2005 Minnesota Statutes

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

    Subdivision 1.    Commissioner's time frame for responding 
 to disqualification reconsideration requests.  (a) The 
 commissioner shall respond in writing or by electronic 
 transmission to all reconsideration requests for which the basis 
 for the request is that the information the commissioner relied 
 upon to disqualify is incorrect or inaccurate within 30 working 
 days of receipt of a request and all relevant information. 

    (b) If the basis for a disqualified individual's 
 reconsideration request is that the individual does not pose a 
 risk of harm, the commissioner shall respond to the request 
 within 15 working days after receiving the request for 
 reconsideration and all relevant information. 

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

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

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

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

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

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

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

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

    (4) the harm suffered by the victim; 

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

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

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

    (8) any other information relevant to reconsideration. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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