2001 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 this 
 chapter 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; 
 definitions.  (a) Individuals and organizations that are 
 required in statute to initiate background studies under this 
 section shall comply with the following requirements: 

    (1) Applicants for licensure, license holders, and other 
 entities as provided in this section must submit completed 
 background study forms to the commissioner before individuals 
 specified in paragraph (c), clauses (1) to (4), (6), and (7), 
 begin positions allowing direct contact in any licensed program. 

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

    (3) Organizations required to initiate background studies 
 under section 256B.0627 for individuals described in paragraph 
 (c), clause (5), 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.  The commissioner shall recover the cost of these 
 background studies through a fee of no more than $12 per study 
 charged to the organization responsible for submitting the 
 background study form.  The fees collected under this paragraph 
 are appropriated to the commissioner for the purpose of 
 conducting background studies.  

    Upon receipt of the background study forms from the 
 entities in clauses (1) to (3), the commissioner shall complete 
 the background study as specified under this section and provide 
 notices required in subdivision 3a.  Unless otherwise specified, 
 the subject of a background study may have direct contact with 
 persons served by a program after the background study form is 
 mailed or submitted to the commissioner pending notification of 
 the study results under subdivision 3a.  A county agency may 
 accept a background study completed by the commissioner under 
 this section in place of the background study required under 
 section 245A.16, subdivision 3, in programs with joint licensure 
 as home and community-based services and adult foster care for 
 people with developmental disabilities when the license holder 
 does not reside in the foster care residence and the subject of 
 the study has been continuously affiliated with the license 
 holder since the date of the commissioner's study. 

    (b) The definitions in this paragraph apply only to 
 subdivisions 3 to 3e. 

    (1) "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. 

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

    (3) "Contractor" means any person, regardless of employer, 
 who is providing program services for hire under the control of 
 the provider. 

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

    (5) "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 person or 
 that may pose a risk to the health or safety of persons 
 receiving services. 

    (6) "Subject of a background study" means an individual on 
 whom a background study is required or completed. 

    (c) The applicant, license holder, registrant under section 
 144A.71, subdivision 1, bureau of criminal apprehension, 
 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 age 13 and over 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); 

    (5) any person required under section 256B.0627 to have a 
 background study completed under this section; 

    (6) persons ages 10 to 12 living in the household where the 
 licensed services will be provided when the commissioner has 
 reasonable cause; and 

    (7) persons who, without providing direct contact services 
 at a licensed program, may have unsupervised access to children 
 or vulnerable adults receiving services from the program 
 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 has reasonable cause. 

    (d) According to paragraph (c), clauses (2) and (6), the 
 commissioner shall review records from the juvenile courts.  For 
 persons under paragraph (c), clauses (1), (3), (4), (5), and 
 (7), who are ages 13 to 17, the commissioner shall review 
 records from the juvenile courts when the commissioner has 
 reasonable cause.  The juvenile courts shall help with the study 
 by giving the commissioner existing juvenile court records on 
 individuals described in paragraph (c), clauses (2), (6), and 
 (7), 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.  The commissioner shall destroy 
 juvenile records obtained pursuant to this subdivision when the 
 subject of the records reaches age 23. 

    (e) Beginning August 1, 2001, 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.  Studies for the agencies 
 must be initiated annually by each agency.  The commissioner 
 shall conduct the background studies according to this chapter.  
 The commissioner shall recover the cost of the background 
 studies through a fee of no more than $8 per study, charged to 
 the supplemental nursing services agency.  The fees collected 
 under this paragraph are appropriated to the commissioner for 
 the purpose of conducting background studies. 

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

    (g) A study of an individual in paragraph (c), clauses (1) 
 to (7), shall be conducted at least upon application for initial 
 license for all license types or registration under section 
 144A.71, subdivision 1, and at reapplication for a license or 
 registration for family child care, child foster care, and adult 
 foster care.  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 (j) 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 paragraph (c) 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. 

    (h) The commissioner may also conduct studies on 
 individuals specified in paragraph (c), 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. 

    (i) Studies on individuals in paragraph (h), items (i) to 
 (iv), must be initiated annually by these agencies, programs, 
 and individuals.  Except as provided in paragraph (a), clause 
 (3), 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 (j), 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. 

    (j) 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 any type of home 
 care agency or provider of personal care assistance services, is 
 convicted of a crime constituting a disqualification under 
 subdivision 3d, the probation officer or corrections agent shall 
 notify the commissioner of the conviction.  For the purpose of 
 this paragraph, "conviction" has the meaning given it in section 
 609.02, subdivision 5.  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. 

    (k) 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 and all other names by 
 which the individual has been known; home address, city, county, 
 and state of residence for the past five years; zip code; sex; 
 date of birth; and driver's license number or state 
 identification number.  The applicant or license holder shall 
 provide this information about an individual in paragraph (c), 
 clauses (1) to (7), 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. 

    (l) For programs directly licensed by the commissioner, 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), clauses (2), (6), and (7), 
 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), 
 clauses (2), (6), and (7), 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 (7).  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. 

    (m) 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. 

    (n) The failure or refusal of an applicant, license holder, 
 or registrant under section 144A.71, subdivision 1, to cooperate 
 with the commissioner is reasonable cause to disqualify a 
 subject, deny a license application or immediately suspend, 
 suspend, or revoke a license or registration.  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. 

    (o) 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.  

    (p) No person in paragraph (c), clauses (1) to (7), 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 or in a position allowing access to 
 persons served by the program as provided for in statutes, 
 unless the commissioner has provided written notice to the 
 agency stating that: 

    (1) the individual may remain in direct contact during the 
 period in which the individual may request reconsideration as 
 provided in subdivision 3a, paragraph (b), clause (2) or (3); 

    (2) the individual's disqualification has been set aside 
 for that agency as provided in subdivision 3b, paragraph (b); or 

    (3) the license holder has been granted a variance for the 
 disqualified individual under subdivision 3e. 

    (q) Termination of persons in paragraph (c), clauses (1) to 
 (7), 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. 

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

    (s) 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. 

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

    (u) 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. 

    Subd. 3a.    Notification to subject and license holder of 
 study results; determination of risk of harm.  (a) Within 15 
 working days, the commissioner shall notify the applicant, 
 license holder, or registrant under section 144A.71, subdivision 
 1, and 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.  When 
 the study is completed, a notice that the study was undertaken 
 and completed shall be maintained in the personnel files of the 
 program.  For studies on individuals pertaining to a license to 
 provide family day care or group family day 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. 

    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 basis for the 
 disqualification is failure to cooperate, substantiated 
 maltreatment under section 626.556 or 626.557, the Data 
 Practices Act provides for release of the information, or the 
 individual studied authorizes the release of the information.  
 When a disqualification is based on the subject's failure to 
 cooperate with the background study or substantiated 
 maltreatment under section 626.556 or 626.557, the agency that 
 initiated the study shall be informed by the commissioner of the 
 reason for the disqualification. 

    (b) Except as provided in subdivision 3d, paragraph (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, direct 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, direct 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, direct 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, direct 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.  

    (c) County licensing agencies performing duties under this 
 subdivision may develop an alternative system for determining 
 the subject's immediate risk of harm to persons served by the 
 program, providing the notices under paragraph (b), and 
 documenting the action taken by the county licensing agency.  
 Each county licensing agency's implementation of the alternative 
 system is subject to approval by the commissioner.  
 Notwithstanding this alternative system, county licensing 
 agencies shall complete the requirements of paragraph (a). 

    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.  Upon 
 showing that the information in clause (1) or (2) cannot be 
 obtained within 30 days, the disqualified individual may request 
 additional time, not to exceed 30 days, to obtain that 
 information.  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.  An individual who was determined to 
 have maltreated a child under section 626.556 or a vulnerable 
 adult under section 626.557, and who was disqualified under this 
 section on the basis of serious or recurring maltreatment, may 
 request reconsideration of both the maltreatment and the 
 disqualification determinations.  The request for 
 reconsideration of the maltreatment determination and the 
 disqualification must be submitted within 30 calendar days of 
 the 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 or 245A.08, 
 subdivision 5, the commissioner's order is conclusive on the 
 issue of maltreatment.  If the individual did not request 
 reconsideration of the maltreatment determination, the 
 maltreatment determination is deemed conclusive; or 

    (2) the subject of the study does not pose a risk of harm 
 to any person served by the applicant, license holder, or 
 registrant under section 144A.71, subdivision 1. 

    (b) The commissioner shall rescind the disqualification if 
 the commissioner finds that the information relied on to 
 disqualify the subject is incorrect.  The commissioner may set 
 aside the disqualification under this section if the 
 commissioner finds that the individual does not pose a risk of 
 harm to any person served by the applicant, license holder, or 
 registrant under section 144A.71, subdivision 1.  In determining 
 that an individual does not pose a risk of harm, the 
 commissioner shall consider the nature, severity, and 
 consequences of the event or events that lead to 
 disqualification, whether there is more than one disqualifying 
 event, the age and vulnerability of the victim at the time of 
 the event, the harm suffered by the victim, the similarity 
 between the victim and persons served by the program, 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, applicant, or registrant under section 
 144A.71, subdivision 1, over the interests of the license 
 holder, applicant, or registrant under section 144A.71, 
 subdivision 1. 

    (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), 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 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 
 involuntary termination of parental rights under section 
 260C.301 or 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), a 
 felony offense under 609.324, subdivision 1 (other prohibited 
 acts), a felony offense under 609.378 (neglect or endangerment 
 of a child), 609.322 (solicitation, inducement, and promotion of 
 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), a 
 felony offense under sections 609.2242 and 609.2243 (domestic 
 assault), a felony offense of spousal abuse, a felony offense of 
 child abuse or neglect, a felony offense of a crime against 
 children, 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, license holder, or registrant under 
 section 144A.71, subdivision 1, residing in the applicant's or 
 license holder's home, or the home of a registrant under section 
 144A.71, subdivision 1, the applicant, license holder, or 
 registrant under section 144A.71, subdivision 1, 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 or 
 registration under section 144A.71, subdivision 1, because the 
 license holder, applicant, or registrant under section 144A.71, 
 subdivision 1, 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 request is based on both the correctness or 
 accuracy of the information relied on to disqualify the 
 individual and the risk of harm, the commissioner shall respond 
 to the request within 45 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, if a 
 disqualification is not set aside or is not rescinded, an 
 individual who was 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 lists in subdivision 
 3d, paragraph (a), clauses (1) to (4); or for failure to make 
 required reports under section 626.556, subdivision 3, or 
 626.557, subdivision 3, pursuant to subdivision 3d, paragraph 
 (a), clause (4), may request a fair hearing under section 
 256.045.  Except as provided under subdivision 3c, the 
 commissioner's final order for an individual under this 
 paragraph is conclusive on the issue of maltreatment and 
 disqualification, including for purposes of subsequent studies 
 conducted under subdivision 3, and 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.  

    (f) Except as provided under subdivision 3c, if an 
 individual was disqualified on the basis of a determination of 
 maltreatment under section 626.556 or 626.557, which was serious 
 or recurring, and the individual has requested reconsideration 
 of the maltreatment determination under section 626.556, 
 subdivision 10i, or 626.557, subdivision 9d, and also requested 
 reconsideration of the disqualification under this subdivision, 
 reconsideration of the maltreatment determination and 
 reconsideration of the disqualification shall be consolidated 
 into a single reconsideration.  For maltreatment and 
 disqualification determinations made by county agencies, the 
 consolidated reconsideration shall be conducted by the county 
 agency.  Except as provided under subdivision 3c, if an 
 individual who was disqualified on the basis of serious or 
 recurring maltreatment requests a fair hearing on the 
 maltreatment determination under section 626.556, subdivision 
 10i, or 626.557, subdivision 9d, the scope of the fair hearing 
 under section 256.045 shall include the maltreatment 
 determination and the disqualification.  Except as provided 
 under subdivision 3c, the commissioner's final order for an 
 individual under this paragraph is conclusive on the issue of 
 maltreatment and disqualification, including for purposes of 
 subsequent studies conducted under subdivision 3, and 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. 

    Subd. 3c.    Contested case.  (a) Notwithstanding 
 subdivision 3b, paragraphs (e) and (f), 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.  If the 
 disqualification which was not set aside or was not rescinded 
 was based on a maltreatment determination, the scope of the 
 contested case hearing shall include the maltreatment 
 determination and the disqualification.  In such cases, a fair 
 hearing shall not be conducted under section 256.045.  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). 

    (b) If a disqualification for which reconsideration was 
 requested and which was not set aside or was not rescinded under 
 subdivision 3b 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 1400.8510 to 
 1400.8612 and successor rules.  The appeal must be submitted in 
 accordance with section 245A.05 or 245A.07, subdivision 3.  As 
 provided for under section 245A.08, subdivision 2a, the scope of 
 the consolidated contested case hearing shall include the 
 disqualification and the licensing sanction or denial of a 
 license.  If the disqualification was based on a determination 
 of substantiated serious or recurring maltreatment under section 
 626.556 or 626.557, the appeal must be submitted in accordance 
 with sections 245A.07, subdivision 3, and 626.556, subdivision 
 10i, or 626.557, subdivision 9d.  As provided for under section 
 245A.08, subdivision 2a, the scope of the contested case hearing 
 shall include the maltreatment determination, the 
 disqualification, and the licensing sanction or denial of a 
 license.  In such cases, a fair hearing shall not be conducted 
 under section 256.045. 

    (c) If a maltreatment determination or disqualification, 
 which was not set aside or was not rescinded under subdivision 
 3b, is the basis for a denial of a license under section 245A.05 
 or a licensing sanction under section 245A.07, and the 
 disqualified subject is an individual other than the license 
 holder and upon whom a background study must be conducted under 
 subdivision 3, the hearing of all parties may be consolidated 
 into a single contested case hearing upon consent of all parties 
 and the administrative law judge.  

    (d) 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 
 subdivision 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. 

    Subd. 3d.    Disqualification.  (a) Upon receipt of 
 information showing, or 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 
 investigation results in 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, entity identified in subdivision 3, 
 paragraph (a), or registrant under section 144A.71, subdivision 
 1, and for individuals studied under section 245A.04, 
 subdivision 3, paragraph (c), clauses (2), (6), and (7), the 
 individual shall also be disqualified from access to a person 
 receiving services from the license holder: 

    (1) regardless of how much time has passed since the 
 involuntary termination of parental rights under section 
 260C.301 or 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); 609.342 (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); a felony offense under 609.378 (neglect or 
 endangerment of a child); a felony offense under 609.324, 
 subdivision 1 (other prohibited acts); 617.246 (use of minors in 
 sexual performance prohibited); 617.247 (possession of pictorial 
 representations of minors); a felony offense under sections 
 609.2242 and 609.2243 (domestic assault), a felony offense of 
 spousal abuse, a felony offense of child abuse or neglect, a 
 felony offense of a crime against children; 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); 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); 609.52 (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); 260C.301 (grounds for termination of parental 
 rights); chapter 152 (drugs; controlled substance); and a felony 
 level conviction involving alcohol or drug use.  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 lookback 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 lookback period for the conviction is the 
 period applicable to misdemeanors; or 

    (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; a determination or 
 disposition of 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 a determination or 
 disposition of 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; or abuse resulting in serious injury.  For 
 purposes of this section, "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 
 others 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 purposes 
 of this section, "care of a physician" is treatment received or 
 ordered by a physician, but does not include diagnostic testing, 
 assessment, or observation.  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.  For purposes of this section, "access" 
 means physical access to an individual receiving services or the 
 individual's personal property without continuous, direct 
 supervision as defined in section 245A.04, subdivision 3.  

    (b) Except for background studies related to child foster 
 care, adult foster care, or family child care licensure, when 
 the subject of a background study is regulated by a 
 health-related licensing board as defined in chapter 214, and 
 the regulated person has been determined to have been 
 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. 

    (1) The commissioner shall notify the health-related 
 licensing board: 

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

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

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

    (2) The commissioner's notice shall indicate whether the 
 individual would have been disqualified by the commissioner for 
 the substantiated maltreatment if the individual were not 
 regulated by the board.  The commissioner shall concurrently 
 send this notice to the individual. 

    (3) Notwithstanding the exclusion from this subdivision for 
 individuals who provide child foster care, adult foster care, or 
 family child care, when the commissioner or a local agency has 
 reason to believe that the direct contact services provided by 
 the individual may fall within the jurisdiction of a 
 health-related licensing board, a referral shall be made to the 
 board as provided in this section. 

    (4) 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. 

    (5) The commissioner has the authority to monitor the 
 facility's compliance with any requirements that the 
 health-related licensing board places on regulated persons 
 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 
 person from direct contact or access when a board issues an 
 order of temporary suspension based on a determination that the 
 regulated person poses an immediate risk of harm to persons 
 receiving services in a licensed facility. 

    (6) A facility that allows a regulated person 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. 

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

    Subd. 3e.    Variance for a disqualified person.  (a) 
 When a background study subject's disqualification has not been 
 set aside by the commissioner, 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 that states 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 be effective. 

    (b) Except for programs licensed 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, the commissioner may not grant a variance 
 for a disqualified person unless the applicant or license holder 
 has requested the variance and the disqualified individual has 
 provided written consent for the commissioner to disclose to the 
 applicant or license holder the reason for the disqualification. 

    (c) 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, 
 termination of the variance is immediate and the license holder 
 may be subject to fines or sanctions under sections 245A.06 and 
 245A.07. 

    (d) The commissioner may terminate a variance for a 
 disqualified person at any time for cause. 

    (e) 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. 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 issuing, 
 denying, 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. 

    Subd. 11.    Education program; additional requirement.  
 (a) The education program offered in a residential or 
 nonresidential program, except for child care, foster care, or 
 services for adults, must be approved by the commissioner of 
 children, families, and learning before the commissioner of 
 human services may grant a license to the program. 

    (b) A residential program licensed under Minnesota Rules, 
 parts 9545.0905 to 9545.1125 or 9545.1400 to 9545.1480, may 
 serve persons through the age of 19 when: 

    (1) the admission is necessary for a person to complete a 
 secondary school program or its equivalent, or it is necessary 
 to facilitate a transition period after completing the secondary 
 school program or its equivalent for up to four months in order 
 for the resident to obtain other living arrangements; 

    (2) the facility develops policies, procedures, and plans 
 required under section 245A.65; 

    (3) the facility documents an assessment of the 18- or 
 19-year-old person's risk of victimizing children residing in 
 the facility, and develops necessary risk reduction measures, 
 including sleeping arrangements, to minimize any risk of harm to 
 children; and 

    (4) notwithstanding the license holder's target population 
 age range, whenever persons age 18 or 19 years old are receiving 
 residential services, the age difference among residents may not 
 exceed five years. 

    (c) Nothing in this paragraph precludes the license holder 
 from seeking other variances under subdivision 9. 

    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; 1998 c 367 art 2 s 32; 1998 c 406 
 art 1 s 6,7,37; 1998 c 407 art 9 s 6,7; 1999 c 139 art 4 s 2; 
 1999 c 241 art 2 s 53; 1999 c 245 art 4 s 9; 2000 c 260 s 29; 
 2000 c 319 s 1; 2000 c 327 s 3-6; 1Sp2001 c 9 art 14 s 11-18