1997 Minnesota Statutes

     245A.04 Application procedures. 

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

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

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

    Subd. 2.    Notification of affected municipality.  The 
 commissioner must not issue a license without giving 30 calendar 
 days' written notice to the affected municipality or other 
 political subdivision unless the program is considered a 
 permitted single-family residential use under sections 245A.11 
 and 245A.14.  The notification must be given before the first 
 issuance of a license and annually after that time if annual 
 notification is requested in writing by the affected 
 municipality or other political subdivision.  State funds must 
 not be made available to or be spent by an agency or department 
 of state, county, or municipal government for payment to a 
 residential or nonresidential program licensed under sections 
 245A.01 to 245A.16 until the provisions of this subdivision have 
 been complied with in full.  The provisions of this subdivision 
 shall not apply to programs located in hospitals. 

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

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

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

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

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

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

    (1) the applicant; 

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

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

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

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

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

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

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

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

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

    (i) personnel pool agencies; 

    (ii) temporary personnel agencies; 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Subd. 3a.    Notification to subject and license holder of 
 study results; determination of risk of harm.  (a) The 
 commissioner shall notify the applicant or license holder and 
 the individual who is the subject of the study, in writing or by 
 electronic transmission, of the results of the study.  When the 
 study is completed, a notice that the study was undertaken and 
 completed shall be maintained in the personnel files of the 
 program. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (1) regardless of how much time has passed since the 
 discharge of the sentence imposed for the offense, and unless 
 otherwise specified, regardless of the level of the conviction, 
 the individual was convicted of any of the following offenses:  
 sections 609.185 (murder in the first degree); 609.19 (murder in 
 the second degree); 609.195 (murder in the third degree); 
 609.2661 (murder of an unborn child in the first degree); 
 609.2662 (murder of an unborn child in the second degree); 
 609.2663 (murder of an unborn child in the third degree); 
 609.322 (solicitation, inducement, and promotion of 
 prostitution); 609.323 (receiving profit derived from 
 prostitution); 609.342 (criminal sexual conduct in the first 
 degree); 609.343 (criminal sexual conduct in the second degree); 
 609.344 (criminal sexual conduct in the third degree); 609.345 
 (criminal sexual conduct in the fourth degree); 609.352 
 (solicitation of children to engage in sexual conduct); 609.365 
 (incest); felony offense under 609.377 (malicious punishment of 
 a child); 617.246 (use of minors in sexual performance 
 prohibited); 617.247 (possession of pictorial representations of 
 minors); or attempt or conspiracy to commit any of these 
 offenses as defined in Minnesota Statutes, or an offense in any 
 other state or country, where the elements are substantially 
 similar to any of the offenses listed in this clause; 

    (2) if less than 15 years have passed since the discharge 
 of the sentence imposed for the offense; and the individual has 
 received a felony conviction for a violation of any of these 
 offenses:  sections 609.20 (manslaughter in the first degree); 
 609.205 (manslaughter in the second degree); 609.21 (criminal 
 vehicular homicide and injury); 609.215 (suicide); 609.221 to 
 609.2231 (assault in the first, second, third, or fourth 
 degree); repeat offenses under 609.224 (assault in the fifth 
 degree); 609.2242 and 609.2243 (domestic assault; sentencing; 
 repeat domestic assault); repeat offenses under 609.3451 
 (criminal sexual conduct in the fifth degree); 609.713 
 (terroristic threats); 609.235 (use of drugs to injure or 
 facilitate crime); 609.24 (simple robbery); 609.245 (aggravated 
 robbery); 609.25 (kidnapping); 609.255 (false imprisonment); 
 609.561 (arson in the first degree); 609.562 (arson in the 
 second degree); 609.563 (arson in the third degree); repeat 
 offenses under 617.23 (indecent exposure; penalties); repeat 
 offenses under 617.241 (obscene materials and performances; 
 distribution and exhibition prohibited; penalty); 609.71 (riot); 
 609.66 (dangerous weapons); 609.67 (machine guns and 
 short-barreled shotguns); 609.749 (harassment; stalking; 
 penalties); 609.228 (great bodily harm caused by distribution of 
 drugs); 609.2325 (criminal abuse of a vulnerable adult); 
 609.2664 (manslaughter of an unborn child in the first degree); 
 609.2665 (manslaughter of an unborn child in the second degree); 
 609.267 (assault of an unborn child in the first degree); 
 609.2671 (assault of an unborn child in the second degree); 
 609.268 (injury or death of an unborn child in the commission of 
 a crime); 609.378 (neglect or endangerment of a child); 609.324, 
 subdivision 1 (other prohibited acts); 609.52 (theft); 609.2335 
 (financial exploitation of a vulnerable adult); 609.521 
 (possession of shoplifting gear); 609.582 (burglary); 609.625 
 (aggravated forgery); 609.63 (forgery); 609.631 (check forgery; 
 offering a forged check); 609.635 (obtaining signature by false 
 pretense); 609.27 (coercion); 609.275 (attempt to coerce); 
 609.687 (adulteration); 260.221 (grounds for termination of 
 parental rights); and chapter 152 (drugs; controlled 
 substance).  An attempt or conspiracy to commit any of these 
 offenses, as each of these offenses is defined in Minnesota 
 Statutes; or an offense in any other state or country, the 
 elements of which are substantially similar to the elements of 
 the offenses in this clause.  If the individual studied is 
 convicted of one of the felonies listed in this clause, but the 
 sentence is a gross misdemeanor or misdemeanor disposition, the 
 look-back period for the conviction is the period applicable to 
 the disposition, that is the period for gross misdemeanors or 
 misdemeanors; 

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

    (4) if less than seven years have passed since the 
 discharge of the sentence imposed for the offense; and the 
 individual has received a misdemeanor conviction for a violation 
 of any of the following offenses:  sections 609.224 (assault in 
 the fifth degree); 609.2242 (domestic assault); violation of an 
 order for protection under 518B.01 (Domestic Abuse Act); 
 violation of an order for protection under 609.3232 (protective 
 order authorized; procedures; penalties); 609.746 (interference 
 with privacy); 609.79 (obscene or harassing phone calls); 
 609.795 (letter, telegram, or package; opening; harassment); 
 617.23 (indecent exposure; penalties); 609.2672 (assault of an 
 unborn child in the third degree); 617.293 (harmful materials; 
 dissemination and display to minors prohibited); 609.66 
 (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
 exploitation of a vulnerable adult); 609.234 (failure to report 
 maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
 (coercion); or an attempt or conspiracy to commit any of these 
 offenses, as each of these offenses is defined in Minnesota 
 Statutes; or an offense in any other state or country, the 
 elements of which are substantially similar to the elements of 
 any of the offenses listed in this clause; failure to make 
 required reports under section 626.556, subdivision 3, or 
 626.557, subdivision 3, for incidents in which:  (i) the final 
 disposition under section 626.556 or 626.557 was substantiated 
 maltreatment, and (ii) the maltreatment was recurring or 
 serious; or substantiated serious or recurring maltreatment of a 
 minor under section 626.556 or of a vulnerable adult under 
 section 626.557 for which there is a preponderance of evidence 
 that the maltreatment occurred, and that the subject was 
 responsible for the maltreatment.  For the purposes of this 
 section, serious maltreatment means sexual abuse; maltreatment 
 resulting in death; or maltreatment resulting in serious injury 
 which reasonably requires the care of a physician whether or not 
 the care of a physician was sought, including:  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; irreversible 
 mobility or avulsion of teeth; injuries to the eyeball; 
 ingestion of foreign substances and objects that are harmful; 
 near drowning; and heat exhaustion or sunstroke.  For the 
 purposes of this section, recurring maltreatment means more than 
 one incident of maltreatment for which there is a preponderance 
 of evidence that the maltreatment occurred, and that the subject 
 was responsible for the maltreatment. 

    Subd. 4.    Inspections; waiver.  (a) Before issuing an 
 initial license, the commissioner shall conduct an inspection of 
 the program.  The inspection must include but is not limited to: 

    (1) an inspection of the physical plant; 

    (2) an inspection of records and documents; 

    (3) an evaluation of the program by consumers of the 
 program; and 

    (4) observation of the program in operation. 

    For the purposes of this subdivision, "consumer" means a 
 person who receives the services of a licensed program, the 
 person's legal guardian, or the parent or individual having 
 legal custody of a child who receives the services of a licensed 
 program. 

    (b) The evaluation required in paragraph (a), clause (3) or 
 the observation in paragraph (a), clause (4) is not required 
 prior to issuing an initial license under subdivision 7.  If the 
 commissioner issues an initial license under subdivision 7, 
 these requirements must be completed within one year after the 
 issuance of an initial license.  

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

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

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

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

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

    (1) the name of the license holder; 

    (2) the address of the program; 

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

    (4) the type of license; 

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

    (6) any special conditions of licensure. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    HIST: 1987 c 333 s 4; 1988 c 411 s 3,4; 1988 c 608 s 2; 1989 c 
 282 art 2 s 69-76; 1990 c 542 s 7; 1990 c 568 art 2 s 42-44; 
 1991 c 38 s 1; 1992 c 513 art 9 s 10; 1993 c 171 s 3,4; 1993 c 
 306 s 1; 1993 c 338 s 5; 1993 c 351 s 29; 1994 c 434 s 1-3; 1994 
 c 465 art 1 s 29; 1994 c 631 s 5,31; 1995 c 207 art 2 s 7-10; 
 1995 c 229 art 3 s 5; art 4 s 11; 1996 c 408 art 10 s 5; 1997 c 
 177 s 1; 1997 c 248 s 10-18