1.1                          A bill for an act 
  1.2             relating to human services; changing provisions for 
  1.3             licensing background studies; amending Minnesota 
  1.4             Statutes 2000, sections 13.46, subdivision 4; 144.057, 
  1.5             subdivision 3; 214.104; 245A.03, subdivision 2b; 
  1.6             245A.04, subdivisions 3a, 3b, 3c, 3d; 245A.05; 
  1.7             245A.06; 245A.07; 245A.08; 245A.16, subdivision 1; 
  1.8             245B.08, subdivision 3; 256.045, subdivisions 3, 3b, 
  1.9             4; 626.556, subdivision 10i; 626.557, subdivisions 3, 
  1.10            9d; 626.5572, subdivision 17. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 2000, section 13.46, 
  1.13  subdivision 4, is amended to read: 
  1.14     Subd. 4.  [LICENSING DATA.] (a) As used in this subdivision:
  1.15     (1) "licensing data" means all data collected, maintained, 
  1.16  used, or disseminated by the welfare system pertaining to 
  1.17  persons licensed or registered or who apply for licensure or 
  1.18  registration or who formerly were licensed or registered under 
  1.19  the authority of the commissioner of human services; 
  1.20     (2) "client" means a person who is receiving services from 
  1.21  a licensee or from an applicant for licensure; and 
  1.22     (3) "personal and personal financial data" means social 
  1.23  security numbers, identity of and letters of reference, 
  1.24  insurance information, reports from the bureau of criminal 
  1.25  apprehension, health examination reports, and social/home 
  1.26  studies. 
  1.27     (b)(1) Except as provided in paragraph (c), the following 
  1.28  data on current and former licensees are public:  name, address, 
  2.1   telephone number of licensees, licensed capacity, type of client 
  2.2   preferred, variances granted, type of dwelling, name and 
  2.3   relationship of other family members, previous license history, 
  2.4   class of license, and the existence and status of complaints.  
  2.5   When disciplinary action has been taken against a licensee or 
  2.6   the complaint is resolved, the following data are public:  the 
  2.7   substance of the complaint, the findings of the investigation of 
  2.8   the complaint, the record of informal resolution of a licensing 
  2.9   violation, orders of hearing, findings of fact, conclusions of 
  2.10  law, and specifications of the final disciplinary action 
  2.11  contained in the record of disciplinary action.  
  2.12     (2) The following data on persons subject to 
  2.13  disqualification under section 245A.04 in connection with a 
  2.14  license to provide family day care for children, child care 
  2.15  center services, foster care for children in the provider's 
  2.16  home, or foster care or day care services for adults in the 
  2.17  provider's home, are public:  the nature of any disqualification 
  2.18  set aside under section 245A.04, subdivision 3b, and the reasons 
  2.19  for setting aside the disqualification; and the reasons for 
  2.20  granting any variance under section 245A.04, subdivision 9. 
  2.21     (3) When maltreatment is substantiated under section 
  2.22  626.556 or 626.557 and the victim and the substantiated 
  2.23  perpetrator are affiliated with a program licensed under chapter 
  2.24  245A, the commissioner of human services, local social services 
  2.25  agency, or county welfare agency may inform the license holder 
  2.26  where the maltreatment occurred of the identity of the 
  2.27  substantiated perpetrator and the victim. 
  2.28     (c) The following are private data on individuals under 
  2.29  section 13.02, subdivision 12, or nonpublic data under section 
  2.30  13.02, subdivision 9:  personal and personal financial data on 
  2.31  family day care program and family foster care program 
  2.32  applicants and licensees and their family members who provide 
  2.33  services under the license. 
  2.34     (d) The following are private data on individuals:  the 
  2.35  identity of persons who have made reports concerning licensees 
  2.36  or applicants that appear in inactive investigative data, and 
  3.1   the records of clients or employees of the licensee or applicant 
  3.2   for licensure whose records are received by the licensing agency 
  3.3   for purposes of review or in anticipation of a contested 
  3.4   matter.  The names of reporters under sections 626.556 and 
  3.5   626.557 may be disclosed only as provided in section 626.556, 
  3.6   subdivision 11, or 626.557, subdivision 12b. 
  3.7      (e) Data classified as private, confidential, nonpublic, or 
  3.8   protected nonpublic under this subdivision become public data if 
  3.9   submitted to a court or administrative law judge as part of a 
  3.10  disciplinary proceeding in which there is a public hearing 
  3.11  concerning the disciplinary action. 
  3.12     (f) Data generated in the course of licensing 
  3.13  investigations that relate to an alleged violation of law are 
  3.14  investigative data under subdivision 3. 
  3.15     (g) Data that are not public data collected, maintained, 
  3.16  used, or disseminated under this subdivision that relate to or 
  3.17  are derived from a report as defined in section 626.556, 
  3.18  subdivision 2, are subject to the destruction provisions of 
  3.19  section 626.556, subdivision 11.  
  3.20     (h) Upon request, not public data collected, maintained, 
  3.21  used, or disseminated under this subdivision that relate to or 
  3.22  are derived from a report of substantiated maltreatment as 
  3.23  defined in section 626.556 or 626.557 may be exchanged with the 
  3.24  department of health for purposes of completing background 
  3.25  studies pursuant to section 144.057. 
  3.26     (i) Data on individuals collected according to licensing 
  3.27  activities under chapter 245A, and data on individuals collected 
  3.28  by the commissioner of human services according to maltreatment 
  3.29  investigations under sections 626.556 and 626.557, may be shared 
  3.30  with the department of human rights, the department of health, 
  3.31  the department of corrections, the ombudsman for mental health 
  3.32  and retardation, and the individual's professional regulatory 
  3.33  board when there is reason to believe that laws or standards 
  3.34  under the jurisdiction of those agencies may have been violated. 
  3.35     (j) In addition to the notice of determinations required 
  3.36  under section 626.556, subdivision 10f, if the commissioner or 
  4.1   the local social services agency has determined that an 
  4.2   individual is a substantiated perpetrator of maltreatment of a 
  4.3   child based on sexual abuse, as defined in section 626.556, 
  4.4   subdivision 2, and the commissioner or local social services 
  4.5   agency knows that the individual is a person responsible for a 
  4.6   child's care in another facility, the commissioner or local 
  4.7   social services agency shall notify the head of that facility of 
  4.8   this determination.  The notification must include an 
  4.9   explanation of the individual's available appeal rights and the 
  4.10  status of any appeal.  If a notice is given under this 
  4.11  paragraph, the government entity making the notification shall 
  4.12  provide a copy of the notice to the individual who is the 
  4.13  subject of the notice. 
  4.14     Sec. 2.  Minnesota Statutes 2000, section 144.057, 
  4.15  subdivision 3, is amended to read: 
  4.16     Subd. 3.  [RECONSIDERATIONS.] Except for the provisions 
  4.17  under section 245A.04, subdivisions 3b, paragraphs (e) and (f); 
  4.18  and 3c, the commissioner of health shall review and decide 
  4.19  reconsideration requests, including the granting of variances, 
  4.20  in accordance with the procedures and criteria contained in 
  4.21  chapter 245A and Minnesota Rules, parts 9543.3000 to 9543.3090.  
  4.22  The commissioner's decision shall be provided to the individual 
  4.23  and to the department of human services.  The commissioner's 
  4.24  decision to grant or deny a reconsideration of disqualification 
  4.25  is the final administrative agency action. 
  4.26     Sec. 3.  Minnesota Statutes 2000, section 214.104, is 
  4.27  amended to read: 
  4.28     214.104 [HEALTH-RELATED LICENSING BOARDS; DETERMINATIONS 
  4.29  REGARDING DISQUALIFICATIONS FOR MALTREATMENT.] 
  4.30     (a) A health-related licensing board shall make 
  4.31  determinations as to whether licensees regulated persons who are 
  4.32  under the board's jurisdiction should be disqualified under 
  4.33  section 245A.04, subdivision 3d, from positions allowing direct 
  4.34  contact with persons receiving services the subject of 
  4.35  disciplinary or corrective action because of substantiated 
  4.36  maltreatment under section 626.556 or 626.557.  A determination 
  5.1   under this section may be done as part of an investigation under 
  5.2   section 214.103.  The board shall make a determination within 90 
  5.3   days of upon receipt, and after the review, of an investigation 
  5.4   memorandum or other notice of substantiated maltreatment under 
  5.5   section 626.556 or 626.557, or of a notice from the commissioner 
  5.6   of human services that a background study of a licensee 
  5.7   regulated person shows substantiated maltreatment.  The board 
  5.8   shall also make a determination under this section upon 
  5.9   consideration of the licensure of an individual who was subject 
  5.10  to disqualification before licensure because of substantiated 
  5.11  maltreatment. 
  5.12     (b) In making a determination under this section, the board 
  5.13  shall consider the nature and extent of any injury or harm 
  5.14  resulting from the conduct that would constitute grounds for 
  5.15  disqualification, the seriousness of the misconduct, the extent 
  5.16  that disqualification is necessary to protect persons receiving 
  5.17  services or the public, and other factors specified in section 
  5.18  245A.04, subdivision 3b, paragraph (b). 
  5.19     (c) The board shall determine the duration and extent of 
  5.20  the disqualification or may establish conditions under which the 
  5.21  licensee may hold a position allowing direct contact with 
  5.22  persons receiving services or in a licensed facility.  
  5.23     (b) Upon completion of its review of a report of 
  5.24  substantiated maltreatment, the board shall notify the 
  5.25  commissioner of human services and the lead agency that 
  5.26  conducted an investigation under section 626.556 or 626.557, as 
  5.27  applicable, of its determination.  The board shall notify the 
  5.28  commissioner of human services if, following a review of the 
  5.29  report of substantiated maltreatment, the board determines that 
  5.30  it does not have jurisdiction in the matter and the commissioner 
  5.31  shall make the appropriate disqualification decision regarding 
  5.32  the regulated person as otherwise provided in chapter 245A.  The 
  5.33  board shall also notify the commissioner of health or the 
  5.34  commissioner of human services immediately upon receipt of 
  5.35  knowledge of a facility or program allowing a regulated person 
  5.36  to provide direct contact services at the facility or program 
  6.1   while not complying with requirements placed on the regulated 
  6.2   person. 
  6.3      (c) In addition to any other remedy provided by law, the 
  6.4   board may, through its designated board member, temporarily 
  6.5   suspend the license of a licensee; deny a credential to an 
  6.6   applicant; or require the regulated person to be continuously 
  6.7   supervised, if the board finds there is probable cause to 
  6.8   believe the regulated person referred to the board according to 
  6.9   paragraph (a) poses an immediate risk of harm to vulnerable 
  6.10  persons.  The board shall consider all relevant information 
  6.11  available, which may include but is not limited to: 
  6.12     (1) the extent the action is needed to protect persons 
  6.13  receiving services or the public; 
  6.14     (2) the recency of the maltreatment; 
  6.15     (3) the number of incidents of maltreatment; 
  6.16     (4) the intrusiveness or violence of the maltreatment; and 
  6.17     (5) the vulnerability of the victim of maltreatment.  
  6.18  The action shall take effect upon written notice to the 
  6.19  regulated person, served by certified mail, specifying the 
  6.20  statute violated.  The board shall notify the commissioner of 
  6.21  health or the commissioner of human services of the suspension 
  6.22  or denial of a credential.  The action shall remain in effect 
  6.23  until the board issues a temporary stay or a final order in the 
  6.24  matter after a hearing or upon agreement between the board and 
  6.25  the regulated person.  At the time the board issues the notice, 
  6.26  the regulated person shall inform the board of all settings in 
  6.27  which the regulated person is employed or practices.  The board 
  6.28  shall inform all known employment and practice settings of the 
  6.29  board action and schedule a disciplinary hearing to be held 
  6.30  under chapter 14.  The board shall provide the regulated person 
  6.31  with at least 30 days' notice of the hearing, unless the parties 
  6.32  agree to a hearing date that provides less than 30 days' notice, 
  6.33  and shall schedule the hearing to begin no later than 90 days 
  6.34  after issuance of the notice of hearing. 
  6.35     Sec. 4.  Minnesota Statutes 2000, section 245A.03, 
  6.36  subdivision 2b, is amended to read: 
  7.1      Subd. 2b.  [EXCEPTION.] The provision in subdivision 2, 
  7.2   clause (2), does not apply to: 
  7.3      (1) a child care provider who as an applicant for licensure 
  7.4   or as a license holder has received a license denial under 
  7.5   section 245A.05, a fine conditional license under section 
  7.6   245A.06, or a sanction under section 245A.07 from the 
  7.7   commissioner that has not been reversed on appeal; or 
  7.8      (2) a child care provider, or a child care provider who has 
  7.9   a household member who, as a result of a licensing process, has 
  7.10  a disqualification under this chapter that has not been set 
  7.11  aside by the commissioner. 
  7.12     Sec. 5.  Minnesota Statutes 2000, section 245A.04, 
  7.13  subdivision 3a, is amended to read: 
  7.14     Subd. 3a.  [NOTIFICATION TO SUBJECT AND LICENSE HOLDER OF 
  7.15  STUDY RESULTS; DETERMINATION OF RISK OF HARM.] (a) The 
  7.16  commissioner shall notify the applicant or license holder and 
  7.17  the individual who is the subject of the study, in writing or by 
  7.18  electronic transmission, of the results of the study.  When the 
  7.19  study is completed, a notice that the study was undertaken and 
  7.20  completed shall be maintained in the personnel files of the 
  7.21  program.  For studies on individuals pertaining to a license to 
  7.22  provide family day care or group family day care, foster care 
  7.23  for children in the provider's own home, or foster care or day 
  7.24  care services for adults in the provider's own home, the 
  7.25  commissioner is not required to provide a separate notice of the 
  7.26  background study results to the individual who is the subject of 
  7.27  the study unless the study results in a disqualification of the 
  7.28  individual. 
  7.29     The commissioner shall notify the individual studied if the 
  7.30  information in the study indicates the individual is 
  7.31  disqualified from direct contact with persons served by the 
  7.32  program.  The commissioner shall disclose the information 
  7.33  causing disqualification and instructions on how to request a 
  7.34  reconsideration of the disqualification to the individual 
  7.35  studied.  An applicant or license holder who is not the subject 
  7.36  of the study shall be informed that the commissioner has found 
  8.1   information that disqualifies the subject from direct contact 
  8.2   with persons served by the program.  However, only the 
  8.3   individual studied must be informed of the information contained 
  8.4   in the subject's background study unless the only basis for the 
  8.5   disqualification is failure to cooperate, substantiated 
  8.6   maltreatment under section 626.556 or 626.557, the Data 
  8.7   Practices Act provides for release of the information, or the 
  8.8   individual studied authorizes the release of the 
  8.9   information.  When a disqualification is based on the subject's 
  8.10  failure to cooperate with the background study or substantiated 
  8.11  maltreatment under section 626.556 or 626.557, the agency that 
  8.12  initiated the study shall be informed by the commissioner of the 
  8.13  reason for the disqualification. 
  8.14     (b) Except as provided in subdivision 3d, paragraph (b), if 
  8.15  the commissioner determines that the individual studied has a 
  8.16  disqualifying characteristic, the commissioner shall review the 
  8.17  information immediately available and make a determination as to 
  8.18  the subject's immediate risk of harm to persons served by the 
  8.19  program where the individual studied will have direct contact.  
  8.20  The commissioner shall consider all relevant information 
  8.21  available, including the following factors in determining the 
  8.22  immediate risk of harm:  the recency of the disqualifying 
  8.23  characteristic; the recency of discharge from probation for the 
  8.24  crimes; the number of disqualifying characteristics; the 
  8.25  intrusiveness or violence of the disqualifying characteristic; 
  8.26  the vulnerability of the victim involved in the disqualifying 
  8.27  characteristic; and the similarity of the victim to the persons 
  8.28  served by the program where the individual studied will have 
  8.29  direct contact.  The commissioner may determine that the 
  8.30  evaluation of the information immediately available gives the 
  8.31  commissioner reason to believe one of the following: 
  8.32     (1) The individual poses an imminent risk of harm to 
  8.33  persons served by the program where the individual studied will 
  8.34  have direct contact.  If the commissioner determines that an 
  8.35  individual studied poses an imminent risk of harm to persons 
  8.36  served by the program where the individual studied will have 
  9.1   direct contact, the individual and the license holder must be 
  9.2   sent a notice of disqualification.  The commissioner shall order 
  9.3   the license holder to immediately remove the individual studied 
  9.4   from direct contact.  The notice to the individual studied must 
  9.5   include an explanation of the basis of this determination. 
  9.6      (2) The individual poses a risk of harm requiring 
  9.7   continuous supervision while providing direct contact services 
  9.8   during the period in which the subject may request a 
  9.9   reconsideration.  If the commissioner determines that an 
  9.10  individual studied poses a risk of harm that requires continuous 
  9.11  supervision, the individual and the license holder must be sent 
  9.12  a notice of disqualification.  The commissioner shall order the 
  9.13  license holder to immediately remove the individual studied from 
  9.14  direct contact services or assure that the individual studied is 
  9.15  within sight or hearing of another staff person when providing 
  9.16  direct contact services during the period in which the 
  9.17  individual may request a reconsideration of the 
  9.18  disqualification.  If the individual studied does not submit a 
  9.19  timely request for reconsideration, or the individual submits a 
  9.20  timely request for reconsideration, but the disqualification is 
  9.21  not set aside for that license holder, the license holder will 
  9.22  be notified of the disqualification and ordered to immediately 
  9.23  remove the individual from any position allowing direct contact 
  9.24  with persons receiving services from the license holder. 
  9.25     (3) The individual does not pose an imminent risk of harm 
  9.26  or a risk of harm requiring continuous supervision while 
  9.27  providing direct contact services during the period in which the 
  9.28  subject may request a reconsideration.  If the commissioner 
  9.29  determines that an individual studied does not pose a risk of 
  9.30  harm that requires continuous supervision, only the individual 
  9.31  must be sent a notice of disqualification.  The license holder 
  9.32  must be sent a notice that more time is needed to complete the 
  9.33  individual's background study.  If the individual studied 
  9.34  submits a timely request for reconsideration, and if the 
  9.35  disqualification is set aside for that license holder, the 
  9.36  license holder will receive the same notification received by 
 10.1   license holders in cases where the individual studied has no 
 10.2   disqualifying characteristic.  If the individual studied does 
 10.3   not submit a timely request for reconsideration, or the 
 10.4   individual submits a timely request for reconsideration, but the 
 10.5   disqualification is not set aside for that license holder, the 
 10.6   license holder will be notified of the disqualification and 
 10.7   ordered to immediately remove the individual from any position 
 10.8   allowing direct contact with persons receiving services from the 
 10.9   license holder.  
 10.10     (c) County licensing agencies performing duties under this 
 10.11  subdivision may develop an alternative system for determining 
 10.12  the subject's immediate risk of harm to persons served by the 
 10.13  program, providing the notices under paragraph (b), and 
 10.14  documenting the action taken by the county licensing agency.  
 10.15  Each county licensing agency's implementation of the alternative 
 10.16  system is subject to approval by the commissioner.  
 10.17  Notwithstanding this alternative system, county licensing 
 10.18  agencies shall complete the requirements of paragraph (a). 
 10.19     Sec. 6.  Minnesota Statutes 2000, section 245A.04, 
 10.20  subdivision 3b, is amended to read: 
 10.21     Subd. 3b.  [RECONSIDERATION OF DISQUALIFICATION.] (a) The 
 10.22  individual who is the subject of the disqualification may 
 10.23  request a reconsideration of the disqualification.  
 10.24     The individual must submit the request for reconsideration 
 10.25  to the commissioner in writing.  A request for reconsideration 
 10.26  for an individual who has been sent a notice of disqualification 
 10.27  under subdivision 3a, paragraph (b), clause (1) or (2), must be 
 10.28  submitted within 30 15 calendar days of the disqualified 
 10.29  individual's receipt of the notice of disqualification.  A 
 10.30  request for reconsideration for an individual who has been sent 
 10.31  a notice of disqualification under subdivision 3a, paragraph 
 10.32  (b), clause (3), must be submitted within 15 calendar days of 
 10.33  the disqualified individual's receipt of the notice of 
 10.34  disqualification.  Removal of a disqualified individual from 
 10.35  direct contact shall be ordered if the individual does not 
 10.36  request reconsideration within the prescribed time, and for an 
 11.1   individual who submits a timely request for reconsideration, if 
 11.2   the disqualification is not set aside.  The individual must 
 11.3   present information showing that: 
 11.4      (1) the information the commissioner relied upon is 
 11.5   incorrect or inaccurate.  If the basis of a reconsideration 
 11.6   request is that a maltreatment determination or disposition 
 11.7   under section 626.556 or 626.557 is incorrect, and the 
 11.8   commissioner has issued a final order in an appeal of that 
 11.9   determination or disposition under section 256.045 or 245A.08, 
 11.10  subdivision 5, the commissioner's order is conclusive on the 
 11.11  issue of maltreatment.  If the individual did not request 
 11.12  reconsideration of the maltreatment determination, the 
 11.13  maltreatment determination is deemed conclusive; or 
 11.14     (2) the subject of the study does not pose a risk of harm 
 11.15  to any person served by the applicant or license holder. 
 11.16     (b) The commissioner shall rescind the disqualification if 
 11.17  the commissioner finds that the information relied on to 
 11.18  disqualify the subject is incorrect.  The commissioner may set 
 11.19  aside the disqualification under this section if the 
 11.20  commissioner finds that the information the commissioner relied 
 11.21  upon is incorrect or the individual does not pose a risk of harm 
 11.22  to any person served by the applicant or license holder.  In 
 11.23  determining that an individual does not pose a risk of harm, the 
 11.24  commissioner shall consider the consequences of the event or 
 11.25  events that lead to disqualification, whether there is more than 
 11.26  one disqualifying event, the vulnerability of the victim at the 
 11.27  time of the event, the time elapsed without a repeat of the same 
 11.28  or similar event, documentation of successful completion by the 
 11.29  individual studied of training or rehabilitation pertinent to 
 11.30  the event, and any other information relevant to 
 11.31  reconsideration.  In reviewing a disqualification under this 
 11.32  section, the commissioner shall give preeminent weight to the 
 11.33  safety of each person to be served by the license holder or 
 11.34  applicant over the interests of the license holder or applicant. 
 11.35     (c) Unless the information the commissioner relied on in 
 11.36  disqualifying an individual is incorrect, the commissioner may 
 12.1   not set aside the disqualification of an individual in 
 12.2   connection with a license to provide family day care for 
 12.3   children, foster care for children in the provider's own home, 
 12.4   or foster care or day care services for adults in the provider's 
 12.5   own home if: 
 12.6      (1) less than ten years have passed since the discharge of 
 12.7   the sentence imposed for the offense; and the individual has 
 12.8   been convicted of a violation of any offense listed in sections 
 12.9   609.20 (manslaughter in the first degree), 609.205 (manslaughter 
 12.10  in the second degree), criminal vehicular homicide under 609.21 
 12.11  (criminal vehicular homicide and injury), 609.215 (aiding 
 12.12  suicide or aiding attempted suicide), felony violations under 
 12.13  609.221 to 609.2231 (assault in the first, second, third, or 
 12.14  fourth degree), 609.713 (terroristic threats), 609.235 (use of 
 12.15  drugs to injure or to facilitate crime), 609.24 (simple 
 12.16  robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 
 12.17  609.255 (false imprisonment), 609.561 or 609.562 (arson in the 
 12.18  first or second degree), 609.71 (riot), burglary in the first or 
 12.19  second degree under 609.582 (burglary), 609.66 (dangerous 
 12.20  weapon), 609.665 (spring guns), 609.67 (machine guns and 
 12.21  short-barreled shotguns), 609.749 (harassment; stalking), 
 12.22  152.021 or 152.022 (controlled substance crime in the first or 
 12.23  second degree), 152.023, subdivision 1, clause (3) or (4), or 
 12.24  subdivision 2, clause (4) (controlled substance crime in the 
 12.25  third degree), 152.024, subdivision 1, clause (2), (3), or (4) 
 12.26  (controlled substance crime in the fourth degree), 609.224, 
 12.27  subdivision 2, paragraph (c) (fifth-degree assault by a 
 12.28  caregiver against a vulnerable adult), 609.228 (great bodily 
 12.29  harm caused by distribution of drugs), 609.23 (mistreatment of 
 12.30  persons confined), 609.231 (mistreatment of residents or 
 12.31  patients), 609.2325 (criminal abuse of a vulnerable adult), 
 12.32  609.233 (criminal neglect of a vulnerable adult), 609.2335 
 12.33  (financial exploitation of a vulnerable adult), 609.234 (failure 
 12.34  to report), 609.265 (abduction), 609.2664 to 609.2665 
 12.35  (manslaughter of an unborn child in the first or second degree), 
 12.36  609.267 to 609.2672 (assault of an unborn child in the first, 
 13.1   second, or third degree), 609.268 (injury or death of an unborn 
 13.2   child in the commission of a crime), 617.293 (disseminating or 
 13.3   displaying harmful material to minors), a gross misdemeanor 
 13.4   offense under 609.324, subdivision 1 (other prohibited acts), a 
 13.5   gross misdemeanor offense under 609.378 (neglect or endangerment 
 13.6   of a child), a gross misdemeanor offense under 609.377 
 13.7   (malicious punishment of a child), 609.72, subdivision 3 
 13.8   (disorderly conduct against a vulnerable adult); or an attempt 
 13.9   or conspiracy to commit any of these offenses, as each of these 
 13.10  offenses is defined in Minnesota Statutes; or an offense in any 
 13.11  other state, the elements of which are substantially similar to 
 13.12  the elements of any of the foregoing offenses; 
 13.13     (2) regardless of how much time has passed since the 
 13.14  discharge of the sentence imposed for the offense, the 
 13.15  individual was convicted of a violation of any offense listed in 
 13.16  sections 609.185 to 609.195 (murder in the first, second, or 
 13.17  third degree), 609.2661 to 609.2663 (murder of an unborn child 
 13.18  in the first, second, or third degree), a felony offense under 
 13.19  609.377 (malicious punishment of a child), a felony offense 
 13.20  under 609.324, subdivision 1 (other prohibited acts), a felony 
 13.21  offense under 609.378 (neglect or endangerment of a child), 
 13.22  609.322 (solicitation, inducement, and promotion of 
 13.23  prostitution), 609.342 to 609.345 (criminal sexual conduct in 
 13.24  the first, second, third, or fourth degree), 609.352 
 13.25  (solicitation of children to engage in sexual conduct), 617.246 
 13.26  (use of minors in a sexual performance), 617.247 (possession of 
 13.27  pictorial representations of a minor), 609.365 (incest), a 
 13.28  felony offense under sections 609.2242 and 609.2243 (domestic 
 13.29  assault), a felony offense of spousal abuse, a felony offense of 
 13.30  child abuse or neglect, a felony offense of a crime against 
 13.31  children, or an attempt or conspiracy to commit any of these 
 13.32  offenses as defined in Minnesota Statutes, or an offense in any 
 13.33  other state, the elements of which are substantially similar to 
 13.34  any of the foregoing offenses; 
 13.35     (3) within the seven years preceding the study, the 
 13.36  individual committed an act that constitutes maltreatment of a 
 14.1   child under section 626.556, subdivision 10e, and that resulted 
 14.2   in substantial bodily harm as defined in section 609.02, 
 14.3   subdivision 7a, or substantial mental or emotional harm as 
 14.4   supported by competent psychological or psychiatric evidence; or 
 14.5      (4) within the seven years preceding the study, the 
 14.6   individual was determined under section 626.557 to be the 
 14.7   perpetrator of a substantiated incident of maltreatment of a 
 14.8   vulnerable adult that resulted in substantial bodily harm as 
 14.9   defined in section 609.02, subdivision 7a, or substantial mental 
 14.10  or emotional harm as supported by competent psychological or 
 14.11  psychiatric evidence. 
 14.12     In the case of any ground for disqualification under 
 14.13  clauses (1) to (4), if the act was committed by an individual 
 14.14  other than the applicant or license holder residing in the 
 14.15  applicant's or license holder's home, the applicant or license 
 14.16  holder may seek reconsideration when the individual who 
 14.17  committed the act no longer resides in the home.  
 14.18     The disqualification periods provided under clauses (1), 
 14.19  (3), and (4) are the minimum applicable disqualification 
 14.20  periods.  The commissioner may determine that an individual 
 14.21  should continue to be disqualified from licensure because the 
 14.22  license holder or applicant poses a risk of harm to a person 
 14.23  served by that individual after the minimum disqualification 
 14.24  period has passed. 
 14.25     (d) The commissioner shall respond in writing or by 
 14.26  electronic transmission to all reconsideration requests for 
 14.27  which the basis for the request is that the information relied 
 14.28  upon by the commissioner to disqualify is incorrect or 
 14.29  inaccurate within 30 working days of receipt of a request and 
 14.30  all relevant information.  If the basis for the request is that 
 14.31  the individual does not pose a risk of harm, the commissioner 
 14.32  shall respond to the request within 15 working days after 
 14.33  receiving the request for reconsideration and all relevant 
 14.34  information.  If the request is based on both the correctness or 
 14.35  accuracy of the information relied on to disqualify the 
 14.36  individual and the risk of harm, the commissioner shall respond 
 15.1   to the request within 45 working days after receiving the 
 15.2   request for reconsideration and all relevant information.  If 
 15.3   the disqualification is set aside, the commissioner shall notify 
 15.4   the applicant or license holder in writing or by electronic 
 15.5   transmission of the decision. 
 15.6      (e) Except as provided in subdivision 3c, the 
 15.7   commissioner's decision to disqualify an individual, including 
 15.8   the decision to grant or deny a rescission or set aside a 
 15.9   disqualification under this section, is the final administrative 
 15.10  agency action and shall not be subject to further review in a 
 15.11  contested case under chapter 14 involving a negative licensing 
 15.12  appeal taken in response to the disqualification or involving an 
 15.13  accuracy and completeness appeal under section 13.04 if a 
 15.14  disqualification is not set aside, an individual who was 
 15.15  disqualified on the basis of a preponderance of evidence that 
 15.16  the individual committed an act or acts that meet the definition 
 15.17  of any of the crimes lists in subdivision 3d, clauses (1) to 
 15.18  (4); or for failure to make required reports under section 
 15.19  626.556, subdivision 3, or 626.557, subdivision 3, pursuant to 
 15.20  subdivision 3d, clause (4), may request a fair hearing under 
 15.21  section 256.045. 
 15.22     (f) Except as provided under subdivision 3c, if an 
 15.23  individual was disqualified on the basis of a determination of 
 15.24  maltreatment under section 626.556 or 626.557, which was serious 
 15.25  or recurring, and the individual has requested reconsideration 
 15.26  of the maltreatment determination under section 626.556, 
 15.27  subdivision 10i, or 626.557, subdivision 9d, and also requested 
 15.28  reconsideration of the disqualification under this subdivision, 
 15.29  reconsideration of the maltreatment determination and 
 15.30  reconsideration of the disqualification shall be consolidated 
 15.31  into a single reconsideration.  For maltreatment and 
 15.32  disqualification determinations made by county agencies, the 
 15.33  consolidated reconsideration shall be conducted by the county 
 15.34  agency.  Except as provided under subdivision 3c, if an 
 15.35  individual who was disqualified on the basis of serious 
 15.36  recurring maltreatment requests a fair hearing on the 
 16.1   maltreatment determination under section 626.556, subdivision 
 16.2   10i, or 626.557, subdivision 9d, the scope of the fair hearing 
 16.3   under section 256.045 shall include the maltreatment 
 16.4   determination and the disqualification.  Except as provided 
 16.5   under subdivision 3c, the hearing for an individual under this 
 16.6   paragraph is conclusive on the issue of maltreatment and 
 16.7   disqualification, including for purposes of subsequent studies 
 16.8   conducted under section 245A.04, subdivision 3, and is the only 
 16.9   administrative appeal of the final agency determination, 
 16.10  specifically, including a challenge to the accuracy and 
 16.11  completeness of data under section 13.04. 
 16.12     Sec. 7.  Minnesota Statutes 2000, section 245A.04, 
 16.13  subdivision 3c, is amended to read: 
 16.14     Subd. 3c.  [CONTESTED CASE.] (a) Notwithstanding 
 16.15  subdivision 3b, paragraphs (e) and (f), if a disqualification is 
 16.16  not set aside, a person who is an employee of an employer, as 
 16.17  defined in section 179A.03, subdivision 15, may request a 
 16.18  contested case hearing under chapter 14.  If the 
 16.19  disqualification which was not set aside was based on a 
 16.20  maltreatment determination, the scope of the contested case 
 16.21  hearing includes the maltreatment determination and the 
 16.22  disqualification.  In these cases, a fair hearing as defined in 
 16.23  section 256.045 must not be conducted.  Rules adopted under this 
 16.24  chapter may not preclude an employee in a contested case hearing 
 16.25  for disqualification from submitting evidence concerning 
 16.26  information gathered under subdivision 3, paragraph (e).  If a 
 16.27  disqualification for which reconsideration was requested and 
 16.28  which was not set aside under subdivision 3b, is the basis for a 
 16.29  denial of a license under section 245A.05 or a licensing 
 16.30  sanction under section 245A.07, the license holder has the right 
 16.31  to a contested case hearing under chapter 14 and Minnesota 
 16.32  Rules, parts 1400.8550 to 1400.8612.  The appeal must be 
 16.33  submitted in accordance with section 245A.05 or 245A.07, 
 16.34  subdivision 3.  As provided for under section 245A.08, 
 16.35  subdivision 2a, the scope of the consolidated contested case 
 16.36  hearing shall include the disqualification and the licensing 
 17.1   sanction.  If the disqualification was based on a determination 
 17.2   of substantiated serious or recurring maltreatment under section 
 17.3   626.556 or 626.557, the appeal must be submitted in accordance 
 17.4   with sections 245A.07, subdivision 3, and 626.556, subdivision 
 17.5   10i, or 626.557, subdivision 9d.  As provided for under section 
 17.6   245A.08, subdivision 2a, the scope of the contested case hearing 
 17.7   shall include the maltreatment determination, the 
 17.8   disqualification, and the licensing sanction.  In such cases, a 
 17.9   fair hearing shall not be conducted under section 256.045. 
 17.10     (b) If a maltreatment determination or disqualification, 
 17.11  which was not set aside under subdivision 3b, is the basis for 
 17.12  licensing sanction under section 245A.07, and the disqualified 
 17.13  subject is an individual other than the license holder and upon 
 17.14  whom a background study must be conducted under subdivision 3, 
 17.15  the hearing of all parties may be consolidated into a single 
 17.16  contested case hearing upon consent of all parties and the 
 17.17  administrative law judge.  
 17.18     (c) The commissioner's final order under section 245A.08, 
 17.19  subdivision 5, is conclusive on the issue of maltreatment and 
 17.20  disqualification, including for purposes of subsequent 
 17.21  background studies.  The contested case hearing under this 
 17.22  subdivision is the only administrative appeal of the final 
 17.23  agency determination, specifically, including a challenge to the 
 17.24  accuracy and completeness of data under section 13.04. 
 17.25     Sec. 8.  Minnesota Statutes 2000, section 245A.04, 
 17.26  subdivision 3d, is amended to read: 
 17.27     Subd. 3d.  [DISQUALIFICATION.] (a) Except as provided in 
 17.28  paragraph (b), when a background study completed under 
 17.29  subdivision 3 shows any of the following:  a conviction of one 
 17.30  or more crimes listed in clauses (1) to (4); the individual has 
 17.31  admitted to or a preponderance of the evidence indicates the 
 17.32  individual has committed an act or acts that meet the definition 
 17.33  of any of the crimes listed in clauses (1) to (4); or an 
 17.34  investigation results in an administrative determination listed 
 17.35  under clause (4), the individual shall be disqualified from any 
 17.36  position allowing direct contact with persons receiving services 
 18.1   from the license holder: 
 18.2      (1) regardless of how much time has passed since the 
 18.3   discharge of the sentence imposed for the offense, and unless 
 18.4   otherwise specified, regardless of the level of the conviction, 
 18.5   the individual was convicted of any of the following offenses:  
 18.6   sections 609.185 (murder in the first degree); 609.19 (murder in 
 18.7   the second degree); 609.195 (murder in the third degree); 
 18.8   609.2661 (murder of an unborn child in the first degree); 
 18.9   609.2662 (murder of an unborn child in the second degree); 
 18.10  609.2663 (murder of an unborn child in the third degree); 
 18.11  609.322 (solicitation, inducement, and promotion of 
 18.12  prostitution); 609.342 (criminal sexual conduct in the first 
 18.13  degree); 609.343 (criminal sexual conduct in the second degree); 
 18.14  609.344 (criminal sexual conduct in the third degree); 609.345 
 18.15  (criminal sexual conduct in the fourth degree); 609.352 
 18.16  (solicitation of children to engage in sexual conduct); 609.365 
 18.17  (incest); felony offense under 609.377 (malicious punishment of 
 18.18  a child); a felony offense under 609.378 (neglect or 
 18.19  endangerment of a child); a felony offense under 609.324, 
 18.20  subdivision 1 (other prohibited acts); 617.246 (use of minors in 
 18.21  sexual performance prohibited); 617.247 (possession of pictorial 
 18.22  representations of minors); a felony offense under sections 
 18.23  609.2242 and 609.2243 (domestic assault), a felony offense of 
 18.24  spousal abuse, a felony offense of child abuse or neglect, a 
 18.25  felony offense of a crime against children; or attempt or 
 18.26  conspiracy to commit any of these offenses as defined in 
 18.27  Minnesota Statutes, or an offense in any other state or country, 
 18.28  where the elements are substantially similar to any of the 
 18.29  offenses listed in this clause; 
 18.30     (2) if less than 15 years have passed since the discharge 
 18.31  of the sentence imposed for the offense; and the individual has 
 18.32  received a felony conviction for a violation of any of these 
 18.33  offenses:  sections 609.20 (manslaughter in the first degree); 
 18.34  609.205 (manslaughter in the second degree); 609.21 (criminal 
 18.35  vehicular homicide and injury); 609.215 (suicide); 609.221 to 
 18.36  609.2231 (assault in the first, second, third, or fourth 
 19.1   degree); repeat offenses under 609.224 (assault in the fifth 
 19.2   degree); repeat offenses under 609.3451 (criminal sexual conduct 
 19.3   in the fifth degree); 609.713 (terroristic threats); 609.235 
 19.4   (use of drugs to injure or facilitate crime); 609.24 (simple 
 19.5   robbery); 609.245 (aggravated robbery); 609.25 (kidnapping); 
 19.6   609.255 (false imprisonment); 609.561 (arson in the first 
 19.7   degree); 609.562 (arson in the second degree); 609.563 (arson in 
 19.8   the third degree); repeat offenses under 617.23 (indecent 
 19.9   exposure; penalties); repeat offenses under 617.241 (obscene 
 19.10  materials and performances; distribution and exhibition 
 19.11  prohibited; penalty); 609.71 (riot); 609.66 (dangerous weapons); 
 19.12  609.67 (machine guns and short-barreled shotguns); 609.749 
 19.13  (harassment; stalking; penalties); 609.228 (great bodily harm 
 19.14  caused by distribution of drugs); 609.2325 (criminal abuse of a 
 19.15  vulnerable adult); 609.2664 (manslaughter of an unborn child in 
 19.16  the first degree); 609.2665 (manslaughter of an unborn child in 
 19.17  the second degree); 609.267 (assault of an unborn child in the 
 19.18  first degree); 609.2671 (assault of an unborn child in the 
 19.19  second degree); 609.268 (injury or death of an unborn child in 
 19.20  the commission of a crime); 609.52 (theft); 609.2335 (financial 
 19.21  exploitation of a vulnerable adult); 609.521 (possession of 
 19.22  shoplifting gear); 609.582 (burglary); 609.625 (aggravated 
 19.23  forgery); 609.63 (forgery); 609.631 (check forgery; offering a 
 19.24  forged check); 609.635 (obtaining signature by false pretense); 
 19.25  609.27 (coercion); 609.275 (attempt to coerce); 609.687 
 19.26  (adulteration); 260C.301 (grounds for termination of parental 
 19.27  rights); and chapter 152 (drugs; controlled substance).  An 
 19.28  attempt or conspiracy to commit any of these offenses, as each 
 19.29  of these offenses is defined in Minnesota Statutes; or an 
 19.30  offense in any other state or country, the elements of which are 
 19.31  substantially similar to the elements of the offenses in this 
 19.32  clause.  If the individual studied is convicted of one of the 
 19.33  felonies listed in this clause, but the sentence is a gross 
 19.34  misdemeanor or misdemeanor disposition, the lookback period for 
 19.35  the conviction is the period applicable to the disposition, that 
 19.36  is the period for gross misdemeanors or misdemeanors; 
 20.1      (3) if less than ten years have passed since the discharge 
 20.2   of the sentence imposed for the offense; and the individual has 
 20.3   received a gross misdemeanor conviction for a violation of any 
 20.4   of the following offenses:  sections 609.224 (assault in the 
 20.5   fifth degree); 609.2242 and 609.2243 (domestic assault); 
 20.6   violation of an order for protection under 518B.01, subdivision 
 20.7   14; 609.3451 (criminal sexual conduct in the fifth degree); 
 20.8   repeat offenses under 609.746 (interference with privacy); 
 20.9   repeat offenses under 617.23 (indecent exposure); 617.241 
 20.10  (obscene materials and performances); 617.243 (indecent 
 20.11  literature, distribution); 617.293 (harmful materials; 
 20.12  dissemination and display to minors prohibited); 609.71 (riot); 
 20.13  609.66 (dangerous weapons); 609.749 (harassment; stalking; 
 20.14  penalties); 609.224, subdivision 2, paragraph (c) (assault in 
 20.15  the fifth degree by a caregiver against a vulnerable adult); 
 20.16  609.23 (mistreatment of persons confined); 609.231 (mistreatment 
 20.17  of residents or patients); 609.2325 (criminal abuse of a 
 20.18  vulnerable adult); 609.233 (criminal neglect of a vulnerable 
 20.19  adult); 609.2335 (financial exploitation of a vulnerable adult); 
 20.20  609.234 (failure to report maltreatment of a vulnerable adult); 
 20.21  609.72, subdivision 3 (disorderly conduct against a vulnerable 
 20.22  adult); 609.265 (abduction); 609.378 (neglect or endangerment of 
 20.23  a child); 609.377 (malicious punishment of a child); 609.324, 
 20.24  subdivision 1a (other prohibited acts; minor engaged in 
 20.25  prostitution); 609.33 (disorderly house); 609.52 (theft); 
 20.26  609.582 (burglary); 609.631 (check forgery; offering a forged 
 20.27  check); 609.275 (attempt to coerce); or an attempt or conspiracy 
 20.28  to commit any of these offenses, as each of these offenses is 
 20.29  defined in Minnesota Statutes; or an offense in any other state 
 20.30  or country, the elements of which are substantially similar to 
 20.31  the elements of any of the offenses listed in this clause.  If 
 20.32  the defendant is convicted of one of the gross misdemeanors 
 20.33  listed in this clause, but the sentence is a misdemeanor 
 20.34  disposition, the lookback period for the conviction is the 
 20.35  period applicable to misdemeanors; or 
 20.36     (4) if less than seven years have passed since the 
 21.1   discharge of the sentence imposed for the offense; and the 
 21.2   individual has received a misdemeanor conviction for a violation 
 21.3   of any of the following offenses:  sections 609.224 (assault in 
 21.4   the fifth degree); 609.2242 (domestic assault); violation of an 
 21.5   order for protection under 518B.01 (Domestic Abuse Act); 
 21.6   violation of an order for protection under 609.3232 (protective 
 21.7   order authorized; procedures; penalties); 609.746 (interference 
 21.8   with privacy); 609.79 (obscene or harassing phone calls); 
 21.9   609.795 (letter, telegram, or package; opening; harassment); 
 21.10  617.23 (indecent exposure; penalties); 609.2672 (assault of an 
 21.11  unborn child in the third degree); 617.293 (harmful materials; 
 21.12  dissemination and display to minors prohibited); 609.66 
 21.13  (dangerous weapons); 609.665 (spring guns); 609.2335 (financial 
 21.14  exploitation of a vulnerable adult); 609.234 (failure to report 
 21.15  maltreatment of a vulnerable adult); 609.52 (theft); 609.27 
 21.16  (coercion); or an attempt or conspiracy to commit any of these 
 21.17  offenses, as each of these offenses is defined in Minnesota 
 21.18  Statutes; or an offense in any other state or country, the 
 21.19  elements of which are substantially similar to the elements of 
 21.20  any of the offenses listed in this clause; failure to make 
 21.21  required reports under section 626.556, subdivision 3, or 
 21.22  626.557, subdivision 3, for incidents in which:  (i) the final 
 21.23  disposition under section 626.556 or 626.557 was substantiated 
 21.24  maltreatment, and (ii) the maltreatment was recurring or 
 21.25  serious; or substantiated serious or recurring maltreatment of a 
 21.26  minor under section 626.556 or of a vulnerable adult under 
 21.27  section 626.557 for which there is a preponderance of evidence 
 21.28  that the maltreatment occurred, and that the subject was 
 21.29  responsible for the maltreatment. 
 21.30     For the purposes of this section, "serious maltreatment" 
 21.31  means sexual abuse; maltreatment resulting in death; or 
 21.32  maltreatment resulting in serious injury which reasonably 
 21.33  requires the care of a physician whether or not the care of a 
 21.34  physician was sought; or abuse resulting in serious injury.  For 
 21.35  purposes of this section, "abuse resulting in serious injury" 
 21.36  means:  bruises, bites, skin laceration or tissue damage; 
 22.1   fractures; dislocations; evidence of internal injuries; head 
 22.2   injuries with loss of consciousness; extensive second-degree or 
 22.3   third-degree burns and other burns for which complications are 
 22.4   present; extensive second-degree or third-degree frostbite, and 
 22.5   others for which complications are present; irreversible 
 22.6   mobility or avulsion of teeth; injuries to the eyeball; 
 22.7   ingestion of foreign substances and objects that are harmful; 
 22.8   near drowning; and heat exhaustion or sunstroke.  For purposes 
 22.9   of this section, "care of a physician" is treatment received or 
 22.10  ordered by a physician, but does not include diagnostic testing, 
 22.11  assessment, or observation.  For the purposes of this section, 
 22.12  "recurring maltreatment" means more than one incident of 
 22.13  maltreatment for which there is a preponderance of evidence that 
 22.14  the maltreatment occurred, and that the subject was responsible 
 22.15  for the maltreatment. 
 22.16     (b) If Except for background studies related to child 
 22.17  foster care, adult foster care, or family child care licensure, 
 22.18  when the subject of a background study is licensed regulated by 
 22.19  a health-related licensing board as defined in chapter 214, and 
 22.20  the regulated person has been determined to have been 
 22.21  responsible for substantiated maltreatment under section 626.556 
 22.22  or 626.557, instead of the commissioner making a decision 
 22.23  regarding disqualification, the board shall make the a 
 22.24  determination regarding a disqualification under this 
 22.25  subdivision based on a finding of substantiated maltreatment 
 22.26  under section 626.556 or 626.557.  The commissioner shall notify 
 22.27  the health-related licensing board if a background study shows 
 22.28  that a licensee would be disqualified because of substantiated 
 22.29  maltreatment and the board shall make a determination under 
 22.30  section 214.104. whether to impose disciplinary or corrective 
 22.31  action under chapter 214. 
 22.32     (1) The commissioner shall notify the health-related 
 22.33  licensing board: 
 22.34     (i) upon completion of a background study that produces a 
 22.35  record showing that the individual was determined to have been 
 22.36  responsible for substantiated maltreatment; 
 23.1      (ii) upon the commissioner's completion of an investigation 
 23.2   that determined the individual was responsible for substantiated 
 23.3   maltreatment; or 
 23.4      (iii) upon receipt from another agency of a finding of 
 23.5   substantiated maltreatment for which the individual was 
 23.6   responsible. 
 23.7      (2) The commissioner's notice shall indicate whether the 
 23.8   individual would have been disqualified by the commissioner for 
 23.9   the substantiated maltreatment if the individual were not 
 23.10  regulated by the board.  The commissioner shall concurrently 
 23.11  send this notice to the individual. 
 23.12     (3) Notwithstanding the exclusion from this subdivision for 
 23.13  individuals who provide child foster care, adult foster care, or 
 23.14  family child care, when the commissioner or a local agency has 
 23.15  reason to believe that the direct contact services provided by 
 23.16  the individual may fall within the jurisdiction of a 
 23.17  health-related licensing board, a referral shall be made to the 
 23.18  board as provided in this section. 
 23.19     (4) If, upon review of the information provided by the 
 23.20  commissioner, a health-related licensing board informs the 
 23.21  commissioner that the board does not have jurisdiction to take 
 23.22  disciplinary or corrective action, the commissioner shall make 
 23.23  the appropriate disqualification decision regarding the 
 23.24  individual as otherwise provided in this chapter. 
 23.25     (5) The commissioner has the authority to monitor the 
 23.26  facility's compliance with any requirements that the 
 23.27  health-related licensing board places on regulated persons 
 23.28  practicing in a facility either during the period pending a 
 23.29  final decision on a disciplinary or corrective action or as a 
 23.30  result of a disciplinary or corrective action.  The commissioner 
 23.31  has the authority to order the immediate removal of a regulated 
 23.32  person from direct contact or access when a board issues an 
 23.33  order of temporary suspension based on a determination that the 
 23.34  regulated person poses an immediate risk of harm to persons 
 23.35  receiving services in a licensed facility. 
 23.36     (6) A facility that allows a regulated person to provide 
 24.1   direct contact services while not complying with the 
 24.2   requirements imposed by the health-related licensing board is 
 24.3   subject to action by the commissioner as specified under 
 24.4   sections 245A.06 and 245A.07. 
 24.5      (7) The commissioner shall notify a health-related 
 24.6   licensing board immediately upon receipt of knowledge of 
 24.7   noncompliance with requirements placed on a facility or upon a 
 24.8   person regulated by the board. 
 24.9      Sec. 9.  Minnesota Statutes 2000, section 245A.05, is 
 24.10  amended to read: 
 24.11     245A.05 [DENIAL OF APPLICATION.] 
 24.12     The commissioner may deny a license if an applicant fails 
 24.13  to comply with applicable laws or rules, or knowingly withholds 
 24.14  relevant information from or gives false or misleading 
 24.15  information to the commissioner in connection with an 
 24.16  application for a license or during an investigation.  An 
 24.17  applicant whose application has been denied by the commissioner 
 24.18  must be given notice of the denial.  Notice must be given by 
 24.19  certified mail.  The notice must state the reasons the 
 24.20  application was denied and must inform the applicant of the 
 24.21  right to a contested case hearing under chapter 14 and Minnesota 
 24.22  Rules, parts 1400.8550 to 1400.8612.  The applicant may appeal 
 24.23  the denial by notifying the commissioner in writing by certified 
 24.24  mail within 20 calendar days after receiving notice that the 
 24.25  application was denied.  Section 245A.08 applies to hearings 
 24.26  held to appeal the commissioner's denial of an application. 
 24.27     Sec. 10.  Minnesota Statutes 2000, section 245A.06, is 
 24.28  amended to read: 
 24.29     245A.06 [CORRECTION ORDER AND FINES CONDITIONAL LICENSE.] 
 24.30     Subdivision 1.  [CONTENTS OF CORRECTION ORDERS OR FINES AND 
 24.31  CONDITIONAL LICENSES.] (a) If the commissioner finds that the 
 24.32  applicant or license holder has failed to comply with an 
 24.33  applicable law or rule and this failure does not imminently 
 24.34  endanger the health, safety, or rights of the persons served by 
 24.35  the program, the commissioner may issue a correction order and 
 24.36  an order of conditional license to or impose a fine on the 
 25.1   applicant or license holder.  When issuing a conditional 
 25.2   license, the commissioner shall consider the nature, chronicity, 
 25.3   or severity of the violation of law or rule and the effect of 
 25.4   the violation on the health, safety, or rights of persons served 
 25.5   by the program.  The correction order or fine conditional 
 25.6   license must state: 
 25.7      (1) the conditions that constitute a violation of the law 
 25.8   or rule; 
 25.9      (2) the specific law or rule violated; 
 25.10     (3) the time allowed to correct each violation; and 
 25.11     (4) if a fine is imposed, the amount of the fine license is 
 25.12  made conditional, the length and terms of the conditional 
 25.13  license. 
 25.14     (b) Nothing in this section prohibits the commissioner from 
 25.15  proposing a sanction as specified in section 245A.07, prior to 
 25.16  issuing a correction order or fine conditional license. 
 25.17     Subd. 2.  [RECONSIDERATION OF CORRECTION ORDERS.] If the 
 25.18  applicant or license holder believes that the contents of the 
 25.19  commissioner's correction order are in error, the applicant or 
 25.20  license holder may ask the department of human services to 
 25.21  reconsider the parts of the correction order that are alleged to 
 25.22  be in error.  The request for reconsideration must be in writing 
 25.23  and received by the commissioner within 20 calendar days after 
 25.24  receipt of the correction order by the applicant or license 
 25.25  holder, and: 
 25.26     (1) specify the parts of the correction order that are 
 25.27  alleged to be in error; 
 25.28     (2) explain why they are in error; and 
 25.29     (3) include documentation to support the allegation of 
 25.30  error. 
 25.31     A request for reconsideration does not stay any provisions 
 25.32  or requirements of the correction order.  The commissioner's 
 25.33  disposition of a request for reconsideration is final and not 
 25.34  subject to appeal under chapter 14. 
 25.35     Subd. 3.  [FAILURE TO COMPLY.] If the commissioner finds 
 25.36  that the applicant or license holder has not corrected the 
 26.1   violations specified in the correction order or conditional 
 26.2   license, the commissioner may impose a fine and order other 
 26.3   licensing sanctions pursuant to section 245A.07.  If a fine was 
 26.4   imposed and the violation was not corrected, the commissioner 
 26.5   may impose an additional fine.  This section does not prohibit 
 26.6   the commissioner from seeking a court order, denying an 
 26.7   application, or suspending, revoking, or making conditional the 
 26.8   license in addition to imposing a fine. 
 26.9      Subd. 4.  [NOTICE OF FINE CONDITIONAL LICENSE; 
 26.10  RECONSIDERATION OF FINE CONDITIONAL LICENSE.] A license holder 
 26.11  who is ordered to pay a fine If a license is made conditional, 
 26.12  the license holder must be notified of the order by certified 
 26.13  mail.  The notice must be mailed to the address shown on the 
 26.14  application or the last known address of the license holder.  
 26.15  The notice must state the reasons the fine conditional license 
 26.16  was ordered and must inform the license holder of the 
 26.17  responsibility for payment of fines in subdivision 7 and the 
 26.18  right to request reconsideration of the fine conditional license 
 26.19  by the commissioner.  The license holder may request 
 26.20  reconsideration of the order to forfeit a fine of conditional 
 26.21  license by notifying the commissioner by certified mail within 
 26.22  20 calendar days after receiving the order.  The request must be 
 26.23  in writing and must be received by the commissioner within ten 
 26.24  calendar days after the license holder received the order.  The 
 26.25  license holder may submit with the request for reconsideration 
 26.26  written argument or evidence in support of the request for 
 26.27  reconsideration.  A timely request for reconsideration shall 
 26.28  stay forfeiture of the fine imposition of the terms of the 
 26.29  conditional license until the commissioner issues a decision on 
 26.30  the request for reconsideration.  The request for 
 26.31  reconsideration must be in writing and: 
 26.32     (1) specify the parts of the violation that are alleged to 
 26.33  be in error; 
 26.34     (2) explain why they are in error; 
 26.35     (3) include documentation to support the allegation of 
 26.36  error; and 
 27.1      (4) any other information relevant to the fine or the 
 27.2   amount of the fine. 
 27.3      The commissioner's disposition of a request for 
 27.4   reconsideration is final and not subject to appeal under chapter 
 27.5   14. 
 27.6      Subd. 5.  [FORFEITURE OF FINES.] The license holder shall 
 27.7   pay the fines assessed on or before the payment date specified 
 27.8   in the commissioner's order.  If the license holder fails to 
 27.9   fully comply with the order, the commissioner shall issue a 
 27.10  second fine or suspend the license until the license holder 
 27.11  complies.  If the license holder receives state funds, the 
 27.12  state, county, or municipal agencies or departments responsible 
 27.13  for administering the funds shall withhold payments and recover 
 27.14  any payments made while the license is suspended for failure to 
 27.15  pay a fine.  
 27.16     Subd. 5a.  [ACCRUAL OF FINES.] A license holder shall 
 27.17  promptly notify the commissioner of human services, in writing, 
 27.18  when a violation specified in an order to forfeit is corrected.  
 27.19  If upon reinspection the commissioner determines that a 
 27.20  violation has not been corrected as indicated by the order to 
 27.21  forfeit, the commissioner may issue a second fine.  The 
 27.22  commissioner shall notify the license holder by certified mail 
 27.23  that a second fine has been assessed.  The license holder may 
 27.24  request reconsideration of the second fine under the provisions 
 27.25  of subdivision 4. 
 27.26     Subd. 6.  [AMOUNT OF FINES.] Fines shall be assessed as 
 27.27  follows: 
 27.28     (1) the license holder shall forfeit $1,000 for each 
 27.29  occurrence of violation of law or rule prohibiting the 
 27.30  maltreatment of children or the maltreatment of vulnerable 
 27.31  adults, including but not limited to corporal punishment, 
 27.32  illegal or unauthorized use of physical, mechanical, or chemical 
 27.33  restraints, and illegal or unauthorized use of aversive or 
 27.34  deprivation procedures; 
 27.35     (2) the license holder shall forfeit $200 for each 
 27.36  occurrence of a violation of law or rule governing matters of 
 28.1   health, safety, or supervision, including but not limited to the 
 28.2   provision of adequate staff to child or adult ratios; and 
 28.3      (3) the license holder shall forfeit $100 for each 
 28.4   occurrence of a violation of law or rule other than those 
 28.5   included in clauses (1) and (2). 
 28.6      For the purposes of this section, "occurrence" means each 
 28.7   violation identified in the commissioner's forfeiture order. 
 28.8      Subd. 7.  [RESPONSIBILITY FOR PAYMENT OF FINES.] When a 
 28.9   fine has been assessed, the license holder may not avoid payment 
 28.10  by closing, selling, or otherwise transferring the licensed 
 28.11  program to a third party.  In such an event, the license holder 
 28.12  will be personally liable for payment.  In the case of a 
 28.13  corporation, each controlling individual is personally and 
 28.14  jointly liable for payment. 
 28.15     Fines for child care centers must be assessed according to 
 28.16  this section. 
 28.17     Sec. 11.  Minnesota Statutes 2000, section 245A.07, is 
 28.18  amended to read: 
 28.19     245A.07 [SANCTIONS.] 
 28.20     Subdivision 1.  [SANCTIONS AVAILABLE.] In addition to 
 28.21  ordering forfeiture of fines making a license conditional under 
 28.22  section 245A.06, the commissioner may propose to suspend, or 
 28.23  revoke, or make conditional the license, impose a fine, or 
 28.24  secure an injunction against the continuing operation of the 
 28.25  program of a license holder who does not comply with applicable 
 28.26  law or rule.  When applying sanctions authorized under this 
 28.27  section, the commissioner shall consider the nature, chronicity, 
 28.28  or severity of the violation of law or rule and the effect of 
 28.29  the violation on the health, safety, or rights of persons served 
 28.30  by the program. 
 28.31     Subd. 2.  [IMMEDIATE SUSPENSION IN CASES OF IMMINENT DANGER 
 28.32  TO HEALTH, SAFETY, OR RIGHTS TEMPORARY IMMEDIATE SUSPENSION.] If 
 28.33  the license holder's actions or failure to comply with 
 28.34  applicable law or rule has placed poses an imminent risk of harm 
 28.35  to the health, safety, or rights of persons served by the 
 28.36  program in imminent danger, the commissioner shall act 
 29.1   immediately to temporarily suspend the license.  No state funds 
 29.2   shall be made available or be expended by any agency or 
 29.3   department of state, county, or municipal government for use by 
 29.4   a license holder regulated under this chapter while a license is 
 29.5   under immediate suspension.  A notice stating the reasons for 
 29.6   the immediate suspension and informing the license holder of the 
 29.7   right to a contested case an expedited hearing under chapter 
 29.8   14 and Minnesota Rules, parts 1400.8550 to 1400.8612, must be 
 29.9   delivered by personal service to the address shown on the 
 29.10  application or the last known address of the license holder.  
 29.11  The license holder may appeal an order immediately suspending a 
 29.12  license.  The appeal of an order immediately suspending a 
 29.13  license must be made in writing by certified mail and must be 
 29.14  received by the commissioner within five calendar days after the 
 29.15  license holder receives notice that the license has been 
 29.16  immediately suspended.  A license holder and any controlling 
 29.17  individual shall discontinue operation of the program upon 
 29.18  receipt of the commissioner's order to immediately suspend the 
 29.19  license. 
 29.20     Subd. 2a.  [IMMEDIATE SUSPENSION EXPEDITED HEARING.] (a) 
 29.21  Within five working days of receipt of the license holder's 
 29.22  timely appeal, the commissioner shall request assignment of an 
 29.23  administrative law judge.  The request must include a proposed 
 29.24  date, time, and place of a hearing.  A hearing must be conducted 
 29.25  by an administrative law judge within 30 calendar days of the 
 29.26  request for assignment, unless an extension is requested by 
 29.27  either party and granted by the administrative law judge for 
 29.28  good cause.  The commissioner shall issue a notice of hearing by 
 29.29  certified mail at least ten working days before the hearing.  
 29.30  The scope of the hearing shall be limited solely to the issue of 
 29.31  whether the temporary immediate suspension should remain in 
 29.32  effect pending the commissioner's final order under section 
 29.33  245A.08, regarding a licensing sanction issued under subdivision 
 29.34  3 following the immediate suspension.  The burden of proof in 
 29.35  expedited hearings under this subdivision shall be limited to 
 29.36  the commissioner's demonstration that reasonable cause exists to 
 30.1   believe that the license holder's actions or failure to comply 
 30.2   with applicable law or rule poses an imminent risk of harm to 
 30.3   the health, safety, or rights of persons served by the program.  
 30.4      (b) The administrative law judge shall issue findings of 
 30.5   fact, conclusions, and a recommendation within ten working days 
 30.6   from the date of hearing.  The commissioner's final order shall 
 30.7   be issued within ten working days from receipt of the 
 30.8   recommendation of the administrative law judge.  Within 90 
 30.9   calendar days after a final order affirming an immediate 
 30.10  suspension, the commissioner shall make a determination 
 30.11  regarding whether a final licensing sanction shall be issued 
 30.12  under subdivision 3.  The license holder shall continue to be 
 30.13  prohibited from operation of the program during this 90-day 
 30.14  period. 
 30.15     Subd. 3.  [LICENSE SUSPENSION, REVOCATION, DENIAL OR 
 30.16  CONDITIONAL LICENSE FINE.] The commissioner may suspend, or 
 30.17  revoke, make conditional, or deny a license, or impose a fine if 
 30.18  an applicant or a license holder fails to comply fully with 
 30.19  applicable laws or rules, or knowingly withholds relevant 
 30.20  information from or gives false or misleading information to the 
 30.21  commissioner in connection with an application for a license or 
 30.22  during an investigation.  A license holder who has had a license 
 30.23  suspended, revoked, or made conditional or has been ordered to 
 30.24  pay a fine must be given notice of the action by certified 
 30.25  mail.  The notice must be mailed to the address shown on the 
 30.26  application or the last known address of the license holder.  
 30.27  The notice must state the reasons the license was suspended, 
 30.28  revoked, or made conditional a fine was ordered. 
 30.29     (a) If the license was suspended or revoked, the notice 
 30.30  must inform the license holder of the right to a contested case 
 30.31  hearing under chapter 14 and Minnesota Rules, parts 1400.8550 to 
 30.32  1400.8612.  The license holder may appeal an order suspending or 
 30.33  revoking a license.  The appeal of an order suspending or 
 30.34  revoking a license must be made in writing by certified mail and 
 30.35  must be received by the commissioner within ten calendar days 
 30.36  after the license holder receives notice that the license has 
 31.1   been suspended or revoked.  
 31.2      (b) If the license was made conditional, the notice must 
 31.3   inform the license holder of the right to request a 
 31.4   reconsideration by the commissioner.  The request for 
 31.5   reconsideration must be made in writing by certified mail and 
 31.6   must be received by the commissioner within ten calendar days 
 31.7   after the license holder receives notice that the license has 
 31.8   been made conditional.  The license holder may submit with the 
 31.9   request for reconsideration written argument or evidence in 
 31.10  support of the request for reconsideration.  The commissioner's 
 31.11  disposition of a request for reconsideration is final and is not 
 31.12  subject to appeal under chapter 14 (1) If the license holder was 
 31.13  ordered to pay a fine, the notice must inform the license holder 
 31.14  of the responsibility for payment of fines and the right to a 
 31.15  contested case hearing under chapter 14 and Minnesota Rules, 
 31.16  parts 1400.8550 to 1400.8612.  The appeal of an order to pay a 
 31.17  fine must be made in writing by certified mail and must be 
 31.18  received by the commissioner within ten calendar days after the 
 31.19  license holder receives notice that the fine has been ordered.  
 31.20     (2) The license holder shall pay the fines assessed on or 
 31.21  before the payment date specified.  If the license holder fails 
 31.22  to fully comply with the order, the commissioner may issue a 
 31.23  second fine or suspend the license until the license holder 
 31.24  complies.  If the license holder receives state funds, the 
 31.25  state, county, or municipal agencies or departments responsible 
 31.26  for administering the funds shall withhold payments and recover 
 31.27  any payments made while the license is suspended for failure to 
 31.28  pay a fine.  A timely appeal shall stay payment of the fine 
 31.29  until the commissioner issues a final order.  
 31.30     (3) A license holder shall promptly notify the commissioner 
 31.31  of human services, in writing, when a violation specified in the 
 31.32  order to forfeit a fine is corrected.  If upon reinspection the 
 31.33  commissioner determines that a violation has not been corrected 
 31.34  as indicated by the order to forfeit a fine, the commissioner 
 31.35  may issue a second fine.  The commissioner shall notify the 
 31.36  license holder by certified mail that a second fine has been 
 32.1   assessed.  The license holder may appeal the second fine as 
 32.2   provided under this subdivision. 
 32.3      (4) Fines shall be assessed as follows:  the license holder 
 32.4   shall forfeit $1,000 for each determination of maltreatment of a 
 32.5   child under section 626.556 or the maltreatment of a vulnerable 
 32.6   adult under section 626.557; the license holder shall forfeit 
 32.7   $200 for each occurrence of a violation of law or rule governing 
 32.8   matters of health, safety, or supervision, including failure to 
 32.9   submit a background study; and the license holder shall forfeit 
 32.10  $100 for each occurrence of a violation of law or rule other 
 32.11  than those subject to a $1,000 or $200 fine above.  For purposes 
 32.12  of this section, "occurrence" means each violation identified in 
 32.13  the commissioner's fine order. 
 32.14     (5) When a fine has been assessed, the license holder may 
 32.15  not avoid payment by closing, selling, or otherwise transferring 
 32.16  the licensed program to a third party.  In such an event, the 
 32.17  license holder will be personally liable for payment.  In the 
 32.18  case of a corporation, each controlling individual is personally 
 32.19  and jointly liable for payment. 
 32.20     Subd. 4.  [ADOPTION AGENCY VIOLATIONS.] If a license holder 
 32.21  licensed to place children for adoption fails to provide 
 32.22  services as described in the disclosure form required by section 
 32.23  259.37, subdivision 2, the sanctions under this section may be 
 32.24  imposed. 
 32.25     Sec. 12.  Minnesota Statutes 2000, section 245A.08, is 
 32.26  amended to read: 
 32.27     245A.08 [HEARINGS.] 
 32.28     Subdivision 1.  [RECEIPT OF APPEAL; CONDUCT OF HEARING.] 
 32.29  Upon receiving a timely appeal or petition pursuant to 
 32.30  section 245A.04, subdivision 3c, 245A.05, or 245A.07, 
 32.31  subdivision 3, the commissioner shall issue a notice of and 
 32.32  order for hearing to the appellant under chapter 14 and 
 32.33  Minnesota Rules, parts 1400.8550 to 1400.8612. 
 32.34     Subd. 2.  [CONDUCT OF HEARINGS.] At any hearing provided 
 32.35  for by section 245A.04, subdivision 3c, 245A.05, or 245A.07, 
 32.36  subdivision 3, the appellant may be represented by counsel and 
 33.1   has the right to call, examine, and cross-examine witnesses.  
 33.2   The administrative law judge may require the presence of 
 33.3   witnesses and evidence by subpoena on behalf of any party.  
 33.4      Subd. 2a.  [CONSOLIDATED CONTESTED CASE HEARINGS FOR 
 33.5   SANCTIONS BASED ON MALTREATMENT DETERMINATIONS AND 
 33.6   DISQUALIFICATIONS.] (a) When a licensing sanction under section 
 33.7   245A.07, subdivision 3, is based on a disqualification for which 
 33.8   reconsideration was requested and which was not set aside under 
 33.9   section 245A.04, subdivision 3b, the scope of the contested case 
 33.10  hearing shall include the disqualification and the licensing 
 33.11  sanction.  When the licensing sanction is based on a 
 33.12  determination of maltreatment under section 626.556 or 626.557, 
 33.13  or a disqualification for serious or recurring maltreatment 
 33.14  which was not set aside, the scope of the contested case hearing 
 33.15  shall include the maltreatment determination, disqualification, 
 33.16  and the licensing sanction.  In such cases, a fair hearing under 
 33.17  section 256.045 shall not be conducted as provided for in 
 33.18  sections 626.556, subdivision 10i, and 626.557, subdivision 9d. 
 33.19     (b) In consolidated contested case hearings regarding 
 33.20  sanctions issued in family child care, child foster care, and 
 33.21  adult foster care, the county attorney shall defend the 
 33.22  commissioner's orders in accordance with section 245A.16, 
 33.23  subdivision 4. 
 33.24     (c) The commissioner's final order under subdivision 5 is 
 33.25  the final agency action on the issue of maltreatment and 
 33.26  disqualification, including for purposes of subsequent 
 33.27  background studies under section 245A.04, subdivision 3, and is 
 33.28  the only administrative appeal of the final agency 
 33.29  determination, specifically, including a challenge to the 
 33.30  accuracy and completeness of data under section 13.04. 
 33.31     (d) When consolidated hearings under this subdivision 
 33.32  involve a licensing sanction based on a previous maltreatment 
 33.33  determination for which the commissioner has issued a final 
 33.34  order in an appeal of that determination under section 256.045, 
 33.35  or the individual failed to exercise their right to appeal the 
 33.36  previous maltreatment determination under section 626.556, 
 34.1   subdivision 10i, or 626.557, subdivision 9d, the commissioner's 
 34.2   order is conclusive on the issue of maltreatment.  In such 
 34.3   cases, the scope of the administrative law judge's review shall 
 34.4   be limited to the disqualification and the licensing sanction.  
 34.5   In the case of a licensing sanction issued to a facility based 
 34.6   on a maltreatment determination regarding an individual who is 
 34.7   not the license holder or a household member, the scope of the 
 34.8   administrative law judge's review includes the maltreatment 
 34.9   determination.  
 34.10     (e) If a maltreatment determination or disqualification, 
 34.11  which was not set aside under section 245A.04, subdivision 3b, 
 34.12  is the basis for a licensing sanction under section 245A.07, and 
 34.13  the disqualified subject is an individual other than the license 
 34.14  holder and upon whom a background study must be conducted under 
 34.15  section 245A.04, subdivision 3, the hearings of all parties may 
 34.16  be consolidated into a single contested case hearing upon 
 34.17  consent of all parties and the administrative law judge.  
 34.18     Subd. 3.  [BURDEN OF PROOF.] (a) At a hearing regarding 
 34.19  suspension, immediate suspension, or revocation of a license for 
 34.20  family day care or foster care a licensing sanction under 
 34.21  section 245.07, including consolidated hearings under 
 34.22  subdivision 2a, the commissioner may demonstrate reasonable 
 34.23  cause for action taken by submitting statements, reports, or 
 34.24  affidavits to substantiate the allegations that the license 
 34.25  holder failed to comply fully with applicable law or rule.  If 
 34.26  the commissioner demonstrates that reasonable cause existed, the 
 34.27  burden of proof in hearings involving suspension, immediate 
 34.28  suspension, or revocation of a family day care or foster care 
 34.29  license shifts to the license holder to demonstrate by a 
 34.30  preponderance of the evidence that the license holder was in 
 34.31  full compliance with those laws or rules that the commissioner 
 34.32  alleges the license holder violated, at the time that the 
 34.33  commissioner alleges the violations of law or rules occurred. 
 34.34     (b) At a hearing on denial of an application, the applicant 
 34.35  bears the burden of proof to demonstrate by a preponderance of 
 34.36  the evidence that the appellant has complied fully with sections 
 35.1   245A.01 to 245A.15 chapter 245A and other applicable law or rule 
 35.2   and that the application should be approved and a license 
 35.3   granted. 
 35.4      (c) At all other hearings under this section, the 
 35.5   commissioner bears the burden of proof to demonstrate, by a 
 35.6   preponderance of the evidence, that the violations of law or 
 35.7   rule alleged by the commissioner occurred. 
 35.8      Subd. 4.  [RECOMMENDATION OF ADMINISTRATIVE LAW JUDGE.] The 
 35.9   administrative law judge shall recommend whether or not the 
 35.10  commissioner's order should be affirmed.  The recommendations 
 35.11  must be consistent with this chapter and the rules of the 
 35.12  commissioner.  The recommendations must be in writing and 
 35.13  accompanied by findings of fact and conclusions and must be 
 35.14  mailed to the parties by certified mail to their last known 
 35.15  addresses as shown on the license or application. 
 35.16     Subd. 5.  [NOTICE OF THE COMMISSIONER'S FINAL ORDER.] After 
 35.17  considering the findings of fact, conclusions, and 
 35.18  recommendations of the administrative law judge, the 
 35.19  commissioner shall issue a final order.  The commissioner shall 
 35.20  consider, but shall not be bound by, the recommendations of the 
 35.21  administrative law judge.  The appellant must be notified of the 
 35.22  commissioner's final order as required by chapter 14 and 
 35.23  Minnesota Rules, parts 1400.8550 to 1400.8612.  The notice must 
 35.24  also contain information about the appellant's rights under 
 35.25  chapter 14 and Minnesota Rules, parts 1400.8550 to 1400.8612.  
 35.26  The institution of proceedings for judicial review of the 
 35.27  commissioner's final order shall not stay the enforcement of the 
 35.28  final order except as provided in section 14.65.  A license 
 35.29  holder and each controlling individual of a license holder whose 
 35.30  license has been revoked because of noncompliance with 
 35.31  applicable law or rule must not be granted a license for five 
 35.32  years following the revocation.  An applicant whose application 
 35.33  was denied must not be granted a license for two years following 
 35.34  a denial, unless the applicant's subsequent application contains 
 35.35  new information which constitutes a substantial change in the 
 35.36  conditions that caused the previous denial. 
 36.1      Sec. 13.  Minnesota Statutes 2000, section 245A.16, 
 36.2   subdivision 1, is amended to read: 
 36.3      Subdivision 1.  [DELEGATION OF AUTHORITY TO AGENCIES.] (a) 
 36.4   County agencies and private agencies that have been designated 
 36.5   or licensed by the commissioner to perform licensing functions 
 36.6   and activities under section 245A.04, to recommend denial of 
 36.7   applicants under section 245A.05, to issue correction orders, to 
 36.8   issue variances, and recommend fines a conditional license under 
 36.9   section 245A.06, or to recommend suspending, or revoking, and 
 36.10  making licenses probationary a license or issuing a fine under 
 36.11  section 245A.07, shall comply with rules and directives of the 
 36.12  commissioner governing those functions and with this section. 
 36.13     (b) For family day care programs, the commissioner may 
 36.14  authorize licensing reviews every two years after a licensee has 
 36.15  had at least one annual review. 
 36.16     Sec. 14.  Minnesota Statutes 2000, section 245B.08, 
 36.17  subdivision 3, is amended to read: 
 36.18     Subd. 3.  [SANCTIONS AVAILABLE.] Nothing in this 
 36.19  subdivision shall be construed to limit the commissioner's 
 36.20  authority to suspend, or revoke, or make conditional a license 
 36.21  or issue a fine at any time a license under section 245A.07; 
 36.22  make correction orders and require fines make a license 
 36.23  conditional for failure to comply with applicable laws or rules 
 36.24  under section 245A.06; or deny an application for license under 
 36.25  section 245A.05. 
 36.26     Sec. 15.  Minnesota Statutes 2000, section 256.045, 
 36.27  subdivision 3, is amended to read: 
 36.28     Subd. 3.  [STATE AGENCY HEARINGS.] (a) State agency 
 36.29  hearings are available for the following:  (1) any person 
 36.30  applying for, receiving or having received public assistance, 
 36.31  medical care, or a program of social services granted by the 
 36.32  state agency or a county agency or the federal Food Stamp Act 
 36.33  whose application for assistance is denied, not acted upon with 
 36.34  reasonable promptness, or whose assistance is suspended, 
 36.35  reduced, terminated, or claimed to have been incorrectly paid; 
 36.36  (2) any patient or relative aggrieved by an order of the 
 37.1   commissioner under section 252.27; (3) a party aggrieved by a 
 37.2   ruling of a prepaid health plan; (4) except as provided under 
 37.3   chapter 245A, any individual or facility determined by a lead 
 37.4   agency to have maltreated a vulnerable adult under section 
 37.5   626.557 after they have exercised their right to administrative 
 37.6   reconsideration under section 626.557; (5) any person whose 
 37.7   claim for foster care payment according to a placement of the 
 37.8   child resulting from a child protection assessment under section 
 37.9   626.556 is denied or not acted upon with reasonable promptness, 
 37.10  regardless of funding source; (6) any person to whom a right of 
 37.11  appeal according to this section is given by other provision of 
 37.12  law; (7) an applicant aggrieved by an adverse decision to an 
 37.13  application for a hardship waiver under section 
 37.14  256B.15; or (8) except as provided under chapter 245A, an 
 37.15  individual or facility determined to have maltreated a minor 
 37.16  under section 626.556, after the individual or facility has 
 37.17  exercised the right to administrative reconsideration under 
 37.18  section 626.556; or (9) except as provided under chapter 245A, 
 37.19  an individual disqualified under section 245A.04, subdivision 
 37.20  3d, on the basis of serious or recurring maltreatment; a 
 37.21  preponderance of the evidence that the individual has committed 
 37.22  an act or acts that meet the definition of any of the crimes 
 37.23  listed in clauses (1) to (4) of that subdivision; or for failing 
 37.24  to make reports required under section 626.556, subdivision 3, 
 37.25  or 626.557, subdivision 3.  Hearings regarding a maltreatment 
 37.26  determination under clause (8) and a disqualification under 
 37.27  clause (9) in which the basis for a disqualification is serious 
 37.28  and recurring maltreatment, which has not been set aside under 
 37.29  section 245A.04, subdivision 3b, shall be consolidated into a 
 37.30  single fair hearing.  In such cases, the scope of review by the 
 37.31  human services referee shall include both the maltreatment 
 37.32  determination and the disqualification.  The failure to exercise 
 37.33  the right to an administrative reconsideration shall not be a 
 37.34  bar to a hearing under this section if federal law provides an 
 37.35  individual the right to a hearing to dispute a finding of 
 37.36  maltreatment.  Individuals and organizations specified in this 
 38.1   section may contest the specified action, decision, or final 
 38.2   disposition before the state agency by submitting a written 
 38.3   request for a hearing to the state agency within 30 days after 
 38.4   receiving written notice of the action, decision, or final 
 38.5   disposition, or within 90 days of such written notice if the 
 38.6   applicant, recipient, patient, or relative shows good cause why 
 38.7   the request was not submitted within the 30-day time limit. 
 38.8      The hearing for an individual or facility under clause 
 38.9   (4) or, (8), or (9) is the only administrative appeal to the 
 38.10  final agency determination specifically, including a challenge 
 38.11  to the accuracy and completeness of data under section 13.04.  
 38.12  Hearings requested under clause (4) apply only to incidents of 
 38.13  maltreatment that occur on or after October 1, 1995.  Hearings 
 38.14  requested by nursing assistants in nursing homes alleged to have 
 38.15  maltreated a resident prior to October 1, 1995, shall be held as 
 38.16  a contested case proceeding under the provisions of chapter 14.  
 38.17  Hearings requested under clause clauses (8) and (9) apply only 
 38.18  to incidents of maltreatment that occur on or after July 1, 
 38.19  1997.  A hearing for an individual or facility under clause (8) 
 38.20  is only available when there is no juvenile court or adult 
 38.21  criminal action pending.  If such action is filed in either 
 38.22  court while an administrative review is pending, the 
 38.23  administrative review must be suspended until the judicial 
 38.24  actions are completed.  If the juvenile court action or criminal 
 38.25  charge is dismissed or the criminal action overturned, the 
 38.26  matter may be considered in an administrative hearing. 
 38.27     For purposes of this section, bargaining unit grievance 
 38.28  procedures are not an administrative appeal. 
 38.29     The scope of hearings involving claims to foster care 
 38.30  payments under clause (5) shall be limited to the issue of 
 38.31  whether the county is legally responsible for a child's 
 38.32  placement under court order or voluntary placement agreement 
 38.33  and, if so, the correct amount of foster care payment to be made 
 38.34  on the child's behalf and shall not include review of the 
 38.35  propriety of the county's child protection determination or 
 38.36  child placement decision. 
 39.1      (b) A vendor of medical care as defined in section 256B.02, 
 39.2   subdivision 7, or a vendor under contract with a county agency 
 39.3   to provide social services under section 256E.08, subdivision 4, 
 39.4   is not a party and may not request a hearing under this section, 
 39.5   except if assisting a recipient as provided in subdivision 4. 
 39.6      (c) An applicant or recipient is not entitled to receive 
 39.7   social services beyond the services included in the amended 
 39.8   community social services plan developed under section 256E.081, 
 39.9   subdivision 3, if the county agency has met the requirements in 
 39.10  section 256E.081. 
 39.11     (d) The commissioner may summarily affirm the county or 
 39.12  state agency's proposed action without a hearing when the sole 
 39.13  issue is an automatic change due to a change in state or federal 
 39.14  law. 
 39.15     Sec. 16.  Minnesota Statutes 2000, section 256.045, 
 39.16  subdivision 3b, is amended to read: 
 39.17     Subd. 3b.  [STANDARD OF EVIDENCE FOR MALTREATMENT AND 
 39.18  DISQUALIFICATION HEARINGS.] The state human services referee 
 39.19  shall determine that maltreatment has occurred if a 
 39.20  preponderance of evidence exists to support the final 
 39.21  disposition under sections 626.556 and 626.557.  For purposes of 
 39.22  hearings regarding disqualification, the state human services 
 39.23  referee shall affirm the proposed disqualification in an appeal 
 39.24  under subdivision 3, paragraph (a), clause (9), if a 
 39.25  preponderance of the evidence shows the individual has:  
 39.26     (1) committed maltreatment under section 626.556 or 
 39.27  626.557, which is serious or recurring; 
 39.28     (2) committed an act or acts meeting the definition of any 
 39.29  of the crimes listed in section 245A.04, subdivision 3d, clauses 
 39.30  (1) to (4); or 
 39.31     (3) failed to make required reports under section 626.556 
 39.32  or 626.557, for incidents in which:  
 39.33     (i) the final disposition under section 626.556 or 626.557 
 39.34  was substantiated maltreatment; and 
 39.35     (ii) the maltreatment was recurring or serious; or 
 39.36  substantiated serious or recurring maltreatment of a minor under 
 40.1   section 626.556 or of a vulnerable adult under section 626.557 
 40.2   for which there is a preponderance of evidence that the 
 40.3   maltreatment occurred, and that the subject was responsible for 
 40.4   the maltreatment.  If the disqualification is affirmed, the 
 40.5   state human services referee shall determine whether the 
 40.6   individual poses a risk of harm in accordance with the 
 40.7   requirements of section 245A.04, subdivision 3b. 
 40.8      The state human services referee shall recommend an order 
 40.9   to the commissioner of health or human services, as applicable, 
 40.10  who shall issue a final order.  The commissioner shall affirm, 
 40.11  reverse, or modify the final disposition.  Any order of the 
 40.12  commissioner issued in accordance with this subdivision is 
 40.13  conclusive upon the parties unless appeal is taken in the manner 
 40.14  provided in subdivision 7.  In any licensing appeal under 
 40.15  chapter 245A and sections 144.50 to 144.58 and 144A.02 to 
 40.16  144A.46, the commissioner's determination as to maltreatment is 
 40.17  conclusive. 
 40.18     Sec. 17.  Minnesota Statutes 2000, section 256.045, 
 40.19  subdivision 4, is amended to read: 
 40.20     Subd. 4.  [CONDUCT OF HEARINGS.] (a) All hearings held 
 40.21  pursuant to subdivision 3, 3a, 3b, or 4a shall be conducted 
 40.22  according to the provisions of the federal Social Security Act 
 40.23  and the regulations implemented in accordance with that act to 
 40.24  enable this state to qualify for federal grants-in-aid, and 
 40.25  according to the rules and written policies of the commissioner 
 40.26  of human services.  County agencies shall install equipment 
 40.27  necessary to conduct telephone hearings.  A state human services 
 40.28  referee may schedule a telephone conference hearing when the 
 40.29  distance or time required to travel to the county agency offices 
 40.30  will cause a delay in the issuance of an order, or to promote 
 40.31  efficiency, or at the mutual request of the parties.  Hearings 
 40.32  may be conducted by telephone conferences unless the applicant, 
 40.33  recipient, former recipient, person, or facility contesting 
 40.34  maltreatment objects.  The hearing shall not be held earlier 
 40.35  than five days after filing of the required notice with the 
 40.36  county or state agency.  The state human services referee shall 
 41.1   notify all interested persons of the time, date, and location of 
 41.2   the hearing at least five days before the date of the hearing.  
 41.3   Interested persons may be represented by legal counsel or other 
 41.4   representative of their choice, including a provider of therapy 
 41.5   services, at the hearing and may appear personally, testify and 
 41.6   offer evidence, and examine and cross-examine witnesses.  The 
 41.7   applicant, recipient, former recipient, person, or facility 
 41.8   contesting maltreatment shall have the opportunity to examine 
 41.9   the contents of the case file and all documents and records to 
 41.10  be used by the county or state agency at the hearing at a 
 41.11  reasonable time before the date of the hearing and during the 
 41.12  hearing.  In hearings under subdivision 3, paragraph (a), 
 41.13  clauses (4) and, (8), and (9), either party may subpoena the 
 41.14  private data relating to the investigation prepared by the 
 41.15  agency under section 626.556 or 626.557 that is not otherwise 
 41.16  accessible under section 13.04, provided the identity of the 
 41.17  reporter may not be disclosed. 
 41.18     (b) The private data obtained by subpoena in a hearing 
 41.19  under subdivision 3, paragraph (a), clause (4) or, (8), or (9), 
 41.20  must be subject to a protective order which prohibits its 
 41.21  disclosure for any other purpose outside the hearing provided 
 41.22  for in this section without prior order of the district court.  
 41.23  Disclosure without court order is punishable by a sentence of 
 41.24  not more than 90 days imprisonment or a fine of not more than 
 41.25  $700, or both.  These restrictions on the use of private data do 
 41.26  not prohibit access to the data under section 13.03, subdivision 
 41.27  6.  Except for appeals under subdivision 3, paragraph (a), 
 41.28  clauses (4), (5), and (8), and (9), upon request, the county 
 41.29  agency shall provide reimbursement for transportation, child 
 41.30  care, photocopying, medical assessment, witness fee, and other 
 41.31  necessary and reasonable costs incurred by the applicant, 
 41.32  recipient, or former recipient in connection with the appeal.  
 41.33  All evidence, except that privileged by law, commonly accepted 
 41.34  by reasonable people in the conduct of their affairs as having 
 41.35  probative value with respect to the issues shall be submitted at 
 41.36  the hearing and such hearing shall not be "a contested case" 
 42.1   within the meaning of section 14.02, subdivision 3.  The agency 
 42.2   must present its evidence prior to or at the hearing, and may 
 42.3   not submit evidence after the hearing except by agreement of the 
 42.4   parties at the hearing, provided the petitioner has the 
 42.5   opportunity to respond. 
 42.6      Sec. 18.  Minnesota Statutes 2000, section 626.556, 
 42.7   subdivision 10i, is amended to read: 
 42.8      Subd. 10i.  [ADMINISTRATIVE RECONSIDERATION OF FINAL 
 42.9   DETERMINATION OF MALTREATMENT AND DISQUALIFICATION BASED ON 
 42.10  SERIOUS OR RECURRING MALTREATMENT.] (a) Except as provided under 
 42.11  paragraph (e), an individual or facility that the commissioner 
 42.12  or a local social service agency determines has maltreated a 
 42.13  child, or the child's designee, regardless of the determination, 
 42.14  who contests the investigating agency's final determination 
 42.15  regarding maltreatment, may request the investigating agency to 
 42.16  reconsider its final determination regarding maltreatment.  The 
 42.17  request for reconsideration must be submitted in writing to the 
 42.18  investigating agency within 15 calendar days after receipt of 
 42.19  notice of the final determination regarding maltreatment.  
 42.20     (b) Except as provided under paragraphs (e) and (f), if the 
 42.21  investigating agency denies the request or fails to act upon the 
 42.22  request within 15 calendar days after receiving the request for 
 42.23  reconsideration, the person or facility entitled to a fair 
 42.24  hearing under section 256.045 may submit to the commissioner of 
 42.25  human services a written request for a hearing under that 
 42.26  section. 
 42.27     (c) If, as a result of the reconsideration, the 
 42.28  investigating agency changes the final determination of 
 42.29  maltreatment, that agency shall notify the parties specified in 
 42.30  subdivisions 10b, 10d, and 10f. 
 42.31     (d) Except as provided under paragraph (f), if an 
 42.32  individual or facility contests the investigating agency's final 
 42.33  determination regarding maltreatment by requesting a fair 
 42.34  hearing under section 256.045, the commissioner of human 
 42.35  services shall assure that the hearing is conducted and a 
 42.36  decision is reached within 90 days of receipt of the request for 
 43.1   a hearing.  The time for action on the decision may be extended 
 43.2   for as many days as the hearing is postponed or the record is 
 43.3   held open for the benefit of either party. 
 43.4      (e) If an individual was disqualified under section 
 43.5   245A.04, subdivision 3d, on the basis of a determination of 
 43.6   maltreatment, which was serious or recurring, and the individual 
 43.7   has requested reconsideration of the maltreatment determination 
 43.8   under paragraph (a) and requested reconsideration of the 
 43.9   disqualification under section 245A.04, subdivision 3b, 
 43.10  reconsideration of the maltreatment determination and 
 43.11  reconsideration of the disqualification shall be consolidated 
 43.12  into a single reconsideration.  If an individual disqualified on 
 43.13  the basis of a determination of maltreatment, which was serious 
 43.14  or recurring requests a fair hearing under paragraph (b), the 
 43.15  scope of the fair hearing shall include the maltreatment 
 43.16  determination and the disqualification. 
 43.17     (f) If a maltreatment determination or a disqualification 
 43.18  based on serious or recurring maltreatment is the basis for a 
 43.19  licensing sanction under section 245A.07, the license holder has 
 43.20  the right to a contested case hearing under chapter 14 and 
 43.21  Minnesota Rules, parts 1400.8550 to 1400.8612.  As provided for 
 43.22  under section 245A.08, subdivision 2a, the scope of the 
 43.23  contested case hearing shall include the maltreatment 
 43.24  determination, disqualification, and licensing sanction.  In 
 43.25  such cases, a fair hearing regarding the maltreatment 
 43.26  determination shall not be conducted under paragraph (b).  If 
 43.27  the disqualified subject is an individual other than the license 
 43.28  holder and upon whom a background study must be conducted under 
 43.29  section 245A.04, subdivision 3, the hearings of all parties may 
 43.30  be consolidated into a single contested case hearing upon 
 43.31  consent of all parties and the administrative law judge. 
 43.32     Sec. 19.  Minnesota Statutes 2000, section 626.557, 
 43.33  subdivision 3, is amended to read: 
 43.34     Subd. 3.  [TIMING OF REPORT.] (a) A mandated reporter who 
 43.35  has reason to believe that a vulnerable adult is being or has 
 43.36  been maltreated, or who has knowledge that a vulnerable adult 
 44.1   has sustained a physical injury which is not reasonably 
 44.2   explained shall immediately report the information to the common 
 44.3   entry point.  If an individual is a vulnerable adult solely 
 44.4   because the individual is admitted to a facility, a mandated 
 44.5   reporter is not required to report suspected maltreatment of the 
 44.6   individual that occurred prior to admission, unless: 
 44.7      (1) the individual was admitted to the facility from 
 44.8   another facility and the reporter has reason to believe the 
 44.9   vulnerable adult was maltreated in the previous facility; or 
 44.10     (2) the reporter knows or has reason to believe that the 
 44.11  individual is a vulnerable adult as defined in section 626.5572, 
 44.12  subdivision 21, clause (4).  
 44.13     (b) A person not required to report under the provisions of 
 44.14  this section may voluntarily report as described above.  
 44.15     (c) Nothing in this section requires a report of known or 
 44.16  suspected maltreatment, if the reporter knows or has reason to 
 44.17  know that a report has been made to the common entry point. 
 44.18     (d) Nothing in this section shall preclude a reporter from 
 44.19  also reporting to a law enforcement agency.  
 44.20     (e) Notwithstanding section 626.5572, subdivision 17, 
 44.21  paragraph (c), clause (5), a mandated reporter who knows or has 
 44.22  reason to believe that an error in the provision of care or 
 44.23  services to a vulnerable adult resulted in injury or harm to the 
 44.24  vulnerable adult, which reasonably requires or required the care 
 44.25  of a physician must make a report under this subdivision.  If 
 44.26  the reporter or facility at any time believes that an 
 44.27  investigation by a lead agency will determine or should 
 44.28  determine that the reported error was not neglect according to 
 44.29  the criteria under section 626.5572, subdivision 17, paragraph 
 44.30  (c), clause (5), the reporter or facility may provide to the 
 44.31  common entry point or directly to the lead agency information 
 44.32  explaining how the event meets the criteria under section 
 44.33  626.557, subdivision 17, paragraph (c), clause (5).  The lead 
 44.34  agency shall consider this information when making an initial 
 44.35  disposition of the report under subdivision 9c. 
 44.36     Sec. 20.  Minnesota Statutes 2000, section 626.557, 
 45.1   subdivision 9d, is amended to read: 
 45.2      Subd. 9d.  [ADMINISTRATIVE RECONSIDERATION OF FINAL 
 45.3   DISPOSITION OF MALTREATMENT AND DISQUALIFICATION BASED ON 
 45.4   SERIOUS OR RECURRING MALTREATMENT; REVIEW PANEL.] (a) Except as 
 45.5   provided under paragraph (e), any individual or facility which a 
 45.6   lead agency determines has maltreated a vulnerable adult, or the 
 45.7   vulnerable adult or an interested person acting on behalf of the 
 45.8   vulnerable adult, regardless of the lead agency's determination, 
 45.9   who contests the lead agency's final disposition of an 
 45.10  allegation of maltreatment, may request the lead agency to 
 45.11  reconsider its final disposition.  The request for 
 45.12  reconsideration must be submitted in writing to the lead agency 
 45.13  within 15 calendar days after receipt of notice of final 
 45.14  disposition or, if the request is made by an interested person 
 45.15  who is not entitled to notice, within 15 days after receipt of 
 45.16  the notice by the vulnerable adult or the vulnerable adult's 
 45.17  legal guardian. 
 45.18     (b) Except as provided under paragraphs (e) and (f), if the 
 45.19  lead agency denies the request or fails to act upon the request 
 45.20  within 15 calendar days after receiving the request for 
 45.21  reconsideration, the person or facility entitled to a fair 
 45.22  hearing under section 256.045, may submit to the commissioner of 
 45.23  human services a written request for a hearing under that 
 45.24  statute.  The vulnerable adult, or an interested person acting 
 45.25  on behalf of the vulnerable adult, may request a review by the 
 45.26  vulnerable adult maltreatment review panel under section 256.021 
 45.27  if the lead agency denies the request or fails to act upon the 
 45.28  request, or if the vulnerable adult or interested person 
 45.29  contests a reconsidered disposition.  The lead agency shall 
 45.30  notify persons who request reconsideration of their rights under 
 45.31  this paragraph.  The request must be submitted in writing to the 
 45.32  review panel and a copy sent to the lead agency within 30 
 45.33  calendar days of receipt of notice of a denial of a request for 
 45.34  reconsideration or of a reconsidered disposition.  The request 
 45.35  must specifically identify the aspects of the agency 
 45.36  determination with which the person is dissatisfied.  
 46.1      (c) If, as a result of a reconsideration or review, the 
 46.2   lead agency changes the final disposition, it shall notify the 
 46.3   parties specified in subdivision 9c, paragraph (d). 
 46.4      (d) For purposes of this subdivision, "interested person 
 46.5   acting on behalf of the vulnerable adult" means a person 
 46.6   designated in writing by the vulnerable adult to act on behalf 
 46.7   of the vulnerable adult, or a legal guardian or conservator or 
 46.8   other legal representative, a proxy or health care agent 
 46.9   appointed under chapter 145B or 145C, or an individual who is 
 46.10  related to the vulnerable adult, as defined in section 245A.02, 
 46.11  subdivision 13. 
 46.12     (e) If an individual was disqualified under section 
 46.13  245A.04, subdivision 3d, on the basis of a determination of 
 46.14  maltreatment, which was serious or recurring, and the individual 
 46.15  has requested reconsideration of the maltreatment determination 
 46.16  under paragraph (a) and reconsideration of the disqualification 
 46.17  under section 245A.04, subdivision 3b, reconsideration of the 
 46.18  maltreatment determination and requested reconsideration of the 
 46.19  disqualification shall be consolidated into a single 
 46.20  reconsideration.  If an individual who was disqualified on the 
 46.21  basis of serious or recurring maltreatment requests a fair 
 46.22  hearing under paragraph (b), the scope of the fair hearing shall 
 46.23  include the maltreatment determination and the disqualification. 
 46.24     (f) If a maltreatment determination or a disqualification 
 46.25  based on serious or recurring maltreatment is the basis for a 
 46.26  licensing sanction under section 245A.07, the license holder has 
 46.27  the right to a contested case hearing under chapter 14 and 
 46.28  Minnesota Rules, parts 1400.8550 to 1400.8612.  As provided for 
 46.29  under section 245A.08, the scope of the contested case hearing 
 46.30  shall include the maltreatment determination, disqualification, 
 46.31  and licensing sanction.  In such cases, a fair hearing shall not 
 46.32  be conducted under paragraph (b).  If the disqualified subject 
 46.33  is an individual other than the license holder and upon whom a 
 46.34  background study must be conducted under section 245A.04, 
 46.35  subdivision 3, the hearings of all parties may be consolidated 
 46.36  into a single contested case hearing upon consent of all parties 
 47.1   and the administrative law judge. 
 47.2      (g) An individual or facility that was determined by the 
 47.3   commissioner of human services or the commissioner of health to 
 47.4   be responsible for neglect under section 626.5572, subdivision 
 47.5   17, prior to August 1, 2001, that believes that the finding of 
 47.6   neglect does not meet an amended definition of neglect may 
 47.7   request a reconsideration of the determination of neglect.  The 
 47.8   request for reconsideration must state how the established 
 47.9   findings no longer meet the elements of the definition of 
 47.10  neglect.  The commissioner shall review the request for 
 47.11  reconsideration and make a determination within 15 calendar 
 47.12  days.  The commissioner's decision on this reconsideration is 
 47.13  the final agency action. 
 47.14     (1) For purposes of compliance with the data destruction 
 47.15  schedule under section 626.557, subdivision 12b, paragraph (d), 
 47.16  when a finding of substantiated maltreatment has been changed as 
 47.17  a result of a reconsideration under this paragraph, the date of 
 47.18  the original finding of a substantiated maltreatment must be 
 47.19  used to calculate the destruction date. 
 47.20     (2) For purposes of any background studies under section 
 47.21  245A.04, when a determination of substantiated maltreatment has 
 47.22  been changed as a result of a reconsideration under this 
 47.23  paragraph, any prior disqualification of the individual under 
 47.24  section 245A.04 that was based on this determination of 
 47.25  maltreatment shall be rescinded, and for future background 
 47.26  studies under section 245A.04 the commissioner must not use the 
 47.27  previous determination of substantiated maltreatment as a basis 
 47.28  for disqualification or as a basis for referring the 
 47.29  individual's maltreatment history to a health-related licensing 
 47.30  board under section 245A.04, subdivision 3d, paragraph (b). 
 47.31     Sec. 21.  Minnesota Statutes 2000, section 626.5572, 
 47.32  subdivision 17, is amended to read: 
 47.33     Subd. 17.  [NEGLECT.] "Neglect" means:  
 47.34     (a) The failure or omission by a caregiver to supply a 
 47.35  vulnerable adult with care or services, including but not 
 47.36  limited to, food, clothing, shelter, health care, or supervision 
 48.1   which is: 
 48.2      (1) reasonable and necessary to obtain or maintain the 
 48.3   vulnerable adult's physical or mental health or safety, 
 48.4   considering the physical and mental capacity or dysfunction of 
 48.5   the vulnerable adult; and 
 48.6      (2) which is not the result of an accident or therapeutic 
 48.7   conduct. 
 48.8      (b) The absence or likelihood of absence of care or 
 48.9   services, including but not limited to, food, clothing, shelter, 
 48.10  health care, or supervision necessary to maintain the physical 
 48.11  and mental health of the vulnerable adult which a reasonable 
 48.12  person would deem essential to obtain or maintain the vulnerable 
 48.13  adult's health, safety, or comfort considering the physical or 
 48.14  mental capacity or dysfunction of the vulnerable adult. 
 48.15     (c) For purposes of this section, a vulnerable adult is not 
 48.16  neglected for the sole reason that: 
 48.17     (1) the vulnerable adult or a person with authority to make 
 48.18  health care decisions for the vulnerable adult under sections 
 48.19  144.651, 144A.44, chapter 145B, 145C, or 252A, or section 
 48.20  253B.03, or 525.539 to 525.6199, refuses consent or withdraws 
 48.21  consent, consistent with that authority and within the boundary 
 48.22  of reasonable medical practice, to any therapeutic conduct, 
 48.23  including any care, service, or procedure to diagnose, maintain, 
 48.24  or treat the physical or mental condition of the vulnerable 
 48.25  adult, or, where permitted under law, to provide nutrition and 
 48.26  hydration parenterally or through intubation; this paragraph 
 48.27  does not enlarge or diminish rights otherwise held under law by: 
 48.28     (i) a vulnerable adult or a person acting on behalf of a 
 48.29  vulnerable adult, including an involved family member, to 
 48.30  consent to or refuse consent for therapeutic conduct; or 
 48.31     (ii) a caregiver to offer or provide or refuse to offer or 
 48.32  provide therapeutic conduct; or 
 48.33     (2) the vulnerable adult, a person with authority to make 
 48.34  health care decisions for the vulnerable adult, or a caregiver 
 48.35  in good faith selects and depends upon spiritual means or prayer 
 48.36  for treatment or care of disease or remedial care of the 
 49.1   vulnerable adult in lieu of medical care, provided that this is 
 49.2   consistent with the prior practice or belief of the vulnerable 
 49.3   adult or with the expressed intentions of the vulnerable adult; 
 49.4      (3) the vulnerable adult, who is not impaired in judgment 
 49.5   or capacity by mental or emotional dysfunction or undue 
 49.6   influence, engages in sexual contact with:  
 49.7      (i) a person including a facility staff person when a 
 49.8   consensual sexual personal relationship existed prior to the 
 49.9   caregiving relationship; or 
 49.10     (ii) a personal care attendant, regardless of whether the 
 49.11  consensual sexual personal relationship existed prior to the 
 49.12  caregiving relationship; or 
 49.13     (4) an individual makes an error in the provision of 
 49.14  therapeutic conduct to a vulnerable adult which:  (i) does not 
 49.15  result in injury or harm which reasonably requires medical or 
 49.16  mental health care; or, if it reasonably requires care, 
 49.17     (5) an individual makes an error in the provision of 
 49.18  therapeutic conduct to a vulnerable adult that results in injury 
 49.19  or harm, which reasonably requires the care of a physician; and: 
 49.20     (i) the necessary care is sought and provided in a timely 
 49.21  fashion as dictated by the condition of the vulnerable adult; 
 49.22  and the injury or harm that required care does not result in 
 49.23  substantial acute, or chronic injury or illness, or permanent 
 49.24  disability above and beyond the vulnerable adult's preexisting 
 49.25  condition; 
 49.26     (ii) is after receiving care, the health status of the 
 49.27  vulnerable adult can be reasonably expected to be restored to 
 49.28  the vulnerable adult's preexisting condition; 
 49.29     (iii) the error is not part of a pattern of errors by the 
 49.30  individual; 
 49.31     (iv) if in a facility, the error is immediately reported as 
 49.32  required under section 626.557, and recorded internally by the 
 49.33  employee or person providing services in the facility in order 
 49.34  to evaluate and identify corrective action; 
 49.35     (v) if in a facility, the facility identifies and takes 
 49.36  corrective action and implements measures designed to reduce the 
 50.1   risk of further occurrence of this error and similar errors; and 
 50.2      (iii) is (vi) if in a facility, the actions required under 
 50.3   items (iv) and (v) are sufficiently documented for review and 
 50.4   evaluation by the facility and any applicable licensing, 
 50.5   certification, and ombudsman agency; and 
 50.6      (iv) is not part of a pattern of errors by the individual. 
 50.7      (d) Nothing in this definition requires a caregiver, if 
 50.8   regulated, to provide services in excess of those required by 
 50.9   the caregiver's license, certification, registration, or other 
 50.10  regulation. 
 50.11     (e) If the findings of an investigation by a lead agency 
 50.12  result in a determination of substantiated maltreatment for the 
 50.13  sole reason that the actions required of a facility under 
 50.14  paragraph (c), clause (5), item (iv), (v), or (vi), were not 
 50.15  taken, then the facility is subject to a correction order.  This 
 50.16  must not alter the lead agency's determination of mitigating 
 50.17  factors under section 626.557, subdivision 9c, paragraph (c). 
 50.18     Sec. 22.  [FEDERAL LAW CHANGE REQUEST OR WAIVER.] 
 50.19     The commissioner of health or human services, whichever is 
 50.20  appropriate, shall pursue changes to federal law necessary to 
 50.21  allow greater discretion on disciplinary activities of 
 50.22  unlicensed health care workers, and apply for necessary federal 
 50.23  waivers or approval that would allow for a set-aside process 
 50.24  related to disqualifications for nurse aides in nursing homes by 
 50.25  July 1, 2001. 
 50.26     Sec. 23.  [WAIVER FROM FEDERAL RULES AND REGULATIONS.] 
 50.27     By January 2002, the commissioner of health shall work with 
 50.28  providers to examine federal rules and regulations prohibiting 
 50.29  neglect, abuse, and financial exploitation of residents in 
 50.30  licensed nursing facilities and shall apply for federal waivers 
 50.31  to: 
 50.32     (1) allow the use of Minnesota Statutes, section 626.5572, 
 50.33  to control the identification and prevention of maltreatment of 
 50.34  residents in licensed nursing facilities, rather than the 
 50.35  definitions under federal rules and regulations; and 
 50.36     (2) allow the use of Minnesota Statutes, sections 214.104, 
 51.1   245A.04, and 626.557, to control the disqualification or 
 51.2   discipline of any persons providing services to residents in 
 51.3   licensed nursing facilities, rather than the nurse aide registry 
 51.4   or other exclusionary provisions of federal rules and 
 51.5   regulations. 
 51.6      Sec. 24.  [EFFECTIVE DATES.] 
 51.7      (a) Sections 20, paragraph (g); and 21, are effective the 
 51.8   day following final enactment. 
 51.9      (b) Sections 1; 3; 5; 8; 19; and 22, are effective July 1, 
 51.10  2001. 
 51.11     (c) Sections 2; 4; 6; 7; 9 to 18; and 20, paragraphs (a), 
 51.12  (b), (e), and (f), are effective January 1, 2002.