but does not appeal the denial of a license or a licensing
sanction, reconsideration of the maltreatment determination shall be conducted under sections
626.556, subdivision 10i, and 626.557, subdivision 9d, and reconsideration of the disqualification
shall be conducted under section 245C.22. In such cases, a fair hearing shall also be conducted as
provided under sections 245C.27, 626.556, subdivision 10i, and 626.557, subdivision 9d.
    Subd. 3. Disqualified individuals; information for reconsideration. (a) 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.
    (b) In order to determine the individual's risk of harm, the commissioner may require
additional information from the disqualified individual as part of the reconsideration process.
If the individual fails to provide the required information, the commissioner may deny the
individual's request.
    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.
History: 2003 c 15 art 1 s 21; 2004 c 288 art 1 s 59,60; 1Sp2005 c 4 art 1 s 34; 2007 c
112 s 41,42; 2007 c 147 art 3 s 20
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) vulnerability of persons served by the program;
    (6) the similarity between the victim and persons served by the program;
    (7) the time elapsed without a repeat of the same or similar event;
    (8) documentation of successful completion by the individual studied of training or
rehabilitation pertinent to the event; and
    (9) 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. For personal
care provider organizations, the commissioner's set-aside may further be limited to a specific
individual who is receiving services.
    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 child care providers and child care centers must provide notices as
required under section 245C.301.
(e) Notwithstanding paragraphs (a) and (b), the identity of household members who are the
subject of a disqualification related set-aside or variance is not public data if:
(1) the household member resides in the residence where the family child care is provided;
(2) the subject of the set-aside or variance is under the age of 18 years; and
(3) the set-aside or variance only relates to a disqualification under section 245C.15,
subdivision 4, for a misdemeanor-level theft crime as defined in section 609.52.
History: 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; 2006 c 264 s 9; 2007 c 112 s 43,44
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.
    (c) For background studies related to child foster care, the commissioner shall also notify the
county or private agency that initiated the study of the results of the reconsideration.
History: 2003 c 15 art 1 s 23; 2004 c 288 art 1 s 65,66; 1Sp2005 c 4 art 1 s 38; 2007 c
147 art 3 s 21
245C.24 DISQUALIFICATION; BAR TO SET ASIDE A DISQUALIFICATION;
REQUEST FOR VARIANCE.
    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. (a) Except as provided in paragraph
(b), 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.
(b) For an individual in the chemical dependency field who was disqualified for a crime or
conduct listed under section 245C.15, subdivision 1, and whose disqualification was set aside prior
to July 1, 2005, the commissioner must consider granting a variance pursuant to section 245C.30
for the license holder for a program dealing primarily with adults. A request for reconsideration
evaluated under this paragraph must include a letter of recommendation from the license holder
that was subject to the prior set-aside decision addressing the individual's quality of care to
children or vulnerable adults and the circumstances of the individual's departure from that service.
    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 245C.14, subdivision 1, paragraph (a), clause (2), or an
admission under section 245C.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); 609.229 (crimes
committed for benefit of a gang); 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); repeat offenses under 617.23 (indecent exposure);
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); 609.72,
subdivision 3
(disorderly conduct against a vulnerable adult); or 624.713 (certain persons not
to possess firearms).
    (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.
History: 2003 c 15 art 1 s 24; 2005 c 136 art 6 s 7; 1Sp2005 c 4 art 1 s 39,40; 2006 c
264 s 10; 2007 c 112 s 45
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.
History: 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.
History: 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) Except as provided under paragraph (e), if the individual was disqualified based on a
conviction or admission to any crimes listed in section 245C.15, subdivisions 1 to 4, or for a
disqualification under section 256.98, subdivision 8, 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. In this case, the reconsideration decision under section 245C.22
is not the final agency decision for purposes of appeal by the disqualified individual.
    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.
History: 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; 2007 c 112 s 46
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. The license holder must submit the appeal under section 245A.05 or 245A.07,
subdivision 3
.
    (b) As provided under section 245A.08, subdivision 2a, if the denial of a license or licensing
sanction is based on a disqualification for which reconsideration was requested and was not set
aside, the scope of the consolidated contested case hearing must include:
    (1) the disqualification, to the extent the license holder otherwise has a hearing right on the
disqualification under this chapter; and
    (2) the licensing sanction or denial of a license.
    (c) As provided for under section 245A.08, subdivision 2a, if the denial of a license or
licensing sanction is based on a determination of maltreatment under section 626.556 or 626.557,
or a disqualification for serious or recurring maltreatment which was not set aside, the scope
of the contested case hearing must include:
    (1) the maltreatment determination, if the maltreatment is not conclusive under section
245C.29;
    (2) the disqualification, if the disqualification is not conclusive under section 245C.29; and
    (3) the licensing sanction or denial of a license. In such cases, a fair hearing must not
be conducted under section 256.045. 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 under sections 245A.07, subdivision 3, and 626.556, subdivision 10i, or 626.557,
subdivision 9d
.
    (d) Except for family child care and child foster care, reconsideration of a maltreatment
determination under sections 626.556, subdivision 10i, and 626.557, subdivision 9d, and
reconsideration of a disqualification under section 245C.22, must not be conducted when:
    (1) a denial of a license under section 245A.05, or a licensing sanction under section
245A.07, is based on a determination that the license holder is responsible for maltreatment or the
disqualification of a license holder based on serious or recurring maltreatment;
    (2) the denial of a license or licensing sanction is issued at the same time as the maltreatment
determination or disqualification; and
    (3) the license holder appeals the maltreatment determination, disqualification, and denial of
a license or licensing sanction. In such cases a fair hearing under section 256.045 must not be
conducted under sections 245C.27, 626.556, subdivision 10i, and 626.557, subdivision 9d. Under
section 245A.08, subdivision 2a, the scope of the consolidated contested case hearing must include
the maltreatment determination, disqualification, and denial of a license or licensing sanction.
    Notwithstanding clauses (1) to (3), if the license holder appeals the maltreatment
determination or disqualification, but does not appeal the denial of a license or a licensing
sanction, reconsideration of the maltreatment determination shall be conducted under sections
626.556, subdivision 10i, and 626.557, subdivision 9d, and reconsideration of the disqualification
shall be conducted under section 245C.22. In such cases, a fair hearing shall also be conducted as
provided under sections 245C.27, 626.556, subdivision 10i, and 626.557, subdivision 9d.
    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.
History: 2003 c 15 art 1 s 28; 2004 c 288 art 1 s 71-73; 1Sp2005 c 4 art 1 s 42; 2007
c 112 s 47
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.
History: 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.
History: 2003 c 15 art 1 s 30; 1Sp2005 c 4 art 1 s 43,44
245C.301 NOTIFICATION OF SET-ASIDE OR VARIANCE.
    (a) Except as provided under paragraphs (b) and (c), if required by the commissioner,
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.
    (b) Notwithstanding paragraph (a), family child care license holders are not required to
disclose that the program has an individual living in the home who is the subject of a set-aside
or variance if:
    (1) the household member resides in the residence where the family child care is provided;
    (2) the subject of the set-aside or variance is under the age of 18 years; and
    (3) the set-aside or variance relates to a disqualification under section 245C.15, subdivision
4, for a misdemeanor-level theft crime as defined in section 609.52.
    (c) The notice specified in paragraph (a) is not required when the period of disqualification in
section 245C.15, subdivisions 2 to 4, has been exceeded.
History: 1Sp2005 c 4 art 1 s 45; 2006 c 264 s 11; 2007 c 112 s 48
245C.31 INDIVIDUAL REGULATED BY A HEALTH-RELATED LICENSING BOARD;
DISQUALIFICATION BASED ON 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.
History: 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.
History: 2003 c 12 art 2 s 4; 2003 c 15 art 1 s 32; 1Sp2005 c 4 art 5 s 9
245C.33 ADOPTION BACKGROUND STUDY REQUIREMENTS.
    Subdivision 1. Background studies conducted by commissioner. Before placement of a
child for purposes of adoption, the commissioner shall conduct a background study on individuals
listed in section 259.41, subdivision 3, for county agencies and private agencies licensed to
place children for adoption.
    Subd. 2. Information and data provided to county or private agency. The subject of the
background study shall provide the information specified in section 245C.05.
    Subd. 3. Information and data provided to commissioner. The county or private agency
shall forward the data collected under subdivision 2 to the commissioner.
    Subd. 4. Information commissioner reviews. (a) The commissioner shall review the
following information regarding the background study subject:
    (1) the information under section 245C.08, subdivisions 1, 3, and 4;
    (2) information from the child abuse and neglect registry for any state in which the subject
has resided for the past five years; and
    (3) information from national crime information databases, when required under section
245C.08.
    (b) The commissioner shall provide any information collected under this subdivision to the
county or private agency that initiated the background study. The commissioner shall indicate if
the information collected shows that the subject of the background study has a conviction listed in
United States Code, title 42, section 671(a)(20)(A).
History: 2007 c 147 art 3 s 22
245C.34 ADOPTION AND CHILD FOSTER CARE BACKGROUND STUDIES; TRIBAL
ORGANIZATIONS.
    Subdivision 1. Background studies may be conducted by commissioner. (a) Tribal
organizations may contract with the commissioner under section 245C.12 to obtain background
study data on individuals under tribal jurisdiction related to adoptions.
    (b) Tribal organizations may contract with the commissioner under section 245C.12 to obtain
background study data on individuals under tribal jurisdiction related to child foster care.
    (c) Background studies initiated by tribal organizations under paragraphs (a) and (b) must be
conducted as provided in subdivisions 2 and 3.
    Subd. 2. Information and data provided to tribal organization. The background study
subject must provide the information specified in section 245C.05.
    Subd. 3. Information and data provided to commissioner. The tribal organization shall
forward the data collected under subdivision 2 to the commissioner.
    Subd. 4. Information commissioner reviews. (a) The commissioner shall review the
following information regarding the background study subject:
    (1) the information under section 245C.08, subdivisions 1, 3, and 4;
    (2) information from the child abuse and neglect registry for any state in which the subject
has resided for the past five years; and
    (3) information from national crime information databases, when required under section
245C.08.
    (b) The commissioner shall provide any information collected under this subdivision to the
tribal organization that initiated the background study. The commissioner shall indicate if the
information collected shows that the subject of the background study has a conviction listed in
United States Code, title 42, section 671(a)(20)(A).
History: 2007 c 147 art 3 s 23