1.1                          A bill for an act 
  1.2             relating to health; modifying the applicant background 
  1.3             study process for licensed health care and human 
  1.4             services programs; amending Minnesota Statutes 1996, 
  1.5             sections 144.057, subdivision 1; and 245A.04, 
  1.6             subdivision 3; proposing coding for new law in 
  1.7             Minnesota Statutes, chapter 147. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  Minnesota Statutes 1996, section 144.057, 
  1.10  subdivision 1, is amended to read: 
  1.11     Subdivision 1.  [BACKGROUND STUDIES REQUIRED.] (a) The 
  1.12  commissioner of health shall contract with the commissioner of 
  1.13  human services to conduct background studies of: 
  1.14     (1) individuals providing services which have direct 
  1.15  contact, as defined under section 245A.04, subdivision 3, with 
  1.16  patients and residents in hospitals, boarding care homes, 
  1.17  outpatient surgical centers licensed under sections 144.50 to 
  1.18  144.58; nursing homes and home care agencies licensed under 
  1.19  chapter 144A; residential care homes licensed under chapter 
  1.20  144B, and board and lodging establishments that are registered 
  1.21  to provide supportive or health supervision services under 
  1.22  section 157.17~~.~~; and 
  1.23     (2) all other employees in nursing homes licensed under 
  1.24  chapter 144A, and boarding care homes licensed under sections 
  1.25  144.50 to 144.58. 
  1.26     A disqualification of an individual in this section 
  2.1   disqualifies the individual from positions allowing direct 
  2.2   contact or access to patients or residents receiving services. 
  2.3      (b) If a facility or program is licensed by the department 
  2.4   of human services and subject to the background study provisions 
  2.5   of chapter 245A and is also licensed by the department of 
  2.6   health, the department of human services is solely responsible 
  2.7   for the background studies of individuals in the jointly 
  2.8   licensed programs. 
  2.9      Sec. 2.  [147.022] [BACKGROUND STUDIES ON LICENSEES.] 
  2.10     Subdivision 1.  [BACKGROUND STUDIES REQUIRED.] (a) The 
  2.11  board of medical practice shall contract with the commissioner 
  2.12  of human services to conduct background studies of licensed 
  2.13  physicians who provide services involving direct contact, as 
  2.14  defined under section 245A.04, subdivision 3, paragraph (c), 
  2.15  with patients and residents in hospitals, boarding care homes, 
  2.16  and outpatient surgical centers licensed under sections 144.50 
  2.17  to 144.58; nursing homes and home care agencies licensed under 
  2.18  chapter 144A; residential care homes licensed under chapter 
  2.19  144B; and boarding and lodging establishments that are 
  2.20  registered to provide supportive or health supervision services 
  2.21  under section 157.17. 
  2.22     (b) The board of medical practice shall provide 
  2.23  notification of the results of each background study and any 
  2.24  other criminal history information received from the 
  2.25  commissioner of human services to the physician licensee and to 
  2.26  health care facilities and human services programs licensed by 
  2.27  the departments of health and human services. 
  2.28     Subd. 2.  [RESPONSIBILITIES OF THE DEPARTMENT OF HUMAN 
  2.29  SERVICES.] (a) The commissioner of human services shall conduct 
  2.30  the background studies required by subdivision 1 in accordance 
  2.31  with the provisions of chapter 245A and rules adopted thereunder.
  2.32  The commissioner of human services shall provide necessary forms 
  2.33  and instructions, conduct the necessary background studies of 
  2.34  individuals, and provide notification of the results of the 
  2.35  studies to the board of medical practice.  
  2.36     (b) Physician licensees may be disqualified under the 
  3.1   provisions of chapter 245A and rules adopted thereunder.  If a 
  3.2   physician licensee is disqualified, the commissioner of human 
  3.3   services shall notify the board and the physician licensee and 
  3.4   shall inform the physician licensee of the right to request a 
  3.5   reconsideration of the disqualification by submitting the 
  3.6   request to the board of medical practice. 
  3.7      Subd. 3.  [RECONSIDERATION.] The board of medical practice 
  3.8   shall review and decide reconsideration requests in accordance 
  3.9   with the procedures and criteria contained in chapter 245A and 
  3.10  rules adopted thereunder.  The board shall provide its decision 
  3.11  to the physician licensee and to the commissioner of human 
  3.12  services.  The board's decision upon reconsideration of 
  3.13  disqualification is the final administrative agency action. 
  3.14     Subd. 4.  [RESPONSIBILITIES OF PHYSICIAN 
  3.15  LICENSEES.]Physician licensees described in subdivision 1 shall 
  3.16  be responsible for cooperating with the commissioner of human 
  3.17  services and the board of medical practice in implementing the 
  3.18  provisions of this section.  The responsibilities imposed on 
  3.19  applicants and licensees under chapter 245A and rules adopted 
  3.20  thereunder shall apply to licensed physicians.  The provision of 
  3.21  section 245A.04, subdivision 3, paragraph (g), shall apply to a 
  3.22  physician licensee's refusal to cooperate with the completion of 
  3.23  the background studies. 
  3.24     Sec. 3.  Minnesota Statutes 1996, section 245A.04, 
  3.25  subdivision 3, is amended to read: 
  3.26     Subd. 3.  [STUDY OF THE APPLICANT.] (a) Before the 
  3.27  commissioner issues a license, the commissioner shall conduct a 
  3.28  study of the individuals specified in paragraph (c), clauses (1) 
  3.29  to (5), according to rules of the commissioner.  
  3.30     Beginning January 1, 1997, the commissioner shall also 
  3.31  conduct a study of employees providing direct contact services 
  3.32  for nonlicensed personal care provider organizations described 
  3.33  in paragraph (c), clause (5). 
  3.34     The commissioner shall recover the cost of these background 
  3.35  studies through a fee of no more than $12 per study charged to 
  3.36  the personal care provider organization.  
  4.1      (b) Beginning July 1, 1997, the commissioner shall conduct 
  4.2   a background study on individuals specified in paragraph (c), 
  4.3   clauses (1) to (5), who perform direct contact services in a 
  4.4   nursing home or a home care agency licensed under chapter 144A 
  4.5   or a boarding care home licensed under sections 144.50 to 
  4.6   144.58, when the subject of the study resides outside Minnesota; 
  4.7   the study must be at least as comprehensive as that of a 
  4.8   Minnesota resident and include a search of information from the 
  4.9   criminal justice data communications network in the state where 
  4.10  the subject of the study resides. 
  4.11     (c) The applicant, license holder, the bureau of criminal 
  4.12  apprehension, the commissioner of health, the board of medical 
  4.13  practice, and county agencies, after written notice to the 
  4.14  individual who is the subject of the study, shall help with the 
  4.15  study by giving the commissioner criminal conviction data and 
  4.16  reports about the maltreatment of adults substantiated under 
  4.17  section 626.557 and the maltreatment of minors in licensed 
  4.18  programs substantiated under section 626.556.  The individuals 
  4.19  to be studied shall include: 
  4.20     (1) the applicant or physician licensee; 
  4.21     (2) persons over the age of 13 living in the household 
  4.22  where the licensed program will be provided; 
  4.23     (3) current employees or contractors of the applicant who 
  4.24  will have direct contact with persons served by the facility, 
  4.25  agency, or program; 
  4.26     (4) volunteers or student volunteers who have direct 
  4.27  contact with persons served by the program to provide program 
  4.28  services, if the contact is not directly supervised by the 
  4.29  individuals listed in clause (1) or (3); and 
  4.30     (5) any person who, as an individual or as a member of an 
  4.31  organization, exclusively offers, provides, or arranges for 
  4.32  personal care assistant services under the medical assistance 
  4.33  program as authorized under sections 256B.04, subdivision 16, 
  4.34  and 256B.0625, subdivision 19. 
  4.35     The juvenile courts shall also help with the study by 
  4.36  giving the commissioner existing juvenile court records on 
  5.1   individuals described in clause (2) relating to delinquency 
  5.2   proceedings held within either the five years immediately 
  5.3   preceding the application or the five years immediately 
  5.4   preceding the individual's 18th birthday, whichever time period 
  5.5   is longer.  The commissioner shall destroy juvenile records 
  5.6   obtained pursuant to this subdivision when the subject of the 
  5.7   records reaches age 23.  
  5.8      For purposes of this section and Minnesota Rules, part 
  5.9   9543.3070, a finding that a delinquency petition is proven in 
  5.10  juvenile court shall be considered a conviction in state 
  5.11  district court. 
  5.12     For purposes of this subdivision, "direct contact" means 
  5.13  providing face-to-face care, training, supervision, counseling, 
  5.14  consultation, or medication assistance to persons served by a 
  5.15  program.  For purposes of this subdivision, "directly 
  5.16  supervised" means an individual listed in clause (1), (3), or 
  5.17  (5) is within sight or hearing of a volunteer to the extent that 
  5.18  the individual listed in clause (1), (3), or (5) is capable at 
  5.19  all times of intervening to protect the health and safety of the 
  5.20  persons served by the program who have direct contact with the 
  5.21  volunteer. 
  5.22     A study of an individual in clauses (1) to (5) shall be 
  5.23  conducted at least upon application for initial license and 
  5.24  reapplication for a license.  The commissioner is not required 
  5.25  to conduct a study of an individual at the time of reapplication 
  5.26  for a license, other than a family day care or foster care 
  5.27  license, if:  (i) a study of the individual was conducted either 
  5.28  at the time of initial licensure or when the individual became 
  5.29  affiliated with the license holder; (ii) the individual has been 
  5.30  continuously affiliated with the license holder since the last 
  5.31  study was conducted; and (iii) the procedure described in 
  5.32  paragraph (d) has been implemented and was in effect 
  5.33  continuously since the last study was conducted.  For 
  5.34  individuals who are required to have background studies under 
  5.35  clauses (1) to (5) and who have been continuously affiliated 
  5.36  with a foster care provider that is licensed in more than one 
  6.1   county, criminal conviction data may be shared among those 
  6.2   counties in which the foster care programs are licensed.  A 
  6.3   county agency's receipt of criminal conviction data from another 
  6.4   county agency shall meet the criminal data background study 
  6.5   requirements of this section. 
  6.6      The commissioner may also conduct studies on individuals 
  6.7   specified in clauses (3) and (4) when the studies are initiated 
  6.8   by: 
  6.9      (i) personnel pool agencies; 
  6.10     (ii) temporary personnel agencies; 
  6.11     (iii) educational programs that train persons by providing 
  6.12  direct contact services in licensed programs; and 
  6.13     (iv) professional services agencies that are not licensed 
  6.14  and which contract with licensed programs to provide direct 
  6.15  contact services or individuals who provide direct contact 
  6.16  services. 
  6.17     Studies on individuals in items (i) to (iv) must be 
  6.18  initiated annually by these agencies, programs, and 
  6.19  individuals.  Except for personal care provider organizations, 
  6.20  no applicant, license holder, or individual who is the subject 
  6.21  of the study shall pay any fees required to conduct the study. 
  6.22     (1) At the option of the licensed facility, rather than 
  6.23  initiating another background study on an individual required to 
  6.24  be studied who has indicated to the licensed facility that a 
  6.25  background study by the commissioner was previously completed, 
  6.26  the facility may make a request to the commissioner for 
  6.27  documentation of the individual's background study status, 
  6.28  provided that: 
  6.29     (i) the facility makes this request using a form provided 
  6.30  by the commissioner; 
  6.31     (ii) in making the request the facility informs the 
  6.32  commissioner that either: 
  6.33     (A) the individual has been continuously affiliated with a 
  6.34  licensed facility since the individual's previous background 
  6.35  study was completed, or since October 1, 1995, whichever is 
  6.36  shorter; or 
  7.1      (B) the individual is affiliated only with a personnel pool 
  7.2   agency, a temporary personnel agency, an educational program 
  7.3   that trains persons by providing direct contact services in 
  7.4   licensed programs, or a professional services agency that is not 
  7.5   licensed and which contracts with licensed programs to provide 
  7.6   direct contact services or individuals who provide direct 
  7.7   contact services; and 
  7.8      (iii) the facility provides notices to the individual as 
  7.9   required in paragraphs (a) to (d), and that the facility is 
  7.10  requesting written notification of the individual's background 
  7.11  study status from the commissioner.  
  7.12     (2) The commissioner shall respond to each request under 
  7.13  paragraph (1) with a written notice to the facility and the 
  7.14  study subject.  If the commissioner determines that a background 
  7.15  study is necessary, the study shall be completed without further 
  7.16  request from a licensed agency or notifications to the study 
  7.17  subject.  
  7.18     (3) When a background study is being initiated by a 
  7.19  licensed facility or for a licensed physician, a study subject 
  7.20  affiliated with multiple licensed facilities may attach to the 
  7.21  background study form a cover letter indicating the additional 
  7.22  facilities' names, addresses, and background study 
  7.23  identification numbers.  When the commissioner receives such 
  7.24  notices, each facility identified by the background study 
  7.25  subject shall be notified of the study results.  The background 
  7.26  study notice sent to the subsequent agencies shall satisfy those 
  7.27  facilities' responsibilities for initiating a background study 
  7.28  on that individual. 
  7.29     (d) If an individual who is affiliated with a program or 
  7.30  facility regulated by the department of human services or 
  7.31  department of health ~~or~~, who is affiliated with a nonlicensed 
  7.32  personal care provider organization, or who is licensed by the 
  7.33  board of medical practice, is convicted of a crime constituting 
  7.34  a disqualification under Minnesota Rules, parts 9543.3000 to 
  7.35  9543.3090, the probation officer or corrections agent shall 
  7.36  notify the commissioner of the conviction.  The commissioner, in 
  8.1   consultation with the commissioner of corrections, shall develop 
  8.2   forms and information necessary to implement this paragraph and 
  8.3   shall provide the forms and information to the commissioner of 
  8.4   corrections for distribution to local probation officers and 
  8.5   corrections agents.  The commissioner shall inform individuals 
  8.6   subject to a background study that criminal convictions for 
  8.7   disqualifying crimes will be reported to the commissioner by the 
  8.8   corrections system.  A probation officer, corrections agent, or 
  8.9   corrections agency is not civilly or criminally liable for 
  8.10  disclosing or failing to disclose the information required by 
  8.11  this paragraph.  Upon receipt of disqualifying information, the 
  8.12  commissioner shall provide the notifications required in 
  8.13  subdivision 3a, as appropriate to agencies on record as having 
  8.14  initiated a background study or making a request for 
  8.15  documentation of the background study status of the individual.  
  8.16  This paragraph does not apply to family day care and foster care 
  8.17  programs. 
  8.18     (e) The individual who is the subject of the study must 
  8.19  provide the applicant or license holder with sufficient 
  8.20  information to ensure an accurate study including the 
  8.21  individual's first, middle, and last name; home address, city, 
  8.22  county, and state of residence for the past five years; zip 
  8.23  code; sex; date of birth; and driver's license number.  The 
  8.24  applicant or license holder shall provide this information about 
  8.25  an individual in paragraph (c), clauses (1) to (5), on forms 
  8.26  prescribed by the commissioner.  The commissioner may request 
  8.27  additional information of the individual, which shall be 
  8.28  optional for the individual to provide, such as the individual's 
  8.29  social security number or race.  Transmission of information 
  8.30  requested under this section by the applicant or license holder 
  8.31  may be done by any means, including by United States mail or 
  8.32  electronically through a computer. 
  8.33     (f) Except for child foster care, adult foster care, and 
  8.34  family day care homes, a study must include information related 
  8.35  to names of substantiated perpetrators of maltreatment of 
  8.36  vulnerable adults that has been received by the commissioner as 
  9.1   required under section 626.557, subdivision 9c, paragraph (i), 
  9.2   and the commissioner's records relating to the maltreatment of 
  9.3   minors in licensed programs, information from juvenile courts as 
  9.4   required in paragraph (c) for persons listed in paragraph (c), 
  9.5   clause (2), and information from the bureau of criminal 
  9.6   apprehension.  For child foster care, adult foster care, and 
  9.7   family day care homes, the study must include information from 
  9.8   the county agency's record of substantiated maltreatment of 
  9.9   adults, and the maltreatment of minors, information from 
  9.10  juvenile courts as required in paragraph (c) for persons listed 
  9.11  in paragraph (c), clause (2), and information from the bureau of 
  9.12  criminal apprehension.  The commissioner may also review arrest 
  9.13  and investigative information from the bureau of criminal 
  9.14  apprehension, the commissioner of health, a county attorney, 
  9.15  county sheriff, county agency, local chief of police, other 
  9.16  states, the courts, or the Federal Bureau of Investigation if 
  9.17  the commissioner has reasonable cause to believe the information 
  9.18  is pertinent to the disqualification of an individual listed in 
  9.19  paragraph (c), clauses (1) to (5).  The commissioner is not 
  9.20  required to conduct more than one review of a subject's records 
  9.21  from the Federal Bureau of Investigation if a review of the 
  9.22  subject's criminal history with the Federal Bureau of 
  9.23  Investigation has already been completed by the commissioner and 
  9.24  there has been no break in the subject's affiliation with the 
  9.25  license holder who initiated the background studies. 
  9.26     When the commissioner has reasonable cause to believe that 
  9.27  further pertinent information may exist on the subject, the 
  9.28  subject shall provide a set of classifiable fingerprints 
  9.29  obtained from an authorized law enforcement agency.  For 
  9.30  purposes of requiring fingerprints, the commissioner shall be 
  9.31  considered to have reasonable cause under, but not limited to, 
  9.32  the following circumstances: 
  9.33     (1) information from the bureau of criminal apprehension 
  9.34  indicates that the subject is a multistate offender; 
  9.35     (2) information from the bureau of criminal apprehension 
  9.36  indicates that multistate offender status is undetermined; or 
 10.1      (3) the commissioner has received a report from the subject 
 10.2   or a third party indicating that the subject has a criminal 
 10.3   history in a jurisdiction other than Minnesota. 
 10.4      (g) An applicant's ~~or~~, license holder's, or physician 
 10.5   licensee's failure or refusal to cooperate with the commissioner 
 10.6   is reasonable cause to deny an application or immediately 
 10.7   suspend, suspend, or revoke a license.  Failure or refusal of an 
 10.8   individual to cooperate with the study is just cause for denying 
 10.9   or terminating employment of the individual if the individual's 
 10.10  failure or refusal to cooperate could cause the applicant's 
 10.11  application to be denied or the license holder's or physician 
 10.12  licensee's license to be immediately suspended, suspended, or 
 10.13  revoked. 
 10.14     (h) The commissioner shall not consider an application to 
 10.15  be complete until all of the information required to be provided 
 10.16  under this subdivision has been received.  
 10.17     (i) No person in paragraph (c), clause (1), (2), (3), (4), 
 10.18  or (5) who is disqualified as a result of this section may be 
 10.19  retained by the agency in a position involving direct contact 
 10.20  with persons served by the program. 
 10.21     (j) Termination of persons in paragraph (c), clause (1), 
 10.22  (2), (3), (4), or (5), made in good faith reliance on a notice 
 10.23  of disqualification provided by the commissioner shall not 
 10.24  subject the applicant or license holder to civil liability. 
 10.25     (k) The commissioner may establish records to fulfill the 
 10.26  requirements of this section. 
 10.27     (l) The commissioner may not disqualify an individual 
 10.28  subject to a study under this section because that person has, 
 10.29  or has had, a mental illness as defined in section 245.462, 
 10.30  subdivision 20. 
 10.31     (m) An individual who is subject to an applicant background 
 10.32  study under this section and whose disqualification in 
 10.33  connection with a license would be subject to the limitations on 
 10.34  reconsideration set forth in subdivision 3b, paragraph (c), 
 10.35  shall be disqualified for conviction of the crimes specified in 
 10.36  the manner specified in subdivision 3b, paragraph (c).  The 
 11.1   commissioner of human services shall amend Minnesota Rules, part 
 11.2   9543.3070, to conform to this section. 
 11.3      (n) An individual subject to disqualification under this 
 11.4   subdivision has the applicable rights in subdivision 3a, 3b, or 
 11.5   3c.