Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1997, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 248-S.F.No. 234
An act relating to human services; adding provisions
for licensing programs; imposing and modifying civil
penalties; requiring reports on nonresidential child
care programs; providing interim expansion of
unlicensed child care providers; requiring reports
from the commissioner of health and the commissioner
of human services; creating a legislative task force
to review the background study process; amending
Minnesota Statutes 1996, sections 144.057, subdivision
1; 144A.46, subdivision 5; 245A.02, subdivisions 15,
16, 17, and by adding subdivisions; 245A.03,
subdivision 2; 245A.04, subdivisions 3, 3a, 3b, 3c, 4,
5, 6, 7, and by adding a subdivision; 245A.06,
subdivisions 1, 3, 4, 5, 5a, 6, and 7; 245A.07,
subdivisions 1 and 3; 245A.08, subdivisions 1 and 2;
245A.09, subdivision 7; 245A.11, subdivision 2;
245A.16, subdivision 2; 256E.115; and 364.09; Laws
1995, chapter 158, section 7; proposing coding for new
law in Minnesota Statutes, chapter 245A; proposing
coding for new law as Minnesota Statutes, chapter
245B; repealing Minnesota Statutes 1996, sections
245A.091; 245A.20; 245A.21; and 252.53; Laws 1996,
chapter 408, article 10, section 13; Minnesota Rules,
parts 4668.0020; 9503.0170, subpart 7; 9525.0215;
9525.0225; 9525.0235; 9525.0243; 9525.0245; 9525.0255;
9525.0265; 9525.0275; 9525.0285; 9525.0295; 9525.0305;
9525.0315; 9525.0325; 9525.0335; 9525.0345; 9525.0355;
9525.0500; 9525.0510; 9525.0520; 9525.0530; 9525.0540;
9525.0550; 9525.0560; 9525.0570; 9525.0580; 9525.0590;
9525.0600; 9525.0610; 9525.0620; 9525.0630; 9525.0640;
9525.0650; 9525.0660; 9525.1240, subpart 1, item E,
subitem (6); 9525.1500; 9525.1510; 9525.1520;
9525.1530; 9525.1540; 9525.1550; 9525.1560; 9525.1570,
subparts 1, 2, 3, 4, 5, and 6; 9525.1590; 9525.1610;
9525.1620; 9525.1630; 9525.1640; 9525.1650; 9525.1660;
9525.1670; 9525.1680; 9525.1690; 9525.2000; 9525.2010;
9525.2020; 9525.2025; 9525.2030; 9525.2040; 9525.2050;
9525.2060; 9525.2070; 9525.2080; 9525.2090; 9525.2100;
9525.2110; 9525.2120; 9525.2130; 9525.2140; 9543.3070;
9555.8000; 9555.8100; 9555.8200; 9555.8300; 9555.8400;
and 9555.8500.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1996, section 144.057,
subdivision 1, is amended to read:
Subdivision 1. [BACKGROUND STUDIES REQUIRED.] The
commissioner of health shall contract with the commissioner of
human services to conduct background studies of:
(1) individuals providing services which have direct
contact, as defined under section 245A.04, subdivision 3, with
patients and residents in hospitals, boarding care homes,
outpatient surgical centers licensed under sections 144.50 to
144.58; nursing homes and home care agencies licensed under
chapter 144A; residential care homes licensed under chapter
144B, and board and lodging establishments that are registered
to provide supportive or health supervision services under
section 157.17.; and
(2) beginning July 1, 1999, all other employees in nursing
homes licensed under chapter 144A, and boarding care homes
licensed under sections 144.50 to 144.58. A disqualification of
an individual in this section shall disqualify the individual
from positions allowing direct contact or access to patients or
residents receiving services.
If a facility or program is licensed by the department of
human services and subject to the background study provisions of
chapter 245A and is also licensed by the department of health,
the department of human services is solely responsible for the
background studies of individuals in the jointly licensed
programs.
Sec. 2. Minnesota Statutes 1996, section 144A.46,
subdivision 5, is amended to read:
Subd. 5. [PRIOR CRIMINAL CONVICTIONS.] (a) Before the
commissioner issues a an initial or renewal license and, as
defined in the home care licensure rules promulgated by the
commissioner of health, an owner or managerial official shall be
required to disclose all criminal convictions. The commissioner
may adopt rules that may require a person who must disclose
criminal convictions under this subdivision to provide
fingerprints and releases that authorize law enforcement
agencies, including the bureau of criminal apprehension and the
Federal Bureau of Investigation, to release information about
the person's criminal convictions to the commissioner and home
care providers. The bureau of criminal apprehension, county
sheriffs, and local chiefs of police shall, if requested,
provide the commissioner with criminal conviction data available
from local, state, and national criminal record repositories,
including the criminal justice data communications
network complete a background study under section 144.057. No
person may be involved in the management, operation, or control
of a provider, if the person has been convicted of a crime that
relates to the provision of home care services or to the
position, duties, or responsibilities undertaken by that person
in the operation of the home care provider, unless the person
can provide sufficient evidence of rehabilitation. The
commissioner shall adopt rules for determining whether a crime
relates to home care services and what constitutes sufficient
evidence of rehabilitation. The rules must require
consideration of the nature and seriousness of the crime; the
relationship of the crime to the purposes of home care licensure
and regulation; the relationship of the crime to the ability,
capacity, and fitness required to perform the duties and
discharge the responsibilities of the person's position;
mitigating circumstances or social conditions surrounding the
commission of the crime; the length of time elapsed since the
crime was committed; the seriousness of the risk to the home
care client's person or property; and other factors the
commissioner considers appropriate disqualified under the
provisions of chapter 245A. Individuals disqualified under
these provisions can request a reconsideration, and if the
disqualification is set aside are then eligible to be involved
in the management, operation or control of the provider. For
purposes of this section, owners of a home care provider subject
to the background check requirement are those individuals whose
ownership interest provides sufficient authority or control to
affect or change decisions related to the operation of the home
care provider. An owner includes a sole proprietor, a general
partner, or any other individual whose individual ownership
interest can affect the management and direction of the policies
of the home care provider. For the purposes of this section,
managerial officials subject to the background check requirement
are those individuals who provide "direct contact" as defined in
section 245A.04 or those individuals who have the responsibility
for the ongoing management or direction of the policies,
services, or employees of the home care provider. Data
collected under this subdivision shall be classified as private
data under section 13.02, subdivision 12.
(b) Employees, contractors, and volunteers of a home care
provider or hospice are subject to the background study required
by section 144.057. These individuals shall be disqualified
under the provisions of chapter 245A and Minnesota Rules, parts
9543.3000 to 9543.3090. Until October 1, 1997, grounds for
disqualification shall also include the crimes specified under
Minnesota Rules, part 4668.0020, subpart 14, or a comparable
crime or act in another jurisdiction. Nothing in this section
shall be construed to prohibit a home care provider from
requiring self-disclosure of criminal conviction information;
however, compliance with the provisions of section 144.057
constitutes compliance with the provisions of Minnesota Rules,
part 4668.0020, subpart 8.
(c) Notwithstanding the provisions of Minnesota Rules, part
4668.0020, subparts 12, 13, and 15, disqualifications under
paragraph (b), removal from a direct care position, and the
process for reconsiderations shall be governed by the provisions
of section 144.057.
(d) Unless superseded by the provisions of section 144.057
or this section, the provisions of Minnesota Rules, part
4668.0020, remain in effect.
(e) Termination of an employee in good faith reliance on
information or records obtained under paragraph (a) or (b)
regarding a confirmed conviction does not subject the home care
provider to civil liability or liability for reemployment
insurance benefits.
Sec. 3. Minnesota Statutes 1996, section 245A.02, is
amended by adding a subdivision to read:
Subd. 6b. [EXPERIENCE.] For purposes of child care
centers, "experience" includes paid or unpaid employment serving
children as a teacher, assistant teacher, aide, or a student
intern in a licensed child care center, in a public or nonpublic
school, or in a program licensed as a family day care or group
family day care provider.
Sec. 4. Minnesota Statutes 1996, section 245A.02,
subdivision 15, is amended to read:
Subd. 15. [RESPITE CARE SERVICES.] "Respite care services"
means temporary services provided to a person due to the absence
or need for relief of the primary caregiver, the person's family
member, or legal representative who is the primary caregiver and
principally responsible for the care and supervision of the
person. Respite care services are those that provide the level
of supervision and care that is necessary to ensure the health
and safety of the person. Respite care services do not include
services that are specifically directed toward the training and
habilitation of the person.
Sec. 5. Minnesota Statutes 1996, section 245A.02,
subdivision 16, is amended to read:
Subd. 16. [SCHOOL AGE CHILD.] "School age child," for
programs licensed or required to be licensed as a child care
center, means a child who is at least of sufficient age to have
attended the first day of kindergarten, or is eligible to enter
kindergarten within the next four months, but is younger than 13
years of age.
Sec. 6. Minnesota Statutes 1996, section 245A.02,
subdivision 17, is amended to read:
Subd. 17. [SCHOOL AGE CHILD CARE PROGRAM.] "School age
child care program" means a nonresidential program licensed or
required to be licensed as a child care center, serving more
than ten children with the primary purpose of providing child
care for school age children. School age child care program
does not include programs such as scouting, boys clubs, girls
clubs, nor sports or art programs.
Sec. 7. Minnesota Statutes 1996, section 245A.02, is
amended by adding a subdivision to read:
Subd. 18. [SUPERVISION.] For purposes of child care
centers, "supervision" means when a program staff person is
within sight and hearing of a child at all times so that the
program staff can intervene to protect the health and safety of
the child. When an infant is placed in a crib room to sleep,
supervision occurs when a staff person is within sight or
hearing of the infant. When supervision of a crib room is
provided by sight or hearing, the center must have a plan to
address the other supervision component.
Sec. 8. [245A.023] [IN-SERVICE TRAINING.]
For purposes of child care centers, in-service training
must be completed within the license period for which it is
required. In-service training completed by staff persons as
required must be transferable upon a staff person's change in
employment to another child care program. License holders shall
record all staff in-service training on forms prescribed by the
commissioner of human services.
Sec. 9. Minnesota Statutes 1996, section 245A.03,
subdivision 2, is amended to read:
Subd. 2. [EXCLUSION FROM LICENSURE.] Sections 245A.01 to
245A.16 do not apply to:
(1) residential or nonresidential programs that are
provided to a person by an individual who is related unless the
residential program is a foster care placement made by a local
social services agency or a licensed child-placing agency,
except as provided in subdivision 2a;
(2) nonresidential programs that are provided by an
unrelated individual to persons from a single related family;
(3) residential or nonresidential programs that are
provided to adults who do not abuse chemicals or who do not have
a chemical dependency, a mental illness, mental retardation or a
related condition, a functional impairment, or a physical
handicap;
(4) sheltered workshops or work activity programs that are
certified by the commissioner of economic security;
(5) programs for children enrolled in kindergarten to the
12th grade and prekindergarten special education in a school as
defined in section 120.101, subdivision 4, and programs serving
children in combined special education and regular
prekindergarten programs that are operated or assisted by the
commissioner of children, families, and learning;
(6) nonresidential programs primarily for children that
provide care or supervision, without charge for ten or fewer
days a year, and for periods of less than three hours a day
while the child's parent or legal guardian is in the same
building as the nonresidential program or present within another
building that is directly contiguous to the building in which
the nonresidential program is located;
(7) nursing homes or hospitals licensed by the commissioner
of health except as specified under section 245A.02;
(8) board and lodge facilities licensed by the commissioner
of health that provide services for five or more persons whose
primary diagnosis is mental illness who have refused an
appropriate residential program offered by a county agency.
This exclusion expires on July 1, 1990;
(9) homes providing programs for persons placed there by a
licensed agency for legal adoption, unless the adoption is not
completed within two years;
(10) programs licensed by the commissioner of corrections;
(11) recreation programs for children or adults that
operate for fewer than 40 calendar days in a calendar year or
programs operated by a park and recreation board of a city of
the first class whose primary purpose is to provide social and
recreational activities to school age children, provided the
program is approved by the park and recreation board;
(12) programs operated by a school as defined in section
120.101, subdivision 4, whose primary purpose is to provide
child care to school-age children, provided the program is
approved by the district's school board;
(13) head start nonresidential programs which operate for
less than 31 days in each calendar year;
(14) noncertified boarding care homes unless they provide
services for five or more persons whose primary diagnosis is
mental illness or mental retardation;
(15) nonresidential programs for nonhandicapped children
provided for a cumulative total of less than 30 days in any
12-month period;
(16) residential programs for persons with mental illness,
that are located in hospitals, until the commissioner adopts
appropriate rules;
(17) the religious instruction of school-age children;
Sabbath or Sunday schools; or the congregate care of children by
a church, congregation, or religious society during the period
used by the church, congregation, or religious society for its
regular worship;
(18) camps licensed by the commissioner of health under
Minnesota Rules, chapter 4630;
(19) mental health outpatient services for adults with
mental illness or children with emotional disturbance;
(20) residential programs serving school-age children whose
sole purpose is cultural or educational exchange, until the
commissioner adopts appropriate rules;
(21) unrelated individuals who provide out-of-home respite
care services to persons with mental retardation or related
conditions from a single related family for no more than 90 days
in a 12-month period and the respite care services are for the
temporary relief of the person's family or legal representative;
(22) respite care services provided as a home and
community-based service to a person with mental retardation or a
related condition, in the person's primary residence;
(23) community support services programs as defined in
section 245.462, subdivision 6, and family community support
services as defined in section 245.4871, subdivision 17; or
(24) the placement of a child by a birth parent or legal
guardian in a preadoptive home for purposes of adoption as
authorized by section 259.47.
For purposes of clause (6), a building is directly
contiguous to a building in which a nonresidential program is
located if it shares a common wall with the building in which
the nonresidential program is located or is attached to that
building by skyway, tunnel, atrium, or common roof.
Sec. 10. Minnesota Statutes 1996, section 245A.04,
subdivision 3, is amended to read:
Subd. 3. [BACKGROUND STUDY OF THE APPLICANT.] (a) Before
the commissioner issues a license, the commissioner shall
conduct a study of the individuals specified in paragraph (c),
clauses (1) to (5), according to rules of the commissioner.
Beginning January 1, 1997, the commissioner shall also
conduct a study of employees providing direct contact services
for nonlicensed personal care provider organizations described
in paragraph (c), clause (5).
The commissioner shall recover the cost of these background
studies through a fee of no more than $12 per study charged to
the personal care provider organization.
Beginning August 1, 1997, the commissioner shall conduct
all background studies required under this chapter for adult
foster care providers who are licensed by the commissioner of
human services and registered under chapter 144D. The
commissioner shall conduct these background studies in
accordance with this chapter. The commissioner shall initiate a
pilot project to conduct up to 5,000 background studies under
this chapter in programs with joint licensure as home- and
community-based services and adult foster care for people with
developmental disabilities when the license holder does not
reside in the foster care residence.
(b) Beginning July 1, 1997 1998, the commissioner shall
conduct a background study on individuals specified in paragraph
(c), clauses (1) to (5), who perform direct contact services in
a nursing home or a home care agency licensed under chapter 144A
or a boarding care home licensed under sections 144.50 to
144.58, when the subject of the study resides outside Minnesota;
the study must be at least as comprehensive as that of a
Minnesota resident and include a search of information from the
criminal justice data communications network in the state where
the subject of the study resides.
(c) The applicant, license holder, the bureau of criminal
apprehension, the commissioner of health and county agencies,
after written notice to the individual who is the subject of the
study, shall help with the study by giving the commissioner
criminal conviction data and reports about the maltreatment of
adults substantiated under section 626.557 and the maltreatment
of minors in licensed programs substantiated under section
626.556. The individuals to be studied shall include:
(1) the applicant;
(2) persons over the age of 13 living in the household
where the licensed program will be provided;
(3) current employees or contractors of the applicant who
will have direct contact with persons served by the facility,
agency, or program;
(4) volunteers or student volunteers who have direct
contact with persons served by the program to provide program
services, if the contact is not directly supervised by the
individuals listed in clause (1) or (3); and
(5) any person who, as an individual or as a member of an
organization, exclusively offers, provides, or arranges for
personal care assistant services under the medical assistance
program as authorized under sections 256B.04, subdivision 16,
and 256B.0625, subdivision 19.
The juvenile courts shall also help with the study by
giving the commissioner existing juvenile court records on
individuals described in clause (2) relating to delinquency
proceedings held within either the five years immediately
preceding the application or the five years immediately
preceding the individual's 18th birthday, whichever time period
is longer. The commissioner shall destroy juvenile records
obtained pursuant to this subdivision when the subject of the
records reaches age 23.
For purposes of this section and Minnesota Rules, part
9543.3070, a finding that a delinquency petition is proven in
juvenile court shall be considered a conviction in state
district court.
For purposes of this subdivision, "direct contact" means
providing face-to-face care, training, supervision, counseling,
consultation, or medication assistance to persons served by a
program. For purposes of this subdivision, "directly supervised"
means an individual listed in clause (1), (3), or (5) is within
sight or hearing of a volunteer to the extent that the
individual listed in clause (1), (3), or (5) is capable at all
times of intervening to protect the health and safety of the
persons served by the program who have direct contact with the
volunteer.
A study of an individual in clauses (1) to (5) shall be
conducted at least upon application for initial license and
reapplication for a license. The commissioner is not required
to conduct a study of an individual at the time of reapplication
for a license or if the individual has been continuously
affiliated with a foster care provider licensed by the
commissioner of human services and registered under chapter
144D, other than a family day care or foster care license, if:
(i) a study of the individual was conducted either at the time
of initial licensure or when the individual became affiliated
with the license holder; (ii) the individual has been
continuously affiliated with the license holder since the last
study was conducted; and (iii) the procedure described in
paragraph (d) has been implemented and was in effect
continuously since the last study was conducted. For the
purposes of this section, a physician licensed under chapter 147
is considered to be continuously affiliated upon the license
holder's receipt from the commissioner of health or human
services of the physician's background study results. For
individuals who are required to have background studies under
clauses (1) to (5) and who have been continuously affiliated
with a foster care provider that is licensed in more than one
county, criminal conviction data may be shared among those
counties in which the foster care programs are licensed. A
county agency's receipt of criminal conviction data from another
county agency shall meet the criminal data background study
requirements of this section.
The commissioner may also conduct studies on individuals
specified in clauses (3) and (4) when the studies are initiated
by:
(i) personnel pool agencies;
(ii) temporary personnel agencies;
(iii) educational programs that train persons by providing
direct contact services in licensed programs; and
(iv) professional services agencies that are not licensed
and which contract with licensed programs to provide direct
contact services or individuals who provide direct contact
services.
Studies on individuals in items (i) to (iv) must be
initiated annually by these agencies, programs, and
individuals. Except for personal care provider organizations,
no applicant, license holder, or individual who is the subject
of the study shall pay any fees required to conduct the study.
(1) At the option of the licensed facility, rather than
initiating another background study on an individual required to
be studied who has indicated to the licensed facility that a
background study by the commissioner was previously completed,
the facility may make a request to the commissioner for
documentation of the individual's background study status,
provided that:
(i) the facility makes this request using a form provided
by the commissioner;
(ii) in making the request the facility informs the
commissioner that either:
(A) the individual has been continuously affiliated with a
licensed facility since the individual's previous background
study was completed, or since October 1, 1995, whichever is
shorter; or
(B) the individual is affiliated only with a personnel pool
agency, a temporary personnel agency, an educational program
that trains persons by providing direct contact services in
licensed programs, or a professional services agency that is not
licensed and which contracts with licensed programs to provide
direct contact services or individuals who provide direct
contact services; and
(iii) the facility provides notices to the individual as
required in paragraphs (a) to (d), and that the facility is
requesting written notification of the individual's background
study status from the commissioner.
(2) The commissioner shall respond to each request under
paragraph (1) with a written or electronic notice to the
facility and the study subject. If the commissioner determines
that a background study is necessary, the study shall be
completed without further request from a licensed agency or
notifications to the study subject.
(3) When a background study is being initiated by a
licensed facility or a foster care provider that is also
registered under chapter 144D, a study subject affiliated with
multiple licensed facilities may attach to the background study
form a cover letter indicating the additional facilities' names,
addresses, and background study identification numbers. When
the commissioner receives such notices, each facility identified
by the background study subject shall be notified of the study
results. The background study notice sent to the subsequent
agencies shall satisfy those facilities' responsibilities for
initiating a background study on that individual.
(d) If an individual who is affiliated with a program or
facility regulated by the department of human services or
department of health or who is affiliated with a nonlicensed
personal care provider organization, is convicted of a crime
constituting a disqualification under Minnesota Rules, parts
9543.3000 to 9543.3090 subdivision 3d, the probation officer or
corrections agent shall notify the commissioner of the
conviction. The commissioner, in consultation with the
commissioner of corrections, shall develop forms and information
necessary to implement this paragraph and shall provide the
forms and information to the commissioner of corrections for
distribution to local probation officers and corrections
agents. The commissioner shall inform individuals subject to a
background study that criminal convictions for disqualifying
crimes will be reported to the commissioner by the corrections
system. A probation officer, corrections agent, or corrections
agency is not civilly or criminally liable for disclosing or
failing to disclose the information required by this paragraph.
Upon receipt of disqualifying information, the commissioner
shall provide the notifications required in subdivision 3a, as
appropriate to agencies on record as having initiated a
background study or making a request for documentation of the
background study status of the individual. This paragraph does
not apply to family day care and child foster care programs.
(e) The individual who is the subject of the study must
provide the applicant or license holder with sufficient
information to ensure an accurate study including the
individual's first, middle, and last name; home address, city,
county, and state of residence for the past five years; zip
code; sex; date of birth; and driver's license number. The
applicant or license holder shall provide this information about
an individual in paragraph (c), clauses (1) to (5), on forms
prescribed by the commissioner. By January 1, 2000, for
background studies conducted by the department of human
services, the commissioner shall implement a system for the
electronic transmission of: (1) background study information to
the commissioner; and (2) background study results to the
license holder. The commissioner may request additional
information of the individual, which shall be optional for the
individual to provide, such as the individual's social security
number or race.
(f) Except for child foster care, adult foster care, and
family day care homes, a study must include information related
to names of substantiated perpetrators of maltreatment of
vulnerable adults that has been received by the commissioner as
required under section 626.557, subdivision 9c, paragraph (i),
and the commissioner's records relating to the maltreatment of
minors in licensed programs, information from juvenile courts as
required in paragraph (c) for persons listed in paragraph (c),
clause (2), and information from the bureau of criminal
apprehension. For child foster care, adult foster care, and
family day care homes, the study must include information from
the county agency's record of substantiated maltreatment of
adults, and the maltreatment of minors, information from
juvenile courts as required in paragraph (c) for persons listed
in paragraph (c), clause (2), and information from the bureau of
criminal apprehension. The commissioner may also review arrest
and investigative information from the bureau of criminal
apprehension, the commissioner of health, a county attorney,
county sheriff, county agency, local chief of police, other
states, the courts, or the Federal Bureau of Investigation if
the commissioner has reasonable cause to believe the information
is pertinent to the disqualification of an individual listed in
paragraph (c), clauses (1) to (5). The commissioner is not
required to conduct more than one review of a subject's records
from the Federal Bureau of Investigation if a review of the
subject's criminal history with the Federal Bureau of
Investigation has already been completed by the commissioner and
there has been no break in the subject's affiliation with the
license holder who initiated the background studies.
When the commissioner has reasonable cause to believe that
further pertinent information may exist on the subject, the
subject shall provide a set of classifiable fingerprints
obtained from an authorized law enforcement agency. For
purposes of requiring fingerprints, the commissioner shall be
considered to have reasonable cause under, but not limited to,
the following circumstances:
(1) information from the bureau of criminal apprehension
indicates that the subject is a multistate offender;
(2) information from the bureau of criminal apprehension
indicates that multistate offender status is undetermined; or
(3) the commissioner has received a report from the subject
or a third party indicating that the subject has a criminal
history in a jurisdiction other than Minnesota.
(g) An applicant's or license holder's failure or refusal
to cooperate with the commissioner is reasonable cause
to disqualify a subject, deny an a license application or
immediately suspend, suspend, or revoke a license. Failure or
refusal of an individual to cooperate with the study is just
cause for denying or terminating employment of the individual if
the individual's failure or refusal to cooperate could cause the
applicant's application to be denied or the license holder's
license to be immediately suspended, suspended, or revoked.
(h) The commissioner shall not consider an application to
be complete until all of the information required to be provided
under this subdivision has been received.
(i) No person in paragraph (c), clause (1), (2), (3), (4),
or (5) who is disqualified as a result of this section may be
retained by the agency in a position involving direct contact
with persons served by the program.
(j) Termination of persons in paragraph (c), clause (1),
(2), (3), (4), or (5), made in good faith reliance on a notice
of disqualification provided by the commissioner shall not
subject the applicant or license holder to civil liability.
(k) The commissioner may establish records to fulfill the
requirements of this section.
(l) The commissioner may not disqualify an individual
subject to a study under this section because that person has,
or has had, a mental illness as defined in section 245.462,
subdivision 20.
(m) An individual who is subject to an applicant background
study under this section and whose disqualification in
connection with a license would be subject to the limitations on
reconsideration set forth in subdivision 3b, paragraph (c),
shall be disqualified for conviction of the crimes specified in
the manner specified in subdivision 3b, paragraph (c). The
commissioner of human services shall amend Minnesota Rules, part
9543.3070, to conform to this section.
(n) An individual subject to disqualification under this
subdivision has the applicable rights in subdivision 3a, 3b, or
3c.
Sec. 11. Minnesota Statutes 1996, section 245A.04,
subdivision 3a, is amended to read:
Subd. 3a. [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF
STUDY RESULTS; DETERMINATION OF RISK OF HARM.] (a) The
commissioner shall notify the applicant or license holder and
the individual who is the subject of the study, in writing or by
electronic transmission, of the results of the study. When the
study is completed, a notice that the study was undertaken and
completed shall be maintained in the personnel files of the
program.
The commissioner shall notify the individual studied if the
information in the study indicates the individual is
disqualified from direct contact with persons served by the
program. The commissioner shall disclose the
information causing disqualification and instructions on how to
request a reconsideration of the disqualification to the
individual studied. An applicant or license holder who is not
the subject of the study shall be informed that the commissioner
has found information that disqualifies the subject from direct
contact with persons served by the program. However, the
applicant or license holder shall not be told what that
information is only the individual studied must be informed of
the information contained in the subject's background study
unless the only basis for the disqualification is failure to
cooperate, the data practices act provides for release of the
information, or the individual studied authorizes the release of
the information.
(b) If the commissioner determines that the individual
studied has a disqualifying characteristic, the commissioner
shall review the information immediately available and make a
determination as to the subject's immediate risk of harm to
persons served by the program where the individual studied will
have direct contact. The commissioner shall consider all
relevant information available, including the following factors
in determining the immediate risk of harm: the recency of the
disqualifying characteristic, the recency of discharge from
probation for the crimes; the number of disqualifying
characteristics; the intrusiveness or violence of the
disqualifying characteristic; the vulnerability of the victim
involved in the disqualifying characteristic; and the similarity
of the victim to the persons served by the program where the
individual studied will have direct contact. The commissioner
may determine that the evaluation of the information immediately
available gives the commissioner reason to believe one of the
following:
(1) The individual poses an imminent risk of harm to
persons served by the program where the individual studied will
have direct contact. If the commissioner determines that an
individual studied poses an imminent risk of harm to persons
served by the program where the individual studied will have
direct contact, the individual and the license holder must be
sent a notice of disqualification. The commissioner shall order
the license holder to immediately remove the individual studied
from direct contact. The notice to the individual studied must
include an explanation of the basis of this determination.
(2) The individual poses a risk of harm requiring
continuous supervision while providing direct contact services
during the period in which the subject may request a
reconsideration. If the commissioner determines that an
individual studied poses a risk of harm that requires continuous
supervision, the individual and the license holder must be sent
a notice of disqualification. The commissioner shall order the
license holder to immediately remove the individual studied from
direct contact services or assure that the individual studied is
within sight or hearing of another staff person when providing
direct contact services during the period in which the
individual may request a reconsideration of the
disqualification. If the individual studied does not submit a
timely request for reconsideration, or the individual submits a
timely request for reconsideration, but the disqualification is
not set aside for that license holder, the license holder will
be notified of the disqualification and ordered to immediately
remove the individual from any position allowing direct contact
with persons receiving services from the license holder.
(3) The individual does not pose an imminent risk of harm
or a risk of harm requiring continuous supervision while
providing direct contact services during the period in which the
subject may request a reconsideration. If the commissioner
determines that an individual studied does not pose a risk of
harm that requires continuous supervision, only the individual
must be sent a notice of disqualification. The license holder
must be sent a notice that more time is needed to complete the
individual's background study. If the individual studied
submits a timely request for reconsideration, and if the
disqualification is set aside for that license holder, the
license holder will receive the same notification received by
license holders in cases where the individual studied has no
disqualifying characteristic. If the individual studied does
not submit a timely request for reconsideration, or the
individual submits a timely request for reconsideration, but the
disqualification is not set aside for that license holder, the
license holder will be notified of the disqualification and
ordered to immediately remove the individual from any position
allowing direct contact with persons receiving services from the
license holder.
Sec. 12. Minnesota Statutes 1996, section 245A.04,
subdivision 3b, is amended to read:
Subd. 3b. [RECONSIDERATION OF DISQUALIFICATION.] (a)
Within 30 days after receiving notice of disqualification under
subdivision 3a, The individual who is the subject of the study
disqualification may request a reconsideration of the notice of
disqualification.
The individual must submit the request for reconsideration
to the commissioner in writing. A request for reconsideration
for an individual who has been sent a notice of disqualification
under subdivision 3a, paragraph (b), clause (1) or (2), must be
submitted within 30 calendar days of the disqualified
individual's receipt of the notice of disqualification. A
request for reconsideration for an individual who has been sent
a notice of disqualification under subdivision 3a, paragraph
(b), clause (3), must be submitted within 15 calendar days of
the disqualified individual's receipt of the notice of
disqualification. Removal of a disqualified individual from
direct contact shall be ordered if the individual does not
request reconsideration within the prescribed time, and for an
individual who submits a timely request for reconsideration, if
the disqualification is not set aside. The individual must
present information to show showing that:
(1) the information the commissioner relied upon is
incorrect or inaccurate. If the basis of a reconsideration
request is that a maltreatment determination or disposition
under section 626.556 or 626.557 is incorrect, and the
commissioner has issued a final order in an appeal of that
determination or disposition under section 256.045, the
commissioner's order is conclusive on the issue of maltreatment;
or
(2) the subject of the study does not pose a risk of harm
to any person served by the applicant or license holder.
(b) The commissioner may set aside the disqualification
under this section if the commissioner finds that the
information the commissioner relied upon is incorrect or the
individual does not pose a risk of harm to any person served by
the applicant or license holder. In determining that an
individual does not pose a risk of harm, the commissioner shall
review consider the consequences of the event or events
that could lead to disqualification, whether there is more than
one disqualifying event, the vulnerability of the victim at the
time of the event, the time elapsed without a repeat of the same
or similar event, and documentation of successful completion by
the individual studied of training or rehabilitation pertinent
to the event, and any other information relevant to
reconsideration. In reviewing a disqualification under this
section, the commissioner shall give preeminent weight to the
safety of each person to be served by the license holder or
applicant over the interests of the license holder or applicant.
(c) Unless the information the commissioner relied on in
disqualifying an individual is incorrect, the commissioner may
not set aside the disqualification of an individual in
connection with a license to provide family day care for
children, foster care for children in the provider's own home,
or foster care or day care services for adults in the provider's
own home if:
(1) less than ten years have passed since the discharge of
the sentence imposed for the offense; and the individual has
been convicted of a violation of any offense listed in
section sections 609.20 (manslaughter in the first degree),
609.205 (manslaughter in the second degree), criminal vehicular
homicide under 609.21 (criminal vehicular homicide and injury),
609.215 (aiding suicide or aiding attempted suicide), felony
violations under 609.221 to 609.2231 (felony violations of
assault in the first, second, third, or fourth degree), 609.713
(terroristic threats), 609.235 (use of drugs to injure or to
facilitate crime), 609.24 (simple robbery), 609.245 (aggravated
robbery), 609.25 (kidnapping), 609.255 (false imprisonment),
609.561 or 609.562 (arson in the first or second degree), 609.71
(riot), burglary in the first or second degree under 609.582
(burglary in the first or second degree), 609.66 (reckless use
of a gun or dangerous weapon or intentionally pointing a gun at
or towards a human being), 609.665 (setting a spring gun guns),
609.67 (unlawfully owning, possessing, or operating a machine
gun guns and short-barreled shotguns), 609.749 (harassment;
stalking), 152.021 or 152.022 (controlled substance crime in the
first or second degree), 152.023, subdivision 1, clause (3) or
(4), or subdivision 2, clause (4) (controlled substance crime in
the third degree), 152.024, subdivision 1, clause (2), (3), or
(4) (controlled substance crime in the fourth degree), 609.224,
subdivision 2, paragraph (c) (fifth-degree assault by a
caregiver against a vulnerable adult), 609.228 (great bodily
harm caused by distribution of drugs), 609.23 (mistreatment of
persons confined), 609.231 (mistreatment of residents or
patients), 609.2325 (criminal abuse of a vulnerable adult),
609.233 (criminal neglect of a vulnerable adult), 609.2335
(financial exploitation of a vulnerable adult), 609.234 (failure
to report), 609.265 (abduction), 609.2664 to 609.2665
(manslaughter of an unborn child in the first or second degree),
609.267 to 609.2672 (assault of an unborn child in the first,
second, or third degree), 609.268 (injury or death of an unborn
child in the commission of a crime), 617.293 (disseminating or
displaying harmful material to minors), 609.378 (neglect or
endangerment of a child), a gross misdemeanor offense under
609.377 (a gross misdemeanor offense of malicious punishment of
a child), 609.72, subdivision 3 (disorderly conduct against a
vulnerable adult); or an attempt or conspiracy to commit any of
these offenses, as each of these offenses is defined in
Minnesota Statutes; or an offense in any other state, the
elements of which are substantially similar to the elements of
any of the foregoing offenses;
(2) regardless of how much time has passed since the
discharge of the sentence imposed for the offense, the
individual was convicted of a violation of any offense listed in
sections 609.185 to 609.195 (murder in the first, second, or
third degree), 609.2661 to 609.2663 (murder of an unborn child
in the first, second, or third degree), a felony offense under
609.377 (a felony offense of malicious punishment of a child),
609.322 (soliciting solicitation, inducement, or and promotion
of prostitution), 609.323 (receiving profit derived from
prostitution), 609.342 to 609.345 (criminal sexual conduct in
the first, second, third, or fourth degree), 609.352
(solicitation of children to engage in sexual conduct), 617.246
(use of minors in a sexual performance), 617.247 (possession of
pictorial representations of a minor), 609.365 (incest), or an
attempt or conspiracy to commit any of these offenses as defined
in Minnesota Statutes, or an offense in any other state, the
elements of which are substantially similar to any of the
foregoing offenses;
(3) within the seven years preceding the study, the
individual committed an act that constitutes maltreatment of a
child under section 626.556, subdivision 10e, and that resulted
in substantial bodily harm as defined in section 609.02,
subdivision 7a, or substantial mental or emotional harm as
supported by competent psychological or psychiatric evidence; or
(4) within the seven years preceding the study, the
individual was determined under section 626.557 to be the
perpetrator of a substantiated incident of abuse maltreatment of
a vulnerable adult that resulted in substantial bodily harm as
defined in section 609.02, subdivision 7a, or substantial mental
or emotional harm as supported by competent psychological or
psychiatric evidence.
In the case of any ground for disqualification under
clauses (1) to (4), if the act was committed by an individual
other than the applicant or license holder residing in the
applicant's or license holder's home, the applicant or license
holder may seek reconsideration when the individual who
committed the act no longer resides in the home.
The disqualification periods provided under clauses (1),
(3), and (4) are the minimum applicable disqualification
periods. The commissioner may determine that an individual
should continue to be disqualified from licensure because the
license holder or applicant poses a risk of harm to a person
served by that individual after the minimum disqualification
period has passed.
(d) The commissioner shall respond in writing or by
electronic transmission to all reconsideration requests for
which the basis for the request is that the information relied
upon by the commissioner to disqualify is incorrect or
inaccurate within 30 working days of receipt of a request and
all relevant information. If the basis for the request is that
the individual does not pose a risk of harm, the commissioner
shall respond to the request within 15 working days after
receiving the request for reconsideration and all relevant
information. If the disqualification is set aside, the
commissioner shall notify the applicant or license holder in
writing or by electronic transmission of the decision.
(e) Except as provided in subdivision 3c, the
commissioner's decision to disqualify an individual, including
the decision to grant or deny a reconsideration of rescission or
set aside a disqualification under this subdivision, or to set
aside or uphold the results of the study under subdivision
3 this section, is the final administrative agency action and
shall not be subject to further review in a contested case under
chapter 14 involving a negative licensing action appeal taken in
response to the disqualification or involving an accuracy and
completeness appeal under section 13.04.
Sec. 13. Minnesota Statutes 1996, section 245A.04,
subdivision 3c, is amended to read:
Subd. 3c. [CONTESTED CASE.] If a disqualification is not
set aside, a person who, on or after the effective date of rules
adopted under subdivision 3, paragraph (i), is an employee of an
employer, as defined in section 179A.03, subdivision 15, may
request a contested case hearing under chapter 14. Rules
adopted under this chapter may not preclude an employee in a
contested case hearing for disqualification from submitting
evidence concerning information gathered under subdivision 3,
paragraph (e).
Sec. 14. Minnesota Statutes 1996, section 245A.04, is
amended by adding a subdivision to read:
Subd. 3d. [DISQUALIFICATION.] When a background study
completed under subdivision 3 shows any of the following: a
conviction of one or more crimes listed in clauses (1) to (4);
the individual has admitted to or a preponderance of the
evidence indicates the individual has committed an act or acts
that meet the definition of any of the crimes listed in clauses
(1) to (4); or an administrative determination listed under
clause (4), the individual shall be disqualified from any
position allowing direct contact with persons receiving services
from the license holder:
(1) regardless of how much time has passed since the
discharge of the sentence imposed for the offense, and unless
otherwise specified, regardless of the level of the conviction,
the individual was convicted of any of the following offenses:
sections 609.185 (murder in the first degree); 609.19 (murder in
the second degree); 609.195 (murder in the third degree);
609.2661 (murder of an unborn child in the first degree);
609.2662 (murder of an unborn child in the second degree);
609.2663 (murder of an unborn child in the third degree);
609.322 (solicitation, inducement, and promotion of
prostitution); 609.323 (receiving profit derived from
prostitution); 609.342 (criminal sexual conduct in the first
degree); 609.343 (criminal sexual conduct in the second degree);
609.344 (criminal sexual conduct in the third degree); 609.345
(criminal sexual conduct in the fourth degree); 609.352
(solicitation of children to engage in sexual conduct); 609.365
(incest); felony offense under 609.377 (malicious punishment of
a child); 617.246 (use of minors in sexual performance
prohibited); 617.247 (possession of pictorial representations of
minors); or attempt or conspiracy to commit any of these
offenses as defined in Minnesota Statutes, or an offense in any
other state or country, where the elements are substantially
similar to any of the offenses listed in this clause;
(2) if less than 15 years have passed since the discharge
of the sentence imposed for the offense; and the individual has
received a felony conviction for a violation of any of these
offenses: sections 609.20 (manslaughter in the first degree);
609.205 (manslaughter in the second degree); 609.21 (criminal
vehicular homicide and injury); 609.215 (suicide); 609.221 to
609.2231 (assault in the first, second, third, or fourth
degree); repeat offenses under 609.224 (assault in the fifth
degree); 609.2242 and 609.2243 (domestic assault; sentencing;
repeat domestic assault); repeat offenses under 609.3451
(criminal sexual conduct in the fifth degree); 609.713
(terroristic threats); 609.235 (use of drugs to injure or
facilitate crime); 609.24 (simple robbery); 609.245 (aggravated
robbery); 609.25 (kidnapping); 609.255 (false imprisonment);
609.561 (arson in the first degree); 609.562 (arson in the
second degree); 609.563 (arson in the third degree); repeat
offenses under 617.23 (indecent exposure; penalties); repeat
offenses under 617.241 (obscene materials and performances;
distribution and exhibition prohibited; penalty); 609.71 (riot);
609.66 (dangerous weapons); 609.67 (machine guns and
short-barreled shotguns); 609.749 (harassment; stalking;
penalties); 609.228 (great bodily harm caused by distribution of
drugs); 609.2325 (criminal abuse of a vulnerable adult);
609.2664 (manslaughter of an unborn child in the first degree);
609.2665 (manslaughter of an unborn child in the second degree);
609.267 (assault of an unborn child in the first degree);
609.2671 (assault of an unborn child in the second degree);
609.268 (injury or death of an unborn child in the commission of
a crime); 609.378 (neglect or endangerment of a child); 609.324,
subdivision 1 (other prohibited acts); 609.52 (theft); 609.2335
(financial exploitation of a vulnerable adult); 609.521
(possession of shoplifting gear); 609.582 (burglary); 609.625
(aggravated forgery); 609.63 (forgery); 609.631 (check forgery;
offering a forged check); 609.635 (obtaining signature by false
pretense); 609.27 (coercion); 609.275 (attempt to coerce);
609.687 (adulteration); 260.221 (grounds for termination of
parental rights); and chapter 152 (drugs; controlled
substance). An attempt or conspiracy to commit any of these
offenses, as each of these offenses is defined in Minnesota
Statutes; or an offense in any other state or country, the
elements of which are substantially similar to the elements of
the offenses in this clause. If the individual studied is
convicted of one of the felonies listed in this clause, but the
sentence is a gross misdemeanor or misdemeanor disposition, the
look-back period for the conviction is the period applicable to
the disposition, that is the period for gross misdemeanors or
misdemeanors;
(3) if less than ten years have passed since the discharge
of the sentence imposed for the offense; and the individual has
received a gross misdemeanor conviction for a violation of any
of the following offenses: sections 609.224 (assault in the
fifth degree); 609.2242 and 609.2243 (domestic assault);
violation of an order for protection under 518B.01, subdivision
14; 609.3451 (criminal sexual conduct in the fifth degree);
repeat offenses under 609.746 (interference with privacy);
repeat offenses under 617.23 (indecent exposure); 617.241
(obscene materials and performances); 617.243 (indecent
literature, distribution); 617.293 (harmful materials;
dissemination and display to minors prohibited); 609.71 (riot);
609.66 (dangerous weapons); 609.749 (harassment; stalking;
penalties); 609.224, subdivision 2, paragraph (c) (assault in
the fifth degree by a caregiver against a vulnerable adult);
609.23 (mistreatment of persons confined); 609.231 (mistreatment
of residents or patients); 609.2325 (criminal abuse of a
vulnerable adult); 609.233 (criminal neglect of a vulnerable
adult); 609.2335 (financial exploitation of a vulnerable adult);
609.234 (failure to report maltreatment of a vulnerable adult);
609.72, subdivision 3 (disorderly conduct against a vulnerable
adult); 609.265 (abduction); 609.378 (neglect or endangerment of
a child); 609.377 (malicious punishment of a child); 609.324,
subdivision 1a (other prohibited acts; minor engaged in
prostitution); 609.33 (disorderly house); 609.52 (theft);
609.582 (burglary); 609.631 (check forgery; offering a forged
check); 609.275 (attempt to coerce); or an attempt or conspiracy
to commit any of these offenses, as each of these offenses is
defined in Minnesota Statutes; or an offense in any other state
or country, the elements of which are substantially similar to
the elements of any of the offenses listed in this clause. If
the defendant is convicted of one of the gross misdemeanors
listed in this clause, but the sentence is a misdemeanor
disposition, the look-back period for the conviction is the
period applicable to misdemeanors;
(4) if less than seven years have passed since the
discharge of the sentence imposed for the offense; and the
individual has received a misdemeanor conviction for a violation
of any of the following offenses: sections 609.224 (assault in
the fifth degree); 609.2242 (domestic assault); violation of an
order for protection under 518B.01 (domestic abuse act);
violation of an order for protection under 609.3232 (protective
order authorized; procedures; penalties); 609.746 (interference
with privacy); 609.79 (obscene or harassing phone calls);
609.795 (letter, telegram, or package; opening; harassment);
617.23 (indecent exposure; penalties); 609.2672 (assault of an
unborn child in the third degree); 617.293 (harmful materials;
dissemination and display to minors prohibited); 609.66
(dangerous weapons); 609.665 (spring guns); 609.2335 (financial
exploitation of a vulnerable adult); 609.234 (failure to report
maltreatment of a vulnerable adult); 609.52 (theft); 609.27
(coercion); or an attempt or conspiracy to commit any of these
offenses, as each of these offenses is defined in Minnesota
Statutes; or an offense in any other state or country, the
elements of which are substantially similar to the elements of
any of the offenses listed in this clause; failure to make
required reports under section 626.556, subdivision 3, or
626.557, subdivision 3, for incidents in which: (i) the final
disposition under section 626.556 or 626.557 was substantiated
maltreatment, and (ii) the maltreatment was recurring or
serious; or substantiated serious or recurring maltreatment of a
minor under section 626.556 or of a vulnerable adult under
section 626.557 for which there is a preponderance of evidence
that the maltreatment occurred, and that the subject was
responsible for the maltreatment. For the purposes of this
section, serious maltreatment means sexual abuse; maltreatment
resulting in death; or maltreatment resulting in serious injury
which reasonably requires the care of a physician whether or not
the care of a physician was sought, including: bruises, bites,
skin laceration or tissue damage; fractures; dislocations;
evidence of internal injuries; head injuries with loss of
consciousness; extensive second-degree or third-degree burns and
other burns for which complications are present; irreversible
mobility or avulsion of teeth; injuries to the eyeball;
ingestion of foreign substances and objects that are harmful;
near drowning; and heat exhaustion or sunstroke. For the
purposes of this section, recurring maltreatment means more than
one incident of maltreatment for which there is a preponderance
of evidence that the maltreatment occurred, and that the subject
was responsible for the maltreatment.
Sec. 15. Minnesota Statutes 1996, section 245A.04,
subdivision 4, is amended to read:
Subd. 4. [INSPECTIONS; WAIVER.] (a) Before issuing a an
initial license, the commissioner shall conduct an inspection of
the program. The inspection must include but is not limited to:
(1) an inspection of the physical plant;
(2) an inspection of records and documents;
(3) an evaluation of the program by consumers of the
program; and
(4) observation of the program in operation.
For the purposes of this subdivision, "consumer" means a
person who receives the services of a licensed program, the
person's legal guardian, or the parent or individual having
legal custody of a child who receives the services of a licensed
program.
(b) The evaluation required in paragraph (a), clause (3) or
the observation in paragraph (a), clause (4) is not required
prior to issuing a provisional an initial license under
subdivision 7. If the commissioner issues a provisional an
initial license under subdivision 7, these requirements must be
completed within one year after the issuance of a provisional an
initial license. The observation in paragraph (a), clause (4)
is not required if the commissioner determines that the
observation would hinder the persons receiving services in
benefiting from the program.
Sec. 16. Minnesota Statutes 1996, section 245A.04,
subdivision 5, is amended to read:
Subd. 5. [COMMISSIONER'S RIGHT OF ACCESS.] When the
commissioner is exercising the powers conferred by sections
245A.01 to 245A.15 this chapter, the commissioner must be given
access to the physical plant and grounds where the program is
provided, documents, persons served by the program, and staff
whenever the program is in operation and the information is
relevant to inspections or investigations conducted by the
commissioner. The commissioner must be given access without
prior notice and as often as the commissioner considers
necessary if the commissioner is conducting an investigation of
allegations of abuse, neglect, maltreatment, or other violation
of applicable laws or rules. In conducting inspections, the
commissioner may request and shall receive assistance from other
state, county, and municipal governmental agencies and
departments. The applicant or license holder shall allow the
commissioner to photocopy, photograph, and make audio and video
tape recordings during the inspection of the program at the
commissioner's expense. The commissioner shall obtain a court
order or the consent of the subject of the records or the
parents or legal guardian of the subject before photocopying
hospital medical records.
Persons served by the program have the right to refuse to
consent to be interviewed, photographed, or audio or videotaped.
Failure or refusal of an applicant or license holder to fully
comply with this subdivision is reasonable cause for the
commissioner to deny the application or immediately suspend or
revoke the license.
Sec. 17. Minnesota Statutes 1996, section 245A.04,
subdivision 6, is amended to read:
Subd. 6. [COMMISSIONER'S EVALUATION.] Before granting,
suspending, revoking, or making probationary conditional a
license, the commissioner shall evaluate information gathered
under this section. The commissioner's evaluation shall
consider facts, conditions, or circumstances concerning the
program's operation, the well-being of persons served by the
program, available consumer evaluations of the program, and
information about the qualifications of the personnel employed
by the applicant or license holder.
The commissioner shall evaluate the results of the study
required in subdivision 3 and determine whether a risk of harm
to the persons served by the program exists. In conducting this
evaluation, the commissioner shall apply the disqualification
standards set forth in rules adopted under this chapter. Prior
to the adoption of rules establishing disqualification
standards, the commissioner shall forward the proposed rules to
the commissioner of human rights for review and recommendation
concerning the protection of individual rights. The
recommendation of the commissioner of human rights is not
binding on the commissioner of human services.
Sec. 18. Minnesota Statutes 1996, section 245A.04,
subdivision 7, is amended to read:
Subd. 7. [ISSUANCE OF A LICENSE; PROVISIONAL EXTENSION OF
A LICENSE.] (a) If the commissioner determines that the program
complies with all applicable rules and laws, the commissioner
shall issue a license. At minimum, the license shall state:
(1) the name of the license holder;
(2) the address of the program;
(3) the effective date and expiration date of the license;
(4) the type of license;
(5) the maximum number and ages of persons that may receive
services from the program; and
(6) any special conditions of licensure.
(b) The commissioner may issue a provisional an initial
license for a period not to exceed one year two years if:
(1) the commissioner is unable to conduct the evaluation or
observation required by subdivision 4, paragraph (a), clauses (3)
and (4), because the program is not yet operational;
(2) certain records and documents are not available because
persons are not yet receiving services from the program; and
(3) the applicant complies with applicable laws and rules
in all other respects.
A provisional license must not be issued except at the time that
a license is first issued to an applicant.
(c) A decision by the commissioner to issue a license does
not guarantee that any person or persons will be placed or cared
for in the licensed program. A license shall not be
transferable to another individual, corporation, partnership,
voluntary association, other organization, or controlling or to
another location.
For purposes of reimbursement for meals only, under the
Child and Adult Care Food Program, Code of Federal Regulations,
title 7, subtitle B, chapter II, subchapter A, part 226,
relocation within the same county by a licensed family day care
provider, shall be considered an extension of the license for a
period of no more than 30 calendar days or until the new license
is issued, whichever occurs first, provided the county agency
has determined the family day care provider meets licensure
requirements at the new location.
Unless otherwise specified by statute, all licenses expire
at 12:01 a.m. on the day after the expiration date stated on the
license. A license holder must apply for and be granted a new
license to operate the program or the program must not be
operated after the expiration date.
Sec. 19. Minnesota Statutes 1996, section 245A.06,
subdivision 1, is amended to read:
Subdivision 1. [CONTENTS OF CORRECTION ORDERS OR FINES.]
(a) If the commissioner finds that the applicant or license
holder has failed to comply with an applicable law or rule and
this failure does not imminently endanger the health, safety, or
rights of the persons served by the program, the commissioner
may issue a correction order to or impose a fine on the
applicant or license holder. The correction order or fine must
state:
(1) the conditions that constitute a violation of the law
or rule;
(2) the specific law or rule violated; and
(3) the time allowed to correct each violation; and
(4) if a fine is imposed, the amount of the fine.
(b) Nothing in this section prohibits the commissioner from
proposing a sanction as specified in section 245A.07, prior to
issuing a correction order or fine.
Sec. 20. Minnesota Statutes 1996, section 245A.06,
subdivision 3, is amended to read:
Subd. 3. [FAILURE TO COMPLY.] If upon reinspection, the
commissioner finds that the applicant or license holder has not
corrected the violations specified in the correction order, the
commissioner may order impose a fine. If a fine was imposed and
the violation was not corrected, the commissioner may impose an
additional fine. This section does not prohibit the
commissioner from seeking a court order, denying an application,
or suspending, revoking, or making probationary conditional the
license in addition to ordering imposing a fine.
Sec. 21. Minnesota Statutes 1996, section 245A.06,
subdivision 4, is amended to read:
Subd. 4. [NOTICE OF FINE; APPEAL RECONSIDERATION OF FINE.]
A license holder who is ordered to pay a fine must be notified
of the order by certified mail. The notice must be mailed to
the address shown on the application or the last known address
of the license holder. The notice must state the reasons the
fine was ordered and must inform the license holder of the
responsibility for payment of fines in subdivision 7 and the
right to a contested case hearing under chapter 14 request
reconsideration of the fine. The license holder may appeal
request reconsideration of the order to forfeit a fine by
notifying the commissioner by certified mail within 15 20
calendar days after receiving the order. A timely appeal
request for reconsideration shall stay forfeiture of the fine
until the commissioner issues a final order under section
245A.08, subdivision 5 decision on the request for
reconsideration. The request for reconsideration must be in
writing and:
(1) specify the parts of the violation that are alleged to
be in error;
(2) explain why they are in error;
(3) include documentation to support the allegation of
error; and
(4) any other information relevant to the fine or the
amount of the fine.
The commissioner's disposition of a request for
reconsideration is final and not subject to appeal under chapter
14.
Sec. 22. Minnesota Statutes 1996, section 245A.06,
subdivision 5, is amended to read:
Subd. 5. [FORFEITURE OF FINES.] The license holder shall
pay the fines assessed on or before the payment date specified
in the commissioner's order. If the license holder fails to
fully comply with the order, the commissioner shall issue a
second fine or suspend the license until the license holder
complies. If the license holder receives state funds, the
state, county, or municipal agencies or departments responsible
for administering the funds shall withhold payments and recover
any payments made while the license is suspended for failure to
pay a fine.
Sec. 23. Minnesota Statutes 1996, section 245A.06,
subdivision 5a, is amended to read:
Subd. 5a. [ACCRUAL OF FINES.] A license holder shall
promptly notify the commissioner of human services, in writing,
when a violation specified in an order to forfeit is corrected.
A fine assessed for a violation shall stop accruing when the
commissioner receives the written notice. The commissioner
shall reinspect the program within three working days after
receiving the notice. If upon reinspection the commissioner
determines that a violation has not been corrected as indicated
by the order to forfeit, accrual of the daily fine resumes on
the date of reinspection and the amount of fines that otherwise
would have accrued between the date the commissioner received
the notice and date of the reinspection is added to the total
assessment due from the license holder the commissioner may
issue a second fine. The commissioner shall notify the license
holder by certified mail that accrual of the a second fine has
resumed been assessed. The license holder may challenge the
resumption in a contested case under chapter 14 by written
request within 15 days after receipt of the notice of resumption.
Recovery of the resumed fine must be stayed if a controlling
individual or a legal representative on behalf of the license
holder makes a written request for a hearing. The request for
hearing, however, may not stay accrual of the daily fine for
violations that have not been corrected. The cost of
reinspection conducted under this subdivision for uncorrected
violations must be added to the total amount of accrued fines
due from the license holder request reconsideration of the
second fine under the provisions of subdivision 4.
Sec. 24. Minnesota Statutes 1996, section 245A.06,
subdivision 6, is amended to read:
Subd. 6. [AMOUNT OF FINES.] Until the commissioner adopts
one or more schedules of fines, Fines shall be assessed as
follows:
(1) the license holder shall forfeit $1,000 for each
occurrence of violation of law or rule prohibiting the
maltreatment of children or the abuse, neglect, or exploitation
maltreatment of vulnerable adults, including but not limited to
corporal punishment, illegal or unauthorized use of physical,
mechanical, or chemical restraints, and illegal or unauthorized
use of aversive or deprivation procedures;
(2) the license holder shall forfeit $200 for each
occurrence of a violation of law or rule governing matters of
health, safety, or supervision, including but not limited to the
provision of adequate staff to child or adult ratios, except
that the holder of a family or group family day care license
shall forfeit $100 for a violation under this clause; and
(3) the license holder shall forfeit $100 for each
occurrence of a violation of law or rule other than those
included in clauses (1) and (2), except that the holder of a
family or group family day care license shall forfeit $50 for a
violation under this clause.
For the purposes of this section, "occurrence" means each
calendar day or part of a day that a violation continues to
exist after the date set for correction identified in the
commissioner's correction forfeiture order.
Sec. 25. Minnesota Statutes 1996, section 245A.06,
subdivision 7, is amended to read:
Subd. 7. [RESPONSIBILITY FOR PAYMENT OF FINES.] When a
fine has been assessed, the license holder may not avoid payment
by closing, selling, or otherwise transferring the licensed
program to a third party. In such an event, the license holder
will be personally liable for payment. In the case of a
corporation, each controlling individual is personally and
jointly liable for payment.
Fines for child care centers must be assessed according to
this section.
Sec. 26. Minnesota Statutes 1996, section 245A.07,
subdivision 1, is amended to read:
Subdivision 1. [SANCTIONS AVAILABLE.] In addition to
ordering forfeiture of fines, the commissioner may propose to
suspend, revoke, or make probationary conditional the license or
secure an injunction against the continuing operation of the
program of a license holder who does not comply with applicable
law or rule. When applying sanctions authorized under this
section, the commissioner shall consider the nature, chronicity,
or severity of the violation of law or rule and the effect of
the violation on the health, safety, or rights of persons served
by the program.
Sec. 27. Minnesota Statutes 1996, section 245A.07,
subdivision 3, is amended to read:
Subd. 3. [SUSPENSION, REVOCATION, PROBATION DENIAL OF
CONDITIONAL LICENSE.] The commissioner may suspend, revoke, or
make probationary conditional, or deny a license if an applicant
or a license holder fails to comply fully with applicable laws
or rules, or knowingly withholds relevant information from or
gives false or misleading information to the commissioner in
connection with an application for a license or during an
investigation. A license holder who has had a license
suspended, revoked, or made probationary conditional must be
given notice of the action by certified mail. The notice must
be mailed to the address shown on the application or the last
known address of the license holder. The notice must state the
reasons the license was suspended, revoked, or made probationary
conditional.
(a) If the license was suspended or revoked, the notice
must inform the license holder of the right to a contested case
hearing under chapter 14. The license holder may appeal an
order suspending or revoking a license. The appeal of an order
suspending or revoking a license must be made in writing by
certified mail and must be received by the commissioner within
ten calendar days after the license holder receives notice that
the license has been suspended or revoked.
(b) If the license was made probationary conditional, the
notice must inform the license holder of the right to request a
reconsideration by the commissioner. The request for
reconsideration must be made in writing by certified mail and
must be received by the commissioner within ten calendar days
after the license holder receives notice that the license has
been made probationary conditional. The license holder may
submit with the request for reconsideration written argument or
evidence in support of the request for reconsideration. The
commissioner's disposition of a request for reconsideration is
final and is not subject to appeal under chapter 14.
Sec. 28. Minnesota Statutes 1996, section 245A.08,
subdivision 1, is amended to read:
Subdivision 1. [RECEIPT OF APPEAL; CONDUCT OF HEARING.]
Upon receiving a timely appeal or petition pursuant to
sections section 245A.05 to or 245A.07, the commissioner shall
issue a notice of and order for hearing to the appellant under
chapter 14.
Sec. 29. Minnesota Statutes 1996, section 245A.08,
subdivision 2, is amended to read:
Subd. 2. [CONDUCT OF HEARINGS.] At any hearing provided
for by sections section 245A.05 to or 245A.07, the appellant may
be represented by counsel and has the right to call, examine,
and cross-examine witnesses. The administrative law judge may
require the presence of witnesses and evidence by subpoena on
behalf of any party.
Sec. 30. Minnesota Statutes 1996, section 245A.09,
subdivision 7, is amended to read:
Subd. 7. [REGULATORY METHODS.] (a) Where appropriate and
feasible the commissioner shall identify and implement
alternative methods of regulation and enforcement to the extent
authorized in this subdivision. These methods shall include:
(1) expansion of the types and categories of licenses that
may be granted;
(2) when the standards of another state or federal
governmental agency or an independent accreditation body have
been shown to predict compliance with the rules, the
commissioner shall consider compliance with the governmental or
accreditation standards to be equivalent to partial compliance
with the rules; and
(3) use of an abbreviated inspection that employs key
standards that have been shown to predict full compliance with
the rules.
For programs and services for people with developmental
disabilities, the commissioner of human services shall develop
demonstration projects to use the standards of the commission on
accreditation of rehabilitation facilities and the standards of
the accreditation council on services to persons with
disabilities during the period of July 1, 1993 to December 31,
1994, and incorporate the alternative use of these standards and
methods in licensing rules where appropriate. If the
commissioner determines that the methods in clause (2) or (3)
can be used in licensing a program, the commissioner may reduce
any fee set under section 245A.10 by up to 50 percent. The
commissioner shall present a plan by January 31, 1995, to accept
accreditation by either the accreditation council on services to
people with disabilities or the commission on the accreditation
of rehabilitation services as evidence of being in compliance
where applicable with state licensing.
(b) The commissioner shall work with the commissioners of
health, public safety, administration, and children, families,
and learning in consolidating duplicative licensing and
certification rules and standards if the commissioner determines
that consolidation is administratively feasible, would
significantly reduce the cost of licensing, and would not reduce
the protection given to persons receiving services in licensed
programs. Where administratively feasible and appropriate, the
commissioner shall work with the commissioners of health, public
safety, administration, and children, families, and learning in
conducting joint agency inspections of programs.
(c) The commissioner shall work with the commissioners of
health, public safety, administration, and children, families,
and learning in establishing a single point of application for
applicants who are required to obtain concurrent licensure from
more than one of the commissioners listed in this clause.
(d) The commissioner may specify in rule periods of
licensure up to two years.
Sec. 31. Minnesota Statutes 1996, section 245A.11,
subdivision 2, is amended to read:
Subd. 2. [PERMITTED SINGLE-FAMILY RESIDENTIAL USE.]
Residential programs with a licensed capacity of six or fewer
persons shall be considered a permitted single-family
residential use of property for the purposes of zoning and other
land use regulations, except that a residential program whose
primary purpose is to treat juveniles who have violated criminal
statutes relating to sex offenses or have been adjudicated
delinquent on the basis of conduct in violation of criminal
statutes relating to sex offenses shall not be considered a
permitted use. This exception shall not apply to residential
programs licensed before July 1, 1995. Programs otherwise
allowed under this subdivision shall not be prohibited by
operation of restrictive covenants or similar restrictions,
regardless of when entered into, which cannot be met because of
the nature of the licensed program, including provisions which
require the home's occupants be related, and that the home must
be occupied by the owner, or similar provisions.
Sec. 32. Minnesota Statutes 1996, section 245A.16,
subdivision 2, is amended to read:
Subd. 2. [INVESTIGATIONS.] (a) The county or private
agency shall conduct timely investigations of allegations of
abuse or neglect maltreatment of children or adults in programs
for which the county or private agency is the commissioner's
designated representative and record a disposition of each
complaint in accordance with applicable law or rule. The county
or private agency shall conduct similar investigations of
allegations of violations of rules governing licensure of the
program.
(b) If an investigation conducted under clause (a) results
in evidence that the commissioner should deny an application or
suspend, revoke, or make probationary conditional a license, the
county or private agency shall make that recommendation to the
commissioner within ten working days.
Sec. 33. [245A.22] [INDEPENDENT LIVING ASSISTANCE FOR
YOUTH.]
Subdivision 1. [INDEPENDENT LIVING ASSISTANCE FOR
YOUTH.] "Independent living assistance for youth" means a
nonresidential program that provides a system of services that
includes training, counseling, instruction, supervision, and
assistance provided to youth according to the youth's
independent living plan, when the placements in the program are
made by the county agency. Services may include assistance in
locating housing, budgeting, meal preparation, shopping,
personal appearance, counseling, and related social support
services needed to meet the youth's needs and improve the
youth's ability to conduct such tasks independently. Such
services shall not extend to youths needing 24-hour per day
supervision and services. Youths needing a 24-hour per day
program of supervision and services shall not be accepted or
retained in an independent living assistance program.
Subd. 2. [ADMISSION.] The license holder shall accept as
clients in the independent living assistance program only
individuals specified under section 256E.115.
Subd. 3. [INDEPENDENT LIVING PLAN.] Unless an independent
living plan has been developed by the local agency, the license
holder shall develop a plan based on the client's individual
needs that specifies objectives for the client. The services
provided shall include those specified in this section and the
services specified under section 256E.115, subdivision 2,
paragraph (a). The plan shall identify the persons responsible
for implementation of each part of the plan. The plan shall be
reviewed as necessary, but at least annually.
Subd. 4. [RECORDS.] The license holder shall maintain a
record for each client.
(a) [REQUIRED RECORDS.] For each client the record
maintained by the license holder shall document the following:
(1) admission information;
(2) the independent living plan;
(3) delivery of the services required of the license holder
in the independent living plan;
(4) the client's progress toward obtaining the objectives
identified in the independent living plan; and
(5) a termination summary after service is terminated.
(b) [MONEY RECORDS.] If the license holder manages the
client's money, the record maintained by the license holder
shall also include the following:
(1) written permission from the client or the client's
legal guardian to manage the client's money;
(2) the reasons the license holder is to manage the
client's money; and
(3) a complete record of the use of the client's money and
reconciliation of the account.
Subd. 5. [SERVICE TERMINATION PLAN.] The license holder,
in conjunction with the county agency, shall establish a service
termination plan that specifies how independent living
assistance services will be terminated and the actions to be
performed by the involved agencies, including necessary
referrals for other ongoing services.
Subd. 6. [PLACE OF RESIDENCE PROVIDED BY PROGRAM.] When a
client's place of residence is provided by the license holder as
part of the independent living assistance program, the place of
residence is not subject to separate licensure.
Subd. 7. [GENERAL LICENSING REQUIREMENTS APPLY.] In
addition to the requirements of this section, providers of
independent living assistance are subject to general licensing
requirements of this chapter.
Sec. 34. [245A.65] [LICENSE HOLDER REQUIREMENTS GOVERNING
MALTREATMENT OF VULNERABLE ADULTS.]
Subdivision 1. [LICENSE HOLDER INTERNAL REPORTING AND
INVESTIGATION OF MALTREATMENT.] All license holders serving
vulnerable adults shall establish and enforce written policies
and procedures related to suspected or alleged maltreatment, and
shall orient clients and mandated reporters who are under the
control of the license holder to these procedures, as defined in
section 626.5572, subdivision 16.
(a) License holders must establish policies and procedures
allowing but not mandating the internal reporting of alleged or
suspected maltreatment. License holders shall ensure that the
policies and procedures on internal reporting:
(1) meet all the requirements identified for the optional
internal reporting policies and procedures in section 626.557,
subdivision 4a; and
(2) identify the primary and secondary person or position
to whom internal reports may be made and the primary and
secondary person or position responsible for forwarding internal
reports to the common entry point as defined in section
626.5572, subdivision 5. The secondary person must be involved
when there is reason to believe that the primary person was
involved in the alleged or suspected maltreatment.
(b) The license holder shall:
(1) establish and maintain policies and procedures to
ensure that an internal review is completed when the facility
has reason to know that an internal or external report of
alleged or suspected maltreatment has been made. The review
must include an evaluation of whether related policies and
procedures were followed, whether the policies and procedures
were adequate, whether there is a need for additional staff
training, and whether there is a need for any further action to
be taken by the facility to protect the health and safety of
vulnerable adults;
(2) identify the primary and secondary person or position
who will ensure that, when required, internal reviews are
completed. The secondary person shall be involved when there is
reason to believe that the primary person was involved in the
alleged or suspected maltreatment; and
(3) document and make internal reviews accessible to the
commissioner upon the commissioner's request.
(c) The license holder shall provide an orientation to the
internal and external reporting procedures to all persons
receiving services. The orientation shall include the telephone
number for the license holder's common entry point as defined in
section 626.5572, subdivision 5. If applicable, the person's
legal representative must be notified of the orientation. The
program shall provide this orientation for each new person
within 24 hours of admission, or for persons who would benefit
more from a later orientation, the orientation may take place
within 72 hours.
(d) The license holder shall post a copy of the internal
and external reporting policies and procedures, including the
telephone number of the common entry point as defined in section
626.5572, subdivision 5, in a prominent location in the program
and have it available upon request to mandated reporters,
persons receiving services, and the person's legal
representatives.
Subd. 2. [ABUSE PREVENTION PLANS.] All license holders
shall establish and enforce ongoing written program abuse
prevention plans and individual abuse prevention plans as
required under section 626.557, subdivision 14.
(a) The scope of the program abuse prevention plan is
limited to the population, physical plant, and environment
within the control of the license holder and the location where
licensed services are provided. In addition to the requirements
in section 626.557, subdivision 14, the program abuse prevention
plan shall meet the requirements in clauses (1) to (5).
(1) The assessment of the population shall include an
evaluation of the following factors: age, gender, mental
functioning, physical and emotional health or behavior of the
client; the need for specialized programs of care for clients;
the need for training of staff to meet identified individual
needs; and the knowledge a license holder may have regarding
previous abuse that is relevant to minimizing risk of abuse for
clients.
(2) The assessment of the physical plant where the licensed
services are provided shall include an evaluation of the
following factors: the condition and design of the building as
it relates to the safety of the clients; and the existence of
areas in the building which are difficult to supervise.
(3) The assessment of the environment for each facility and
for each site when living arrangements are provided by the
agency shall include an evaluation of the following factors:
the location of the program in a particular neighborhood or
community; the type of grounds and terrain surrounding the
building; the type of internal programming; and the program's
staffing patterns.
(4) The license holder shall provide an orientation to the
program abuse prevention plan for clients receiving services.
If applicable, the client's legal representative must be
notified of the orientation. The license holder shall provide
this orientation for each new person within 24 hours of
admission, or for persons who would benefit more from a later
orientation, the orientation may take place within 72 hours.
(5) The license holder's governing body shall review the
plan at least annually using the assessment factors in the plan
and any substantiated maltreatment findings that occurred since
the last review. The governing body shall revise the plan, if
necessary, to reflect the review results.
(6) A copy of the program abuse prevention plan shall be
posted in a prominent location in the program and be available
upon request to mandated reporters, persons receiving services,
and legal representatives.
(b) In addition to the requirements in section 626.557,
subdivision 14, the individual abuse prevention plan shall meet
the requirements in clauses (1) and (2).
(1) The plan shall include a statement of measures that
will be taken to minimize the risk of abuse to the vulnerable
adult when the individual assessment required in section
626.557, subdivision 14, paragraph (b), indicates the need for
measures in addition to the specific measures identified in the
program abuse prevention plan. The measures shall include the
specific actions the program will take to minimize the risk of
abuse within the scope of the licensed services, and will
identify referrals made when the vulnerable adult is susceptible
to abuse outside the scope or control of the licensed services.
When the assessment indicates that the vulnerable adult does not
need specific risk reduction measures in addition to those
identified in the program abuse prevention plan, the individual
abuse prevention plan shall document this determination.
(2) An individual abuse prevention plan shall be developed
for each new person as part of the initial individual program
plan or service plan required under the applicable licensing
rule. The review and evaluation of the individual abuse
prevention plan shall be done as part of the review of the
program plan or service plan. The person receiving services
shall participate in the development of the individual abuse
prevention plan to the full extent of the person's abilities.
If applicable, the person's legal representative shall be given
the opportunity to participate with or for the person in the
development of the plan. The interdisciplinary team shall
document the review of all abuse prevention plans at least
annually, using the individual assessment and any reports of
abuse relating to the person. The plan shall be revised to
reflect the results of this review.
Subd. 3. [ORIENTATION OF MANDATED REPORTERS.] The license
holder shall ensure that each new mandated reporter, as defined
in section 626.5572, subdivision 16, who is under the control of
the license holder, receives an orientation within 72 hours of
first providing direct contact services as defined in section
245A.04, subdivision 3, to a vulnerable adult and annually
thereafter. The orientation and annual review shall inform the
mandated reporters of the reporting requirements and definitions
in sections 626.557 and 626.5572, the requirements of this
section, the license holder's program abuse prevention plan, and
all internal policies and procedures related to the prevention
and reporting of maltreatment of individuals receiving services.
Sec. 35. [245B.01] [RULE CONSOLIDATION.]
This chapter establishes new methods to ensure the quality
of services to persons with mental retardation or related
conditions, and streamlines and simplifies regulation of
services and supports for persons with mental retardation or
related conditions. Sections 245B.02 to 245B.07 establishes new
standards that eliminate duplication and overlap of regulatory
requirements by consolidating and replacing rule parts from four
program rules. Section 245B.08 authorizes the commissioner of
human services to develop and use new regulatory strategies to
maintain compliance with the streamlined requirements.
Sec. 36. [245B.02] [DEFINITIONS.]
Subdivision 1. [SCOPE.] The terms used in this chapter
have the meanings given them.
Subd. 2. [APPLICANT.] "Applicant" has the meaning given in
section 245A.02, subdivision 3.
Subd. 3. [CASE MANAGER.] "Case manager" means the
individual designated by the county board under rules of the
commissioner to provide case management services as delineated
in section 256B.092 or successor provisions.
Subd. 4. [CONSUMER.] "Consumer" means a person who has
been determined eligible to receive and is receiving services or
support for persons with mental retardation or related
conditions.
Subd. 5. [COMMISSIONER.] "Commissioner" means the
commissioner of the department of human services or the
commissioner's designated representative.
Subd. 6. [DAY TRAINING AND HABILITATION SERVICES FOR
ADULTS WITH MENTAL RETARDATION OR RELATED CONDITIONS.] "Day
training and habilitation services for adults with mental
retardation or related conditions" has the meaning given in
sections 252.40 to 252.46.
Subd. 7. [DEPARTMENT.] "Department" means the department
of human services.
Subd. 8. [DIRECT SERVICE.] "Direct service" means, for a
consumer receiving residential-based services, day training and
habilitation services, or respite care services, one or more of
the following: supervision, assistance, or training.
Subd. 9. [HEALTH SERVICES.] "Health services" means any
service or treatment consistent with the health needs of the
consumer, such as medication administration and monitoring,
medical, dental, nutritional, health monitoring, wellness
education, and exercise.
Subd. 10. [INCIDENT.] "Incident" means any serious injury
as determined by section 245.91, subdivision 6; accident;
reports of a child or vulnerable adult maltreatment;
circumstances that involve a law enforcement agency; or a
consumer's death.
Subd. 11. [INDIVIDUAL SERVICE PLAN.] "Individual service
plan" has the meaning given in section 256B.092 or successor
provisions.
Subd. 12. [INDIVIDUAL WHO IS RELATED.] "Individual who is
related" has the meaning given in section 245A.02, subdivision
13.
Subd. 13. [INTERMEDIATE CARE FACILITY FOR PERSONS WITH
MENTAL RETARDATION OR RELATED CONDITIONS OR ICF/MR.]
"Intermediate care facility" for persons with mental retardation
or related conditions or ICF/MR means a residential program
licensed to provide services to persons with mental retardation
or related conditions under section 252.28 and chapter 245A and
a physical facility licensed as a supervised living facility
under chapter 144, which together are certified by the
department of health as an intermediate care facility for
persons with mental retardation or related conditions.
Subd. 14. [LEAST RESTRICTIVE ENVIRONMENT.] "Least
restrictive environment" means an environment where services:
(1) are delivered with minimum limitation, intrusion,
disruption, or departure from typical patterns of living
available to persons without disabilities;
(2) do not subject the consumer or others to unnecessary
risks to health or safety; and
(3) maximize the consumer's level of independence,
productivity, and inclusion in the community.
Subd. 15. [LEGAL REPRESENTATIVE.] "Legal representative"
means the parent or parents of a consumer who is under 18 years
of age or a guardian, conservator, or guardian ad litem
authorized by the court, or other legally authorized
representative to make decisions about services for a consumer.
Subd. 16. [LICENSE.] "License" has the meaning given in
section 245A.02, subdivision 8.
Subd. 17. [LICENSE HOLDER.] "License holder" has the
meaning given in section 245A.02, subdivision 9.
Subd. 18. [PERSON WITH MENTAL RETARDATION OR A RELATED
CONDITION.] "Person with mental retardation or a related
condition" means a person who has been diagnosed under section
256B.092 as having substantial limitations in present
functioning, manifested as significantly subaverage intellectual
functioning, existing concurrently with demonstrated deficits in
adaptive behavior, and who manifests these conditions before the
person's 22nd birthday. A person with a related condition means
a person who meets the diagnostic definition under section
252.27, subdivision 1a.
Subd. 19. [PSYCHOTROPIC MEDICATION USE CHECKLIST.]
"Psychotropic medication use checklist" means the psychotropic
medication monitoring checklist and manual used to govern the
administration of psychotropic medications. The commissioner
may revise or update the psychotropic medication use checklist
to comply with legal requirements or to meet professional
standards or guidelines in the area of developmental
disabilities. For purposes of this chapter, psychotropic
medication means any medication prescribed to treat mental
illness and associated behaviors or to control or alter
behavior. The major classes of psychotropic medication are
antipsychotic (neuroleptic), antidepressant, antianxiety,
antimania, stimulant, and sedative or hypnotic. Other
miscellaneous medications are considered to be a psychotropic
medication when they are specifically prescribed to treat a
mental illness or to control or alter behavior.
Subd. 20. [RESIDENTIAL-BASED HABILITATION.]
"Residential-based habilitation" means care, supervision, and
training provided primarily in the consumer's own home or place
of residence but also including community-integrated activities
following the individual service plan. Residential habilitation
services are provided in coordination with the provision of day
training and habilitation services for those persons receiving
day training and habilitation services under sections 252.40 to
252.46.
Subd. 21. [RESPITE CARE.] "Respite care" has the meaning
given in section 245A.02, subdivision 15.
Subd. 22. [SERVICE.] "Service" means care, supervision,
activities, or training designed to achieve the outcomes
assigned to the license holder.
Subd. 23. [SEMI-INDEPENDENT LIVING SERVICES OR
SILS] "Semi-independent living services" or "SILS" has the
meaning given in section 252.275.
Subd. 24. [VOLUNTEER.] "Volunteer" means an individual
who, under the direction of the license holder, provides direct
services without pay to consumers served by the license holder.
Sec. 37. [245B.03] [APPLICABILITY AND EFFECT.]
Subdivision 1. [APPLICABILITY.] The standards in this
chapter govern services to persons with mental retardation or
related conditions receiving services from license holders
providing residential-based habilitation; day training and
habilitation services for adults; semi-independent living
services; residential programs that serve more than four
consumers, including intermediate care facilities for persons
with mental retardation; and respite care provided outside the
consumer's home for more than four consumers at the same time at
a single site.
Subd. 2. [RELATIONSHIP TO OTHER STANDARDS GOVERNING
SERVICES FOR PERSONS WITH MENTAL RETARDATION OR RELATED
CONDITIONS.] (a) ICFs/MR are exempt from:
(1) section 245B.04;
(2) section 245B.06, subdivisions 4 and 6; and
(3) section 245B.07, subdivisions 4, paragraphs (b) and
(c); 7; and 8, paragraphs (1), clause (iv), and (2).
(b) License holders also licensed under chapter 144 as a
supervised living facility are exempt from section 245B.04.
(c) Residential service sites controlled by license holders
licensed under chapter 245B for home and community-based
waivered services for four or fewer adults are exempt from
compliance with Minnesota Rules, parts 9543.0040, subpart 2,
item C; 9555.5505; 9555.5515, items B and G; 9555.5605;
9555.5705; 9555.6125, subparts 3, item C, subitem (2), and 4 to
6; 9555.6185; 9555.6225, subpart 8; 9555.6245; 9555.6255; and
9555.6265. The commissioner may approve alternative methods of
providing overnight supervision using the process and criteria
for granting a variance in section 245A.04, subdivision 9. This
chapter does not apply to foster care homes that do not provide
residential habilitation services funded under the home and
community-based waiver programs defined in section 256B.092.
(d) The commissioner may exempt license holders from
applicable standards of this chapter when the license holder
meets the standards under section 245A.09, subdivision 7.
License holders that are accredited by an independent
accreditation body shall continue to be licensed under this
chapter.
(e) License holders governed by sections 245B.02 to 245B.07
must also meet the licensure requirements in chapter 245A.
(f) Nothing in this chapter prohibits license holders from
concurrently serving consumers with and without mental
retardation or related conditions provided this chapter's
standards are met as well as other relevant standards.
(g) The documentation that sections 245B.02 to 245B.07
require of the license holder meets the individual program plan
required in section 256B.092 or successor provisions.
Sec. 38. [245B.04] [CONSUMER RIGHTS.]
Subdivision 1. [LICENSE HOLDER'S RESPONSIBILITY FOR
CONSUMERS' RIGHTS.] The license holder must:
(1) provide the consumer or the consumer's legal
representative a copy of the consumer's rights on the day that
services are initiated and an explanation of the rights in
subdivisions 2 and 3 within five working days of service
initiation. Reasonable accommodations shall be made by the
license holder to provide this information in other formats as
needed to facilitate understanding of the rights by the consumer
and the consumer's legal representative, if any;
(2) document the consumer's or the consumer's legal
representative's receipt of a copy of the rights and an
explanation of the rights; and
(3) ensure the exercise and protection of the consumer's
rights in the services provided by the license holder and
authorized in the individual service plan.
Subd. 2. [SERVICE-RELATED RIGHTS.] A consumer's
service-related rights include the right to:
(1) refuse or terminate services and be informed of the
consequences of refusing or terminating services;
(2) know, in advance, limits to the services available from
the license holder;
(3) know conditions and terms governing the provision of
services, including those related to initiation and termination;
(4) know what the charges are for services, regardless of
who will be paying for the services, and be notified of changes
in those charges;
(5) know, in advance, whether services are covered by
insurance, government funding, or other sources, and be told of
any charges the consumer or other private party may have to pay;
and
(6) receive licensed services from individuals who are
competent and trained, who have professional certification or
licensure, as required, and who meet additional qualifications
identified in the individual service plan.
Subd. 3. [PROTECTION-RELATED RIGHTS.] The consumer's
protection-related rights include the right to:
(1) have personal, financial, services, and medical
information kept private, and be advised of the license holder's
policies and procedures regarding disclosure of such
information;
(2) access records and recorded information;
(3) be free from maltreatment;
(4) be treated with courtesy and respect for the consumer's
individuality, mode of communication, and culture, and receive
respectful treatment of the consumer's property;
(5) voice grievances, know the contact persons responsible
for addressing problems and how to contact those persons;
(6) any procedures for grievance or complaint resolution
and the right to appeal under section 256.045;
(7) know the name and address of the state, county, or
advocacy agency to contact for additional information or
assistance;
(8) assert these rights personally, or have them asserted
by the consumer's family or legal representative, without
retaliation;
(9) give or withhold written informed consent to
participate in any research or experimental treatment;
(10) have daily, private access to and use of a noncoin-
operated telephone for local calls and long-distance calls made
collect or paid for by the resident;
(11) receive and send uncensored, unopened mail;
(12) marital privacy for visits with the consumer's spouse
and, if both are residents of the site, the right to share a
bedroom and bed;
(13) associate with other persons of the consumer's choice;
(14) personal privacy; and
(15) engage in chosen activities.
Sec. 39. [245B.05] [CONSUMER PROTECTION STANDARDS.]
Subdivision 1. [ENVIRONMENT.] The license holder must:
(1) ensure that services are provided in a safe and
hazard-free environment when the license holder is the owner,
lessor, or tenant of the service site. All other license
holders shall inform the consumer or the consumer's legal
representative and case manager about any environmental safety
concerns in writing;
(2) lock doors only to protect the safety of consumers and
not as a substitute for staff supervision or interactions with
consumers;
(3) follow procedures that minimize the consumer's health
risk from communicable diseases; and
(4) maintain equipment, vehicles, supplies, and materials
owned or leased by the license holder in good condition.
Subd. 2. [LICENSED CAPACITY FOR FACILITY-BASED DAY
TRAINING AND HABILITATION SERVICES.] Licensed capacity of day
training and habilitation service sites must be determined by
the amount of primary space available, the scheduling of
activities at other service sites, and the space requirements of
consumers receiving services. Primary space does not include
hallways, stairways, closets, utility areas, bathrooms,
kitchens, and floor areas beneath stationary equipment. A
minimum of 40 square feet of primary space must be available for
each consumer who is engaged in a day training and habilitation
activity at the site for which the licensed capacity must be
determined.
Subd. 3. [RESIDENTIAL SERVICE SITES FOR MORE THAN FOUR
CONSUMERS; FOUR-BED ICFS/MR.] Residential service sites licensed
to serve more than four consumers and four-bed ICFs/MR must meet
the fire protection provisions of either the Residential Board
and Care Occupancies Chapter or the Health Care Occupancies
Chapter of the Life Safety Code (LSC), National Fire Protection
Association, 1985 edition, or its successors. Sites meeting the
definition of a residential board and care occupancy for 16 or
less beds must have the emergency evacuation capability of
residents evaluated in accordance with Appendix F of the LSC or
its successors, except for those sites that meet the LSC Health
Care Occupancies Chapter or its successors.
Subd. 4. [MEETING FIRE AND SAFETY CODES.] An applicant or
license holder under sections 245A.01 to 245A.16 must document
compliance with applicable building codes, fire and safety
codes, health rules, and zoning ordinances, or document that an
appropriate waiver has been granted.
Subd. 5. [CONSUMER HEALTH.] The license holder is
responsible for meeting the health service needs assigned to the
license holder in the individual service plan and for bringing
health needs as discovered by the license holder promptly to the
attention of the consumer, the consumer's legal representative,
and the case manager. The license holder is required to
maintain documentation on how the consumer's health needs will
be met, including a description of procedures the license holder
will follow for the consumer regarding medication monitoring and
administration and seizure monitoring, if needed. The
medication administration procedures are those procedures
necessary to implement medication and treatment orders issued by
appropriately licensed professionals, and must be established in
consultation with a registered nurse, nurse practitioner,
physician's assistant, or medical doctor.
Subd. 6. [FIRST AID.] When the license holder is providing
direct service and supervision to a consumer who requires a
24-hour plan of care and receives services at a site licensed
under this chapter, the license holder must have available a
staff person trained in first aid, and, if needed under section
245B.07, subdivision 6, paragraph (d), cardiopulmonary
resuscitation from a qualified source, as determined by the
commissioner.
Subd. 7. [REPORTING INCIDENTS AND EMERGENCIES.] The
license holder must report the following incidents to the
consumer's legal representative, caregiver, and case manager
within 24 hours of the occurrence, or within 24 hours of receipt
of the information:
(1) the death of a consumer;
(2) any medical emergencies, unexpected serious illnesses,
or accidents that require physician treatment or
hospitalization;
(3) a consumer's unauthorized absence; or
(4) any fires and incidents involving a law enforcement
agency.
Death or serious injury of the consumer must also be
reported to the commissioner and the ombudsman, as required
under sections 245.91 and 245.94, subdivision 2a.
Sec. 40. [245B.06] [SERVICE STANDARDS.]
Subdivision 1. [OUTCOME-BASED SERVICES.] (a) The license
holder must provide outcome-based services in response to the
consumer's identified needs as specified in the individual
service plan.
(b) Services must be based on the needs and preferences of
the consumer and the consumer's personal goals and be consistent
with the principles of least restrictive environment,
self-determination, and consistent with:
(1) the recognition of each consumer's history, dignity,
and cultural background;
(2) the affirmation and protection of each consumer's civil
and legal rights;
(3) the provision of services and supports for each
consumer which:
(i) promote community inclusion and self-sufficiency;
(ii) provide services in the least restrictive environment;
(iii) promote social relationships, natural supports, and
participation in community life;
(iv) allow for a balance between safety and opportunities;
and
(v) provide opportunities for the development and exercise
of age-appropriate skills, decision making and choice, personal
advocacy, and communication; and
(4) the provision of services and supports for families
which address the needs of the consumer in the context of the
family and support family self-sufficiency.
(c) The license holder must make available to the consumer
opportunities to participate in the community, functional skill
development, reduced dependency on care providers, and
opportunities for development of decision-making skills.
"Outcome" means the behavior, action, or status attained by the
consumer that can be observed, measured, and can be determined
reliable and valid. Outcomes are the equivalent of the
long-range goals and short-term goals referenced in section
256B.092, and any rules promulgated under that section.
Subd. 2. [RISK MANAGEMENT PLAN.] The license holder must
develop and document in writing a risk management plan that
incorporates the individual abuse prevention plan as required in
chapter 245C. License holders jointly providing services to a
consumer shall coordinate and use the resulting assessment of
risk areas for the development of this plan. Upon initiation of
services, the license holder will have in place an initial risk
management plan that identifies areas in which the consumer is
vulnerable, including health, safety, and environmental issues
and the supports the provider will have in place to protect the
consumer and to minimize these risks. The plan must be changed
based on the needs of the individual consumer and reviewed at
least annually.
Subd. 3. [ASSESSMENTS.] (a) The license holder shall
assess and reassess the consumer within stated time lines and
assessment areas specified in the individual service plan or as
requested in writing by the case manager.
(b) For each area of assessment requested, the license
holder must provide a written summary, analysis, and
recommendations for use in the development of the individual
service plan.
(c) All assessments must include information about the
consumer that is descriptive of:
(1) the consumer's strengths and functional skills; and
(2) the level of support and supervision the consumer needs
to achieve the outcomes in subdivision 1.
Subd. 4. [SUPPORTS AND METHODS.] The license holder, in
coordination with other service providers, shall meet with the
consumer, the consumer's legal representative, case manager, and
other members of the interdisciplinary team within 45 days of
service initiation. Within ten working days after the meeting,
the license holder shall develop and document in writing:
(1) the methods that will be used to support the individual
or accomplish the outcomes in section 245B.06, subdivision 1,
including information about physical and social environments,
the equipment and materials required, and techniques that are
consistent with the consumer's communication mode and learning
style specified as the license holder's responsibility in the
individual service plan;
(2) the projected starting date for service supports and
the criteria for identifying when the desired outcome has been
achieved and when the service supports need to be reviewed; and
(3) the names of the staff, staff position, or contractors
responsible for implementing each outcome.
Subd. 5. [PROGRESS REVIEWS.] The license holder must
participate in progress review meetings following stated time
lines established in the consumer's individual service plan or
as requested in writing by the consumer, the consumer's legal
representative, or the case manager, at a minimum of once a
year. The license holder must summarize the progress toward
achieving the desired outcomes and make recommendations in a
written report sent to the consumer or the consumer's legal
representative and case manager prior to the review meeting.
For consumers under public guardianship, the license holder is
required to provide quarterly written progress review reports to
the consumer, designated family member, and case manager.
Subd. 6. [REPORTS.] The license holder shall provide
written reports regarding the consumer's status as requested by
the consumer, or the consumer's legal representative and case
manager.
Subd. 7. [STAFFING REQUIREMENTS.] The license holder must
provide supervision to ensure the health, safety, and protection
of rights of each consumer and to be able to implement each
consumer's individual service plan. Day training and
habilitation programs must meet the minimum staffing
requirements as specified in sections 252.40 to 252.46 and rules
promulgated under those sections.
Subd. 8. [LEAVING THE RESIDENCE.] As specified in each
consumer's individual service plan, each consumer requiring a
24-hour plan of care must leave the residence to participate in
regular education, employment, or community activities. License
holders, providing services to consumers living in a licensed
site, shall ensure that they are prepared to care for consumers
whenever they are at the residence during the day because of
illness, work schedules, or other reasons.
Subd. 9. [DAY TRAINING AND HABILITATION SERVICE DAYS.] Day
training and habilitation services must meet a minimum of 195
available service days.
Subd. 10. [PROHIBITION.] Psychotropic medication and the
use of aversive and deprivation procedures, as referenced in
section 245.825 and rules promulgated under that section, cannot
be used as a substitute for adequate staffing, as punishment, or
for staff convenience.
Sec. 41. [245B.07] [MANAGEMENT STANDARDS.]
Subdivision 1. [CONSUMER DATA FILE.] The license holder
must maintain the following information for each consumer:
(1) identifying information that includes date of birth,
medications, legal representative, history, medical, and other
individual-specific information, and names and telephone numbers
of contacts;
(2) consumer health information, including individual
medication administration and monitoring information;
(3) the consumer's individual service plan. When a
consumer's case manager does not provide a current individual
service plan, the license holder shall make a written request to
the case manager to provide a copy of the individual service
plan and inform the consumer or the consumer's legal
representative of the right to an individual service plan and
the right to appeal under section 256.045;
(4) copies of assessments, analyses, summaries, and
recommendations;
(5) progress review reports;
(6) incident and emergency reports involving the consumer;
(7) discharge summary, when applicable;
(8) record of other license holders serving the consumer
that includes a contact person and telephone numbers, services
being provided, services that require coordination between two
license holders, and name of staff responsible for coordination;
and
(9) incidents involving verbal and physical aggression
between consumers and self-abuse affecting the consumer.
Subd. 2. [ACCESS TO RECORDS.] The license holder must
ensure that the following people have access to the information
in subdivision 1:
(1) the consumer, the consumer's legal representative, and
anyone properly authorized by the consumer or legal
representative;
(2) the consumer's case manager;
(3) staff providing direct services to the consumer unless
the information is not relevant to carrying out the individual
service plan; and
(4) the county adult foster care licensor, when services
are also licensed as an adult foster home. Adult foster home
means a licensed residence operated by an operator who, for
financial gain or otherwise, provides 24-hour foster care to no
more than four functionally impaired residents.
Subd. 3. [RETENTION OF CONSUMER'S RECORDS.] The license
holder must retain the records required for consumers for at
least three years following termination of services.
Subd. 4. [STAFF QUALIFICATIONS.] (a) The license holder
must ensure that staff is competent through training,
experience, and education to meet the consumer's needs and
additional requirements as written in the individual service
plan. Staff qualifications must be documented. Staff under 18
years of age may not perform overnight duties or administer
medication.
(b) Delivery and evaluation of services provided by the
license holder to a consumer must be coordinated by a designated
person. The designated person or coordinator must minimally
have a four-year degree in a field related to service provision,
and one year work experience with consumers with mental
retardation or related conditions, a two-year degree in a field
related to service provision, and two years of work experience
with consumers with mental retardation or related conditions, or
a diploma in community-based developmental disability services
from an accredited post-secondary institution and two years of
work experience with consumers with mental retardation or
related conditions. The coordinator must provide supervision,
support, and evaluation of activities that include:
(1) oversight of the license holder's responsibilities
designated in the individual service plan;
(2) instruction and assistance to staff implementing the
individual service plan areas;
(3) evaluation of the effectiveness of service delivery,
methodologies, and progress on consumer outcomes based on the
condition set for objective change; and
(4) review of incident and emergency reports,
identification of incident patterns, and implementation of
corrective action as necessary to reduce occurrences.
(c) The coordinator is responsible for taking the action
necessary to facilitate the accomplishment of the outcomes for
each consumer as specified in the consumer's individual service
plan.
(d) The license holder must provide for adequate
supervision of direct care staff to ensure implementation of the
individual service plan.
Subd. 5. [STAFF ORIENTATION.] (a) Within 60 days of hiring
staff who provide direct service, the license holder must
provide 30 hours of staff orientation. Direct care staff must
complete 15 of the 30 hours orientation before providing any
unsupervised direct service to a consumer. If the staff person
has received orientation training from a license holder licensed
under this chapter, or provides semi-independent living services
only, the 15-hour requirement may be reduced to eight hours.
The total orientation of 30 hours may be reduced to 15 hours if
the staff person has previously received orientation training
from a license holder licensed under this chapter.
(b) The 30 hours of orientation must combine supervised
on-the-job training with coverage of the following material:
(1) review of the consumer's service plans and risk
management plan to achieve an understanding of the consumer as a
unique individual;
(2) review and instruction on the license holder's policies
and procedures, including their location and access;
(3) emergency procedures;
(4) explanation of specific job functions, including
implementing objectives from the consumer's individual service
plan;
(5) explanation of responsibilities related to chapter
245C; sections 626.556 and 626.557, governing maltreatment
reporting and service planning for children and vulnerable
adults; and section 245.825, governing use of aversive and
deprivation procedures;
(6) medication administration as it applies to the
individual consumer, from a training curriculum developed by a
health services professional described in section 245B.05,
subdivision 5, and when the consumer meets the criteria of
having overriding health care needs, then medication
administration taught by a health services professional. Once a
consumer with overriding health care needs is admitted, staff
will be provided with remedial training as deemed necessary by
the license holder and the health professional to meet the needs
of that consumer.
For purposes of this section, overriding health care needs
means a health care condition that affects the service options
available to the consumer because the condition requires:
(i) specialized or intensive medical or nursing
supervision; and
(ii) nonmedical service providers to adapt their services
to accommodate the health and safety needs of the consumer;
(7) consumer rights; and
(8) other topics necessary as determined by the consumer's
individual service plan or other areas identified by the license
holder.
(c) The license holder must document each employee's
orientation received.
Subd. 6. [STAFF TRAINING.] (a) The license holder shall
ensure that direct service staff annually complete hours of
training equal to two percent of the number of hours the staff
person worked or one percent for license holders providing
semi-independent living services. If direct service staff has
received training from a license holder licensed under a program
rule identified in this chapter or completed course work
regarding disability-related issues from a post-secondary
educational institute, that training may also count toward
training requirements for other services and for other license
holders.
(b) The license holder must document the training completed
by each employee.
(c) Training shall address staff competencies necessary to
address the consumer needs as identified in the consumer's
individual service plan and ensure consumer health, safety, and
protection of rights. Training may also include other areas
identified by the license holder.
(d) For consumers requiring a 24-hour plan of care, the
license holder shall provide training in cardiopulmonary
resuscitation, from a qualified source determined by the
commissioner, if the consumer's health needs as determined by
the consumer's physician indicate trained staff would be
necessary to the consumer.
Subd. 7. [VOLUNTEERS.] The license holder must ensure that
volunteers who provide direct services to consumers receive the
training and orientation necessary to fulfill their
responsibilities.
Subd. 8. [POLICIES AND PROCEDURES.] The license holder
must develop and implement the policies and procedures in
paragraphs (1) to (3).
(1) policies and procedures that promote consumer health
and safety by ensuring:
(i) consumer safety in emergency situations as identified
in section 245B.05, subdivision 7;
(ii) consumer health through sanitary practices;
(iii) safe transportation, when the license holder is
responsible for transportation of consumers, with provisions for
handling emergency situations;
(iv) a system of recordkeeping for both individuals and the
organization, for review of incidents and emergencies, and
corrective action if needed;
(v) a plan for responding to and reporting all emergencies,
including deaths, medical emergencies, illnesses, accidents,
missing consumers, fires, severe weather and natural disasters,
bomb threats, and other threats;
(vi) safe medication administration as identified in
section 245B.05, subdivision 5;
(vii) psychotropic medication monitoring when the consumer
is prescribed a psychotropic medication, including the use of
the psychotropic medication use checklist. If the
responsibility for implementing the psychotropic medication use
checklist has not been assigned in the individual service plan
and the consumer lives in a licensed site, the residential
license holder shall be designated; and
(viii) criteria for admission or service initiation
developed by the license holder;
(2) policies and procedures that protect consumer rights
and privacy by ensuring:
(i) consumer data privacy, in compliance with the Minnesota
Data Practices Act, chapter 13; and
(ii) that complaint procedures provide consumers with a
simple process to bring grievances and consumers receive a
response to the grievance within a reasonable time period. The
license holder must provide a copy of the program's grievance
procedure and time lines for addressing grievances. The
program's grievance procedure must permit consumers served by
the program and the authorized representatives to bring a
grievance to the highest level of authority in the program; and
(3) policies and procedures that promote continuity and
quality of consumer supports by ensuring:
(i) continuity of care and service coordination, including
provisions for service termination, temporary service
suspension, and efforts made by the license holder to coordinate
services with other vendors who also provide support to the
consumer. The policy must include the following requirements:
(A) the license holder must notify the consumer or
consumer's legal representative and the consumer's case manager
in writing of the intended termination or temporary service
suspension and the consumer's right to seek a temporary order
staying the termination or suspension of service according to
the procedures in section 256.045, subdivision 4a or subdivision
6, paragraph (c);
(B) notice of the proposed termination of services must be
given at least 60 days before the proposed termination is to
become effective, unless services are temporarily suspended
according to the license holder's written temporary service
suspension procedures, in which case notice must be given as
soon as possible;
(C) the license holder must provide information requested
by the consumer or consumer's legal representative or case
manager when services are temporarily suspended or upon notice
of termination;
(D) use of temporary service suspension procedures are
restricted to situations in which the consumer's behavior causes
immediate and serious danger to the health and safety of the
individual or others;
(E) prior to giving notice of service termination or
temporary service suspension, the license holder must document
actions taken to minimize or eliminate the need for service
termination or temporary service suspension; and
(F) during the period of temporary service suspension, the
license holder will work with the appropriate county agency to
develop reasonable alternatives to protect the individual and
others; and
(ii) quality services measured through a program evaluation
process including regular evaluations of consumer satisfaction
and sharing the results of the evaluations with the consumers
and legal representatives.
Subd. 9. [AVAILABILITY OF CURRENT WRITTEN POLICIES AND
PROCEDURES.] The license holder shall:
(1) review and update, as needed, the written policies and
procedures in this subdivision and inform all consumers or the
consumer's legal representatives, case managers, and employees
of the revised policies and procedures when they affect the
service provision;
(2) inform consumers or the consumer's legal
representatives of the written policies and procedures in this
subdivision upon service initiation. Copies must be available
to consumers or the consumer's legal representatives, case
managers, the county where services are located, and the
commissioner upon request; and
(3) document and maintain relevant information related to
the policies and procedures in this subdivision.
Subd. 10. [CONSUMER FUNDS.] (a) The license holder must
ensure that consumers retain the use and availability of
personal funds or property unless restrictions are justified in
the consumer's individual service plan.
(b) The license holder must ensure separation of resident
funds from funds of the license holder, the residential program,
or program staff.
(c) Whenever the license holder assists a consumer with the
safekeeping of funds or other property, the license holder must:
(1) document receipt and disbursement of the consumer's
funds or the property, and include the signature of the
consumer, conservator, or payee;
(2) provide a statement at least quarterly itemizing
receipts and disbursements of resident funds or other property;
and
(3) return to the consumer upon the consumer's request,
funds and property in the license holder's possession subject to
restrictions in the consumer's individual service plan, as soon
as possible, but no later than three working days after the date
of the request.
(d) License holders and program staff must not:
(1) borrow money from a consumer;
(2) purchase personal items from a consumer;
(3) sell merchandise or personal services to a consumer;
(4) require a resident to purchase items for which the
license holder is eligible for reimbursement; or
(5) use resident funds in a manner that would violate
section 256B.04, or any rules promulgated under that section.
Subd. 11. [TRAVEL TIME TO AND FROM A DAY TRAINING AND
HABILITATION SITE.] Except in unusual circumstances, the license
holder must not transport a consumer receiving services for
longer than one hour per one-way trip.
Subd. 12. [SEPARATE LICENSE REQUIRED FOR SEPARATE SITES.]
The license holder shall apply for separate licenses for each
day training and habilitation service site owned or leased by
the license holder at which persons receiving services and the
provider's employees who provide training and habilitation
services are present for a cumulative total of more than 30 days
within any 12-month period, and for each residential service
site.
Subd. 13. [VARIANCE.] The commissioner may grant a
variance to any of the requirements in sections 245B.02 to
245B.07 except section 245B.07, subdivision 8(1)(vii), or
provisions governing data practices and information rights of
consumers if the conditions in section 245A.04, subdivision 9
are met. Upon the request of the license holder, the
commissioner shall continue variances from the standards in this
chapter previously granted under Minnesota Rules that are
repealed as a result of this chapter. The commissioner may
approve variances for a license holder on a program, geographic,
or organizational basis.
Sec. 42. [245B.08] [NEW REGULATORY STRATEGIES.]
Subdivision 1. [ALTERNATIVE METHODS OF DETERMINING
COMPLIANCE.] (a) In addition to methods specified in chapter
245A, the commissioner may use alternative methods and new
regulatory strategies to determine compliance with this
section. The commissioner may use sampling techniques to ensure
compliance with this section. Notwithstanding section 245A.09,
subdivision 7, paragraph (d), the commissioner may also extend
periods of licensure, not to exceed five years, for license
holders who have demonstrated substantial and consistent
compliance with sections 245B.02 to 245B.07 and have
consistently maintained the health and safety of consumers and
have demonstrated by alternative methods in paragraph (b) that
they meet or exceed the requirements of this section. For
purposes of this section, "substantial and consistent
compliance" means that during the current licensing period:
(1) the license holder's license has not been made
conditional, suspended, or revoked;
(2) there have been no substantiated allegations of
maltreatment against the license holder;
(3) there have been no program deficiencies that have been
identified that would jeopardize the health or safety of
consumers being served; and
(4) the license holder is in substantial compliance with
the other requirements of chapter 245A and other applicable laws
and rules.
(b) To determine the length of a license, the commissioner
shall consider:
(1) information from affected consumers, and the license
holder's responsiveness to consumers' concerns and
recommendations;
(2) self assessments and peer reviews of the standards of
this section, corrective actions taken by the license holder,
and sharing the results of the inspections with consumers, the
consumers' families, and others, as requested;
(3) length of accreditation by an independent accreditation
body, if applicable;
(4) information from the county where the license holder is
located; and
(5) information from the license holder demonstrating
performance that meets or exceeds the minimum standards of this
chapter.
(c) The commissioner may reduce the length of the license
if the license holder fails to meet the criteria in paragraph
(a) and the conditions specified in paragraph (b).
Subd. 2. [ADDITIONAL MEASURES.] The commissioner may
require the license holder to implement additional measures on a
time-limited basis to ensure the health and safety of consumers
when the health and safety of consumers has been determined to
be at risk as determined by substantiated incidents of
maltreatment under sections 626.556 and 626.557. The license
holder may request reconsideration of the actions taken by the
commissioner under this subdivision according to section 245A.06.
Subd. 3. [SANCTIONS AVAILABLE.] Nothing in this
subdivision shall be construed to limit the commissioner's
authority to suspend, revoke, or make conditional at any time a
license under section 245A.07; make correction orders and
require fines for failure to comply with applicable laws or
rules under section 245A.06; or deny an application for license
under section 245A.05.
Subd. 4. [EFFICIENT APPLICATION.] The commissioner shall
establish application procedures for license holders licensed
under this chapter to reduce the need to submit duplicative
material.
Subd. 5. [INFORMATION.] The commissioner shall make
information available to consumers and interested others
regarding the licensing status of a license holder.
Subd. 6. [IMPLEMENTATION.] The commissioner shall seek
advice from parties affected by the implementation of this
chapter.
Subd. 7. [DEEM STATUS.] The commissioner may exempt a
license holder from duplicative standards if the license holder
is already licensed under chapter 245A.
Sec. 43. Minnesota Statutes 1996, section 256E.115, is
amended to read:
256E.115 [SAFE HOUSES AND, TRANSITIONAL HOUSING, AND
INDEPENDENT LIVING ASSISTANCE SERVICES FOR HOMELESS YOUTH.]
Subdivision 1. [DEFINITIONS; COMMISSIONER DUTIES.] (a) The
following definitions apply to this section:
(1) "Targeted youth" means children who are ages 16 to 21
and who are in out-of-home placement, leaving out-of-home
placement, at risk of becoming homeless, or homeless.
(2) "Safe house" means a facility providing emergency
housing for homeless targeted youth with the goal of reuniting
the family if appropriate and possible.
(3) "Transitional housing" means congregate or cooperative
housing for targeted youth who are transitioning to independent
living.
(4) "Independent living assistance" means services provided
to assist targeted youth who are not living in a safe house or
transitional housing to make the transition to independent
living.
(b) The commissioner shall issue a request for proposals
from organizations that are knowledgeable about the needs
of homeless targeted youth for the purpose of providing
establishing a system of safe houses and, transitional housing,
and independent living assistance for homeless such youth. The
commissioner shall appoint a review committee of up to eight
members to evaluate the proposals. The review panel must
include representation from communities of color, youth, and
other community providers and agency representatives who
understand the needs and problems of homeless targeted youth.
The commissioner shall also assist in coordinating funding from
federal and state grant programs and funding available from a
variety of sources for efforts to promote a continuum of
services for targeted youth through a consolidated grant
application. The commissioner shall analyze the needs
of homeless targeted youth and gaps in services throughout the
state and determine how to best serve those needs within the
available funding.
Subd. 2. [SAFE HOUSES AND TRANSITIONAL HOUSING PROGRAM
SERVICE REQUIREMENTS; PARTICIPATION REQUIREMENTS; LICENSURE OF
INDEPENDENT LIVING ASSISTANCE PROVIDERS.] A safe house provides
emergency housing for homeless youth ranging in age from 13 to
22 with the goal of reuniting the family, if appropriate,
whenever possible. Transitional housing provides housing for
homeless youth ages 16 to 22 who are transitioning into
independent living.
In developing both types of housing, the commissioner and
the review committee shall try to create a family atmosphere in
a neighborhood or community and, if possible, provide separate
but cooperative homes for males and females. It may be
necessary, due to licensing restrictions, to provide separate
housing for different age groups. (a) The following services, or
adequate access to referrals for the following services, must be
made available to the homeless targeted youth participating in
the programs described in subdivision 1:
(1) counseling services for the youth, and their families,
if appropriate, on site, to help with problems that resulted
in contributed to the homelessness or could impede making the
transition to independent living;
(2) job services to help youth find employment in addition
to creating jobs on site, including food service, maintenance,
child care, and tutoring;
(3) health services that are confidential and provide
preventive care services, crisis referrals, and other necessary
health care services;
(4) living skills training to help youth learn how to care
for themselves; and
(5) education services that help youth enroll in academic
programs, if they are currently not in a program. Enrollment in
an academic program is required for residency in transitional
housing.
(b)(1) Targeted youth who have current drug or alcohol
problems, a recent history of violent behaviors, or a mental
health disorder or issue that is not being resolved through
counseling or treatment are not eligible to receive the services
described in subdivision 1.
(2) Targeted youth who are not employed, participating in
employment training, or enrolled in an academic program are not
eligible to receive transitional housing or independent living
assistance.
(c) Providers of independent living assistance services
must be licensed under section 245A.22.
Sec. 44. Minnesota Statutes 1996, section 364.09, is
amended to read:
364.09 [EXCEPTIONS.]
(a) This chapter does not apply to the licensing process
for peace officers; to law enforcement agencies as defined in
section 626.84, subdivision 1, paragraph (h); to fire protection
agencies; to eligibility for a private detective or protective
agent license; to eligibility for a family day care license, a
family foster care license, or a home care provider license the
licensing and background study process under chapter 245A; to
eligibility for school bus driver endorsements; or to
eligibility for special transportation service endorsements.
This chapter also shall not apply to eligibility for juvenile
corrections employment, where the offense involved child
physical or sexual abuse or criminal sexual conduct.
(b) This chapter does not apply to a school district or to
eligibility for a license issued or renewed by the board of
teaching or the state board of education.
(c) Nothing in this section precludes the Minnesota police
and peace officers training board or the state fire marshal from
recommending policies set forth in this chapter to the attorney
general for adoption in the attorney general's discretion to
apply to law enforcement or fire protection agencies.
(d) This chapter does not apply to a license to practice
medicine that has been denied or revoked by the board of medical
practice pursuant to section 147.091, subdivision 1a.
Sec. 45. Laws 1995, chapter 158, section 7, is amended to
read:
Sec. 7. [RECOMMENDATIONS ON REGULATING CHILD CARE
PROGRAMS.]
The commissioner of human services shall review and make
recommendations to the legislature regarding what programs
should be regulated that provide child care for children, and
the manner in which these programs should be regulated.
The commissioner shall also examine and make
recommendations regarding the feasibility of permitting
worksite-based nonresidential child care programs serving 14 or
fewer children to be licensed under the family and group family
day care standards. In developing these recommendations, the
commissioner shall consult with representatives of organizations
with an interest in child care services including, but not
limited to, the following: large and small employers, including
employers who provide child care on site; foundations; the state
commissioners of economic security and children, families, and
learning; not-for-profit and county agencies; and consumers of
child care services.
The commissioner shall submit the recommendations by
December 15, 1997, to the chairs of the house health and human
services committee and the health and human services finance
division, and of the senate health and family services security
committee and the health care and family services finance
security budget division.
Sec. 46. [UNLICENSED CHILD CARE PROVIDERS; INTERIM
EXPANSION.]
(a) Notwithstanding Minnesota Statutes, section 245A.03,
subdivision 2, clause (2), until June 30, 1999, nonresidential
child care programs or services that are provided by an
unrelated individual to persons from two or three other
unrelated families are excluded from the licensure provisions of
Minnesota Statutes, chapter 245A, provided that:
(1) the individual provides services at any one time to no
more than four children who are unrelated to the individual;
(2) no more than two of the children are under two years of
age; and
(3) the total number of children being cared for at any one
time does not exceed five.
(b) Paragraph (a), clauses (1) and (2), do not apply to
nonresidential programs that are provided by an unrelated
individual to persons from a single related family.
Sec. 47. [FAMILY DAY CARE LICENSURE; INTERIM EXPANSION.]
Subdivision 1. [INTERIM AGE GROUPINGS; FAMILY DAY
CARE.] Notwithstanding Minnesota Rules, part 9502.0315, subparts
22, 28 and 30, until June 30, 1998, for the purposes of family
day care and group family day care licensure the following
definitions apply:
(1) "Preschooler" means a child who is at least 24 months
old up to the age of being eligible to enter kindergarten within
the next four months.
(2) "Toddler" means a child who is at least 12 months old
but less than 24 months old, except that for purposes of
specialized infant and toddler family and group family day care,
"toddler" means a child who is at least 12 months old but less
than 30 months old.
(3) "School age" means a child who is at least of
sufficient age to have attended the first day of kindergarten,
or is eligible to enter kindergarten within the next four
months, but is younger than 11 years of age.
Subd. 2. [COMMISSIONER'S AUTHORITY.] The commissioner may
grant a variance to any of the provisions in subdivision 1, as
long as the health and safety of the children served by the
program are not affected. The request for a variance shall
comply with the provisions of Minnesota Statutes, section
245A.04, subdivision 9.
Sec. 48. [COMMISSIONER OF HEALTH; BACKGROUND STUDIES
REPORT.]
By January 15, 1998, the commissioner of health shall
report to the chairs of the health and human services fiscal
committees of the house and the senate on the background study
costs required by Minnesota Statutes, sections 245A.04,
subdivision 3, paragraphs (b) and (e) and 144.057, subdivision
1, clause (2), with recommendations for providing funding to
cover the costs of these studies.
Sec. 49. [REPORT ON RULE CONSOLIDATION.]
The commissioner of human services shall report no later
than March 15, 1998, to the chairs of the senate committee on
health and family security, the house committee on health and
human services, the senate health and family security budget
division, and the house health and human services finance
division on the implementation of rule consolidation authorized
by Minnesota Statutes, section 245B.01. In addition, the report
shall include recommendations as needed to improve the
consolidated rule's effectiveness in providing safeguards for
clients while streamlining the regulatory process. The
commissioner shall appoint an advisory task force to assist in
developing the report. The task force membership shall include,
but not be limited to, representatives from provider, advocacy,
and other interested groups. Department of human services staff
shall not be members of the task force but shall provide
technical assistance as needed.
Sec. 50. [LEGISLATIVE TASK FORCE TO REVIEW THE BACKGROUND
STUDY PROCESS.]
The task force must consist of at least six legislators and
other members appointed by the commissioner of human services,
which may include representatives from the departments of human
services, health, corrections, and public safety, the ombudsman
for older Minnesotans, the ombudsman for mental health and
mental retardation, representatives from the attorney general's
office, and county agencies, persons receiving services in
licensed facilities, families of persons receiving services in
licensed facilities, representatives from consumer and advocacy
groups, representatives of agencies that provide services,
representatives of individuals and professionals who provide
services within the agencies, and representatives of employee
bargaining units.
The speaker of the house and the rules and administration
subcommittee on committees in the senate shall appoint at least
three members from each body to constitute a legislative task
force to review the background study process for individuals
providing services in facilities and programs licensed by either
the department of human services or the department of health.
At least one of the members from each body shall be from the
minority party. Members shall be appointed before July 1, 1997,
and shall convene as soon as possible during the 1997 interim at
the call of the chairs.
Members shall evaluate the current systems for background
studies completed under Minnesota Statutes, section 144.057, and
chapter 245A, specific to, but not limited to, the
appropriateness of the authority to disqualify individuals based
on a commissioner's determination that, absent a criminal
conviction, there is a preponderance of evidence that the
individual committed an act that meets the definition of a
disqualifying crime under Minnesota Statutes, section 245A.04,
the appropriateness and effectiveness of the due process
available to disqualified individuals, and the appropriateness
of standardizing disqualifying characteristics across all
services licensed by the department of human services and the
department of health.
The deliberations of the task force shall include
consideration of the privacy issues related to background
studies, specifically the efficient and effective dissemination
of information while protecting individual privacy rights, and
issues related to rehabilitation and present fitness to perform
the duties of employment, and be based upon the recognition that
the background study process exists to protect vulnerable
children and adults receiving services in licensed programs and
facilities and that the safety of these persons shall be given
preeminent weight over the interests of persons subject to the
background study process.
The task force shall present a report containing any
recommendations for change, with draft legislation, to the
legislature by February 1, 1998. The task force expires June
30, 1998.
Sec. 51. [REPEALER.]
Subdivision 1. Minnesota Rules, parts 9555.8000;
9555.8100; 9555.8200; 9555.8300; 9555.8400; and 9555.8500, are
repealed.
Subd. 2. (a) Laws 1996, chapter 408, article 10, section
13, is repealed.
(b) Minnesota Rules, parts 4668.0020 and 9543.3070, are
repealed.
Subd. 3. (a) Minnesota Statutes 1996, sections 245A.091;
245A.20; 245A.21; and 252.53, are repealed.
(b) Minnesota Rules, parts 9503.0170, subpart 7; 9525.0215;
9525.0225; 9525.0235; 9525.0243; 9525.0245; 9525.0255;
9525.0265; 9525.0275; 9525.0285; 9525.0295; 9525.0305;
9525.0315; 9525.0325; 9525.0335; 9525.0345; 9525.0355;
9525.0500; 9525.0510; 9525.0520; 9525.0530; 9525.0540;
9525.0550; 9525.0560; 9525.0570; 9525.0580; 9525.0590;
9525.0600; 9525.0610; 9525.0620; 9525.0630; 9525.0640;
9525.0650; 9525.0660; 9525.1240, subpart 1, item E, subitem (6);
9525.1500; 9525.1510; 9525.1520; 9525.1530; 9525.1540;
9525.1550; 9525.1560; 9525.1570, subparts 1, 2, 3, 4, 5, and 6;
9525.1590; 9525.1610; 9525.1620; 9525.1630; 9525.1640;
9525.1650; 9525.1660; 9525.1670; 9525.1680; 9525.1690;
9525.2000; 9525.2010; 9525.2020; 9525.2025; 9525.2030;
9525.2040; 9525.2050; 9525.2060; 9525.2070; 9525.2080;
9525.2090; 9525.2100; 9525.2110; 9525.2120; 9525.2130; and
9525.2140, are repealed.
Sec. 52. [EFFECTIVE DATE.]
Sections 1, 3 to 9, 12, 13, 15 to 34, 43 to 50, and 51,
subdivision 1, are effective the day following final enactment.
Sections 2, 10, 11, 14, and 51, subdivision 2, are effective
August 1, 1997. Sections 35 to 42 and 51, subdivision 3, are
effective January 1, 1998.
Presented to the governor May 30, 1997
Signed by the governor June 3, 1997, 2:58 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes