2006 Minnesota Statutes

144A.46 LICENSURE.
    Subdivision 1. License required. (a) A home care provider may not operate in the state
without a current license issued by the commissioner of health. A home care provider may hold a
separate license for each class of home care licensure.
(b) Within ten days after receiving an application for a license, the commissioner shall
acknowledge receipt of the application in writing. The acknowledgment must indicate whether
the application appears to be complete or whether additional information is required before the
application will be considered complete. Within 90 days after receiving a complete application,
the commissioner shall either grant or deny the license. If an applicant is not granted or denied a
license within 90 days after submitting a complete application, the license must be deemed
granted. An applicant whose license has been deemed granted must provide written notice to the
commissioner before providing a home care service.
(c) Each application for a home care provider license, or for a renewal of a license, shall be
accompanied by a fee to be set by the commissioner under section 144.122.
    Subd. 2. Exemptions. The following individuals or organizations are exempt from the
requirement to obtain a home care provider license:
(1) a person who is licensed as a registered nurse under sections 148.171 to 148.285 and
who independently provides nursing services in the home without any contractual or employment
relationship to a home care provider or other organization;
(2) a personal care assistant who provides services to only one individual under the medical
assistance program as authorized under sections 256B.0625, subdivision 19a, and 256B.04,
subdivision 16 ;
(3) a person or organization that exclusively offers, provides, or arranges for personal care
assistant services to only one individual under the medical assistance program as authorized under
sections 256B.0625, subdivision 19a, and 256B.04, subdivision 16;
(4) a person who is licensed under sections 148.65 to 148.78 and who independently provides
physical therapy services in the home without any contractual or employment relationship to
a home care provider or other organization;
(5) a provider that is licensed by the commissioner of human services to provide
semi-independent living services under Minnesota Rules, parts 9525.0500 to 9525.0660 when
providing home care services to a person with a developmental disability;
(6) a provider that is licensed by the commissioner of human services to provide home and
community-based services under Minnesota Rules, parts 9525.2000 to 9525.2140 when providing
home care services to a person with a developmental disability;
(7) a person or organization that provides only home management services, if the person or
organization is registered under section 144A.461; or
(8) a person who is licensed as a social worker under chapter 148D and who provides
social work services in the home independently and not through any contractual or employment
relationship with a home care provider or other organization.
An exemption under this subdivision does not excuse the individual from complying with
applicable provisions of the home care bill of rights.
    Subd. 3. Enforcement. (a) The commissioner may refuse to grant or renew a license, or may
suspend or revoke a license, for violation of statutes or rules relating to home care services or for
conduct detrimental to the welfare of the consumer. Prior to any suspension, revocation, or refusal
to renew a license, the home care provider shall be entitled to notice and a hearing as provided
by sections 14.57 to 14.69. In addition to any other remedy provided by law, the commissioner
may, without a prior contested case hearing, temporarily suspend a license or prohibit delivery
of services by a provider for not more than 60 days if the commissioner determines that the
health or safety of a consumer is in imminent danger, provided (1) advance notice is given to
the provider; (2) after notice, the provider fails to correct the problem; (3) the commissioner has
reason to believe that other administrative remedies are not likely to be effective; and (4) there
is an opportunity for a contested case hearing within the 60 days. The process of suspending or
revoking a license must include a plan for transferring affected clients to other providers.
(b) The owner and managerial officials, as defined in the home care licensure rules,
Minnesota Rules, chapter 4668, of a home care provider whose Minnesota license has not been
renewed or has been revoked because of noncompliance with applicable law or rule shall not be
eligible to apply for nor will be granted a license for five years following the effective date of the
nonrenewal or revocation.
(c) The commissioner shall not issue a license to a home care provider if an owner or
managerial official includes any individual who was an owner or managerial official of a home
care provider whose Minnesota license was not renewed or was revoked as described in paragraph
(b) for five years following the effective date of nonrenewal or revocation.
(d) Notwithstanding the provisions of paragraph (a), the commissioner shall not renew, or
shall suspend or revoke the license of any home care provider which includes any individual as an
owner or managerial official who was an owner or managerial official of a home care provider
whose Minnesota license was not renewed or was revoked as described in paragraph (b) for five
years following the effective date of the nonrenewal or revocation. The commissioner shall notify
the home care provider 30 days in advance of the date of nonrenewal, suspension, or revocation
of the license. Within ten days after the receipt of this notification, the home care provider may
request, in writing, that the commissioner stay the nonrenewal, revocation, or suspension of the
license. The home care provider shall specify the reasons for requesting the stay; the steps that
will be taken to attain or maintain compliance with the licensure laws and regulations; any limits
on the authority or responsibility of the owners or managerial officials whose actions resulted
in the notice of nonrenewal, revocation, or suspension; and any other information to establish
that the continuing affiliation with these individuals will not jeopardize client health, safety, or
well being. The commissioner shall determine whether the stay will be granted within 30 days
of receiving the provider's request. The commissioner may propose additional restrictions or
limitations on the provider's license and require that the granting of the stay be contingent upon
compliance with those provisions. The commissioner shall take into consideration the following
factors when determining whether the stay should be granted:
(1) the threat that continued involvement of the owners and managerial officials in the home
care provider poses to client health, safety, and well being;
(2) the compliance history of the home care provider; and
(3) the appropriateness of any limits suggested by the home care provider.
If the commissioner grants the stay, the order shall include any restrictions or limitation on the
provider's license. The failure of the provider to comply with any restrictions or limitations shall
result in the immediate removal of the stay and the commissioner shall take immediate action
to suspend, revoke, or not renew the license.
(e) The provisions contained in paragraphs (b) and (c) shall apply to any nonrenewal or
revocation of a home care license occurring after June 1, 1993, the effective date of the home
care licensure rules.
(f) For the purposes of this subdivision, owners of a home care provider are those individuals
whose ownership interest provides sufficient authority or control to affect or change decisions
related to the operation of the home care provider. An owner includes a sole proprietor, a general
partner, or any other individual whose individual ownership interest can affect the management
and direction of the policies of the home care provider. For the purposes of this subdivision,
managerial officials are those individuals who had the responsibility for the ongoing management
or direction of the policies, services, or employees of the home care provider relating to the areas
of noncompliance which led to the license revocation or nonrenewal.
    Subd. 3a. Injunctive relief. In addition to any other remedy provided by law, the
commissioner may bring an action in district court to enjoin a person who is involved in the
management, operation, or control of a home care provider, or an employee of the home care
provider from illegally engaging in activities regulated by sections 144A.43 to 144A.47. The
commissioner may bring an action under this subdivision in the district court in Ramsey County
or in the district in which a home care provider is providing services. The court may grant a
temporary restraining order in the proceeding if continued activity by the person who is involved
in the management, operation, or control of a home care provider, or by an employee of the home
care provider, would create an imminent risk of harm to a recipient of home care services.
    Subd. 3b. Subpoena. In matters pending before the commissioner under sections 144A.43 to
144A.47, the commissioner may issue subpoenas and compel the attendance of witnesses and the
production of all necessary papers, books, records, documents, and other evidentiary material. If a
person fails or refuses to comply with a subpoena or order of the commissioner to appear or testify
regarding any matter about which the person may be lawfully questioned or to produce any papers,
books, records, documents, or evidentiary materials in the matter to be heard, the commissioner
may apply to the district court in any district, and the court shall order the person to comply with
the commissioner's order or subpoena. The commissioner of health may administer oaths to
witnesses, or take their affirmation. Depositions may be taken in or outside the state in the manner
provided by law for the taking of depositions in civil actions. A subpoena or other process or paper
may be served upon a named person anywhere within the state by an officer authorized to serve
subpoenas in civil actions, with the same fees and mileage and in the same manner as prescribed
by law for process issued out of a district court. A person subpoenaed under this subdivision shall
receive the same fees, mileage, and other costs that are paid in proceedings in district court.
    Subd. 3c. Time limits for appeals. To appeal the assessment of civil penalties under section
144A.45, subdivision 2, clause (4), a denial of a waiver or variance, and an action against a
license under subdivision 3, a provider must request a hearing no later than 15 days after the
provider receives notice of the action.
    Subd. 4. Relation to other regulatory programs. In the exercise of the authority granted
under sections 144A.43 to 144A.47, the commissioner shall not duplicate or replace standards
and requirements imposed under another state regulatory program. The commissioner shall not
impose additional training or education requirements upon members of a licensed or registered
occupation or profession, except as necessary to address or prevent problems that are unique to
the delivery of services in the home or to enforce and protect the rights of consumers listed in
section 144A.44. The commissioner of health shall not require a home care provider certified
under the Medicare program to comply with a rule adopted under section 144A.45 if the home
care provider is required to comply with any equivalent federal law or regulation relating to the
same subject matter. The commissioner of health shall specify in the rules those provisions that
are not applicable to certified home care providers. To the extent possible, the commissioner shall
coordinate the inspections required under sections 144A.45 to 144A.47 with the health facility
licensure inspections required under sections 144.50 to 144.58 or 144A.10 when the health care
facility is also licensed under the provisions of Laws 1987, chapter 378.
    Subd. 5. Prior criminal convictions. (a) Before the commissioner issues an initial or
renewal license, an owner or managerial official shall be required to complete a background study
under section 144.057. No person may be involved in the management, operation, or control of a
provider, if the person has been disqualified under the provisions of chapter 245C. Individuals
disqualified under these provisions can request a reconsideration, and if the disqualification is set
aside are then eligible to be involved in the management, operation or control of the provider.
For purposes of this section, owners of a home care provider subject to the background check
requirement are those individuals whose ownership interest provides sufficient authority or
control to affect or change decisions related to the operation of the home care provider. An owner
includes a sole proprietor, a general partner, or any other individual whose individual ownership
interest can affect the management and direction of the policies of the home care provider. For the
purposes of this section, managerial officials subject to the background check requirement are
those individuals who provide "direct contact" as defined in section 245C.02, subdivision 11, or
those individuals who have the responsibility for the ongoing management or direction of the
policies, services, or employees of the home care provider. Data collected under this subdivision
shall be classified as private data under section 13.02, subdivision 12.
(b) Employees, contractors, and volunteers of a home care provider or hospice are subject to
the background study required by section 144.057. These individuals shall be disqualified under
the provisions of chapter 245C. Nothing in this section shall be construed to prohibit a home care
provider from requiring self-disclosure of criminal conviction information.
(c) Termination of an employee in good faith reliance on information or records obtained
under paragraph (a) or (b) regarding a confirmed conviction does not subject the home care
provider to civil liability or liability for unemployment benefits.
History: 1987 c 378 s 6; 1988 c 689 art 2 s 268; 1989 c 209 art 2 s 1; 1989 c 282 art 2
s 26; 1990 c 426 art 2 s 1; 1991 c 286 s 9,10; 1991 c 292 art 2 s 10; art 7 s 2; 1992 c 513 art
6 s 7-9; 1994 c 488 s 8; 1995 c 63 s 1; 1996 c 408 art 10 s 4; 1997 c 113 s 4,5; 1997 c 193 s
47; 1997 c 195 s 1; 1997 c 248 s 2; 1998 c 254 art 1 s 32; 1999 c 107 s 66; 1999 c 245 art 9
s 3; 2000 c 260 s 21; 2000 c 343 s 4; 1Sp2001 c 9 art 14 s 35; 2002 c 252 s 7-9,24; 2003 c
15 art 1 s 33; 2005 c 147 art 1 s 4