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2006 Minnesota Statutes

This is a historical version of this statute section. Also view the most recent published version.

626.5572 DEFINITIONS.
    Subdivision 1. Scope. For the purpose of section 626.557, the following terms have the
meanings given them, unless otherwise specified.
    Subd. 2. Abuse. "Abuse" means:
(a) An act against a vulnerable adult that constitutes a violation of, an attempt to violate, or
aiding and abetting a violation of:
(1) assault in the first through fifth degrees as defined in sections 609.221 to 609.224;
(2) the use of drugs to injure or facilitate crime as defined in section 609.235;
(3) the solicitation, inducement, and promotion of prostitution as defined in section 609.322;
and
(4) criminal sexual conduct in the first through fifth degrees as defined in sections 609.342 to
609.3451.
A violation includes any action that meets the elements of the crime, regardless of whether
there is a criminal proceeding or conviction.
(b) Conduct which is not an accident or therapeutic conduct as defined in this section, which
produces or could reasonably be expected to produce physical pain or injury or emotional distress
including, but not limited to, the following:
(1) hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult;
(2) use of repeated or malicious oral, written, or gestured language toward a vulnerable adult
or the treatment of a vulnerable adult which would be considered by a reasonable person to be
disparaging, derogatory, humiliating, harassing, or threatening;
(3) use of any aversive or deprivation procedure, unreasonable confinement, or involuntary
seclusion, including the forced separation of the vulnerable adult from other persons against the
will of the vulnerable adult or the legal representative of the vulnerable adult; and
(4) use of any aversive or deprivation procedures for persons with developmental disabilities
or related conditions not authorized under section 245.825.
(c) Any sexual contact or penetration as defined in section 609.341, between a facility staff
person or a person providing services in the facility and a resident, patient, or client of that facility.
(d) The act of forcing, compelling, coercing, or enticing a vulnerable adult against the
vulnerable adult's will to perform services for the advantage of another.
(e) For purposes of this section, a vulnerable adult is not abused for the sole reason that the
vulnerable adult or a person with authority to make health care decisions for the vulnerable adult
under sections 144.651, 144A.44, chapter 145B, 145C or 252A, or section 253B.03 or 524.5-313,
refuses consent or withdraws consent, consistent with that authority and within the boundary of
reasonable medical practice, to any therapeutic conduct, including any care, service, or procedure
to diagnose, maintain, or treat the physical or mental condition of the vulnerable adult or, where
permitted under law, to provide nutrition and hydration parenterally or through intubation. This
paragraph does not enlarge or diminish rights otherwise held under law by:
(1) a vulnerable adult or a person acting on behalf of a vulnerable adult, including an
involved family member, to consent to or refuse consent for therapeutic conduct; or
(2) a caregiver to offer or provide or refuse to offer or provide therapeutic conduct.
(f) For purposes of this section, a vulnerable adult is not abused for the sole reason that the
vulnerable adult, a person with authority to make health care decisions for the vulnerable adult,
or a caregiver in good faith selects and depends upon spiritual means or prayer for treatment or
care of disease or remedial care of the vulnerable adult in lieu of medical care, provided that
this is consistent with the prior practice or belief of the vulnerable adult or with the expressed
intentions of the vulnerable adult.
(g) For purposes of this section, a vulnerable adult is not abused for the sole reason that the
vulnerable adult, who is not impaired in judgment or capacity by mental or emotional dysfunction
or undue influence, engages in consensual sexual contact with:
(1) a person, including a facility staff person, when a consensual sexual personal relationship
existed prior to the caregiving relationship; or
(2) a personal care attendant, regardless of whether the consensual sexual personal
relationship existed prior to the caregiving relationship.
    Subd. 3. Accident. "Accident" means a sudden, unforeseen, and unexpected occurrence
or event which:
(1) is not likely to occur and which could not have been prevented by exercise of due care; and
(2) if occurring while a vulnerable adult is receiving services from a facility, happens when
the facility and the employee or person providing services in the facility are in compliance with
the laws and rules relevant to the occurrence or event.
    Subd. 4. Caregiver. "Caregiver" means an individual or facility who has responsibility for the
care of a vulnerable adult as a result of a family relationship, or who has assumed responsibility
for all or a portion of the care of a vulnerable adult voluntarily, by contract, or by agreement.
    Subd. 5. Common entry point. "Common entry point" means the entity designated by each
county responsible for receiving reports under section 626.557.
    Subd. 6. Facility. (a) "Facility" means a hospital or other entity required to be licensed
under sections 144.50 to 144.58; a nursing home required to be licensed to serve adults under
section 144A.02; a residential or nonresidential facility required to be licensed to serve adults
under sections 245A.01 to 245A.16; a home care provider licensed or required to be licensed
under section 144A.46; a hospice provider licensed under sections 144A.75 to 144A.755; or a
person or organization that exclusively offers, provides, or arranges for personal care assistant
services under the medical assistance program as authorized under sections 256B.04, subdivision
16
, 256B.0625, subdivision 19a, 256B.0651, and 256B.0653 to 256B.0656.
(b) For home care providers and personal care attendants, the term "facility" refers to the
provider or person or organization that exclusively offers, provides, or arranges for personal care
services, and does not refer to the client's home or other location at which services are rendered.
    Subd. 7. False. "False" means a preponderance of the evidence shows that an act that meets
the definition of maltreatment did not occur.
    Subd. 8. Final disposition. "Final disposition" is the determination of an investigation by
a lead agency that a report of maltreatment under Laws 1995, chapter 229, is substantiated,
inconclusive, false, or that no determination will be made. When a lead agency determination
has substantiated maltreatment, the final disposition also identifies, if known, which individual
or individuals were responsible for the substantiated maltreatment, and whether a facility was
responsible for the substantiated maltreatment.
    Subd. 9. Financial exploitation. "Financial exploitation" means:
(a) In breach of a fiduciary obligation recognized elsewhere in law, including pertinent
regulations, contractual obligations, documented consent by a competent person, or the
obligations of a responsible party under section 144.6501, a person:
(1) engages in unauthorized expenditure of funds entrusted to the actor by the vulnerable
adult which results or is likely to result in detriment to the vulnerable adult; or
(2) fails to use the financial resources of the vulnerable adult to provide food, clothing,
shelter, health care, therapeutic conduct or supervision for the vulnerable adult, and the failure
results or is likely to result in detriment to the vulnerable adult.
(b) In the absence of legal authority a person:
(1) willfully uses, withholds, or disposes of funds or property of a vulnerable adult;
(2) obtains for the actor or another the performance of services by a third person for the
wrongful profit or advantage of the actor or another to the detriment of the vulnerable adult;
(3) acquires possession or control of, or an interest in, funds or property of a vulnerable adult
through the use of undue influence, harassment, duress, deception, or fraud; or
(4) forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult's will
to perform services for the profit or advantage of another.
(c) Nothing in this definition requires a facility or caregiver to provide financial management
or supervise financial management for a vulnerable adult except as otherwise required by law.
    Subd. 10. Immediately. "Immediately" means as soon as possible, but no longer than 24
hours from the time initial knowledge that the incident occurred has been received.
    Subd. 11. Inconclusive. "Inconclusive" means there is less than a preponderance of evidence
to show that maltreatment did or did not occur.
    Subd. 12. Initial disposition. "Initial disposition" is the lead agency's determination of
whether the report will be assigned for further investigation.
    Subd. 13. Lead agency. "Lead agency" is the primary administrative agency responsible for
investigating reports made under section 626.557.
(a) The Department of Health is the lead agency for the facilities which are licensed or are
required to be licensed as hospitals, home care providers, nursing homes, residential care homes,
or boarding care homes.
(b) The Department of Human Services is the lead agency for the programs licensed
or required to be licensed as adult day care, adult foster care, programs for people with
developmental disabilities, mental health programs, chemical health programs, or personal care
provider organizations.
(c) The county social service agency or its designee is the lead agency for all other reports.
    Subd. 14. Legal authority. "Legal authority" includes, but is not limited to: (1) a fiduciary
obligation recognized elsewhere in law, including pertinent regulations; (2) a contractual
obligation; or (3) documented consent by a competent person.
    Subd. 15. Maltreatment. "Maltreatment" means abuse as defined in subdivision 2, neglect
as defined in subdivision 17, or financial exploitation as defined in subdivision 9.
    Subd. 16. Mandated reporter. "Mandated reporter" means a professional or professional's
delegate while engaged in: (1) social services; (2) law enforcement; (3) education; (4) the care
of vulnerable adults; (5) any of the occupations referred to in section 214.01, subdivision 2; (6)
an employee of a rehabilitation facility certified by the commissioner of jobs and training for
vocational rehabilitation; (7) an employee or person providing services in a facility as defined in
subdivision 6; or (8) a person that performs the duties of the medical examiner or coroner.
    Subd. 17. Neglect. "Neglect" means:
(a) The failure or omission by a caregiver to supply a vulnerable adult with care or services,
including but not limited to, food, clothing, shelter, health care, or supervision which is:
(1) reasonable and necessary to obtain or maintain the vulnerable adult's physical or mental
health or safety, considering the physical and mental capacity or dysfunction of the vulnerable
adult; and
(2) which is not the result of an accident or therapeutic conduct.
(b) The absence or likelihood of absence of care or services, including but not limited to,
food, clothing, shelter, health care, or supervision necessary to maintain the physical and mental
health of the vulnerable adult which a reasonable person would deem essential to obtain or
maintain the vulnerable adult's health, safety, or comfort considering the physical or mental
capacity or dysfunction of the vulnerable adult.
(c) For purposes of this section, a vulnerable adult is not neglected for the sole reason that:
(1) the vulnerable adult or a person with authority to make health care decisions for the
vulnerable adult under sections 144.651, 144A.44, chapter 145B, 145C, or 252A, or sections
253B.03 or 524.5-101 to 524.5-502, refuses consent or withdraws consent, consistent with that
authority and within the boundary of reasonable medical practice, to any therapeutic conduct,
including any care, service, or procedure to diagnose, maintain, or treat the physical or mental
condition of the vulnerable adult, or, where permitted under law, to provide nutrition and
hydration parenterally or through intubation; this paragraph does not enlarge or diminish rights
otherwise held under law by:
(i) a vulnerable adult or a person acting on behalf of a vulnerable adult, including an involved
family member, to consent to or refuse consent for therapeutic conduct; or
(ii) a caregiver to offer or provide or refuse to offer or provide therapeutic conduct; or
(2) the vulnerable adult, a person with authority to make health care decisions for the
vulnerable adult, or a caregiver in good faith selects and depends upon spiritual means or prayer
for treatment or care of disease or remedial care of the vulnerable adult in lieu of medical care,
provided that this is consistent with the prior practice or belief of the vulnerable adult or with the
expressed intentions of the vulnerable adult;
(3) the vulnerable adult, who is not impaired in judgment or capacity by mental or emotional
dysfunction or undue influence, engages in sexual contact with:
(i) a person including a facility staff person when a consensual sexual personal relationship
existed prior to the caregiving relationship; or
(ii) a personal care attendant, regardless of whether the consensual sexual personal
relationship existed prior to the caregiving relationship; or
(4) an individual makes an error in the provision of therapeutic conduct to a vulnerable adult
which does not result in injury or harm which reasonably requires medical or mental health care; or
(5) an individual makes an error in the provision of therapeutic conduct to a vulnerable adult
that results in injury or harm, which reasonably requires the care of a physician, and:
(i) the necessary care is provided in a timely fashion as dictated by the condition of the
vulnerable adult;
(ii) if after receiving care, the health status of the vulnerable adult can be reasonably
expected, as determined by the attending physician, to be restored to the vulnerable adult's
preexisting condition;
(iii) the error is not part of a pattern of errors by the individual;
(iv) if in a facility, the error is immediately reported as required under section 626.557, and
recorded internally in the facility;
(v) if in a facility, the facility identifies and takes corrective action and implements measures
designed to reduce the risk of further occurrence of this error and similar errors; and
(vi) if in a facility, the actions required under items (iv) and (v) are sufficiently documented
for review and evaluation by the facility and any applicable licensing, certification, and
ombudsman agency.
(d) Nothing in this definition requires a caregiver, if regulated, to provide services in excess
of those required by the caregiver's license, certification, registration, or other regulation.
(e) If the findings of an investigation by a lead agency result in a determination of
substantiated maltreatment for the sole reason that the actions required of a facility under
paragraph (c), clause (5), item (iv), (v), or (vi), were not taken, then the facility is subject to a
correction order. An individual will not be found to have neglected or maltreated the vulnerable
adult based solely on the facility's not having taken the actions required under paragraph (c),
clause (5), item (iv), (v), or (vi). This must not alter the lead agency's determination of mitigating
factors under section 626.557, subdivision 9c, paragraph (c).
    Subd. 18. Report. "Report" means a statement concerning all the circumstances surrounding
the alleged or suspected maltreatment, as defined in this section, of a vulnerable adult which are
known to the reporter at the time the statement is made.
    Subd. 19. Substantiated. "Substantiated" means a preponderance of the evidence shows
that an act that meets the definition of maltreatment occurred.
    Subd. 20. Therapeutic conduct. "Therapeutic conduct" means the provision of program
services, health care, or other personal care services done in good faith in the interests of the
vulnerable adult by: (1) an individual, facility, or employee or person providing services in a
facility under the rights, privileges and responsibilities conferred by state license, certification,
or registration; or (2) a caregiver.
    Subd. 21. Vulnerable adult. "Vulnerable adult" means any person 18 years of age or older
who:
(1) is a resident or inpatient of a facility;
(2) receives services at or from a facility required to be licensed to serve adults under
sections 245A.01 to 245A.15, except that a person receiving outpatient services for treatment
of chemical dependency or mental illness, or one who is committed as a sexual psychopathic
personality or as a sexually dangerous person under chapter 253B, is not considered a vulnerable
adult unless the person meets the requirements of clause (4);
(3) receives services from a home care provider required to be licensed under section
144A.46; or from a person or organization that exclusively offers, provides, or arranges for
personal care assistant services under the medical assistance program as authorized under
sections 256B.04, subdivision 16, 256B.0625, subdivision 19a, 256B.0651, and 256B.0653 to
256B.0656; or
(4) regardless of residence or whether any type of service is received, possesses a physical or
mental infirmity or other physical, mental, or emotional dysfunction:
(i) that impairs the individual's ability to provide adequately for the individual's own care
without assistance, including the provision of food, shelter, clothing, health care, or supervision;
and
(ii) because of the dysfunction or infirmity and the need for assistance, the individual has an
impaired ability to protect the individual from maltreatment.
History: 1995 c 229 art 1 s 22; 2000 c 319 s 3; 1Sp2001 c 9 art 14 s 32; 2002 c 252 s 23,24;
2002 c 379 art 1 s 113; 2004 c 146 art 3 s 46; 2006 c 212 art 3 s 41

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