as introduced - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to human services; recodifying and 1.3 reorganizing the background study provisions in the 1.4 Human Services Licensing Act; making conforming 1.5 changes; amending Minnesota Statutes 2002, sections 1.6 245A.04, subdivisions 1, 3, 3a, 3b, 3c, 3d, 3e, 3f; 1.7 245A.041; proposing coding for new law as Minnesota 1.8 Statutes, chapter 245C. 1.9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.10 ARTICLE 1 1.11 BACKGROUND STUDIES 1.12 Section 1. [245C.01] [TITLE.] 1.13 This chapter may be cited as the "Department of Human 1.14 Services Background Studies Act." 1.15 Sec. 2. [245C.02] [DEFINITIONS.] 1.16 Subdivision 1. [SCOPE.] The definitions in this section 1.17 apply to this chapter. 1.18 Subd. 2. [ACCESS TO PERSONS SERVED BY A PROGRAM.] "Access 1.19 to persons served by a program" means physical access to persons 1.20 receiving services or the persons' personal property without 1.21 continuous, direct supervision, as defined in subdivision 8. 1.22 Subd. 3. [ANNUAL OR ANNUALLY.] "Annual" or "annually" has 1.23 the meaning given in section 245A.02, subdivision 2b. 1.24 Subd. 4. [APPLICANT.] "Applicant" has the meaning given in 1.25 section 245A.02, subdivision 3. 1.26 Subd. 5. [BACKGROUND STUDY.] "Background study" means the 1.27 review of records conducted by the commissioner to determine 2.1 whether a subject is disqualified from direct contact with 2.2 persons served by a program and, where specifically provided in 2.3 statutes, whether a subject is disqualified from having access 2.4 to persons served by a program. 2.5 Subd. 6. [CHILD.] "Child" has the meaning given in section 2.6 245A.02, subdivision 4. 2.7 Subd. 7. [COMMISSIONER.] "Commissioner" has the meaning 2.8 given in section 245A.02, subdivision 5. 2.9 Subd. 8. [CONTINUOUS, DIRECT SUPERVISION.] "Continuous, 2.10 direct supervision" means an individual is within sight or 2.11 hearing of the program's supervising individual to the extent 2.12 that the program's supervising individual is capable at all 2.13 times of intervening to protect the health and safety of the 2.14 persons served by the program. 2.15 Subd. 9. [CONTRACTOR.] "Contractor" means any individual, 2.16 regardless of employer, who is providing program services for 2.17 hire under the control of the provider. 2.18 Subd. 10. [COUNTY AGENCY.] "County agency" has the meaning 2.19 given in section 245A.02, subdivision 6. 2.20 Subd. 11. [DIRECT CONTACT.] "Direct contact" means 2.21 providing face-to-face care, training, supervision, counseling, 2.22 consultation, or medication assistance to persons served by the 2.23 program. 2.24 Subd. 12. [LICENSE.] "License" has the meaning given in 2.25 section 245A.02, subdivision 8. 2.26 Subd. 13. [LICENSE HOLDER.] "License holder" has the 2.27 meaning given in section 245A.02, subdivision 9. 2.28 Subd. 14. [PERSON.] "Person" means a child as defined in 2.29 subdivision 6 or an adult as defined in section 245A.02, 2.30 subdivision 2. 2.31 Subd. 15. [REASONABLE CAUSE.] "Reasonable cause" means 2.32 information or circumstances exist which provide the 2.33 commissioner with articulable suspicion that further pertinent 2.34 information may exist concerning a subject. The commissioner 2.35 has reasonable cause when, but not limited to, the commissioner 2.36 has received a report from the subject, the license holder, or a 3.1 third party indicating that the subject has a history that would 3.2 disqualify the individual or that may pose a risk to the health 3.3 or safety of persons receiving services. 3.4 Subd. 16. [RECURRING MALTREATMENT.] "Recurring 3.5 maltreatment" means more than one incident of maltreatment for 3.6 which there is a preponderance of evidence that the maltreatment 3.7 occurred and that the subject was responsible for the 3.8 maltreatment. 3.9 Subd. 17. [REGISTRANT.] "Registrant" means an individual 3.10 who operates a supplemental nursing services agency and who 3.11 registers the agency with the commissioner of health under 3.12 section 144A.71, subdivision 1. 3.13 Subd. 18. [SERIOUS MALTREATMENT.] (a) "Serious 3.14 maltreatment" means sexual abuse, maltreatment resulting in 3.15 death, maltreatment resulting in serious injury which reasonably 3.16 requires the care of a physician whether or not the care of a 3.17 physician was sought, or abuse resulting in serious injury. 3.18 (b) For purposes of this definition, "care of a physician" 3.19 is treatment received or ordered by a physician but does not 3.20 include diagnostic testing, assessment, or observation. 3.21 (c) For purposes of this definition, "abuse resulting in 3.22 serious injury" means: bruises, bites, skin laceration, or 3.23 tissue damage; fractures; dislocations; evidence of internal 3.24 injuries; head injuries with loss of consciousness; extensive 3.25 second-degree or third-degree burns and other burns for which 3.26 complications are present; extensive second-degree or 3.27 third-degree frostbite and other frostbite for which 3.28 complications are present; irreversible mobility or avulsion of 3.29 teeth; injuries to the eyes; ingestion of foreign substances and 3.30 objects that are harmful; near drowning; and heat exhaustion or 3.31 sunstroke. 3.32 Subd. 19. [SUBJECT OF A BACKGROUND STUDY.] "Subject of a 3.33 background study" means an individual on whom a background study 3.34 is required or completed. 3.35 Sec. 3. [245C.03] [BACKGROUND STUDY; INDIVIDUALS TO BE 3.36 STUDIED.] 4.1 Subdivision 1. [LICENSED PROGRAMS.] The commissioner shall 4.2 conduct a background study on: 4.3 (1) the applicant; 4.4 (2) an individual age 13 and over living in the household 4.5 where the licensed program will be provided; 4.6 (3) current employees or contractors of the applicant who 4.7 will have direct contact with persons served by the facility, 4.8 agency, or program; 4.9 (4) volunteers or student volunteers who will have direct 4.10 contact with persons served by the program to provide program 4.11 services if the contact is not under the continuous, direct 4.12 supervision by an individual listed in clause (1) or (3); 4.13 (5) an individual age ten to 12 living in the household 4.14 where the licensed services will be provided when the 4.15 commissioner has reasonable cause; and 4.16 (6) an individual who, without providing direct contact 4.17 services at a licensed program, may have unsupervised access to 4.18 children or vulnerable adults receiving services from a program 4.19 licensed to provide: 4.20 (i) family child care for children; 4.21 (ii) foster care for children in the provider's own home; 4.22 or 4.23 (iii) foster care or day care services for adults in the 4.24 provider's own home. 4.25 The commissioner must have reasonable cause to study an 4.26 individual under this clause. 4.27 Subd. 2. [PERSONAL CARE PROVIDER ORGANIZATIONS.] The 4.28 commissioner shall conduct background studies on any individual 4.29 required under section 256B.0627 to have a background study 4.30 completed under this chapter. 4.31 Subd. 3. [SUPPLEMENTAL NURSING SERVICES AGENCIES.] The 4.32 commissioner shall conduct all background studies required under 4.33 this chapter and initiated by supplemental nursing services 4.34 agencies registered under section 144A.71, subdivision 1. 4.35 Subd. 4. [PERSONNEL AGENCIES; EDUCATIONAL PROGRAMS; 4.36 PROFESSIONAL SERVICES AGENCIES.] The commissioner also may 5.1 conduct studies on individuals specified in subdivision 1, 5.2 clauses (3) and (4), when the studies are initiated by: 5.3 (1) personnel pool agencies; 5.4 (2) temporary personnel agencies; 5.5 (3) educational programs that train individuals by 5.6 providing direct contact services in licensed programs; and 5.7 (4) professional services agencies that are not licensed 5.8 and which contract with licensed programs to provide direct 5.9 contact services or individuals who provide direct contact 5.10 services. 5.11 Sec. 4. [245C.04] [WHEN BACKGROUND STUDY MUST OCCUR.] 5.12 Subdivision 1. [LICENSED PROGRAMS.] (a) The commissioner 5.13 shall conduct a background study of an individual required to be 5.14 studied under section 245C.03, subdivision 1, at least upon 5.15 application for initial license for all license types. 5.16 (b) The commissioner shall conduct a background study of an 5.17 individual required to be studied under section 245C.03, 5.18 subdivision 1, at reapplication for a license for family child 5.19 care, child foster care, and adult foster care. 5.20 (c) The commissioner is not required to conduct a study of 5.21 an individual at the time of reapplication for a license if the 5.22 individual's background study was completed by the commissioner 5.23 of human services for an adult foster care license holder that 5.24 is also: 5.25 (1) registered under chapter 144D; or 5.26 (2) licensed to provide home and community-based services 5.27 to people with disabilities at the foster care location and the 5.28 license holder does not reside in the foster care residence; and 5.29 (3) the following conditions are met: 5.30 (i) a study of the individual was conducted either at the 5.31 time of initial licensure or when the individual became 5.32 affiliated with the license holder; 5.33 (ii) the individual has been continuously affiliated with 5.34 the license holder since the last study was conducted; and 5.35 (iii) the last study of the individual was conducted on or 5.36 after October 1, 1995. 6.1 (d) Applicants for licensure, license holders, and other 6.2 entities as provided in this chapter must submit completed 6.3 background study forms to the commissioner before individuals 6.4 specified in section 245C.03, subdivision 1, begin positions 6.5 allowing direct contact in any licensed program. 6.6 (e) For purposes of this section, a physician licensed 6.7 under chapter 147 is considered to be continuously affiliated 6.8 upon the license holder's receipt from the commissioner of 6.9 health or human services of the physician's background study 6.10 results. 6.11 Subd. 2. [OTHER STATE AGENCIES.] Applicants and license 6.12 holders under the jurisdiction of other state agencies who are 6.13 required in other statutory sections to initiate background 6.14 studies under this chapter must submit completed background 6.15 study forms to the commissioner before the background study 6.16 subject begins in a position allowing direct contact in the 6.17 licensed program or, where applicable, prior to being employed. 6.18 Subd. 3. [PERSONAL CARE PROVIDER ORGANIZATIONS.] (a) The 6.19 commissioner shall conduct a background study of an individual 6.20 required to be studied under section 245C.03, subdivision 2, at 6.21 least upon application for initial enrollment under section 6.22 256B.0627. 6.23 (b) Organizations required to initiate background studies 6.24 under section 256B.0627 for individuals described in section 6.25 245C.03, subdivision 2, must submit a completed background study 6.26 form to the commissioner before those individuals begin a 6.27 position allowing direct contact with persons served by the 6.28 organization. 6.29 Subd. 4. [SUPPLEMENTAL NURSING SERVICES AGENCIES.] (a) The 6.30 commissioner shall conduct a background study of an individual 6.31 required to be studied under section 245C.03, subdivision 3, at 6.32 least upon application for registration under section 144A.71, 6.33 subdivision 1. 6.34 (b) Each supplemental nursing services agency must initiate 6.35 background studies before an individual begins a position 6.36 allowing direct contact with persons served by the agency and 7.1 annually thereafter. 7.2 Subd. 5. [PERSONNEL AGENCIES; EDUCATIONAL PROGRAMS; 7.3 PROFESSIONAL SERVICES AGENCIES.] Agencies, programs, and 7.4 individuals who initiate background studies under section 7.5 245C.03, subdivision 4, must initiate the studies annually. 7.6 Sec. 5. [245C.05] [BACKGROUND STUDY; INFORMATION AND DATA 7.7 PROVIDED TO COMMISSIONER.] 7.8 Subdivision 1. [INDIVIDUAL STUDIED.] The individual who is 7.9 the subject of the background study must provide the applicant, 7.10 license holder, or other entity under section 245C.04 with 7.11 sufficient information to ensure an accurate study, including: 7.12 (1) the individual's first, middle, and last name and all 7.13 other names by which the individual has been known; 7.14 (2) home address, city, county, and state of residence for 7.15 the past five years; 7.16 (3) zip code; 7.17 (4) sex; 7.18 (5) date of birth; and 7.19 (6) driver's license number or state identification number. 7.20 Subd. 2. [APPLICANT, LICENSE HOLDER, OR OTHER ENTITY.] The 7.21 applicant, license holder, or other entity under section 245C.04 7.22 shall provide the information collected under subdivision 1 7.23 about an individual who is the subject of the background study 7.24 on forms prescribed by the commissioner. 7.25 Subd. 3. [ADDITIONAL INFORMATION FROM INDIVIDUAL STUDIED.] 7.26 The commissioner may request additional information of the 7.27 individual, such as the individual's social security number or 7.28 race. The individual is not required to provide this 7.29 information to the commissioner. 7.30 Subd. 4. [ELECTRONIC TRANSMISSION.] For background studies 7.31 conducted by the department of human services, the commissioner 7.32 shall implement a system for the electronic transmission of: 7.33 (1) background study information to the commissioner; and 7.34 (2) background study results to the license holder. 7.35 Subd. 5. [FINGERPRINTS.] (a) When the commissioner has 7.36 reasonable cause to believe that further pertinent information 8.1 may exist on the subject of the background study, the subject 8.2 shall provide the commissioner with a set of classifiable 8.3 fingerprints obtained from an authorized law enforcement agency. 8.4 (b) For purposes of requiring fingerprints, the 8.5 commissioner has reasonable cause when, but not limited to, the: 8.6 (1) information from the bureau of criminal apprehension 8.7 indicates that the subject is a multistate offender; 8.8 (2) information from the bureau of criminal apprehension 8.9 indicates that multistate offender status is undetermined; or 8.10 (3) commissioner has received a report from the subject or 8.11 a third party indicating that the subject has a criminal history 8.12 in a jurisdiction other than Minnesota. 8.13 Subd. 6. [APPLICANT, LICENSE HOLDER, REGISTRANT, AND 8.14 AGENCIES.] (a) The applicant, license holder, registrant, bureau 8.15 of criminal apprehension, commissioner of health, and county 8.16 agencies shall help with the study by giving the commissioner 8.17 criminal conviction data and reports about the maltreatment of 8.18 adults substantiated under section 626.557 and the maltreatment 8.19 of minors in licensed programs substantiated under section 8.20 626.556. 8.21 (b) If a background study is initiated by an applicant or 8.22 license holder and the applicant or license holder receives 8.23 information about the possible criminal or maltreatment history 8.24 of an individual who is the subject of the background study, the 8.25 applicant or license holder must immediately provide the 8.26 information to the commissioner. 8.27 (c) The program or county or other agency must provide 8.28 written notice to the individual who is the subject of the 8.29 background study of the requirements under this subdivision. 8.30 Subd. 7. [PROBATION OFFICER AND CORRECTIONS AGENT.] (a) A 8.31 probation officer or corrections agent shall notify the 8.32 commissioner of an individual's conviction if the individual is: 8.33 (1) affiliated with a program or facility regulated by the 8.34 department of human services or department of health, or any 8.35 type of home care agency or provider of personal care assistance 8.36 services; and 9.1 (2) convicted of a crime constituting a disqualification 9.2 under section 245C.14. 9.3 (b) For the purpose of this subdivision, "conviction" has 9.4 the meaning given it in section 609.02, subdivision 5. 9.5 (c) The commissioner, in consultation with the commissioner 9.6 of corrections, shall develop forms and information necessary to 9.7 implement this subdivision and shall provide the forms and 9.8 information to the commissioner of corrections for distribution 9.9 to local probation officers and corrections agents. 9.10 (d) The commissioner shall inform individuals subject to a 9.11 background study that criminal convictions for disqualifying 9.12 crimes will be reported to the commissioner by the corrections 9.13 system. 9.14 (e) A probation officer, corrections agent, or corrections 9.15 agency is not civilly or criminally liable for disclosing or 9.16 failing to disclose the information required by this subdivision. 9.17 (f) Upon receipt of disqualifying information, the 9.18 commissioner shall provide the notice required under section 9.19 245C.17, as appropriate, to agencies on record as having 9.20 initiated a background study or making a request for 9.21 documentation of the background study status of the individual. 9.22 (g) This subdivision does not apply to family child care 9.23 and child foster care programs. 9.24 Sec. 6. [245C.06] [INDIVIDUAL PREVIOUSLY STUDIED.] 9.25 Subdivision 1. [FACILITY REQUEST.] At the option of the 9.26 licensed facility, rather than initiating another background 9.27 study on an individual required to be studied who has indicated 9.28 to the licensed facility that a background study by the 9.29 commissioner was previously completed, the facility may make a 9.30 request to the commissioner for documentation of the 9.31 individual's background study status, provided that: 9.32 (1) the facility makes this request using a form provided 9.33 by the commissioner; 9.34 (2) in making the request, the facility informs the 9.35 commissioner that either: 9.36 (i) the individual has been continuously affiliated with a 10.1 licensed facility since the individual's previous background 10.2 study was completed, or since October 1, 1995, whichever is 10.3 shorter; or 10.4 (ii) the individual is affiliated only with a personnel 10.5 pool agency, a temporary personnel agency, an educational 10.6 program that trains individuals by providing direct contact 10.7 services in licensed programs, or a professional services agency 10.8 that is not licensed and which contracts with licensed programs 10.9 to provide direct contact services or individuals who provide 10.10 direct contact services; and 10.11 (3) the facility provides notices to the individual as 10.12 required under section 245C.05, subdivision 6, paragraph (c), 10.13 and that the facility is requesting written notification of the 10.14 individual's background study status from the commissioner. 10.15 Subd. 2. [COMMISSIONER'S RESPONSE.] The commissioner shall 10.16 respond to each request under subdivision 1 with a written or 10.17 electronic notice to the facility and the study subject. If the 10.18 commissioner determines that a background study is necessary, 10.19 the commissioner shall complete the study without further 10.20 request from a licensed agency or notifications to the study 10.21 subject. 10.22 Sec. 7. [245C.07] [STUDY SUBJECT AFFILIATED WITH MULTIPLE 10.23 LICENSED FACILITIES.] 10.24 When a background study is being initiated by a licensed 10.25 facility or a foster care provider that is also registered under 10.26 chapter 144D, a study subject affiliated with multiple licensed 10.27 facilities may attach to the background study form a cover 10.28 letter indicating the additional facilities' names, addresses, 10.29 and background study identification numbers. 10.30 When the commissioner receives a notice, the commissioner 10.31 shall notify each facility identified by the background study 10.32 subject of the study results. 10.33 The background study notice the commissioner sends to the 10.34 subsequent agencies shall satisfy those facilities' 10.35 responsibilities for initiating a background study on that 10.36 individual. 11.1 Sec. 8. [245C.08] [BACKGROUND STUDY; INFORMATION 11.2 COMMISSIONER REVIEWS.] 11.3 Subdivision 1. [BACKGROUND STUDIES CONDUCTED BY THE 11.4 COMMISSIONER OF HUMAN SERVICES.] For a background study 11.5 conducted by the commissioner, the commissioner shall review: 11.6 (1) information related to names of substantiated 11.7 perpetrators of maltreatment of vulnerable adults that has been 11.8 received by the commissioner as required under section 626.557, 11.9 subdivision 9c, paragraph (i); 11.10 (2) the commissioner's records relating to the maltreatment 11.11 of minors in licensed programs; 11.12 (3) information from juvenile courts as required in 11.13 subdivision 4 for individuals listed in section 245C.03, 11.14 subdivision 1, clauses (2), (5), and (6); and 11.15 (4) information from the bureau of criminal apprehension. 11.16 Subd. 2. [BACKGROUND STUDIES CONDUCTED BY A COUNTY OR 11.17 PRIVATE AGENCY; FOSTER CARE AND FAMILY CHILD CARE.] For a 11.18 background study conducted by a county or private agency for 11.19 child foster care, adult foster care, and family child care 11.20 homes, the commissioner shall review: 11.21 (1) information from the county agency's record of 11.22 substantiated maltreatment of adults and the maltreatment of 11.23 minors; 11.24 (2) information from juvenile courts as required in 11.25 subdivision 4 for individuals listed in section 245C.03, 11.26 subdivision 1, clauses (2), (5), and (6); and 11.27 (3) information from the bureau of criminal apprehension. 11.28 Subd. 3. [ARREST AND INVESTIGATIVE INFORMATION.] (a) If 11.29 the commissioner has reasonable cause to believe the information 11.30 is pertinent to the disqualification of an individual listed in 11.31 section 245C.03, subdivisions 1 and 2, the commissioner also may 11.32 review arrest and investigative information from: 11.33 (1) the bureau of criminal apprehension; 11.34 (2) the commissioner of health; 11.35 (3) a county attorney; 11.36 (4) a county sheriff; 12.1 (5) a county agency; 12.2 (6) a local chief of police; 12.3 (7) other states; 12.4 (8) the courts; or 12.5 (9) the Federal Bureau of Investigation. 12.6 (b) The commissioner is not required to conduct more than 12.7 one review of a subject's records from the Federal Bureau of 12.8 Investigation if a review of the subject's criminal history with 12.9 the Federal Bureau of Investigation has already been completed 12.10 by the commissioner and there has been no break in the subject's 12.11 affiliation with the license holder who initiated the background 12.12 study. 12.13 Subd. 4. [JUVENILE COURT RECORDS.] (a) The commissioner 12.14 shall review records from the juvenile courts for an individual 12.15 studied under section 245C.03, subdivision 1, clauses (2) and 12.16 (5). 12.17 (b) For individuals studied under section 245C.03, 12.18 subdivision 1, clauses (1), (3), (4), and (6), and subdivision 12.19 2, who are ages 13 to 17, the commissioner shall review records 12.20 from the juvenile courts when the commissioner has reasonable 12.21 cause. 12.22 (c) The juvenile courts shall help with the study by giving 12.23 the commissioner existing juvenile court records on individuals 12.24 described in section 245C.03, subdivision 1, clauses (2), (5), 12.25 and (6), relating to delinquency proceedings held within either 12.26 the five years immediately preceding the background study or the 12.27 five years immediately preceding the individual's 18th birthday, 12.28 whichever time period is longer. 12.29 (d) For purposes of this chapter, a finding that a 12.30 delinquency petition is proven in juvenile court shall be 12.31 considered a conviction in state district court. 12.32 (e) The commissioner shall destroy juvenile records 12.33 obtained under this subdivision when the subject of the records 12.34 reaches age 23. 12.35 Sec. 9. [245C.09] [FAILURE OR REFUSAL TO COOPERATE WITH 12.36 BACKGROUND STUDY.] 13.1 Subdivision 1. [DISQUALIFICATION; LICENSING ACTION.] An 13.2 applicant's, license holder's, or registrant's failure or 13.3 refusal to cooperate with the commissioner is reasonable cause 13.4 to disqualify a subject, deny a license application, or 13.5 immediately suspend or revoke a license or registration. 13.6 Subd. 2. [EMPLOYMENT ACTION.] An individual's failure or 13.7 refusal to cooperate with the background study is just cause for 13.8 denying or terminating employment of the individual if the 13.9 individual's failure or refusal to cooperate could cause the 13.10 applicant's application to be denied or the license holder's 13.11 license to be immediately suspended or revoked. 13.12 Sec. 10. [245C.10] [BACKGROUND STUDY; FEES.] 13.13 Subdivision 1. [SUBJECT OF A BACKGROUND STUDY.] No 13.14 applicant, license holder, or individual who is the subject of a 13.15 background study shall pay any fees required to conduct the 13.16 study. 13.17 Subd. 2. [SUPPLEMENTAL NURSING SERVICES AGENCIES.] The 13.18 commissioner shall recover the cost of the background studies 13.19 initiated by supplemental nursing services agencies registered 13.20 under section 144A.71, subdivision 1, through a fee of no more 13.21 than $8 per study charged to the agency. The fees collected 13.22 under this subdivision are appropriated to the commissioner for 13.23 the purpose of conducting background studies. 13.24 Subd. 3. [PERSONAL CARE PROVIDER ORGANIZATIONS.] The 13.25 commissioner shall recover the cost of background studies 13.26 initiated by a personal care provider organization under section 13.27 256B.0627 through a fee of no more than $12 per study charged to 13.28 the organization responsible for submitting the background study 13.29 form. The fees collected under this subdivision are 13.30 appropriated to the commissioner for the purpose of conducting 13.31 background studies. 13.32 Sec. 11. [245C.11] [BACKGROUND STUDY; COUNTY AGENCIES.] 13.33 Subdivision 1. [FOSTER CARE; CRIMINAL CONVICTION 13.34 DATA.] For individuals who are required to have background 13.35 studies under section 245C.03, subdivisions 1 and 2, and who 13.36 have been continuously affiliated with a foster care provider 14.1 that is licensed in more than one county, criminal conviction 14.2 data may be shared among those counties in which the foster care 14.3 programs are licensed. A county agency's receipt of criminal 14.4 conviction data from another county agency shall meet the 14.5 criminal data background study requirements of this chapter. 14.6 Subd. 2. [JOINTLY LICENSED PROGRAMS.] A county agency may 14.7 accept a background study completed by the commissioner under 14.8 this chapter in place of the background study required under 14.9 section 245A.16, subdivision 3, in programs with joint licensure 14.10 as home and community-based services and adult foster care for 14.11 people with developmental disabilities when the license holder 14.12 does not reside in the foster care residence and the subject of 14.13 the study has been continuously affiliated with the license 14.14 holder since the date of the commissioner's study. 14.15 Subd. 3. [CRIMINAL HISTORY DATA.] County agencies shall 14.16 have access to the criminal history data in the same manner as 14.17 county licensing agencies under this chapter for purposes of 14.18 background studies completed by county agencies on legal 14.19 nonlicensed child care providers to determine eligibility for 14.20 child care funds under chapter 119B. 14.21 Sec. 12. [245C.12] [BACKGROUND STUDY; TRIBAL 14.22 ORGANIZATIONS.] 14.23 For the purposes of background studies completed by tribal 14.24 organizations performing licensing activities otherwise required 14.25 of the commissioner under this chapter, after obtaining consent 14.26 from the background study subject, tribal licensing agencies 14.27 shall have access to criminal history data in the same manner as 14.28 county licensing agencies and private licensing agencies under 14.29 this chapter. 14.30 Sec. 13. [245C.13] [PROCESSING THE BACKGROUND STUDY FORM.] 14.31 Subdivision 1. [TIMING.] Upon receipt of the background 14.32 study forms from an applicant, license holder, registrant, 14.33 agency, organization, program, or entity required to initiate a 14.34 background study under section 245C.04, the commissioner shall 14.35 complete the background study and provide the notice required 14.36 under section 245C.17, subdivision 1, within 15 working days. 15.1 Subd. 2. [DIRECT CONTACT PENDING COMPLETION OF BACKGROUND 15.2 STUDY.] Unless otherwise specified, the subject of a background 15.3 study may have direct contact with persons served by a program 15.4 after the background study form is mailed or submitted to the 15.5 commissioner pending notification of the study results under 15.6 section 245C.17. 15.7 Sec. 14. [245C.14] [DISQUALIFICATION.] 15.8 Subdivision 1. [DISQUALIFICATION FROM DIRECT CONTACT.] (a) 15.9 The commissioner shall disqualify an individual who is the 15.10 subject of a background study from any position allowing direct 15.11 contact with persons receiving services from the license holder 15.12 or entity identified in section 245C.03, upon receipt of 15.13 information showing, or when a background study completed under 15.14 this chapter shows any of the following: 15.15 (1) a conviction of or admission to one or more crimes 15.16 listed in section 245C.15; 15.17 (2) a preponderance of the evidence indicates the 15.18 individual has committed an act or acts that meet the definition 15.19 of any of the crimes listed in section 245C.15; or 15.20 (3) an investigation results in an administrative 15.21 determination listed under section 245C.15, subdivision 4, 15.22 paragraph (b). 15.23 (b) No individual who is disqualified following a 15.24 background study under section 245C.03, subdivisions 1 and 2, 15.25 may be retained in a position involving direct contact with 15.26 persons served by a program or entity identified in section 15.27 245C.03, unless the commissioner has provided written notice 15.28 under section 245C.17 stating that: 15.29 (1) the individual may remain in direct contact during the 15.30 period in which the individual may request reconsideration as 15.31 provided in section 245C.21, subdivision 2; 15.32 (2) the commissioner has set aside the individual's 15.33 disqualification for that program or entity identified in 15.34 section 245C.03, as provided in section 245C.22, subdivision 4; 15.35 or 15.36 (3) the license holder has been granted a variance for the 16.1 disqualified individual under section 245C.30. 16.2 Subd. 2. [DISQUALIFICATION FROM ACCESS.] (a) If an 16.3 individual who is studied under section 245C.03, subdivision 1, 16.4 clauses (2), (5), and (6), is disqualified from direct contact 16.5 under subdivision 1, the commissioner shall also disqualify the 16.6 individual from access to a person receiving services from the 16.7 license holder. 16.8 (b) No individual who is disqualified following a 16.9 background study under section 245C.03, subdivision 1, clauses 16.10 (2), (5), and (6), or as provided elsewhere in statute who is 16.11 disqualified as a result of this section, may be allowed access 16.12 to persons served by the program unless the commissioner has 16.13 provided written notice under section 245C.17 stating that: 16.14 (1) the individual may remain in direct contact during the 16.15 period in which the individual may request reconsideration as 16.16 provided in section 245C.21, subdivision 2; 16.17 (2) the commissioner has set aside the individual's 16.18 disqualification for that licensed program or entity identified 16.19 in section 245C.03 as provided in section 245C.22, subdivision 16.20 4; or 16.21 (3) the license holder has been granted a variance for the 16.22 disqualified individual under section 245C.30. 16.23 Sec. 15. [245C.15] [DISQUALIFYING CRIMES OR CONDUCT.] 16.24 Subdivision 1. [PERMANENT DISQUALIFICATION.] (a) An 16.25 individual is disqualified under section 245C.14 if: (1) 16.26 regardless of how much time has passed since the discharge of 16.27 the sentence imposed for the offense; and (2) unless otherwise 16.28 specified, regardless of the level of the conviction, the 16.29 individual is convicted of any of the following offenses: 16.30 sections 609.185 (murder in the first degree); 609.19 (murder in 16.31 the second degree); 609.195 (murder in the third degree); 609.20 16.32 (manslaughter in the first degree); 609.205 (manslaughter in the 16.33 second degree); 609.221 or 609.222 (assault in the first or 16.34 second degree); a felony offense under sections 609.2242 and 16.35 609.2243 (domestic assault), spousal abuse, child abuse or 16.36 neglect, or a crime against children; 609.228 (great bodily harm 17.1 caused by distribution of drugs); 609.245 (aggravated robbery); 17.2 609.25 (kidnapping); 609.2661 (murder of an unborn child in the 17.3 first degree); 609.2662 (murder of an unborn child in the second 17.4 degree); 609.2663 (murder of an unborn child in the third 17.5 degree); 609.322 (solicitation, inducement, and promotion of 17.6 prostitution); a felony offense under 609.324, subdivision 1 17.7 (other prohibited acts); 609.342 (criminal sexual conduct in the 17.8 first degree); 609.343 (criminal sexual conduct in the second 17.9 degree); 609.344 (criminal sexual conduct in the third degree); 17.10 609.345 (criminal sexual conduct in the fourth degree); 609.352 17.11 (solicitation of children to engage in sexual conduct); 609.365 17.12 (incest); a felony offense under 609.377 (malicious punishment 17.13 of a child); a felony offense under 609.378 (neglect or 17.14 endangerment of a child); 609.561 (arson in the first degree); 17.15 609.66, subdivision 1e (drive-by shooting); 609.749, subdivision 17.16 3, 4, or 5 (felony-level harassment; stalking); 609.855, 17.17 subdivision 5 (shooting at or in a public transit vehicle or 17.18 facility); 617.246 (use of minors in sexual performance 17.19 prohibited); or 617.247 (possession of pictorial representations 17.20 of minors). An individual also is disqualified under section 17.21 245C.14 regardless of how much time has passed since the 17.22 involuntary termination of the individual's parental rights 17.23 under section 260C.301. 17.24 (b) An individual's attempt or conspiracy to commit any of 17.25 the offenses listed in paragraph (a), as each of these offenses 17.26 is defined in Minnesota Statutes, permanently disqualifies the 17.27 individual under section 245C.14. 17.28 (c) An individual's offense in any other state or country, 17.29 where the elements of the offense are substantially similar to 17.30 any of the offenses listed in paragraph (a), permanently 17.31 disqualifies the individual under section 245C.14. 17.32 Subd. 2. [15-YEAR DISQUALIFICATION.] (a) An individual is 17.33 disqualified under section 245C.14 if: (1) less than 15 years 17.34 have passed since the discharge of the sentence imposed for the 17.35 offense; and (2) the individual has received a felony conviction 17.36 for a violation of any of the following offenses: sections 18.1 260C.301 (grounds for termination of parental rights); 609.165 18.2 (felon ineligible to possess firearm); 609.21 (criminal 18.3 vehicular homicide and injury); 609.215 (suicide); 609.223 or 18.4 609.2231 (assault in the third or fourth degree); repeat 18.5 offenses under 609.224 (assault in the fifth degree); 609.2325 18.6 (criminal abuse of a vulnerable adult); 609.2335 (financial 18.7 exploitation of a vulnerable adult); 609.235 (use of drugs to 18.8 injure or facilitate crime); 609.24 (simple robbery); 609.255 18.9 (false imprisonment); 609.2664 (manslaughter of an unborn child 18.10 in the first degree); 609.2665 (manslaughter of an unborn child 18.11 in the second degree); 609.267 (assault of an unborn child in 18.12 the first degree); 609.2671 (assault of an unborn child in the 18.13 second degree); 609.268 (injury or death of an unborn child in 18.14 the commission of a crime); 609.27 (coercion); 609.275 (attempt 18.15 to coerce); repeat offenses under 609.3451 (criminal sexual 18.16 conduct in the fifth degree); 609.498, subdivision 1 or 1b 18.17 (aggravated first degree or first degree tampering with a 18.18 witness); 609.52 (theft); 609.521 (possession of shoplifting 18.19 gear); 609.562 (arson in the second degree); 609.563 (arson in 18.20 the third degree); 609.582 (burglary); 609.625 (aggravated 18.21 forgery); 609.63 (forgery); 609.631 (check forgery; offering a 18.22 forged check); 609.635 (obtaining signature by false pretense); 18.23 609.66 (dangerous weapons); 609.67 (machine guns and 18.24 short-barreled shotguns); 609.687 (adulteration); 609.71 (riot); 18.25 609.713 (terroristic threats); repeat offenses under 617.23 18.26 (indecent exposure; penalties); repeat offenses under 617.241 18.27 (obscene materials and performances; distribution and exhibition 18.28 prohibited; penalty); chapter 152 (drugs; controlled substance); 18.29 or a felony level conviction involving alcohol or drug use. 18.30 (b) An individual is disqualified under section 245C.14 if 18.31 less than 15 years has passed since the individual's attempt or 18.32 conspiracy to commit any of the offenses listed in paragraph 18.33 (a), as each of these offenses is defined in Minnesota Statutes. 18.34 (c) An individual is disqualified under section 245C.14 if 18.35 less than 15 years has passed since the discharge of the 18.36 sentence imposed for an offense in any other state or country, 19.1 the elements of which are substantially similar to the elements 19.2 of the offenses listed in paragraph (a). 19.3 (d) If the individual studied is convicted of one of the 19.4 felonies listed in paragraph (a), but the sentence is a gross 19.5 misdemeanor or misdemeanor disposition, the lookback period for 19.6 the conviction is the period applicable to the gross misdemeanor 19.7 or misdemeanor disposition. 19.8 Subd. 3. [TEN-YEAR DISQUALIFICATION.] (a) An individual is 19.9 disqualified under section 245C.14 if: (1) less than ten years 19.10 have passed since the discharge of the sentence imposed for the 19.11 offense; and (2) the individual has received a gross misdemeanor 19.12 conviction for a violation of any of the following offenses: 19.13 sections 609.224 (assault in the fifth degree); 609.224, 19.14 subdivision 2, paragraph (c) (assault in the fifth degree by a 19.15 caregiver against a vulnerable adult); 609.2242 and 609.2243 19.16 (domestic assault); 609.23 (mistreatment of persons confined); 19.17 609.231 (mistreatment of residents or patients); 609.2325 19.18 (criminal abuse of a vulnerable adult); 609.233 (criminal 19.19 neglect of a vulnerable adult); 609.2335 (financial exploitation 19.20 of a vulnerable adult); 609.234 (failure to report maltreatment 19.21 of a vulnerable adult); 609.265 (abduction); 609.275 (attempt to 19.22 coerce); 609.324, subdivision 1a (other prohibited acts; minor 19.23 engaged in prostitution); 609.33 (disorderly house); 609.3451 19.24 (criminal sexual conduct in the fifth degree); 609.377 19.25 (malicious punishment of a child); 609.378 (neglect or 19.26 endangerment of a child); 609.52 (theft); 609.582 (burglary); 19.27 609.631 (check forgery; offering a forged check); 609.66 19.28 (dangerous weapons); 609.71 (riot); 609.72, subdivision 3 19.29 (disorderly conduct against a vulnerable adult); repeat offenses 19.30 under 609.746 (interference with privacy); 609.749, subdivision 19.31 2 (harassment; stalking); repeat offenses under 617.23 (indecent 19.32 exposure); 617.241 (obscene materials and performances); 617.243 19.33 (indecent literature, distribution); 617.293 (harmful materials; 19.34 dissemination and display to minors prohibited); or violation of 19.35 an order for protection under 518B.01, subdivision 14. 19.36 (b) An individual is disqualified under section 245C.14 if 20.1 less than ten years has passed since the individual's attempt or 20.2 conspiracy to commit any of the offenses listed in paragraph 20.3 (a), as each of these offenses is defined in Minnesota Statutes. 20.4 (c) An individual is disqualified under section 245C.14 if 20.5 less than ten years has passed since the discharge of the 20.6 sentence imposed for an offense in any other state or country, 20.7 the elements of which are substantially similar to the elements 20.8 of any of the offenses listed in paragraph (a). 20.9 (d) If the defendant is convicted of one of the gross 20.10 misdemeanors listed in paragraph (a), but the sentence is a 20.11 misdemeanor disposition, the lookback period for the conviction 20.12 is the period applicable to misdemeanors. 20.13 Subd. 4. [SEVEN-YEAR DISQUALIFICATION.] (a) An individual 20.14 is disqualified under section 245C.14 if: (1) less than seven 20.15 years have passed since the discharge of the sentence imposed 20.16 for the offense; and (2) the individual has received a 20.17 misdemeanor conviction for a violation of any of the following 20.18 offenses: sections 609.224 (assault in the fifth degree); 20.19 609.2242 (domestic assault); 609.2335 (financial exploitation of 20.20 a vulnerable adult); 609.234 (failure to report maltreatment of 20.21 a vulnerable adult); 609.2672 (assault of an unborn child in the 20.22 third degree); 609.27 (coercion); violation of an order for 20.23 protection under 609.3232 (protective order authorized; 20.24 procedures; penalties); 609.52 (theft); 609.66 (dangerous 20.25 weapons); 609.665 (spring guns); 609.746 (interference with 20.26 privacy); 609.79 (obscene or harassing phone calls); 609.795 20.27 (letter, telegram, or package; opening; harassment); 617.23 20.28 (indecent exposure; penalties); 617.293 (harmful materials; 20.29 dissemination and display to minors prohibited); or violation of 20.30 an order for protection under 518B.01 (Domestic Abuse Act). 20.31 (b) An individual is disqualified under section 245C.14 if 20.32 less than seven years has passed since a determination or 20.33 disposition of the individual's: 20.34 (1) failure to make required reports under section 626.556, 20.35 subdivision 3, or 626.557, subdivision 3, for incidents in 20.36 which: (i) the final disposition under section 626.556 or 21.1 626.557 was substantiated maltreatment, and (ii) the 21.2 maltreatment was recurring or serious; or 21.3 (2) substantiated serious or recurring maltreatment of a 21.4 minor under section 626.556 or of a vulnerable adult under 21.5 section 626.557 for which: (i) there is a preponderance of 21.6 evidence that the maltreatment occurred, and (ii) the subject 21.7 was responsible for the maltreatment. 21.8 (c) An individual is disqualified under section 245C.14 if 21.9 less than seven years has passed since the individual's attempt 21.10 or conspiracy to commit any of the offenses listed in paragraphs 21.11 (a) and (b), as each of these offenses is defined in Minnesota 21.12 Statutes. 21.13 (d) An individual is disqualified under section 245C.14 if 21.14 less than seven years has passed since the discharge of the 21.15 sentence imposed for an offense in any other state or country, 21.16 the elements of which are substantially similar to the elements 21.17 of any of the offenses listed in paragraphs (a) and (b). 21.18 Subd. 5. [MENTAL ILLNESS.] The commissioner may not 21.19 disqualify an individual subject to a background study under 21.20 this chapter because that individual has, or has had, a mental 21.21 illness as defined in section 245.462, subdivision 20. 21.22 Sec. 16. [245C.16] [DISQUALIFIED INDIVIDUAL'S RISK OF 21.23 HARM.] 21.24 Subdivision 1. [DETERMINING IMMEDIATE RISK OF HARM.] (a) 21.25 If the commissioner determines that the individual studied has a 21.26 disqualifying characteristic, the commissioner shall review the 21.27 information immediately available and make a determination as to 21.28 the subject's immediate risk of harm to persons served by the 21.29 program where the individual studied will have direct contact. 21.30 (b) The commissioner shall consider all relevant 21.31 information available, including the following factors in 21.32 determining the immediate risk of harm: 21.33 (1) the recency of the disqualifying characteristic; 21.34 (2) the recency of discharge from probation for the crimes; 21.35 (3) the number of disqualifying characteristics; 21.36 (4) the intrusiveness or violence of the disqualifying 22.1 characteristic; 22.2 (5) the vulnerability of the victim involved in the 22.3 disqualifying characteristic; and 22.4 (6) the similarity of the victim to the persons served by 22.5 the program where the individual studied will have direct 22.6 contact. 22.7 (c) This section does not apply when the subject of a 22.8 background study is regulated by a health-related licensing 22.9 board as defined in chapter 214, and the subject is determined 22.10 to be responsible for substantiated maltreatment under section 22.11 626.556 or 626.557. 22.12 Subd. 2. [FINDINGS.] (a) After evaluating the information 22.13 immediately available under subdivision 1, the commissioner may 22.14 have reason to believe one of the following: 22.15 (1) the individual poses an imminent risk of harm to 22.16 persons served by the program where the individual studied will 22.17 have direct contact; 22.18 (2) the individual poses a risk of harm requiring 22.19 continuous, direct supervision while providing direct contact 22.20 services during the period in which the subject may request a 22.21 reconsideration; or 22.22 (3) the individual does not pose an imminent risk of harm 22.23 or a risk of harm requiring continuous, direct supervision while 22.24 providing direct contact services during the period in which the 22.25 subject may request a reconsideration. 22.26 (b) After determining an individual's risk of harm under 22.27 this section, the commissioner must notify the subject of the 22.28 background study and the applicant or license holder as required 22.29 under section 245C.17. 22.30 Subd. 3. [COUNTY AGENCY.] (a) County licensing agencies 22.31 performing duties under this section may develop an alternative 22.32 system for determining the subject's immediate risk of harm to 22.33 persons served by the program, providing the notices under 22.34 subdivision 2, paragraph (b), and documenting the action taken 22.35 by the county licensing agency. 22.36 (b) Each county licensing agency's implementation of the 23.1 alternative system is subject to approval by the commissioner. 23.2 (c) Notwithstanding this alternative system, county 23.3 licensing agencies shall complete the requirements of section 23.4 245C.17. 23.5 Sec. 17. [245C.17] [NOTICE OF BACKGROUND STUDY RESULTS.] 23.6 Subdivision 1. [TIME FRAME FOR NOTICE OF STUDY 23.7 RESULTS.] (a) Within 15 working days after the commissioner's 23.8 receipt of the background study form, the commissioner shall 23.9 notify the individual who is the subject of the study in writing 23.10 or by electronic transmission of the results of the study or 23.11 that more time is needed to complete the study. 23.12 (b) Within 15 working days after the commissioner's receipt 23.13 of the background study form, the commissioner shall notify the 23.14 applicant, license holder, or registrant in writing or by 23.15 electronic transmission of the results of the study or that more 23.16 time is needed to complete the study. 23.17 Subd. 2. [DISQUALIFICATION NOTICE SENT TO SUBJECT.] (a) If 23.18 the information in the study indicates the individual is 23.19 disqualified from direct contact with, or from access to, 23.20 persons served by the program, the commissioner shall disclose 23.21 to the individual studied: 23.22 (1) the information causing disqualification; 23.23 (2) instructions on how to request a reconsideration of the 23.24 disqualification; and 23.25 (3) the commissioner's determination of the individual's 23.26 risk of harm under section 245C.16. 23.27 (b) If the commissioner determines under section 245C.16 23.28 that an individual poses an imminent risk of harm to persons 23.29 served by the program where the individual will have direct 23.30 contact, the commissioner's notice must include an explanation 23.31 of the basis of this determination. 23.32 (c) If the commissioner determines under section 245C.16 23.33 that an individual studied does not pose a risk of harm that 23.34 requires continuous, direct supervision, the commissioner shall 23.35 only notify the individual of the disqualification. 23.36 Subd. 3. [DISQUALIFICATION NOTICE SENT TO APPLICANT, 24.1 LICENSE HOLDER, OR REGISTRANT.] (a) The commissioner shall 24.2 notify an applicant, license holder, or registrant who is not 24.3 the subject of the study: 24.4 (1) that the commissioner has found information that 24.5 disqualifies the individual studied from direct contact with, or 24.6 from access to, persons served by the program; and 24.7 (2) the commissioner's determination of the individual's 24.8 risk of harm under section 245C.16. 24.9 (b) If the commissioner determines under section 245C.16 24.10 that an individual studied poses an imminent risk of harm to 24.11 persons served by the program where the individual studied will 24.12 have direct contact, the commissioner shall order the license 24.13 holder to immediately remove the individual studied from direct 24.14 contact. 24.15 (c) If the commissioner determines under section 245C.16 24.16 that an individual studied poses a risk of harm that requires 24.17 continuous, direct supervision, the commissioner shall order the 24.18 license holder to: 24.19 (1) immediately remove the individual studied from direct 24.20 contact services; or 24.21 (2) assure that the individual studied is under continuous, 24.22 direct supervision when providing direct contact services during 24.23 the period in which the individual may request a reconsideration 24.24 of the disqualification under section 245C.21. 24.25 (d) If the commissioner determines under section 245C.16 24.26 that an individual studied does not pose a risk of harm that 24.27 requires continuous, direct supervision, the commissioner shall 24.28 send the license holder a notice that more time is needed to 24.29 complete the individual's background study. 24.30 (e) The commissioner shall not notify the applicant, 24.31 license holder, or registrant of the information contained in 24.32 the subject's background study unless: 24.33 (1) the basis for the disqualification is failure to 24.34 cooperate with the background study or substantiated 24.35 maltreatment under section 626.556 or 626.557; 24.36 (2) the Data Practices Act under chapter 13 provides for 25.1 release of the information; or 25.2 (3) the individual studied authorizes the release of the 25.3 information. 25.4 Subd. 4. [DISQUALIFICATION NOTICE TO FAMILY CHILD CARE OR 25.5 FOSTER CARE PROVIDER.] For studies on individuals pertaining to 25.6 a license to provide family child care or group family child 25.7 care, foster care for children in the provider's own home, or 25.8 foster care or day care services for adults in the provider's 25.9 own home, the commissioner is not required to provide a separate 25.10 notice of the background study results to the individual who is 25.11 the subject of the study unless the study results in a 25.12 disqualification of the individual. 25.13 Sec. 18. [245C.18] [OBLIGATION TO REMOVE DISQUALIFIED 25.14 INDIVIDUAL FROM DIRECT CONTACT.] 25.15 The license holder must remove a disqualified individual 25.16 from direct contact with persons served by the licensed program 25.17 if the individual does not request reconsideration under section 25.18 245C.21 within the prescribed time, or if the individual submits 25.19 a timely request for reconsideration, and the commissioner does 25.20 not set aside the disqualification under section 245C.22, 25.21 subdivision 4. 25.22 Sec. 19. [245C.19] [TERMINATION OF AFFILIATION BASED ON 25.23 DISQUALIFICATION NOTICE.] 25.24 An applicant or license holder that terminates affiliation 25.25 with persons studied under section 245C.03, when the termination 25.26 is made in good faith reliance on a notice of disqualification 25.27 provided by the commissioner, shall not be subject to civil 25.28 liability. 25.29 Sec. 20. [245C.20] [LICENSE HOLDER RECORDKEEPING.] 25.30 When a background study is completed under this chapter, a 25.31 licensed program shall maintain a notice that the study was 25.32 undertaken and completed in the program's personnel files. 25.33 Sec. 21. [245C.21] [REQUESTING RECONSIDERATION OF 25.34 DISQUALIFICATION.] 25.35 Subdivision 1. [WHO MAY REQUEST RECONSIDERATION.] An 25.36 individual who is the subject of a disqualification may request 26.1 a reconsideration of the disqualification. The individual must 26.2 submit the request for reconsideration to the commissioner in 26.3 writing. 26.4 Subd. 2. [TIME FRAME FOR REQUESTING RECONSIDERATION OF A 26.5 DISQUALIFICATION.] (a) When the commissioner sends an individual 26.6 a notice of disqualification based on a finding under section 26.7 245C.16, subdivision 2, paragraph (a), clause (1) or (2), the 26.8 disqualified individual must submit the request for a 26.9 reconsideration within 30 calendar days of the individual's 26.10 receipt of the notice of disqualification. Upon showing that 26.11 the information under subdivision 3 cannot be obtained within 30 26.12 days, the disqualified individual may request additional time, 26.13 not to exceed 30 days, to obtain the information. 26.14 (b) When the commissioner sends an individual a notice of 26.15 disqualification based on a finding under section 245C.16, 26.16 subdivision 2, paragraph (a), clause (3), the disqualified 26.17 individual must submit the request for reconsideration within 15 26.18 calendar days of the individual's receipt of the notice of 26.19 disqualification. 26.20 (c) An individual who was determined to have maltreated a 26.21 child under section 626.556 or a vulnerable adult under section 26.22 626.557, and who is disqualified on the basis of serious or 26.23 recurring maltreatment, may request a reconsideration of both 26.24 the maltreatment and the disqualification determinations. The 26.25 request must be submitted within 30 calendar days of the 26.26 individual's receipt of the notice of disqualification. 26.27 Subd. 3. [INFORMATION THE DISQUALIFIED INDIVIDUAL MUST 26.28 PROVIDE TO THE COMMISSIONER WHEN REQUESTING 26.29 RECONSIDERATION.] The disqualified individual must submit 26.30 information showing that: 26.31 (1) the information the commissioner relied upon in 26.32 determining the underlying conduct that gave rise to the 26.33 disqualification is incorrect; 26.34 (2) for maltreatment, the information the commissioner 26.35 relied upon in determining that maltreatment was serious or 26.36 recurring is incorrect; or 27.1 (3) the subject of the study does not pose a risk of harm 27.2 to any person served by the applicant, license holder, or 27.3 registrant. 27.4 Sec. 22. [245C.22] [REVIEW AND ACTION BY THE COMMISSIONER 27.5 ON A RECONSIDERATION REQUEST.] 27.6 Subdivision 1. [COMMISSIONER'S TIME FRAME FOR RESPONDING 27.7 TO DISQUALIFICATION RECONSIDERATION REQUESTS.] (a) The 27.8 commissioner shall respond in writing or by electronic 27.9 transmission to all reconsideration requests for which the basis 27.10 for the request is that the information the commissioner relied 27.11 upon to disqualify is incorrect or inaccurate within 30 working 27.12 days of receipt of a request and all relevant information. 27.13 (b) If the basis for a disqualified individual's 27.14 reconsideration request is that the individual does not pose a 27.15 risk of harm, the commissioner shall respond to the request 27.16 within 15 working days after receiving the request for 27.17 reconsideration and all relevant information. 27.18 (c) If the disqualified individual's reconsideration 27.19 request is based on both the correctness or accuracy of the 27.20 information the commissioner relied upon to disqualify the 27.21 individual and the individual's risk of harm, the commissioner 27.22 shall respond to the request within 45 working days after 27.23 receiving the request for reconsideration and all relevant 27.24 information. 27.25 Subd. 2. [INCORRECT INFORMATION; RESCISSION.] The 27.26 commissioner shall rescind the disqualification if the 27.27 commissioner finds that the information relied upon to 27.28 disqualify the subject is incorrect. 27.29 Subd. 3. [PREEMINENT WEIGHT TO THE SAFETY OF PERSONS BEING 27.30 SERVED.] In reviewing a request for reconsideration of a 27.31 disqualification, the commissioner shall give preeminent weight 27.32 to the safety of each person served by the license holder, 27.33 applicant, or registrant over the interests of the license 27.34 holder, applicant, or registrant. 27.35 Subd. 4. [RISK OF HARM; SET ASIDE.] (a) The commissioner 27.36 may set aside the disqualification if the commissioner finds 28.1 that the individual does not pose a risk of harm to any person 28.2 served by the applicant, license holder, or registrant. 28.3 (b) In determining if the individual does not pose a risk 28.4 of harm, the commissioner shall consider: 28.5 (1) the nature, severity, and consequences of the event or 28.6 events that led to the disqualification; 28.7 (2) whether there is more than one disqualifying event; 28.8 (3) the age and vulnerability of the victim at the time of 28.9 the event; 28.10 (4) the harm suffered by the victim; 28.11 (5) the similarity between the victim and persons served by 28.12 the program; 28.13 (6) the time elapsed without a repeat of the same or 28.14 similar event; 28.15 (7) documentation of successful completion by the 28.16 individual studied of training or rehabilitation pertinent to 28.17 the event; and 28.18 (8) any other information relevant to reconsideration. 28.19 Sec. 23. [245C.23] [COMMISSIONER'S RECONSIDERATION 28.20 NOTICE.] 28.21 Subdivision 1. [COMMISSIONER'S NOTICE OF DISQUALIFICATION 28.22 THAT IS SET ASIDE.] (a) If the commissioner sets aside a 28.23 disqualification, the commissioner shall notify the applicant or 28.24 license holder in writing or by electronic transmission of the 28.25 decision. In the notice from the commissioner that a 28.26 disqualification has been set aside, the commissioner must 28.27 inform the license holder that information about the nature of 28.28 the disqualification and which factors under section 245C.22, 28.29 subdivision 4, were the basis of the decision to set aside the 28.30 disqualification are available to the license holder upon 28.31 request without the consent of the background study subject. 28.32 (b) With the written consent of the background study 28.33 subject, the commissioner may release to the license holder 28.34 copies of all information related to the background study 28.35 subject's disqualification and the commissioner's decision to 28.36 set aside the disqualification as specified in the written 29.1 consent. 29.2 (c) If the individual studied submits a timely request for 29.3 reconsideration under section 245C.21, and if the commissioner 29.4 sets aside the disqualification for that license holder under 29.5 section 245C.22, the commissioner shall send the license holder 29.6 the same notification received by license holders in cases where 29.7 the individual studied has no disqualifying characteristic. 29.8 Subd. 2. [COMMISSIONER'S NOTICE OF DISQUALIFICATION THAT 29.9 IS NOT SET ASIDE.] If the individual studied does not submit a 29.10 timely request for reconsideration under section 245C.21, or the 29.11 individual submits a timely request for reconsideration, but the 29.12 commissioner does not set aside the disqualification for that 29.13 license holder under section 245C.22, the commissioner shall 29.14 notify the license holder of the disqualification and order the 29.15 license holder to immediately remove the individual from any 29.16 position allowing direct contact with persons receiving services 29.17 from the license holder. 29.18 Sec. 24. [245C.24] [BARS TO SETTING ASIDE A 29.19 DISQUALIFICATION; FAMILY CHILD CARE AND FOSTER CARE.] 29.20 Subdivision 1. [MINIMUM DISQUALIFICATION PERIODS.] The 29.21 disqualification periods under subdivisions 3 and 4 are the 29.22 minimum applicable disqualification periods. The commissioner 29.23 may determine that an individual should continue to be 29.24 disqualified from licensure because the individual continues to 29.25 pose a risk of harm to persons served by that individual, even 29.26 after the minimum disqualification period has passed. 29.27 Subd. 2. [PERMANENT BAR TO SET ASIDE OF DISQUALIFICATION.] 29.28 The commissioner may not set aside the disqualification of an 29.29 individual in connection with a license to provide family child 29.30 care for children, foster care for children in the provider's 29.31 home, or foster care or day care services for adults in the 29.32 provider's home, regardless of how much time has passed, if the 29.33 provider was disqualified for a crime or conduct listed in 29.34 section 245C.15, subdivision 1. 29.35 Subd. 3. [TEN-YEAR BAR TO SET ASIDE OF 29.36 DISQUALIFICATION.] (a) The commissioner may not set aside the 30.1 disqualification of an individual in connection with a license 30.2 to provide family child care for children, foster care for 30.3 children in the provider's home, or foster care or day care 30.4 services for adults in the provider's home if: (1) less than 30.5 ten years have passed since the discharge of the sentence 30.6 imposed for the offense; and (2) the individual has been 30.7 convicted of a violation of any of the following offenses: 30.8 sections 609.165 (felon ineligible to possess firearm); criminal 30.9 vehicular homicide under 609.21 (criminal vehicular homicide and 30.10 injury); 609.215 (aiding suicide or aiding attempted suicide); 30.11 felony violations under 609.223 or 609.2231 (assault in the 30.12 third or fourth degree); 609.713 (terroristic threats); 609.235 30.13 (use of drugs to injure or to facilitate crime); 609.24 (simple 30.14 robbery); 609.255 (false imprisonment); 609.562 (arson in the 30.15 second degree); 609.71 (riot); 609.498, subdivision 1 or 1b 30.16 (aggravated first degree or first degree tampering with a 30.17 witness); burglary in the first or second degree under 609.582 30.18 (burglary); 609.66 (dangerous weapon); 609.665 (spring guns); 30.19 609.67 (machine guns and short-barreled shotguns); 609.749, 30.20 subdivision 2 (gross misdemeanor harassment; stalking); 152.021 30.21 or 152.022 (controlled substance crime in the first or second 30.22 degree); 152.023, subdivision 1, clause (3) or (4) or 30.23 subdivision 2, clause (4) (controlled substance crime in the 30.24 third degree); 152.024, subdivision 1, clause (2), (3), or (4) 30.25 (controlled substance crime in the fourth degree); 609.224, 30.26 subdivision 2, paragraph (c) (fifth-degree assault by a 30.27 caregiver against a vulnerable adult); 609.23 (mistreatment of 30.28 persons confined); 609.231 (mistreatment of residents or 30.29 patients); 609.2325 (criminal abuse of a vulnerable adult); 30.30 609.233 (criminal neglect of a vulnerable adult); 609.2335 30.31 (financial exploitation of a vulnerable adult); 609.234 (failure 30.32 to report); 609.265 (abduction); 609.2664 to 609.2665 30.33 (manslaughter of an unborn child in the first or second degree); 30.34 609.267 to 609.2672 (assault of an unborn child in the first, 30.35 second, or third degree); 609.268 (injury or death of an unborn 30.36 child in the commission of a crime); 617.293 (disseminating or 31.1 displaying harmful material to minors); a felony level 31.2 conviction involving alcohol or drug use, a gross misdemeanor 31.3 offense under 609.324, subdivision 1 (other prohibited acts); a 31.4 gross misdemeanor offense under 609.378 (neglect or endangerment 31.5 of a child); a gross misdemeanor offense under 609.377 31.6 (malicious punishment of a child); or 609.72, subdivision 3 31.7 (disorderly conduct against a vulnerable adult). 31.8 (b) The commissioner may not set aside the disqualification 31.9 of an individual if less than ten years have passed since the 31.10 individual's attempt or conspiracy to commit any of the offenses 31.11 listed in paragraph (a) as each of these offenses is defined in 31.12 Minnesota Statutes. 31.13 (c) The commissioner may not set aside the disqualification 31.14 of an individual if less than ten years have passed since the 31.15 discharge of the sentence imposed for an offense in any other 31.16 state or country, the elements of which are substantially 31.17 similar to the elements of any of the offenses listed in 31.18 paragraph (a). 31.19 Subd. 4. [SEVEN-YEAR BAR TO SET ASIDE 31.20 DISQUALIFICATION.] The commissioner may not set aside the 31.21 disqualification of an individual in connection with a license 31.22 to provide family child care for children, foster care for 31.23 children in the provider's home, or foster care or day care 31.24 services for adults in the provider's home if within seven years 31.25 preceding the study: 31.26 (1) the individual committed an act that constitutes 31.27 maltreatment of a child under section 626.556, subdivision 10e, 31.28 and the maltreatment resulted in substantial bodily harm as 31.29 defined in section 609.02, subdivision 7a, or substantial mental 31.30 or emotional harm as supported by competent psychological or 31.31 psychiatric evidence; or 31.32 (2) the individual was determined under section 626.557 to 31.33 be the perpetrator of a substantiated incident of maltreatment 31.34 of a vulnerable adult that resulted in substantial bodily harm 31.35 as defined in section 609.02, subdivision 7a, or substantial 31.36 mental or emotional harm as supported by competent psychological 32.1 or psychiatric evidence. 32.2 Sec. 25. [245C.25] [CONSOLIDATED RECONSIDERATION OF 32.3 MALTREATMENT DETERMINATION AND DISQUALIFICATION.] 32.4 If an individual is disqualified on the basis of a 32.5 determination of maltreatment under section 626.556 or 626.557, 32.6 which was serious or recurring, and the individual requests 32.7 reconsideration of the maltreatment determination under section 32.8 626.556, subdivision 10i, or 626.557, subdivision 9d, and also 32.9 requests reconsideration of the disqualification under section 32.10 245C.21, the commissioner shall consolidate the reconsideration 32.11 of the maltreatment determination and the disqualification into 32.12 a single reconsideration. 32.13 For maltreatment and disqualification determinations made 32.14 by county agencies, the county agency shall conduct the 32.15 consolidated reconsideration. If the county agency has 32.16 disqualified an individual on multiple bases, one of which is a 32.17 county maltreatment determination for which the individual has a 32.18 right to request reconsideration, the county shall conduct the 32.19 reconsideration of all disqualifications. 32.20 Sec. 26. [245C.26] [RECONSIDERATION OF A DISQUALIFICATION 32.21 FOR AN INDIVIDUAL LIVING IN A LICENSED HOME.] 32.22 In the case of any ground for disqualification under this 32.23 chapter, if the act was committed by an individual other than 32.24 the applicant, license holder, or registrant residing in the 32.25 applicant's, license holder's, or registrant's home, the 32.26 applicant, license holder, or registrant may seek 32.27 reconsideration when the individual who committed the act no 32.28 longer resides in the home. 32.29 Sec. 27. [245C.27] [FAIR HEARING RIGHTS.] 32.30 Subdivision 1. [FAIR HEARING WHEN DISQUALIFICATION IS NOT 32.31 SET ASIDE.] (a) If the commissioner does not set aside or 32.32 rescind a disqualification of an individual under section 32.33 245C.22 who is disqualified on the basis of a preponderance of 32.34 evidence that the individual committed an act or acts that meet 32.35 the definition of any of the crimes listed in section 245C.15; 32.36 or for failure to make required reports under section 626.556, 33.1 subdivision 3; or 626.557, subdivision 3, pursuant to section 33.2 245C.15, subdivision 4, paragraph (b), clause (1), the 33.3 individual may request a fair hearing under section 256.045. 33.4 (b) The fair hearing is the only administrative appeal of 33.5 the final agency determination. The disqualified individual 33.6 does not have the right to challenge the accuracy and 33.7 completeness of data under section 13.04. 33.8 (c) This section does not apply to a public employee's 33.9 appeal of a disqualification under section 245C.28, subdivision 33.10 3. 33.11 Subd. 2. [CONSOLIDATED FAIR HEARING FOR MALTREATMENT 33.12 DETERMINATION AND DISQUALIFICATION NOT SET ASIDE.] (a) If an 33.13 individual who is disqualified on the bases of serious or 33.14 recurring maltreatment requests a fair hearing on the 33.15 maltreatment determination under section 626.556, subdivision 33.16 10i, or 626.557, subdivision 9d, and requests a fair hearing 33.17 under this section on the disqualification, which has not been 33.18 set aside or rescinded, the scope of the fair hearing under 33.19 section 256.045 shall include the maltreatment determination and 33.20 the disqualification. 33.21 (b) A fair hearing is the only administrative appeal of the 33.22 final agency determination. The disqualified individual does 33.23 not have the right to challenge the accuracy and completeness of 33.24 data under section 13.04. 33.25 (c) This section does not apply to a public employee's 33.26 appeal of a disqualification under section 245C.28, subdivision 33.27 3. 33.28 Sec. 28. [245C.28] [CONTESTED CASE HEARING RIGHTS.] 33.29 Subdivision 1. [LICENSE HOLDER.] (a) If a maltreatment 33.30 determination or a disqualification for which reconsideration 33.31 was requested and which was not set aside or rescinded is the 33.32 basis for a denial of a license under section 245A.05 or a 33.33 licensing sanction under 245A.07, the license holder has the 33.34 right to a contested case hearing under chapter 14 and Minnesota 33.35 Rules, parts 1400.8505 to 1400.8612. 33.36 (b) The license holder must submit the appeal in accordance 34.1 with section 245A.05 or 245A.07, subdivision 3. As provided 34.2 under section 245A.08, subdivision 2a, the scope of the 34.3 consolidated contested case hearing must include the 34.4 disqualification and the licensing sanction or denial of a 34.5 license. 34.6 (c) If the disqualification was based on a determination of 34.7 substantiated serious or recurring maltreatment under section 34.8 626.556 or 626.557, the appeal must be submitted in accordance 34.9 with sections 245A.07, subdivision 3, and 626.556, subdivision 34.10 10i, or 626.557, subdivision 9d. As provided for under section 34.11 245A.08, subdivision 2a, the scope of the contested case hearing 34.12 must include the maltreatment determination, the 34.13 disqualification, and the licensing sanction or denial of a 34.14 license. In such cases, a fair hearing must not be conducted 34.15 under section 256.045. 34.16 Subd. 2. [INDIVIDUAL OTHER THAN THE LICENSE HOLDER.] If 34.17 the basis for the commissioner's denial of a license under 34.18 section 245A.05 or a licensing sanction under section 245A.07 is 34.19 a maltreatment determination or disqualification that was not 34.20 set aside or rescinded under section 245C.22, and the 34.21 disqualified subject is an individual other than the license 34.22 holder and upon whom a background study must be conducted under 34.23 section 245C.03, the hearing of all parties may be consolidated 34.24 into a single contested case hearing upon consent of all parties 34.25 and the administrative law judge. 34.26 Subd. 3. [EMPLOYEES OF PUBLIC EMPLOYER.] (a) If the 34.27 commissioner does not set aside the disqualification of an 34.28 individual who is an employee of an employer, as defined in 34.29 section 179A.03, subdivision 15, the individual may request a 34.30 contested case hearing under chapter 14. 34.31 (b) If the commissioner does not set aside or rescind a 34.32 disqualification that is based on a maltreatment determination, 34.33 the scope of the contested case hearing must include the 34.34 maltreatment determination and the disqualification. In such 34.35 cases, a fair hearing must not be conducted under section 34.36 256.045. 35.1 (c) Rules adopted under this chapter may not preclude an 35.2 employee in a contested case hearing for a disqualification from 35.3 submitting evidence concerning information gathered under this 35.4 chapter. 35.5 Subd. 4. [FINAL AGENCY ORDER.] The commissioner's final 35.6 order under section 245A.08, subdivision 5, is conclusive on the 35.7 issue of maltreatment and disqualification, including for 35.8 purposes of subsequent background studies. The contested case 35.9 hearing under this section is the only administrative appeal of 35.10 the final agency determination, specifically, including a 35.11 challenge to the accuracy and completeness of data under section 35.12 13.04. 35.13 Sec. 29. [245C.29] [CONCLUSIVE DETERMINATIONS OR 35.14 DISPOSITIONS.] 35.15 Subdivision 1. [CONCLUSIVE MALTREATMENT DETERMINATION OR 35.16 DISPOSITION.] Unless otherwise specified in statute, a 35.17 maltreatment determination or disposition under section 626.556 35.18 or 626.557 is conclusive, if: 35.19 (1) the commissioner has issued a final order in an appeal 35.20 of that determination or disposition under section 245A.08, 35.21 subdivision 5, or 256.045; 35.22 (2) the individual did not request reconsideration of the 35.23 maltreatment determination or disposition under section 626.556 35.24 or 626.557; or 35.25 (3) the individual did not request a hearing of the 35.26 maltreatment determination or disposition under section 256.045. 35.27 Subd. 2. [CONCLUSIVE DISQUALIFICATION 35.28 DETERMINATION.] Unless otherwise specified in statute, a 35.29 determination that: 35.30 (1) the information the commissioner relied upon to 35.31 disqualify an individual under section 245C.14 was correct based 35.32 on serious or recurring maltreatment; 35.33 (2) a preponderance of the evidence shows that the 35.34 individual committed an act or acts that meet the definition of 35.35 any of the crimes listed in section 245C.15; or 35.36 (3) the individual failed to make required reports under 36.1 section 626.556, subdivision 3, or 626.557, subdivision 3, is 36.2 conclusive if: 36.3 (i) the commissioner has issued a final order in an appeal 36.4 of that determination under section 245A.08, subdivision 5, or 36.5 256.045, or a court has issued a final decision; 36.6 (ii) the individual did not request reconsideration of the 36.7 disqualification under section 245C.21; or 36.8 (iii) the individual did not request a hearing on the 36.9 disqualification under section 256.045. 36.10 Sec. 30. [245C.30] [VARIANCE FOR A DISQUALIFIED 36.11 INDIVIDUAL.] 36.12 Subdivision 1. [LICENSE HOLDER VARIANCE.] (a) When the 36.13 commissioner has not set aside a background study subject's 36.14 disqualification, and there are conditions under which the 36.15 disqualified individual may provide direct contact services or 36.16 have access to people receiving services that minimize the risk 36.17 of harm to people receiving services, the commissioner may grant 36.18 a time-limited variance to a license holder. 36.19 (b) The variance shall state the reason for the 36.20 disqualification, the services that may be provided by the 36.21 disqualified individual, and the conditions with which the 36.22 license holder or applicant must comply for the variance to 36.23 remain in effect. 36.24 Subd. 2. [DISCLOSURE OF REASON FOR DISQUALIFICATION.] (a) 36.25 The commissioner may not grant a variance for a disqualified 36.26 individual unless the applicant or license holder requests the 36.27 variance and the disqualified individual provides written 36.28 consent for the commissioner to disclose to the applicant or 36.29 license holder the reason for the disqualification. 36.30 (b) This subdivision does not apply to programs licensed to 36.31 provide family child care for children, foster care for children 36.32 in the provider's own home, or foster care or day care services 36.33 for adults in the provider's own home. 36.34 Subd. 3. [CONSEQUENCES FOR FAILING TO COMPLY WITH 36.35 CONDITIONS OF VARIANCE.] When a license holder permits a 36.36 disqualified individual to provide any services for which the 37.1 subject is disqualified without complying with the conditions of 37.2 the variance, the commissioner may terminate the variance 37.3 effective immediately and subject the license holder to a 37.4 licensing action under sections 245A.06 and 245A.07. 37.5 Subd. 4. [TERMINATION OF A VARIANCE.] The commissioner may 37.6 terminate a variance for a disqualified individual at any time 37.7 for cause. 37.8 Subd. 5. [FINAL DECISION.] The commissioner's decision to 37.9 grant or deny a variance is final and not subject to appeal 37.10 under the provisions of chapter 14. 37.11 Sec. 31. [245C.31] [DISQUALIFICATION OF INDIVIDUAL 37.12 REGULATED BY A HEALTH-RELATED LICENSING BOARD WHEN 37.13 DISQUALIFICATION BASED ON SUBSTANTIATED MALTREATMENT.] 37.14 Subdivision 1. [BOARD DETERMINES DISCIPLINARY OR 37.15 CORRECTIVE ACTION.] (a) When the subject of a background study 37.16 is regulated by a health-related licensing board as defined in 37.17 chapter 214, and the commissioner determines that the regulated 37.18 individual is responsible for substantiated maltreatment under 37.19 section 626.556 or 626.557, instead of the commissioner making a 37.20 decision regarding disqualification, the board shall make a 37.21 determination whether to impose disciplinary or corrective 37.22 action under chapter 214. 37.23 (b) This section does not apply to a background study of an 37.24 individual regulated by a health-related licensing board if the 37.25 individual's study is related to child foster care, adult foster 37.26 care, or family child care licensure. 37.27 Subd. 2. [COMMISSIONER'S NOTICE TO THE BOARD.] (a) The 37.28 commissioner shall notify the health-related licensing board: 37.29 (1) upon completion of a background study that produces a 37.30 record showing that the individual was determined to have been 37.31 responsible for substantiated maltreatment; 37.32 (2) upon the commissioner's completion of an investigation 37.33 that determined the individual was responsible for substantiated 37.34 maltreatment; or 37.35 (3) upon receipt from another agency of a finding of 37.36 substantiated maltreatment for which the individual was 38.1 responsible. 38.2 (b) The commissioner's notice to the health-related 38.3 licensing board shall indicate whether the commissioner would 38.4 have disqualified the individual for the substantiated 38.5 maltreatment if the individual were not regulated by the board. 38.6 (c) The commissioner shall concurrently send the notice 38.7 under this subdivision to the individual who is the subject of 38.8 the background study. 38.9 Subd. 3. [COMMISSIONER'S OR LOCAL AGENCY'S REFERRAL TO 38.10 BOARD.] (a) When the commissioner or a local agency has reason 38.11 to believe that the direct contact services provided by an 38.12 individual may fall within the jurisdiction of a health-related 38.13 licensing board, the commissioner or local agency shall refer 38.14 the matter to the board as provided in this section. 38.15 (b) If, upon review of the information provided by the 38.16 commissioner, a health-related licensing board informs the 38.17 commissioner that the board does not have jurisdiction to take 38.18 disciplinary or corrective action, the commissioner shall make 38.19 the appropriate disqualification decision regarding the 38.20 individual as otherwise provided in this chapter. 38.21 Subd. 4. [FACILITY MONITORING.] (a) The commissioner has 38.22 the authority to monitor the facility's compliance with any 38.23 requirements that the health-related licensing board places on 38.24 regulated individuals practicing in a facility either during the 38.25 period pending a final decision on a disciplinary or corrective 38.26 action or as a result of a disciplinary or corrective action. 38.27 The commissioner has the authority to order the immediate 38.28 removal of a regulated individual from direct contact or access 38.29 when a board issues an order of temporary suspension based on a 38.30 determination that the regulated individual poses an immediate 38.31 risk of harm to persons receiving services in a licensed 38.32 facility. 38.33 (b) A facility that allows a regulated individual to 38.34 provide direct contact services while not complying with the 38.35 requirements imposed by the health-related licensing board is 38.36 subject to action by the commissioner as specified under 39.1 sections 245A.06 and 245A.07. 39.2 (c) The commissioner shall notify a health-related 39.3 licensing board immediately upon receipt of knowledge of a 39.4 facility's or individual's noncompliance with requirements the 39.5 board placed on a facility or upon an individual regulated by 39.6 the board. 39.7 Sec. 32. [245C.32] [SYSTEMS AND RECORDS.] 39.8 Subdivision 1. [ESTABLISHMENT.] The commissioner may 39.9 establish systems and records to fulfill the requirements of 39.10 this chapter. 39.11 Subd. 2. [USE.] (a) The commissioner may also use these 39.12 systems and records to obtain and provide criminal history data 39.13 from the bureau of criminal apprehension and data about 39.14 substantiated maltreatment under section 626.556 or 626.557, for 39.15 other purposes, provided that: 39.16 (1) the background study is specifically authorized in 39.17 statute; or 39.18 (2) the request is made with the informed consent of the 39.19 subject of the study as provided in section 13.05, subdivision 4. 39.20 (b) An individual making a request under paragraph (a), 39.21 clause (2), must agree in writing not to disclose the data to 39.22 any other individual without the consent of the subject of the 39.23 data. 39.24 (c) The commissioner may recover the cost of obtaining and 39.25 providing background study data by charging the individual 39.26 requesting the study a fee of no more than $12 per study. The 39.27 fees collected under this paragraph are appropriated to the 39.28 commissioner for the purpose of conducting background studies. 39.29 Subd. 3. [NATIONAL RECORDS SEARCH.] (a) When specifically 39.30 required by statute, the commissioner shall also obtain criminal 39.31 history data from the National Criminal Records Repository. 39.32 (b) To obtain criminal history data from the National 39.33 Criminal Records Repository, the commissioner shall require 39.34 classifiable fingerprints of the data subject and must submit 39.35 these fingerprint requests through the bureau of criminal 39.36 apprehension. 40.1 (c) The commissioner may require the background study 40.2 subject to submit fingerprint images electronically. The 40.3 commissioner may not require electronic fingerprint images until 40.4 the electronic recording and transfer system is available for 40.5 noncriminal justice purposes and the necessary equipment is in 40.6 use in the law enforcement agency in the background study 40.7 subject's local community. 40.8 (d) The commissioner may recover the cost of obtaining and 40.9 providing criminal history data from the National Criminal 40.10 Records Repository by charging the individual requesting the 40.11 study a fee of no more than $30 per study. The fees collected 40.12 under this subdivision are appropriated to the commissioner for 40.13 the purpose of obtaining criminal history data from the National 40.14 Criminal Records Repository. 40.15 Sec. 33. [REVISOR'S INSTRUCTION.] 40.16 (a) The revisor of statutes shall correct internal 40.17 cross-references to sections that are now in Minnesota Statutes, 40.18 chapter 245C, throughout Minnesota Statutes and Minnesota Rules. 40.19 (b) If a provision of a section of Minnesota Statutes 40.20 amended by this act is amended by the 2003 regular legislative 40.21 session or 2003 special legislative session, if any, the revisor 40.22 shall codify the amendment consistent with the recodification of 40.23 the affected section by this act, notwithstanding any law to the 40.24 contrary. In sections affected by this instruction, the revisor 40.25 may make changes necessary to correct the punctuation, grammar, 40.26 or structure of the remaining text and preserve its meaning. 40.27 Sec. 34. [EFFECTIVE DATE.] 40.28 Sections 1 to 33 are effective the day following final 40.29 enactment. 40.30 ARTICLE 2 40.31 CONFORMING AMENDMENTS 40.32 Section 1. Minnesota Statutes 2002, section 245A.04, 40.33 subdivision 1, is amended to read: 40.34 Subdivision 1. [APPLICATION FOR LICENSURE.] (a) An 40.35 individual, corporation, partnership, voluntary association, 40.36 other organization or controlling individual that is subject to 41.1 licensure under section 245A.03 must apply for a license. The 41.2 application must be made on the forms and in the manner 41.3 prescribed by the commissioner. The commissioner shall provide 41.4 the applicant with instruction in completing the application and 41.5 provide information about the rules and requirements of other 41.6 state agencies that affect the applicant. 41.7 The commissioner shall act on the application within 90 41.8 working days after a complete application and any required 41.9 reports have been received from other state agencies or 41.10 departments, counties, municipalities, or other political 41.11 subdivisions. The commissioner shall not consider an 41.12 application to be complete until the commissioner receives all 41.13 of the information required under section 245C.05. 41.14 (b) An application for licensure must specify one or more 41.15 controlling individuals as an agent who is responsible for 41.16 dealing with the commissioner of human services on all matters 41.17 provided for in this chapter and on whom service of all notices 41.18 and orders must be made. The agent must be authorized to accept 41.19 service on behalf of all of the controlling individuals of the 41.20 program. Service on the agent is service on all of the 41.21 controlling individuals of the program. It is not a defense to 41.22 any action arising under this chapter that service was not made 41.23 on each controlling individual of the program. The designation 41.24 of one or more controlling individuals as agents under this 41.25 paragraph does not affect the legal responsibility of any other 41.26 controlling individual under this chapter. 41.27 Sec. 2. Minnesota Statutes 2002, section 245A.04, 41.28 subdivision 3, is amended to read: 41.29 Subd. 3. [BACKGROUND STUDYOF THE APPLICANT;41.30DEFINITIONS.](a)Individuals and organizations that are 41.31 requiredin statuteunder section 245C.03 to have or initiate 41.32 background studiesunder this sectionshall comply with the 41.33followingrequirements:in chapter 245C. 41.34(1) Applicants for licensure, license holders, and other41.35entities as provided in this section must submit completed41.36background study forms to the commissioner before individuals42.1specified in paragraph (c), clauses (1) to (4), (6), and (7),42.2begin positions allowing direct contact in any licensed program.42.3(2) Applicants and license holders under the jurisdiction42.4of other state agencies who are required in other statutory42.5sections to initiate background studies under this section must42.6submit completed background study forms to the commissioner42.7prior to the background study subject beginning in a position42.8allowing direct contact in the licensed program, or where42.9applicable, prior to being employed.42.10(3) Organizations required to initiate background studies42.11under section 256B.0627 for individuals described in paragraph42.12(c), clause (5), must submit a completed background study form42.13to the commissioner before those individuals begin a position42.14allowing direct contact with persons served by the42.15organization. The commissioner shall recover the cost of these42.16background studies through a fee of no more than $12 per study42.17charged to the organization responsible for submitting the42.18background study form. The fees collected under this paragraph42.19are appropriated to the commissioner for the purpose of42.20conducting background studies.42.21Upon receipt of the background study forms from the42.22entities in clauses (1) to (3), the commissioner shall complete42.23the background study as specified under this section and provide42.24notices required in subdivision 3a. Unless otherwise specified,42.25the subject of a background study may have direct contact with42.26persons served by a program after the background study form is42.27mailed or submitted to the commissioner pending notification of42.28the study results under subdivision 3a. A county agency may42.29accept a background study completed by the commissioner under42.30this section in place of the background study required under42.31section 245A.16, subdivision 3, in programs with joint licensure42.32as home and community-based services and adult foster care for42.33people with developmental disabilities when the license holder42.34does not reside in the foster care residence and the subject of42.35the study has been continuously affiliated with the license42.36holder since the date of the commissioner's study.43.1(b) The definitions in this paragraph apply only to43.2subdivisions 3 to 3e.43.3(1) "Background study" means the review of records43.4conducted by the commissioner to determine whether a subject is43.5disqualified from direct contact with persons served by a43.6program, and where specifically provided in statutes, whether a43.7subject is disqualified from having access to persons served by43.8a program.43.9(2) "Continuous, direct supervision" means an individual is43.10within sight or hearing of the supervising person to the extent43.11that supervising person is capable at all times of intervening43.12to protect the health and safety of the persons served by the43.13program.43.14(3) "Contractor" means any person, regardless of employer,43.15who is providing program services for hire under the control of43.16the provider.43.17(4) "Direct contact" means providing face-to-face care,43.18training, supervision, counseling, consultation, or medication43.19assistance to persons served by the program.43.20(5) "Reasonable cause" means information or circumstances43.21exist which provide the commissioner with articulable suspicion43.22that further pertinent information may exist concerning a43.23subject. The commissioner has reasonable cause when, but not43.24limited to, the commissioner has received a report from the43.25subject, the license holder, or a third party indicating that43.26the subject has a history that would disqualify the person or43.27that may pose a risk to the health or safety of persons43.28receiving services.43.29(6) "Subject of a background study" means an individual on43.30whom a background study is required or completed.43.31(c) The applicant, license holder, registrant under section43.32144A.71, subdivision 1, bureau of criminal apprehension,43.33commissioner of health, and county agencies, after written43.34notice to the individual who is the subject of the study, shall43.35help with the study by giving the commissioner criminal43.36conviction data and reports about the maltreatment of adults44.1substantiated under section 626.557 and the maltreatment of44.2minors in licensed programs substantiated under section44.3626.556. If a background study is initiated by an applicant or44.4license holder and the applicant or license holder receives44.5information about the possible criminal or maltreatment history44.6of an individual who is the subject of the background study, the44.7applicant or license holder must immediately provide the44.8information to the commissioner. The individuals to be studied44.9shall include:44.10(1) the applicant;44.11(2) persons age 13 and over living in the household where44.12the licensed program will be provided;44.13(3) current employees or contractors of the applicant who44.14will have direct contact with persons served by the facility,44.15agency, or program;44.16(4) volunteers or student volunteers who have direct44.17contact with persons served by the program to provide program44.18services, if the contact is not under the continuous, direct44.19supervision by an individual listed in clause (1) or (3);44.20(5) any person required under section 256B.0627 to have a44.21background study completed under this section;44.22(6) persons ages 10 to 12 living in the household where the44.23licensed services will be provided when the commissioner has44.24reasonable cause; and44.25(7) persons who, without providing direct contact services44.26at a licensed program, may have unsupervised access to children44.27or vulnerable adults receiving services from the program44.28licensed to provide family child care for children, foster care44.29for children in the provider's own home, or foster care or day44.30care services for adults in the provider's own home when the44.31commissioner has reasonable cause.44.32(d) According to paragraph (c), clauses (2) and (6), the44.33commissioner shall review records from the juvenile courts. For44.34persons under paragraph (c), clauses (1), (3), (4), (5), and44.35(7), who are ages 13 to 17, the commissioner shall review44.36records from the juvenile courts when the commissioner has45.1reasonable cause. The juvenile courts shall help with the study45.2by giving the commissioner existing juvenile court records on45.3individuals described in paragraph (c), clauses (2), (6), and45.4(7), relating to delinquency proceedings held within either the45.5five years immediately preceding the background study or the45.6five years immediately preceding the individual's 18th birthday,45.7whichever time period is longer. The commissioner shall destroy45.8juvenile records obtained pursuant to this subdivision when the45.9subject of the records reaches age 23.45.10(e) Beginning August 1, 2001, the commissioner shall45.11conduct all background studies required under this chapter and45.12initiated by supplemental nursing services agencies registered45.13under section 144A.71, subdivision 1. Studies for the agencies45.14must be initiated annually by each agency. The commissioner45.15shall conduct the background studies according to this chapter.45.16The commissioner shall recover the cost of the background45.17studies through a fee of no more than $8 per study, charged to45.18the supplemental nursing services agency. The fees collected45.19under this paragraph are appropriated to the commissioner for45.20the purpose of conducting background studies.45.21(f) For purposes of this section, a finding that a45.22delinquency petition is proven in juvenile court shall be45.23considered a conviction in state district court.45.24(g) A study of an individual in paragraph (c), clauses (1)45.25to (7), shall be conducted at least upon application for initial45.26license for all license types or registration under section45.27144A.71, subdivision 1, and at reapplication for a license for45.28family child care, child foster care, and adult foster care.45.29The commissioner is not required to conduct a study of an45.30individual at the time of reapplication for a license or if the45.31individual has been continuously affiliated with a foster care45.32provider licensed by the commissioner of human services and45.33registered under chapter 144D, other than a family day care or45.34foster care license, if: (i) a study of the individual was45.35conducted either at the time of initial licensure or when the45.36individual became affiliated with the license holder; (ii) the46.1individual has been continuously affiliated with the license46.2holder since the last study was conducted; and (iii) the46.3procedure described in paragraph (j) has been implemented and46.4was in effect continuously since the last study was conducted.46.5For the purposes of this section, a physician licensed under46.6chapter 147 is considered to be continuously affiliated upon the46.7license holder's receipt from the commissioner of health or46.8human services of the physician's background study results. For46.9individuals who are required to have background studies under46.10paragraph (c) and who have been continuously affiliated with a46.11foster care provider that is licensed in more than one county,46.12criminal conviction data may be shared among those counties in46.13which the foster care programs are licensed. A county agency's46.14receipt of criminal conviction data from another county agency46.15shall meet the criminal data background study requirements of46.16this section.46.17(h) The commissioner may also conduct studies on46.18individuals specified in paragraph (c), clauses (3) and (4),46.19when the studies are initiated by:46.20(i) personnel pool agencies;46.21(ii) temporary personnel agencies;46.22(iii) educational programs that train persons by providing46.23direct contact services in licensed programs; and46.24(iv) professional services agencies that are not licensed46.25and which contract with licensed programs to provide direct46.26contact services or individuals who provide direct contact46.27services.46.28(i) Studies on individuals in paragraph (h), items (i) to46.29(iv), must be initiated annually by these agencies, programs,46.30and individuals. Except as provided in paragraph (a), clause46.31(3), no applicant, license holder, or individual who is the46.32subject of the study shall pay any fees required to conduct the46.33study.46.34(1) At the option of the licensed facility, rather than46.35initiating another background study on an individual required to46.36be studied who has indicated to the licensed facility that a47.1background study by the commissioner was previously completed,47.2the facility may make a request to the commissioner for47.3documentation of the individual's background study status,47.4provided that:47.5(i) the facility makes this request using a form provided47.6by the commissioner;47.7(ii) in making the request the facility informs the47.8commissioner that either:47.9(A) the individual has been continuously affiliated with a47.10licensed facility since the individual's previous background47.11study was completed, or since October 1, 1995, whichever is47.12shorter; or47.13(B) the individual is affiliated only with a personnel pool47.14agency, a temporary personnel agency, an educational program47.15that trains persons by providing direct contact services in47.16licensed programs, or a professional services agency that is not47.17licensed and which contracts with licensed programs to provide47.18direct contact services or individuals who provide direct47.19contact services; and47.20(iii) the facility provides notices to the individual as47.21required in paragraphs (a) to (j), and that the facility is47.22requesting written notification of the individual's background47.23study status from the commissioner.47.24(2) The commissioner shall respond to each request under47.25paragraph (1) with a written or electronic notice to the47.26facility and the study subject. If the commissioner determines47.27that a background study is necessary, the study shall be47.28completed without further request from a licensed agency or47.29notifications to the study subject.47.30(3) When a background study is being initiated by a47.31licensed facility or a foster care provider that is also47.32registered under chapter 144D, a study subject affiliated with47.33multiple licensed facilities may attach to the background study47.34form a cover letter indicating the additional facilities' names,47.35addresses, and background study identification numbers. When47.36the commissioner receives such notices, each facility identified48.1by the background study subject shall be notified of the study48.2results. The background study notice sent to the subsequent48.3agencies shall satisfy those facilities' responsibilities for48.4initiating a background study on that individual.48.5(j) If an individual who is affiliated with a program or48.6facility regulated by the department of human services or48.7department of health or who is affiliated with any type of home48.8care agency or provider of personal care assistance services, is48.9convicted of a crime constituting a disqualification under48.10subdivision 3d, the probation officer or corrections agent shall48.11notify the commissioner of the conviction. For the purpose of48.12this paragraph, "conviction" has the meaning given it in section48.13609.02, subdivision 5. The commissioner, in consultation with48.14the commissioner of corrections, shall develop forms and48.15information necessary to implement this paragraph and shall48.16provide the forms and information to the commissioner of48.17corrections for distribution to local probation officers and48.18corrections agents. The commissioner shall inform individuals48.19subject to a background study that criminal convictions for48.20disqualifying crimes will be reported to the commissioner by the48.21corrections system. A probation officer, corrections agent, or48.22corrections agency is not civilly or criminally liable for48.23disclosing or failing to disclose the information required by48.24this paragraph. Upon receipt of disqualifying information, the48.25commissioner shall provide the notifications required in48.26subdivision 3a, as appropriate to agencies on record as having48.27initiated a background study or making a request for48.28documentation of the background study status of the individual.48.29This paragraph does not apply to family day care and child48.30foster care programs.48.31(k) The individual who is the subject of the study must48.32provide the applicant or license holder with sufficient48.33information to ensure an accurate study including the48.34individual's first, middle, and last name and all other names by48.35which the individual has been known; home address, city, county,48.36and state of residence for the past five years; zip code; sex;49.1date of birth; and driver's license number or state49.2identification number. The applicant or license holder shall49.3provide this information about an individual in paragraph (c),49.4clauses (1) to (7), on forms prescribed by the commissioner. By49.5January 1, 2000, for background studies conducted by the49.6department of human services, the commissioner shall implement a49.7system for the electronic transmission of: (1) background study49.8information to the commissioner; and (2) background study49.9results to the license holder. The commissioner may request49.10additional information of the individual, which shall be49.11optional for the individual to provide, such as the individual's49.12social security number or race.49.13(l) For programs directly licensed by the commissioner, a49.14study must include information related to names of substantiated49.15perpetrators of maltreatment of vulnerable adults that has been49.16received by the commissioner as required under section 626.557,49.17subdivision 9c, paragraph (i), and the commissioner's records49.18relating to the maltreatment of minors in licensed programs,49.19information from juvenile courts as required in paragraph (c)49.20for persons listed in paragraph (c), clauses (2), (6), and (7),49.21and information from the bureau of criminal apprehension. For49.22child foster care, adult foster care, and family day care homes,49.23the study must include information from the county agency's49.24record of substantiated maltreatment of adults, and the49.25maltreatment of minors, information from juvenile courts as49.26required in paragraph (c) for persons listed in paragraph (c),49.27clauses (2), (6), and (7), and information from the bureau of49.28criminal apprehension. The commissioner may also review arrest49.29and investigative information from the bureau of criminal49.30apprehension, the commissioner of health, a county attorney,49.31county sheriff, county agency, local chief of police, other49.32states, the courts, or the Federal Bureau of Investigation if49.33the commissioner has reasonable cause to believe the information49.34is pertinent to the disqualification of an individual listed in49.35paragraph (c), clauses (1) to (7). The commissioner is not49.36required to conduct more than one review of a subject's records50.1from the Federal Bureau of Investigation if a review of the50.2subject's criminal history with the Federal Bureau of50.3Investigation has already been completed by the commissioner and50.4there has been no break in the subject's affiliation with the50.5license holder who initiated the background study.50.6(m) When the commissioner has reasonable cause to believe50.7that further pertinent information may exist on the subject, the50.8subject shall provide a set of classifiable fingerprints50.9obtained from an authorized law enforcement agency. For50.10purposes of requiring fingerprints, the commissioner shall be50.11considered to have reasonable cause under, but not limited to,50.12the following circumstances:50.13(1) information from the bureau of criminal apprehension50.14indicates that the subject is a multistate offender;50.15(2) information from the bureau of criminal apprehension50.16indicates that multistate offender status is undetermined; or50.17(3) the commissioner has received a report from the subject50.18or a third party indicating that the subject has a criminal50.19history in a jurisdiction other than Minnesota.50.20(n) The failure or refusal of an applicant, license holder,50.21or registrant under section 144A.71, subdivision 1, to cooperate50.22with the commissioner is reasonable cause to disqualify a50.23subject, deny a license application or immediately suspend,50.24suspend, or revoke a license or registration. Failure or50.25refusal of an individual to cooperate with the study is just50.26cause for denying or terminating employment of the individual if50.27the individual's failure or refusal to cooperate could cause the50.28applicant's application to be denied or the license holder's50.29license to be immediately suspended, suspended, or revoked.50.30(o) The commissioner shall not consider an application to50.31be complete until all of the information required to be provided50.32under this subdivision has been received.50.33(p) No person in paragraph (c), clauses (1) to (7), who is50.34disqualified as a result of this section may be retained by the50.35agency in a position involving direct contact with persons50.36served by the program and no person in paragraph (c), clauses51.1(2), (6), and (7), or as provided elsewhere in statute who is51.2disqualified as a result of this section may be allowed access51.3to persons served by the program, unless the commissioner has51.4provided written notice to the agency stating that:51.5(1) the individual may remain in direct contact during the51.6period in which the individual may request reconsideration as51.7provided in subdivision 3a, paragraph (b), clause (2) or (3);51.8(2) the individual's disqualification has been set aside51.9for that agency as provided in subdivision 3b, paragraph (b); or51.10(3) the license holder has been granted a variance for the51.11disqualified individual under subdivision 3e.51.12(q) Termination of affiliation with persons in paragraph51.13(c), clauses (1) to (7), made in good faith reliance on a notice51.14of disqualification provided by the commissioner shall not51.15subject the applicant or license holder to civil liability.51.16(r) The commissioner may establish records to fulfill the51.17requirements of this section.51.18(s) The commissioner may not disqualify an individual51.19subject to a study under this section because that person has,51.20or has had, a mental illness as defined in section 245.462,51.21subdivision 20.51.22(t) An individual subject to disqualification under this51.23subdivision has the applicable rights in subdivision 3a, 3b, or51.243c.51.25(u) For the purposes of background studies completed by51.26tribal organizations performing licensing activities otherwise51.27required of the commissioner under this chapter, after obtaining51.28consent from the background study subject, tribal licensing51.29agencies shall have access to criminal history data in the same51.30manner as county licensing agencies and private licensing51.31agencies under this chapter.51.32(v) County agencies shall have access to the criminal51.33history data in the same manner as county licensing agencies51.34under this chapter for purposes of background studies completed51.35by county agencies on legal nonlicensed child care providers to51.36determine eligibility for child care funds under chapter 119B.52.1 Sec. 3. Minnesota Statutes 2002, section 245A.04, 52.2 subdivision 3a, is amended to read: 52.3 Subd. 3a. [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF52.4 NOTICE OF BACKGROUND STUDY RESULTS; COMMISSIONER'S DETERMINATION 52.5 OF RISK OF HARM.](a) Within 15 working days, the commissioner52.6shall notify the applicant, license holder, or registrant under52.7section 144A.71, subdivision 1, and the individual who is the52.8subject of the study, in writing or by electronic transmission,52.9of the results of the study or that more time is needed to52.10complete the study. When the study is completed, a notice that52.11the study was undertaken and completed shall be maintained in52.12the personnel files of the program. For studies on individuals52.13pertaining to a license to provide family day care or group52.14family day care, foster care for children in the provider's own52.15home, or foster care or day care services for adults in the52.16provider's own home, the commissioner is not required to provide52.17a separate notice of the background study results to the52.18individual who is the subject of the study unless the study52.19results in a disqualification of the individual.52.20The commissioner shall notify the individual studied if the52.21information in the study indicates the individual is52.22disqualified from direct contact with persons served by the52.23program. The commissioner shall disclose the information52.24causing disqualification and instructions on how to request a52.25reconsideration of the disqualification to the individual52.26studied. An applicant or license holder who is not the subject52.27of the study shall be informed that the commissioner has found52.28information that disqualifies the subject from direct contact52.29with persons served by the program. However, only the52.30individual studied must be informed of the information contained52.31in the subject's background study unless the basis for the52.32disqualification is failure to cooperate, substantiated52.33maltreatment under section 626.556 or 626.557, the Data52.34Practices Act provides for release of the information, or the52.35individual studied authorizes the release of the information.52.36When a disqualification is based on the subject's failure to53.1cooperate with the background study or substantiated53.2maltreatment under section 626.556 or 626.557, the agency that53.3initiated the study shall be informed by the commissioner of the53.4reason for the disqualification.53.5(b) Except as provided in subdivision 3d, paragraph (b), if53.6the commissioner determines that the individual studied has a53.7disqualifying characteristic, the commissioner shall review the53.8information immediately available and make a determination as to53.9the subject's immediate risk of harm to persons served by the53.10program where the individual studied will have direct contact.53.11The commissioner shall consider all relevant information53.12available, including the following factors in determining the53.13immediate risk of harm: the recency of the disqualifying53.14characteristic; the recency of discharge from probation for the53.15crimes; the number of disqualifying characteristics; the53.16intrusiveness or violence of the disqualifying characteristic;53.17the vulnerability of the victim involved in the disqualifying53.18characteristic; and the similarity of the victim to the persons53.19served by the program where the individual studied will have53.20direct contact. The commissioner may determine that the53.21evaluation of the information immediately available gives the53.22commissioner reason to believe one of the following:53.23(1) The individual poses an imminent risk of harm to53.24persons served by the program where the individual studied will53.25have direct contact. If the commissioner determines that an53.26individual studied poses an imminent risk of harm to persons53.27served by the program where the individual studied will have53.28direct contact, the individual and the license holder must be53.29sent a notice of disqualification. The commissioner shall order53.30the license holder to immediately remove the individual studied53.31from direct contact. The notice to the individual studied must53.32include an explanation of the basis of this determination.53.33(2) The individual poses a risk of harm requiring53.34continuous, direct supervision while providing direct contact53.35services during the period in which the subject may request a53.36reconsideration. If the commissioner determines that an54.1individual studied poses a risk of harm that requires54.2continuous, direct supervision, the individual and the license54.3holder must be sent a notice of disqualification. The54.4commissioner shall order the license holder to immediately54.5remove the individual studied from direct contact services or54.6assure that the individual studied is under the continuous,54.7direct supervision of another staff person when providing direct54.8contact services during the period in which the individual may54.9request a reconsideration of the disqualification. If the54.10individual studied does not submit a timely request for54.11reconsideration, or the individual submits a timely request for54.12reconsideration, but the disqualification is not set aside for54.13that license holder, the license holder will be notified of the54.14disqualification and ordered to immediately remove the54.15individual from any position allowing direct contact with54.16persons receiving services from the license holder.54.17(3) The individual does not pose an imminent risk of harm54.18or a risk of harm requiring continuous, direct supervision while54.19providing direct contact services during the period in which the54.20subject may request a reconsideration. If the commissioner54.21determines that an individual studied does not pose a risk of54.22harm that requires continuous, direct supervision, only the54.23individual must be sent a notice of disqualification. The54.24license holder must be sent a notice that more time is needed to54.25complete the individual's background study. If the individual54.26studied submits a timely request for reconsideration, and if the54.27disqualification is set aside for that license holder, the54.28license holder will receive the same notification received by54.29license holders in cases where the individual studied has no54.30disqualifying characteristic. If the individual studied does54.31not submit a timely request for reconsideration, or the54.32individual submits a timely request for reconsideration, but the54.33disqualification is not set aside for that license holder, the54.34license holder will be notified of the disqualification and54.35ordered to immediately remove the individual from any position54.36allowing direct contact with persons receiving services from the55.1license holder.55.2(c) County licensing agencies performing duties under this55.3subdivision may develop an alternative system for determining55.4the subject's immediate risk of harm to persons served by the55.5program, providing the notices under paragraph (b), and55.6documenting the action taken by the county licensing agency.55.7Each county licensing agency's implementation of the alternative55.8system is subject to approval by the commissioner.55.9Notwithstanding this alternative system, county licensing55.10agencies shall complete the requirements of paragraph (a)The 55.11 notice of background study results and the commissioner's 55.12 determination of the background subject's risk of harm shall be 55.13 governed according to sections 245C.16 and 245C.17. 55.14 Sec. 4. Minnesota Statutes 2002, section 245A.04, 55.15 subdivision 3b, is amended to read: 55.16 Subd. 3b. [RECONSIDERATION OF DISQUALIFICATION.](a) The55.17individual who is the subject of the disqualification may55.18request a reconsideration of the disqualification.55.19The individual must submit the request for reconsideration55.20to the commissioner in writing. A request for reconsideration55.21for an individual who has been sent a notice of disqualification55.22under subdivision 3a, paragraph (b), clause (1) or (2), must be55.23submitted within 30 calendar days of the disqualified55.24individual's receipt of the notice of disqualification. Upon55.25showing that the information in clause (1) or (2) cannot be55.26obtained within 30 days, the disqualified individual may request55.27additional time, not to exceed 30 days, to obtain that55.28information. A request for reconsideration for an individual55.29who has been sent a notice of disqualification under subdivision55.303a, paragraph (b), clause (3), must be submitted within 1555.31calendar days of the disqualified individual's receipt of the55.32notice of disqualification. An individual who was determined to55.33have maltreated a child under section 626.556 or a vulnerable55.34adult under section 626.557, and who was disqualified under this55.35section on the basis of serious or recurring maltreatment, may55.36request reconsideration of both the maltreatment and the56.1disqualification determinations. The request for56.2reconsideration of the maltreatment determination and the56.3disqualification must be submitted within 30 calendar days of56.4the individual's receipt of the notice of disqualification.56.5Removal of a disqualified individual from direct contact shall56.6be ordered if the individual does not request reconsideration56.7within the prescribed time, and for an individual who submits a56.8timely request for reconsideration, if the disqualification is56.9not set aside. The individual must present information showing56.10that:56.11(1) the information the commissioner relied upon in56.12determining that the underlying conduct giving rise to the56.13disqualification occurred, and for maltreatment, that the56.14maltreatment was serious or recurring, is incorrect; or56.15(2) the subject of the study does not pose a risk of harm56.16to any person served by the applicant, license holder, or56.17registrant under section 144A.71, subdivision 1.56.18(b) The commissioner shall rescind the disqualification if56.19the commissioner finds that the information relied on to56.20disqualify the subject is incorrect. The commissioner may set56.21aside the disqualification under this section if the56.22commissioner finds that the individual does not pose a risk of56.23harm to any person served by the applicant, license holder, or56.24registrant under section 144A.71, subdivision 1. In determining56.25that an individual does not pose a risk of harm, the56.26commissioner shall consider the nature, severity, and56.27consequences of the event or events that lead to56.28disqualification, whether there is more than one disqualifying56.29event, the age and vulnerability of the victim at the time of56.30the event, the harm suffered by the victim, the similarity56.31between the victim and persons served by the program, the time56.32elapsed without a repeat of the same or similar event,56.33documentation of successful completion by the individual studied56.34of training or rehabilitation pertinent to the event, and any56.35other information relevant to reconsideration. In reviewing a56.36disqualification under this section, the commissioner shall give57.1preeminent weight to the safety of each person to be served by57.2the license holder, applicant, or registrant under section57.3144A.71, subdivision 1, over the interests of the license57.4holder, applicant, or registrant under section 144A.71,57.5subdivision 1.57.6(c) Unless the information the commissioner relied on in57.7disqualifying an individual is incorrect, the commissioner may57.8not set aside the disqualification of an individual in57.9connection with a license to provide family day care for57.10children, foster care for children in the provider's own home,57.11or foster care or day care services for adults in the provider's57.12own home if:57.13(1) less than ten years have passed since the discharge of57.14the sentence imposed for the offense; and the individual has57.15been convicted of a violation of any offense listed in sections57.16609.165 (felon ineligible to possess firearm), criminal57.17vehicular homicide under 609.21 (criminal vehicular homicide and57.18injury), 609.215 (aiding suicide or aiding attempted suicide),57.19felony violations under 609.223 or 609.2231 (assault in the57.20third or fourth degree), 609.713 (terroristic threats), 609.23557.21(use of drugs to injure or to facilitate crime), 609.24 (simple57.22robbery), 609.255 (false imprisonment), 609.562 (arson in the57.23second degree), 609.71 (riot), 609.498, subdivision 1 or 1a57.24(aggravated first degree or first degree tampering with a57.25witness), burglary in the first or second degree under 609.58257.26(burglary), 609.66 (dangerous weapon), 609.665 (spring guns),57.27609.67 (machine guns and short-barreled shotguns), 609.749,57.28subdivision 2 (gross misdemeanor harassment; stalking), 152.02157.29or 152.022 (controlled substance crime in the first or second57.30degree), 152.023, subdivision 1, clause (3) or (4), or57.31subdivision 2, clause (4) (controlled substance crime in the57.32third degree), 152.024, subdivision 1, clause (2), (3), or (4)57.33(controlled substance crime in the fourth degree), 609.224,57.34subdivision 2, paragraph (c) (fifth-degree assault by a57.35caregiver against a vulnerable adult), 609.23 (mistreatment of57.36persons confined), 609.231 (mistreatment of residents or58.1patients), 609.2325 (criminal abuse of a vulnerable adult),58.2609.233 (criminal neglect of a vulnerable adult), 609.233558.3(financial exploitation of a vulnerable adult), 609.234 (failure58.4to report), 609.265 (abduction), 609.2664 to 609.266558.5(manslaughter of an unborn child in the first or second degree),58.6609.267 to 609.2672 (assault of an unborn child in the first,58.7second, or third degree), 609.268 (injury or death of an unborn58.8child in the commission of a crime), 617.293 (disseminating or58.9displaying harmful material to minors), a felony level58.10conviction involving alcohol or drug use, a gross misdemeanor58.11offense under 609.324, subdivision 1 (other prohibited acts), a58.12gross misdemeanor offense under 609.378 (neglect or endangerment58.13of a child), a gross misdemeanor offense under 609.37758.14(malicious punishment of a child), 609.72, subdivision 358.15(disorderly conduct against a vulnerable adult); or an attempt58.16or conspiracy to commit any of these offenses, as each of these58.17offenses is defined in Minnesota Statutes; or an offense in any58.18other state, the elements of which are substantially similar to58.19the elements of any of the foregoing offenses;58.20(2) regardless of how much time has passed since the58.21involuntary termination of parental rights under section58.22260C.301 or the discharge of the sentence imposed for the58.23offense, the individual was convicted of a violation of any58.24offense listed in sections 609.185 to 609.195 (murder in the58.25first, second, or third degree), 609.20 (manslaughter in the58.26first degree), 609.205 (manslaughter in the second degree),58.27609.245 (aggravated robbery), 609.25 (kidnapping), 609.56158.28(arson in the first degree), 609.749, subdivision 3, 4, or 558.29(felony-level harassment; stalking), 609.228 (great bodily harm58.30caused by distribution of drugs), 609.221 or 609.222 (assault in58.31the first or second degree), 609.66, subdivision 1e (drive-by58.32shooting), 609.855, subdivision 5 (shooting in or at a public58.33transit vehicle or facility), 609.2661 to 609.2663 (murder of an58.34unborn child in the first, second, or third degree), a felony58.35offense under 609.377 (malicious punishment of a child), a58.36felony offense under 609.324, subdivision 1 (other prohibited59.1acts), a felony offense under 609.378 (neglect or endangerment59.2of a child), 609.322 (solicitation, inducement, and promotion of59.3prostitution), 609.342 to 609.345 (criminal sexual conduct in59.4the first, second, third, or fourth degree), 609.35259.5(solicitation of children to engage in sexual conduct), 617.24659.6(use of minors in a sexual performance), 617.247 (possession of59.7pictorial representations of a minor), 609.365 (incest), a59.8felony offense under sections 609.2242 and 609.2243 (domestic59.9assault), a felony offense of spousal abuse, a felony offense of59.10child abuse or neglect, a felony offense of a crime against59.11children, or an attempt or conspiracy to commit any of these59.12offenses as defined in Minnesota Statutes, or an offense in any59.13other state, the elements of which are substantially similar to59.14any of the foregoing offenses;59.15(3) within the seven years preceding the study, the59.16individual committed an act that constitutes maltreatment of a59.17child under section 626.556, subdivision 10e, and that resulted59.18in substantial bodily harm as defined in section 609.02,59.19subdivision 7a, or substantial mental or emotional harm as59.20supported by competent psychological or psychiatric evidence; or59.21(4) within the seven years preceding the study, the59.22individual was determined under section 626.557 to be the59.23perpetrator of a substantiated incident of maltreatment of a59.24vulnerable adult that resulted in substantial bodily harm as59.25defined in section 609.02, subdivision 7a, or substantial mental59.26or emotional harm as supported by competent psychological or59.27psychiatric evidence.59.28In the case of any ground for disqualification under59.29clauses (1) to (4), if the act was committed by an individual59.30other than the applicant, license holder, or registrant under59.31section 144A.71, subdivision 1, residing in the applicant's or59.32license holder's home, or the home of a registrant under section59.33144A.71, subdivision 1, the applicant, license holder, or59.34registrant under section 144A.71, subdivision 1, may seek59.35reconsideration when the individual who committed the act no59.36longer resides in the home.60.1The disqualification periods provided under clauses (1),60.2(3), and (4) are the minimum applicable disqualification60.3periods. The commissioner may determine that an individual60.4should continue to be disqualified from licensure or60.5registration under section 144A.71, subdivision 1, because the60.6license holder, applicant, or registrant under section 144A.71,60.7subdivision 1, poses a risk of harm to a person served by that60.8individual after the minimum disqualification period has passed.60.9(d) The commissioner shall respond in writing or by60.10electronic transmission to all reconsideration requests for60.11which the basis for the request is that the information relied60.12upon by the commissioner to disqualify is incorrect or60.13inaccurate within 30 working days of receipt of a request and60.14all relevant information. If the basis for the request is that60.15the individual does not pose a risk of harm, the commissioner60.16shall respond to the request within 15 working days after60.17receiving the request for reconsideration and all relevant60.18information. If the request is based on both the correctness or60.19accuracy of the information relied on to disqualify the60.20individual and the risk of harm, the commissioner shall respond60.21to the request within 45 working days after receiving the60.22request for reconsideration and all relevant information. If60.23the disqualification is set aside, the commissioner shall notify60.24the applicant or license holder in writing or by electronic60.25transmission of the decision.60.26(e) Except as provided in subdivision 3c, if a60.27disqualification for which reconsideration was requested is not60.28set aside or is not rescinded, an individual who was60.29disqualified on the basis of a preponderance of evidence that60.30the individual committed an act or acts that meet the definition60.31of any of the crimes listed in subdivision 3d, paragraph (a),60.32clauses (1) to (4); or for failure to make required reports60.33under section 626.556, subdivision 3, or 626.557, subdivision 3,60.34pursuant to subdivision 3d, paragraph (a), clause (4), may60.35request a fair hearing under section 256.045. Except as60.36provided under subdivision 3c, the fair hearing is the only61.1administrative appeal of the final agency determination,61.2specifically, including a challenge to the accuracy and61.3completeness of data under section 13.04.61.4(f) Except as provided under subdivision 3c, if an61.5individual was disqualified on the basis of a determination of61.6maltreatment under section 626.556 or 626.557, which was serious61.7or recurring, and the individual has requested reconsideration61.8of the maltreatment determination under section 626.556,61.9subdivision 10i, or 626.557, subdivision 9d, and also requested61.10reconsideration of the disqualification under this subdivision,61.11reconsideration of the maltreatment determination and61.12reconsideration of the disqualification shall be consolidated61.13into a single reconsideration. For maltreatment and61.14disqualification determinations made by county agencies, the61.15consolidated reconsideration shall be conducted by the county61.16agency. If the county agency has disqualified an individual on61.17multiple bases, one of which is a county maltreatment61.18determination for which the individual has a right to request61.19reconsideration, the county shall conduct the reconsideration of61.20all disqualifications. Except as provided under subdivision 3c,61.21if an individual who was disqualified on the basis of serious or61.22recurring maltreatment requests a fair hearing on the61.23maltreatment determination under section 626.556, subdivision61.2410i, or 626.557, subdivision 9d, and requests a fair hearing on61.25the disqualification, which has not been set aside or rescinded61.26under this subdivision, the scope of the fair hearing under61.27section 256.045 shall include the maltreatment determination and61.28the disqualification. Except as provided under subdivision 3c,61.29a fair hearing is the only administrative appeal of the final61.30agency determination, specifically, including a challenge to the61.31accuracy and completeness of data under section 13.04.61.32(g) In the notice from the commissioner that a61.33disqualification has been set aside, the license holder must be61.34informed that information about the nature of the61.35disqualification and which factors under paragraph (b) were the61.36bases of the decision to set aside the disqualification is62.1available to the license holder upon request without consent of62.2the background study subject. With the written consent of a62.3background study subject, the commissioner may release to the62.4license holder copies of all information related to the62.5background study subject's disqualification and the62.6commissioner's decision to set aside the disqualification as62.7specified in the written consentReconsideration of a 62.8 disqualification shall be governed according to sections 245C.21 62.9 to 245C.27. 62.10 Sec. 5. Minnesota Statutes 2002, section 245A.04, 62.11 subdivision 3c, is amended to read: 62.12 Subd. 3c. [CONTESTED CASE.](a) Notwithstanding62.13subdivision 3b, paragraphs (e) and (f), if a disqualification is62.14not set aside, a person who is an employee of an employer, as62.15defined in section 179A.03, subdivision 15, may request a62.16contested case hearing under chapter 14. If the62.17disqualification which was not set aside or was not rescinded62.18was based on a maltreatment determination, the scope of the62.19contested case hearing shall include the maltreatment62.20determination and the disqualification. In such cases, a fair62.21hearing shall not be conducted under section 256.045. Rules62.22adopted under this chapter may not preclude an employee in a62.23contested case hearing for disqualification from submitting62.24evidence concerning information gathered under subdivision 3,62.25paragraph (e).62.26(b) If a disqualification for which reconsideration was62.27requested and which was not set aside or was not rescinded under62.28subdivision 3b is the basis for a denial of a license under62.29section 245A.05 or a licensing sanction under section 245A.07,62.30the license holder has the right to a contested case hearing62.31under chapter 14 and Minnesota Rules, parts 1400.8510 to62.321400.8612 and successor rules. The appeal must be submitted in62.33accordance with section 245A.05 or 245A.07, subdivision 3. As62.34provided for under section 245A.08, subdivision 2a, the scope of62.35the consolidated contested case hearing shall include the62.36disqualification and the licensing sanction or denial of a63.1license. If the disqualification was based on a determination63.2of substantiated serious or recurring maltreatment under section63.3626.556 or 626.557, the appeal must be submitted in accordance63.4with sections 245A.07, subdivision 3, and 626.556, subdivision63.510i, or 626.557, subdivision 9d. As provided for under section63.6245A.08, subdivision 2a, the scope of the contested case hearing63.7shall include the maltreatment determination, the63.8disqualification, and the licensing sanction or denial of a63.9license. In such cases, a fair hearing shall not be conducted63.10under section 256.045.63.11(c) If a maltreatment determination or disqualification,63.12which was not set aside or was not rescinded under subdivision63.133b, is the basis for a denial of a license under section 245A.0563.14or a licensing sanction under section 245A.07, and the63.15disqualified subject is an individual other than the license63.16holder and upon whom a background study must be conducted under63.17subdivision 3, the hearing of all parties may be consolidated63.18into a single contested case hearing upon consent of all parties63.19and the administrative law judge.63.20(d) The commissioner's final order under section 245A.08,63.21subdivision 5, is conclusive on the issue of maltreatment and63.22disqualification, including for purposes of subsequent63.23background studies. The contested case hearing under this63.24subdivision is the only administrative appeal of the final63.25agency determination, specifically, including a challenge to the63.26accuracy and completeness of data under section 13.04Contested 63.27 case hearing rights related to a disqualification shall be 63.28 governed according to section 245C.28. 63.29 Sec. 6. Minnesota Statutes 2002, section 245A.04, 63.30 subdivision 3d, is amended to read: 63.31 Subd. 3d. [DISQUALIFICATION.](a) Upon receipt of63.32information showing, or when a background study completed under63.33subdivision 3 shows any of the following: a conviction of one63.34or more crimes listed in clauses (1) to (4); the individual has63.35admitted to or a preponderance of the evidence indicates the63.36individual has committed an act or acts that meet the definition64.1of any of the crimes listed in clauses (1) to (4); or an64.2investigation results in an administrative determination listed64.3under clause (4), the individual shall be disqualified from any64.4position allowing direct contact with persons receiving services64.5from the license holder, entity identified in subdivision 3,64.6paragraph (a), or registrant under section 144A.71, subdivision64.71, and for individuals studied under section 245A.04,64.8subdivision 3, paragraph (c), clauses (2), (6), and (7), the64.9individual shall also be disqualified from access to a person64.10receiving services from the license holder:64.11(1) regardless of how much time has passed since the64.12involuntary termination of parental rights under section64.13260C.301 or the discharge of the sentence imposed for the64.14offense, and unless otherwise specified, regardless of the level64.15of the conviction, the individual was convicted of any of the64.16following offenses: sections 609.185 (murder in the first64.17degree); 609.19 (murder in the second degree); 609.195 (murder64.18in the third degree); 609.2661 (murder of an unborn child in the64.19first degree); 609.2662 (murder of an unborn child in the second64.20degree); 609.2663 (murder of an unborn child in the third64.21degree); 609.20 (manslaughter in the first degree); 609.20564.22(manslaughter in the second degree); 609.221 or 609.222 (assault64.23in the first or second degree); 609.228 (great bodily harm64.24caused by distribution of drugs); 609.245 (aggravated robbery);64.25609.25 (kidnapping); 609.561 (arson in the first degree);64.26609.749, subdivision 3, 4, or 5 (felony-level harassment;64.27stalking); 609.66, subdivision 1e (drive-by shooting); 609.855,64.28subdivision 5 (shooting at or in a public transit vehicle or64.29facility); 609.322 (solicitation, inducement, and promotion of64.30prostitution); 609.342 (criminal sexual conduct in the first64.31degree); 609.343 (criminal sexual conduct in the second degree);64.32609.344 (criminal sexual conduct in the third degree); 609.34564.33(criminal sexual conduct in the fourth degree); 609.35264.34(solicitation of children to engage in sexual conduct); 609.36564.35(incest); felony offense under 609.377 (malicious punishment of64.36a child); a felony offense under 609.378 (neglect or65.1endangerment of a child); a felony offense under 609.324,65.2subdivision 1 (other prohibited acts); 617.246 (use of minors in65.3sexual performance prohibited); 617.247 (possession of pictorial65.4representations of minors); a felony offense under sections65.5609.2242 and 609.2243 (domestic assault), a felony offense of65.6spousal abuse, a felony offense of child abuse or neglect, a65.7felony offense of a crime against children; or attempt or65.8conspiracy to commit any of these offenses as defined in65.9Minnesota Statutes, or an offense in any other state or country,65.10where the elements are substantially similar to any of the65.11offenses listed in this clause;65.12(2) if less than 15 years have passed since the discharge65.13of the sentence imposed for the offense; and the individual has65.14received a felony conviction for a violation of any of these65.15offenses: sections 609.21 (criminal vehicular homicide and65.16injury); 609.165 (felon ineligible to possess firearm); 609.21565.17(suicide); 609.223 or 609.2231 (assault in the third or fourth65.18degree); repeat offenses under 609.224 (assault in the fifth65.19degree); repeat offenses under 609.3451 (criminal sexual conduct65.20in the fifth degree); 609.498, subdivision 1 or 1a (aggravated65.21first degree or first degree tampering with a witness); 609.71365.22(terroristic threats); 609.235 (use of drugs to injure or65.23facilitate crime); 609.24 (simple robbery); 609.255 (false65.24imprisonment); 609.562 (arson in the second degree); 609.56365.25(arson in the third degree); repeat offenses under 617.2365.26(indecent exposure; penalties); repeat offenses under 617.24165.27(obscene materials and performances; distribution and exhibition65.28prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons);65.29609.67 (machine guns and short-barreled shotguns); 609.232565.30(criminal abuse of a vulnerable adult); 609.2664 (manslaughter65.31of an unborn child in the first degree); 609.2665 (manslaughter65.32of an unborn child in the second degree); 609.267 (assault of an65.33unborn child in the first degree); 609.2671 (assault of an65.34unborn child in the second degree); 609.268 (injury or death of65.35an unborn child in the commission of a crime); 609.52 (theft);65.36609.2335 (financial exploitation of a vulnerable adult); 609.52166.1(possession of shoplifting gear); 609.582 (burglary); 609.62566.2(aggravated forgery); 609.63 (forgery); 609.631 (check forgery;66.3offering a forged check); 609.635 (obtaining signature by false66.4pretense); 609.27 (coercion); 609.275 (attempt to coerce);66.5609.687 (adulteration); 260C.301 (grounds for termination of66.6parental rights); chapter 152 (drugs; controlled substance); and66.7a felony level conviction involving alcohol or drug use. An66.8attempt or conspiracy to commit any of these offenses, as each66.9of these offenses is defined in Minnesota Statutes; or an66.10offense in any other state or country, the elements of which are66.11substantially similar to the elements of the offenses in this66.12clause. If the individual studied is convicted of one of the66.13felonies listed in this clause, but the sentence is a gross66.14misdemeanor or misdemeanor disposition, the lookback period for66.15the conviction is the period applicable to the disposition, that66.16is the period for gross misdemeanors or misdemeanors;66.17(3) if less than ten years have passed since the discharge66.18of the sentence imposed for the offense; and the individual has66.19received a gross misdemeanor conviction for a violation of any66.20of the following offenses: sections 609.224 (assault in the66.21fifth degree); 609.2242 and 609.2243 (domestic assault);66.22violation of an order for protection under 518B.01, subdivision66.2314; 609.3451 (criminal sexual conduct in the fifth degree);66.24repeat offenses under 609.746 (interference with privacy);66.25repeat offenses under 617.23 (indecent exposure); 617.24166.26(obscene materials and performances); 617.243 (indecent66.27literature, distribution); 617.293 (harmful materials;66.28dissemination and display to minors prohibited); 609.71 (riot);66.29609.66 (dangerous weapons); 609.749, subdivision 2 (harassment;66.30stalking); 609.224, subdivision 2, paragraph (c) (assault in the66.31fifth degree by a caregiver against a vulnerable adult); 609.2366.32(mistreatment of persons confined); 609.231 (mistreatment of66.33residents or patients); 609.2325 (criminal abuse of a vulnerable66.34adult); 609.233 (criminal neglect of a vulnerable adult);66.35609.2335 (financial exploitation of a vulnerable adult); 609.23466.36(failure to report maltreatment of a vulnerable adult); 609.72,67.1subdivision 3 (disorderly conduct against a vulnerable adult);67.2609.265 (abduction); 609.378 (neglect or endangerment of a67.3child); 609.377 (malicious punishment of a child); 609.324,67.4subdivision 1a (other prohibited acts; minor engaged in67.5prostitution); 609.33 (disorderly house); 609.52 (theft);67.6609.582 (burglary); 609.631 (check forgery; offering a forged67.7check); 609.275 (attempt to coerce); or an attempt or conspiracy67.8to commit any of these offenses, as each of these offenses is67.9defined in Minnesota Statutes; or an offense in any other state67.10or country, the elements of which are substantially similar to67.11the elements of any of the offenses listed in this clause. If67.12the defendant is convicted of one of the gross misdemeanors67.13listed in this clause, but the sentence is a misdemeanor67.14disposition, the lookback period for the conviction is the67.15period applicable to misdemeanors; or67.16(4) if less than seven years have passed since the67.17discharge of the sentence imposed for the offense; and the67.18individual has received a misdemeanor conviction for a violation67.19of any of the following offenses: sections 609.224 (assault in67.20the fifth degree); 609.2242 (domestic assault); violation of an67.21order for protection under 518B.01 (Domestic Abuse Act);67.22violation of an order for protection under 609.3232 (protective67.23order authorized; procedures; penalties); 609.746 (interference67.24with privacy); 609.79 (obscene or harassing phone calls);67.25609.795 (letter, telegram, or package; opening; harassment);67.26617.23 (indecent exposure; penalties); 609.2672 (assault of an67.27unborn child in the third degree); 617.293 (harmful materials;67.28dissemination and display to minors prohibited); 609.6667.29(dangerous weapons); 609.665 (spring guns); 609.2335 (financial67.30exploitation of a vulnerable adult); 609.234 (failure to report67.31maltreatment of a vulnerable adult); 609.52 (theft); 609.2767.32(coercion); or an attempt or conspiracy to commit any of these67.33offenses, as each of these offenses is defined in Minnesota67.34Statutes; or an offense in any other state or country, the67.35elements of which are substantially similar to the elements of67.36any of the offenses listed in this clause; a determination or68.1disposition of failure to make required reports under section68.2626.556, subdivision 3, or 626.557, subdivision 3, for incidents68.3in which: (i) the final disposition under section 626.556 or68.4626.557 was substantiated maltreatment, and (ii) the68.5maltreatment was recurring or serious; or a determination or68.6disposition of substantiated serious or recurring maltreatment68.7of a minor under section 626.556 or of a vulnerable adult under68.8section 626.557 for which there is a preponderance of evidence68.9that the maltreatment occurred, and that the subject was68.10responsible for the maltreatment.68.11For the purposes of this section, "serious maltreatment"68.12means sexual abuse; maltreatment resulting in death; or68.13maltreatment resulting in serious injury which reasonably68.14requires the care of a physician whether or not the care of a68.15physician was sought; or abuse resulting in serious injury. For68.16purposes of this section, "abuse resulting in serious injury"68.17means: bruises, bites, skin laceration or tissue damage;68.18fractures; dislocations; evidence of internal injuries; head68.19injuries with loss of consciousness; extensive second-degree or68.20third-degree burns and other burns for which complications are68.21present; extensive second-degree or third-degree frostbite, and68.22others for which complications are present; irreversible68.23mobility or avulsion of teeth; injuries to the eyeball;68.24ingestion of foreign substances and objects that are harmful;68.25near drowning; and heat exhaustion or sunstroke. For purposes68.26of this section, "care of a physician" is treatment received or68.27ordered by a physician, but does not include diagnostic testing,68.28assessment, or observation. For the purposes of this section,68.29"recurring maltreatment" means more than one incident of68.30maltreatment for which there is a preponderance of evidence that68.31the maltreatment occurred, and that the subject was responsible68.32for the maltreatment. For purposes of this section, "access"68.33means physical access to an individual receiving services or the68.34individual's personal property without continuous, direct68.35supervision as defined in section 245A.04, subdivision 3.68.36(b) Except for background studies related to child foster69.1care, adult foster care, or family child care licensure, when69.2the subject of a background study is regulated by a69.3health-related licensing board as defined in chapter 214, and69.4the regulated person has been determined to have been69.5responsible for substantiated maltreatment under section 626.55669.6or 626.557, instead of the commissioner making a decision69.7regarding disqualification, the board shall make a determination69.8whether to impose disciplinary or corrective action under69.9chapter 214.69.10(1) The commissioner shall notify the health-related69.11licensing board:69.12(i) upon completion of a background study that produces a69.13record showing that the individual was determined to have been69.14responsible for substantiated maltreatment;69.15(ii) upon the commissioner's completion of an investigation69.16that determined the individual was responsible for substantiated69.17maltreatment; or69.18(iii) upon receipt from another agency of a finding of69.19substantiated maltreatment for which the individual was69.20responsible.69.21(2) The commissioner's notice shall indicate whether the69.22individual would have been disqualified by the commissioner for69.23the substantiated maltreatment if the individual were not69.24regulated by the board. The commissioner shall concurrently69.25send this notice to the individual.69.26(3) Notwithstanding the exclusion from this subdivision for69.27individuals who provide child foster care, adult foster care, or69.28family child care, when the commissioner or a local agency has69.29reason to believe that the direct contact services provided by69.30the individual may fall within the jurisdiction of a69.31health-related licensing board, a referral shall be made to the69.32board as provided in this section.69.33(4) If, upon review of the information provided by the69.34commissioner, a health-related licensing board informs the69.35commissioner that the board does not have jurisdiction to take69.36disciplinary or corrective action, the commissioner shall make70.1the appropriate disqualification decision regarding the70.2individual as otherwise provided in this chapter.70.3(5) The commissioner has the authority to monitor the70.4facility's compliance with any requirements that the70.5health-related licensing board places on regulated persons70.6practicing in a facility either during the period pending a70.7final decision on a disciplinary or corrective action or as a70.8result of a disciplinary or corrective action. The commissioner70.9has the authority to order the immediate removal of a regulated70.10person from direct contact or access when a board issues an70.11order of temporary suspension based on a determination that the70.12regulated person poses an immediate risk of harm to persons70.13receiving services in a licensed facility.70.14(6) A facility that allows a regulated person to provide70.15direct contact services while not complying with the70.16requirements imposed by the health-related licensing board is70.17subject to action by the commissioner as specified under70.18sections 245A.06 and 245A.07.70.19(7) The commissioner shall notify a health-related70.20licensing board immediately upon receipt of knowledge of70.21noncompliance with requirements placed on a facility or upon a70.22person regulated by the boardDisqualification shall be governed 70.23 according to sections 245C.14 and 245C.15. 70.24 Sec. 7. Minnesota Statutes 2002, section 245A.04, 70.25 subdivision 3e, is amended to read: 70.26 Subd. 3e. [VARIANCE FOR A DISQUALIFIEDPERSON70.27 INDIVIDUAL.](a) When a background study subject's70.28disqualification has not been set aside by the commissioner, and70.29there are conditions under which the disqualified individual may70.30provide direct contact services or have access to people70.31receiving services that minimize the risk of harm to people70.32receiving services, the commissioner may grant a time-limited70.33variance to a license holder that states the reason for the70.34disqualification, the services that may be provided by the70.35disqualified individual, and the conditions with which the70.36license holder or applicant must comply for the variance to be71.1effective.71.2(b) Except for programs licensed to provide family day care71.3for children, foster care for children in the provider's own71.4home, or foster care or day care services for adults in the71.5provider's own home, the commissioner may not grant a variance71.6for a disqualified person unless the applicant or license holder71.7has requested the variance and the disqualified individual has71.8provided written consent for the commissioner to disclose to the71.9applicant or license holder the reason for the disqualification.71.10(c) When a license holder permits a disqualified individual71.11to provide any services for which the subject is disqualified71.12without complying with the conditions of the variance,71.13termination of the variance is immediate and the license holder71.14may be subject to fines or sanctions under sections 245A.06 and71.15245A.07.71.16(d) The commissioner may terminate a variance for a71.17disqualified person at any time for cause.71.18(e) The commissioner's decision to grant or deny a variance71.19request is final and not subject to appeal under the provisions71.20of chapter 14A variance for a disqualified individual shall be 71.21 governed according to section 245C.30. 71.22 Sec. 8. Minnesota Statutes 2002, section 245A.04, 71.23 subdivision 3f, is amended to read: 71.24 Subd. 3f. [CONCLUSIVE DETERMINATIONS OR DISPOSITIONS.] 71.25Unless otherwise specified in statute, the following71.26determinations or dispositions are deemed conclusive:71.27(1) a maltreatment determination or disposition under71.28section 626.556 or 626.557, if:71.29(i) the commissioner has issued a final order in an appeal71.30of that determination or disposition under section 245A.08,71.31subdivision 5, or 256.045;71.32(ii) the individual did not request reconsideration of the71.33maltreatment determination or disposition under section 626.55671.34or 626.557; or71.35(iii) the individual did not request a hearing of the71.36maltreatment determination or disposition under section 256.045;72.1and72.2(2) a determination that the information relied upon to72.3disqualify an individual under subdivision 3d was correct based72.4on serious or recurring maltreatment; or72.5(3) a preponderance of evidence shows that the individual72.6committed an act or acts that meet the definition of any of the72.7crimes listed in subdivision 3d, paragraph (a), clauses (1) to72.8(4); or the individual's failure to make required reports under72.9section 626.556, subdivision 3, or 626.557, subdivision 3, if:72.10(i) the commissioner has issued a final order in an appeal72.11of that determination under section 245A.08, subdivision 5, or72.12256.045, or a court has issued a final decision;72.13(ii) the individual did not request reconsideration of the72.14disqualification under this section; or72.15(iii) the individual did not request a hearing on the72.16disqualification under section 256.045Whether a 72.17 disqualification determination or maltreatment determination or 72.18 disposition is deemed conclusive shall be governed according to 72.19 section 245C.29. 72.20 Sec. 9. Minnesota Statutes 2002, section 245A.041, is 72.21 amended to read: 72.22 245A.041 [SYSTEMS AND RECORDS.] 72.23 Subdivision 1. [ESTABLISHMENT; USE.](a) The commissioner72.24may establish systems and records to fulfill the requirements of72.25section 245A.04. The commissioner may also use these systems72.26and records to obtain and provide criminal history data from the72.27bureau of criminal apprehension and data about substantiated72.28maltreatment under section 626.556 or 626.557, for other72.29purposes, provided that:72.30(1) the background study is specifically authorized in72.31statute; or72.32(2) the request is made with the informed consent of the72.33subject of the study as provided in section 13.05, subdivision 4.72.34A person making a request under clause (2) must agree in72.35writing not to disclose the data to any other person without the72.36consent of the subject of the data.73.1(b) The commissioner may recover the cost of obtaining and73.2providing background study data by charging the person73.3requesting the study a fee of no more than $12 per study. The73.4fees collected under this paragraph are appropriated to the73.5commissioner for the purpose of conducting background73.6studiesThe commissioner's establishment and use of systems and 73.7 records to fulfill the requirements under chapter 245C shall be 73.8 governed according to section 245C.32, subdivisions 1 and 2. 73.9 Subd. 2. [NATIONAL RECORDS SEARCH.](a) When specifically73.10required by statute, the commissioner shall also obtain criminal73.11history data from the National Criminal Records Repository. To73.12obtain criminal history data from the National Criminal Records73.13Repository, the commissioner shall require classifiable73.14fingerprints of the data subject and must submit these73.15fingerprint requests through the bureau of criminal73.16apprehension. The commissioner may recover the cost of73.17obtaining and providing criminal history data from the National73.18Criminal Records Repository by charging the person requesting73.19the study a fee of no more than $30 per study. The fees73.20collected under this subdivision are appropriated to the73.21commissioner for the purpose of obtaining criminal history data73.22from the National Criminal Records Repository.73.23(b) To obtain criminal history data from the National73.24Criminal Records Repository under this chapter, the commissioner73.25may require the background study subject to submit fingerprint73.26images electronically. The commissioner may not require73.27electronic fingerprint images until the electronic recording and73.28transfer system is available for non-criminal-justice purposes73.29and the necessary equipment is in use in the law enforcement73.30agency in the background study subject's local73.31communityNational records searches shall be governed according 73.32 to section 245C.32, subdivision 3.