STATE OF MINNESOTA
EIGHTY-FIFTH SESSION - 2007
_____________________
SEVENTY-SECOND DAY
Saint Paul, Minnesota, Friday, May 18, 2007
The House of Representatives convened at 10:00 a.m. and was
called to order by Margaret Anderson Kelliher, Speaker of the House.
Prayer was offered by Pastor Jim Arends, Prince of Peace
Lutheran Church, LaCrescent, Minnesota.
The members of the House gave the pledge of allegiance to the
flag of the United States of America.
The roll was called and the following members were present:
Anderson, B.
Anderson, S.
Anzelc
Atkins
Beard
Benson
Berns
Bigham
Bly
Brod
Brown
Brynaert
Buesgens
Bunn
Carlson
Clark
Cornish
Davnie
Dean
DeLaForest
Demmer
Dill
Dominguez
Doty
Eastlund
Eken
Emmer
Erhardt
Erickson
Faust
Finstad
Fritz
Gardner
Garofalo
Gottwalt
Greiling
Gunther
Hackbarth
Hamilton
Hansen
Hausman
Haws
Heidgerken
Hilstrom
Hilty
Holberg
Hoppe
Hornstein
Hortman
Hosch
Huntley
Jaros
Johnson
Juhnke
Kahn
Kalin
Knuth
Koenen
Kohls
Kranz
Laine
Lanning
Lenczewski
Lesch
Liebling
Lieder
Lillie
Loeffler
Madore
Magnus
Mahoney
Mariani
Marquart
Masin
McFarlane
McNamara
Moe
Morgan
Morrow
Mullery
Murphy, E.
Murphy, M.
Nelson
Nornes
Norton
Olin
Olson
Otremba
Ozment
Paulsen
Paymar
Pelowski
Peppin
Peterson, A.
Peterson, N.
Peterson, S.
Poppe
Rukavina
Ruth
Ruud
Sailer
Seifert
Sertich
Severson
Shimanski
Simon
Simpson
Slawik
Slocum
Smith
Solberg
Sviggum
Swails
Thao
Thissen
Tillberry
Tschumper
Urdahl
Wagenius
Walker
Ward
Wardlow
Welti
Westrom
Winkler
Wollschlager
Zellers
Spk. Kelliher
A quorum was present.
Dettmer was excused.
Dittrich was excused until 10:45 a.m. Tingelstad was excused until
11:00 a.m. Abeler
was excused until 11:25 a.m. Scalze
was excused until 11:35 a.m. Howes was
excused until 11:40 a.m.
The Chief Clerk proceeded to read the Journal of the preceding
day. Gardner moved that further reading
of the Journal be suspended and that the Journal be approved as corrected by
the Chief Clerk. The motion prevailed.
REPORTS OF CHIEF CLERK
S. F. No. 430 and H. F. No. 1978,
which had been referred to the Chief Clerk for comparison, were examined and
found to be identical with certain exceptions.
SUSPENSION
OF RULES
Murphy, M., moved that the rules be so far suspended that
S. F. No. 430 be substituted for H. F. No. 1978
and that the House File be indefinitely postponed. The motion prevailed.
S. F. No. 886 and H. F. No. 771,
which had been referred to the Chief Clerk for comparison, were examined and
found to be identical with certain exceptions.
SUSPENSION
OF RULES
Mariani moved that the rules be so far suspended that
S. F. No. 886 be substituted for H. F. No. 771
and that the House File be indefinitely postponed. The motion prevailed.
PETITIONS AND COMMUNICATIONS
The following communications were received:
STATE
OF MINNESOTA
OFFICE
OF THE GOVERNOR
SAINT
PAUL 55155
May
15, 2007
The Honorable Margaret
Anderson Kelliher
Speaker of the House of
Representatives
The State of Minnesota
Dear Speaker Kelliher:
I have vetoed and am returning H. F. No. 946, Chapter No. 84,
the Omnibus Transportation Finance Bill.
With more than $5 billion in tax and fee increases, this bill
would impose an unnecessary and onerous financial burden on Minnesota citizens
and would weaken our state's economy.
The entire array of tax increases in this bill would cost an average
family in Minnesota up to $500 per year.
As I clearly stated to the legislative conference committee
that crafted this legislation, I remain opposed to increasing the tax burden on
Minnesota families. With gasoline prices
rising to historic highs, a gas tax increase of up to 7.5 cents per gallon is
untimely and misguided.
While the media have focused on the gas tax increase, other
provisions in this bill need to be highlighted, including:
● A 0.5% sales tax increase in the seven metro
counties and any adjacent county that chooses to join in without a voter
referendum. This will result in
Minneapolis and Hennepin Counties having one of the higher sales tax rates in
the nation.
● A
0.5% sales tax increase in Greater Minnesota counties, subject to voter
referendum.
● A new $20 excise
tax on motor vehicle purchases.
● Removal of the requirement that metropolitan
counties that impose a wheelage tax ($10) offset that amount on their property
tax levy, effectively increasing property taxes.
● Removal of caps on "license tabs"
which limit the tax to $189 in the second year after a car is purchased and $99
in the third year, instituted at the recommendation of Governor Ventura during
the 2000 legislative session, subjecting car owners to significant increases.
I am disappointed that the conference committee did not adopt
my transportation proposal and once again overreached. This type of overreaching has resulted in a
transportation funding stalemate at the Capitol for too many years. Steady progress that is achievable is
preferable to no progress at all.
Along with the numerous tax increases, the following provisions
in the bill are also objectionable:
● I remain opposed to the provision creating a
new joint powers entity in the metropolitan area with powers to distribute
transportation funds to counties, cities, and the state. The proposed governing board would create a
duplicative and unnecessarily complicated structure and add unnecessary process
at the local, state and federal levels.
Separating transportation spending decisions from the regional
transportation planning function - as H. F. No. 946 would do - would be a
step backward (recall the Regional Transit Board). This provision is bad public policy and would likely feature
parochial decision making over an objective, regional perspective for
transportation and transit planning, capital investments, and operations.
● I also remain opposed to the provision that
severely restricts the extent to which a county regional rail authority may
participate in financing the construction and operation of a transit
project. This provision will have a
negative impact on Minnesota's ability to compete for federal capital transit
funding for future "new starts" projects, and it could also have an
immediate negative - or even fatal - impact on the Northstar commuter rail
project. This provision would
necessitate a restructuring of the Northstar capital financing plan that has
been submitted to the Federal Transit Administration. The restructuring effort could delay the project, putting in
question the project's ability to remain eligible for federal funding.
The bill includes many items on which we share some agreement,
such as a significant level of trunk highway bonding to accelerate long-delayed
priority highway projects, the distribution of constitutionally dedicated motor
vehicle sales taxes (MVST) with a ratio of 60 percent for roads and highways
and 40 percent for transit, and the dedication of sales tax revenues on leased
vehicles to highways and transit.
However, I strongly urge the Legislature to adhere to my earlier
proposal to include leased vehicle sales tax revenue in the base of the
constitutionally dedicated MVST fund, and distribute the overall transit
portion 38 percent for Metro area transit and 2 percent for Greater Minnesota
transit. This formula will ensure that
transit systems across the state will have additional funds to meet their
future operating obligations.
I am issuing my veto promptly because I believe there is still
time this session for the Legislature to pass a significant transportation
financing bill - without tax increases - that I can sign into law. Investing in transportation is important to
the citizens of Minnesota and a top priority of my administration. I urge the Legislature to approve my
administration's transportation financing proposal and help us move forward in
addressing Minnesota's transportation needs.
Sincerely,
Tim
Pawlenty
Governor
MOTION TO OVERRIDE VETO
Olson moved that H. F. No. 946, Chapter No. 84, be now
reconsidered and repassed, the objections of the Governor notwithstanding,
pursuant to Article IV, Section 23, of the Constitution of the State of
Minnesota.
LAY ON
THE TABLE
Sertich moved that the Olson motion be laid on the table.
A roll call was requested and properly seconded.
The question was taken on the Sertich motion and the roll was
called. There were 84 yeas and 39 nays
as follows:
Those who voted in the affirmative were:
Anzelc
Benson
Bigham
Bly
Brown
Brynaert
Bunn
Carlson
Clark
Cornish
Davnie
Dill
Dominguez
Doty
Eken
Faust
Fritz
Gardner
Greiling
Hansen
Hausman
Haws
Hilstrom
Hilty
Hornstein
Hortman
Hosch
Huntley
Johnson
Juhnke
Kalin
Knuth
Koenen
Kranz
Laine
Lenczewski
Lesch
Liebling
Lieder
Lillie
Loeffler
Madore
Mahoney
Mariani
Marquart
Masin
McFarlane
Moe
Morgan
Morrow
Mullery
Murphy, E.
Murphy, M.
Nelson
Norton
Olin
Otremba
Paymar
Pelowski
Peterson, A.
Peterson, N.
Peterson, S.
Poppe
Rukavina
Ruud
Sailer
Sertich
Simon
Slawik
Slocum
Solberg
Swails
Thao
Thissen
Tillberry
Tschumper
Urdahl
Wagenius
Walker
Ward
Welti
Winkler
Wollschlager
Spk. Kelliher
Those who voted in the negative were:
Anderson, B.
Anderson, S.
Beard
Berns
Brod
Buesgens
Dean
DeLaForest
Demmer
Eastlund
Emmer
Erickson
Finstad
Gottwalt
Gunther
Hackbarth
Hamilton
Heidgerken
Holberg
Hoppe
Jaros
Kohls
Lanning
Magnus
McNamara
Nornes
Olson
Paulsen
Peppin
Ruth
Seifert
Severson
Shimanski
Simpson
Smith
Sviggum
Wardlow
Westrom
Zellers
The motion prevailed and the Olson motion was laid on the
table.
STATE OF MINNESOTA
OFFICE OF THE GOVERNOR
SAINT PAUL 55155
May 15, 2007
The Honorable Margaret
Anderson Kelliher
Speaker of the House of
Representatives
The State of Minnesota
Dear Speaker Kelliher:
I have vetoed and am returning House File No. 2294, Chapter No.
81, relating to property taxes and individual income tax increases.
Although I am supportive of providing property tax relief, it
should be funded within the 9.8 percent biennial budget growth and the current
surplus of $2.2 billion and not by increasing income taxes by $452 million.
The creation of a new 4th tier for individual income taxes at a
9 percent rate would place Minnesota with the third highest tax rate in the
nation. This tax would fall most
heavily on the job creators and employers in the state as 90 percent of
businesses are flow-through entities that pay their taxes through the
individual income tax system. A
permanent statewide tax increase of this magnitude would place Minnesota at a
competitive disadvantage, negatively impacting our economy and the job creators
in our state.
This bill also makes significant changes to the state
equalization aid formula for excess levy referenda. Current law defines a specific process for calculating a school
district's state equalization aid. This
bill replaces the current fixed standard to a new standard based on a
percentage of "market value equalization factor." The "market value equalization
factor" is a new term that is not defined under current law or in this
bill. If this provision became the law,
the state would not be able to calculate the equalization aid to otherwise
qualifying school districts. This would
potentially harm qualifying school districts with less property tax wealth -
these tend to be school districts in rural areas or those in outer ring
suburbs.
I encourage the Legislature to pass targeted homeowner property
tax relief that is sustainable and is part of the overall budget target
agreement. We look forward to working
with you in this final week of session to reach a compromise that is acceptable
to all on the remaining omnibus tax and funding bills.
Sincerely,
Tim
Pawlenty
Governor
MOTION
TO OVERRIDE VETO
Olson moved that H. F. No. 2294, Chapter No. 81, be now
reconsidered and repassed, the objections of the Governor notwithstanding,
pursuant to Article IV, Section 23, of the Constitution of the State of
Minnesota.
LAY ON
THE TABLE
Sertich moved that the Olson motion be laid on the table.
A roll call was requested and properly seconded.
The question was taken on the Sertich motion and the roll was
called. There were 93 yeas and 36 nays
as follows:
Those who voted in the affirmative were:
Anzelc
Atkins
Benson
Bigham
Bly
Brown
Brynaert
Bunn
Carlson
Clark
Cornish
Davnie
Dean
Dill
Dittrich
Dominguez
Doty
Eken
Erhardt
Faust
Finstad
Fritz
Gardner
Greiling
Hansen
Hausman
Haws
Hilstrom
Hilty
Hornstein
Hortman
Hosch
Huntley
Jaros
Johnson
Juhnke
Kahn
Kalin
Knuth
Koenen
Kranz
Laine
Lenczewski
Lesch
Liebling
Lieder
Lillie
Loeffler
Madore
Mahoney
Mariani
Marquart
Masin
McFarlane
McNamara
Moe
Morgan
Morrow
Mullery
Murphy, E.
Murphy, M.
Nelson
Norton
Olin
Otremba
Ozment
Paulsen
Paymar
Pelowski
Peterson, A.
Peterson, N.
Peterson, S.
Poppe
Rukavina
Ruud
Sailer
Sertich
Simon
Slawik
Slocum
Solberg
Swails
Thao
Thissen
Tillberry
Tschumper
Wagenius
Walker
Ward
Welti
Winkler
Wollschlager
Spk. Kelliher
Those who voted in the negative were:
Anderson, B.
Anderson, S.
Beard
Berns
Brod
Buesgens
DeLaForest
Demmer
Eastlund
Emmer
Erickson
Garofalo
Gottwalt
Gunther
Hackbarth
Hamilton
Heidgerken
Holberg
Hoppe
Kohls
Lanning
Magnus
Nornes
Olson
Peppin
Ruth
Seifert
Severson
Shimanski
Simpson
Smith
Sviggum
Urdahl
Wardlow
Westrom
Zellers
The motion prevailed and the Olson motion was laid on the
table.
STATE
OF MINNESOTA
OFFICE
OF THE SECRETARY OF STATE
ST.
PAUL 55155
The Honorable Margaret
Anderson Kelliher
Speaker of the House of
Representatives
The Honorable James P.
Metzen
President of the Senate
I have the honor to inform you that the following enrolled Act
of the 2007 Session of the State Legislature has been received from the Office
of the Governor and is deposited in the Office of the Secretary of State for
preservation, pursuant to the State Constitution, Article IV, Section 23:
S. F. No. |
H. F. No. |
Session Laws Chapter No. |
Time and Date Approved 2007 |
Date Filed 2007 |
238 82 11:01
a.m. May 16 May
16
Sincerely,
Mark
Ritchie
Secretary
of State
STATE
OF MINNESOTA
OFFICE
OF THE SECRETARY OF STATE
ST.
PAUL 55155
The Honorable Margaret
Anderson Kelliher
Speaker of the House of
Representatives
The Honorable James P.
Metzen
President of the Senate
I have the honor to inform you that the following enrolled Acts
of the 2007 Session of the State Legislature have been received from the Office
of the Governor and are deposited in the Office of the Secretary of State for
preservation, pursuant to the State Constitution, Article IV, Section 23:
S. F. No. |
H. F. No. |
Session Laws Chapter No. |
Time and Date Approved 2007 |
Date Filed 2007 |
538 77 3:30
p.m. May 17 May
17
1045 78 3:32
p.m. May 17 May
17
608 79 3:34
p.m. May 17 May
17
1542 80 3:35
p.m. May 17 May
17
1755 83 3:36
p.m. May 17 May
17
Sincerely,
Mark
Ritchie
Secretary
of State
SECOND READING OF SENATE BILLS
S. F. Nos. 430 and 886 were read for the second time.
INTRODUCTION
AND FIRST READING OF HOUSE BILLS
The following House Files were introduced:
Jaros introduced:
H. F. No. 2503, A bill for an act relating to natural
resources; providing for lake and river name changes.
The bill was read for the first time and referred to the
Committee on Environment and Natural Resources.
Madore, Ozment, Garofalo, Hansen, Masin and Atkins introduced:
H. F. No. 2504, A bill for an act relating to capital
improvements; appropriating money for asset preservation at the Minnesota
Zoological Garden; authorizing the sale and issuance of state bonds.
The bill was read for the first time and referred to the
Committee on Finance.
Haws, Doty, Hosch and Abeler introduced:
H. F. No. 2505, A bill for an act relating to transportation;
authorizing the sale of state bonds; appropriating money for final design of
extension of commuter rail service.
The bill was read for the first time and referred to the
Committee on Finance.
Seifert introduced:
H. F. No. 2506, A bill for an act relating to transportation
finance; appropriating money for transportation, Metropolitan Council, and
public safety activities; providing for fund transfers, general contingent
accounts, and tort claims; authorizing sale and issuance of trunk highway bonds
for highways and transit facilities; modifying provisions related to driver and
vehicle services fees; modifying provisions relating to various
transportation-related funds and accounts; providing sales tax exemption for
commuter rail system; providing for treatment and deposit of proceeds of lease
and sales taxes on motor vehicles; modifying formula for transit assistance to
transit replacement service communities; increasing fees for services of
Department of Public Safety; amending Minnesota Statutes 2006, sections 16A.88;
161.04, subdivision 3; 168.017, subdivision 3; 168.12, subdivision 5; 168A.29,
subdivision 1; 171.02, subdivision 3; 171.06, subdivision 2; 171.07,
subdivisions 3a, 11; 171.20, subdivision 4; 297A.70, subdivision 2; 297A.71, by
adding a subdivision; 297A.815, by adding a subdivision; 297A.94; 297B.09,
subdivision 1; 299D.09; 473.388, subdivision 4; repealing Minnesota Statutes
2006, section 174.32.
The bill was read for the first time and referred to the
Committee on Finance.
Knuth and Hausman introduced:
H. F. No. 2507, A bill for an act relating to capital investment;
authorizing spending to acquire and better public land and buildings and other
improvements of a capital nature; authorizing the issuance of state bonds;
appropriating money for highway interchange improvements in Arden Hills.
The bill was read for the first time and referred to the
Committee on Finance.
Knuth and Hausman introduced:
H. F. No. 2508, A bill for an act relating to capital
investment; authorizing spending to acquire and better public land and
buildings and other improvements of a capital nature; appropriating money for
highway interchange improvements in Arden Hills.
The bill was read for the first time and referred to the
Committee on Finance.
Cornish, Smith, Lesch, Berns and Zellers introduced:
H. F. No. 2509, A bill for an act relating to crimes;
prohibiting attempting to disarm peace officers when the officer is engaged in
the performance of duties; proposing coding for new law in Minnesota Statutes,
chapter 609.
The bill was read for the first time and referred to the Committee
on Public Safety and Civil Justice.
Abeler and Otremba introduced:
H. F. No. 2510, A bill for an act relating to health;
prohibiting pharmacists from substituting epilepsy drugs without consent;
proposing coding for new law in Minnesota Statutes, chapter 151.
The bill was read for the first time and referred to the
Committee on Health and Human Services.
Koenen introduced:
H. F. No. 2511, A bill for an act relating to capital
improvements; appropriating money for a walking path in Clara City; authorizing
the sale and issuance of state bonds.
The bill was read for the first time and referred to the
Committee on Finance.
Gottwalt introduced:
H. F. No. 2512, A bill for an act relating to taxation; sales
and use; exempting construction materials and equipment used to construct
public safety facilities in the city of St. Cloud; amending Minnesota Statutes
2006, section 297A.71, by adding a subdivision.
The bill was read for the first time and referred to the
Committee on Taxes.
Mariani; Garofalo; Erhardt; Cornish; Solberg; Ruth; Demmer;
Tingelstad; Abeler; Davnie; Eken; Johnson; Poppe; Kahn; Lesch; Simon; Carlson;
Lieder; Hausman; Walker; Hortman; Lillie; Howes; Peppin; Hoppe; Mullery;
Wagenius; Murphy, E.; Urdahl; Peterson, N.; Marquart; Otremba; Simpson;
Greiling and Nelson introduced:
H. F. No. 2513, A bill for an act relating to state government;
providing that the Compensation Council establishes salaries for legislators,
judges, and constitutional officers; amending Minnesota Statutes 2006, section
15A.082.
The bill was read for the first time and referred to the
Committee on Rules and Legislative Administration.
Rukavina and Anzelc introduced:
H. F. No. 2514, A bill for an act relating to retirement;
amending deferred compensation plan restrictions; amending Minnesota Statutes
2006, section 356.24, subdivision 1.
The bill was read for the first time and referred to the
Committee on Governmental Operations, Reform, Technology and Elections.
Abeler and Benson introduced:
H. F. No. 2515, A bill for an act relating to education;
requiring a nutrient analysis of school menus; amending Minnesota Statutes
2006, section 124D.111, subdivision 2.
The bill was read for the first time and referred to the
Committee on E-12 Education.
Lanning, Kranz, Nornes, Hortman, Simpson, Olin and Demmer
introduced:
H. F. No. 2516, A bill for an act relating to capital
improvements; authorizing the issuance of state bonds; appropriating money to
construct the Northwestern Minnesota Regional Sports Center in Moorhead.
The bill was read for the first time and referred to the
Committee on Finance.
Murphy, M.; Huntley and Jaros introduced:
H. F. No. 2517, A bill for an act relating to capital
investment; authorizing spending to acquire and better public land and
buildings and other improvements of a capital nature; authorizing the issuance
of state bonds; appropriating money for new terminal facilities at the Duluth
airport.
The bill was read for the first time and referred to the Committee
on Finance.
Huntley; Murphy, M., and Jaros introduced:
H. F. No. 2518, A bill for an act relating to capital
investment; authorizing spending to acquire and better public land and
buildings and other improvements of a capital nature; authorizing the issuance
of state bonds; appropriating money for construction of sanitary sewer overflow
facilities in Duluth.
The bill was read for the first time and referred to the
Committee on Finance.
Doty introduced:
H. F. No. 2519, A bill for an act relating to capital
improvements; appropriating money for a wastewater collection system in the
township and city of Garrison and Kathio Township; authorizing the sale and
issuance of state bonds.
The bill was read for the first time and referred to the Committee
on Finance.
Jaros; Murphy, M., and Huntley introduced:
H. F. No. 2520, A bill for an act relating to capital
investment; authorizing spending to acquire and better public land and
buildings and other improvements of a capital nature; authorizing the issuance
of state bonds; appropriating money for expansion of the polar bear exhibit at
the Lake Superior Zoo in Duluth.
The bill was read for the first time and referred to the
Committee on Finance.
Doty introduced:
H. F. No. 2521, A bill for an act relating to highways;
appropriating money to reconstruct highway 25 through city of Pierz;
authorizing sale of trunk highway bonds.
The bill was read for the first time and referred to the
Committee on Finance.
MESSAGES FROM THE SENATE
The following messages were received from the Senate:
Madam Speaker:
I hereby announce that the Senate has concurred in and adopted
the report of the Conference Committee on:
S. F. No. 493.
The Senate has repassed said bill in accordance with the
recommendation and report of the Conference Committee. Said Senate File is herewith transmitted to
the House.
Patrick E. Flahaven, Secretary of the Senate
CONFERENCE
COMMITTEE REPORT ON S. F. No. 493
A bill for an act relating to public nuisances; providing that
certain criminal gang behavior is a public nuisance; authorizing injunctive
relief and other remedies; proposing coding for new law in Minnesota Statutes,
chapter 617.
May
15, 2007
The Honorable James P.
Metzen
President of the Senate
The Honorable Margaret
Anderson Kelliher
Speaker of the House of
Representatives
We,
the undersigned conferees for S. F. No. 493 report that we have agreed upon the
items in dispute and recommend as follows:
That
the House recede from its amendment and that S. F. No. 493 be further amended
as follows:
Page 1, line 10, delete "five"
and insert "three"
Page
1, line 16, delete everything after "means" and insert a colon
Page
1, after line 16, insert:
"(1)
a structure suitable for human shelter, a commercial"
Page
1, line 24, delete the period and insert "; or"
Page
1, after line 24, insert:
"(2)
a parcel of land that does not include a structure and is under the control of
the person who owns or is responsible for maintaining the land."
Page
2, delete section 3 and insert:
"Sec.
3. [617.93]
SUIT TO ABATE NUISANCE.
(a)
A county or city attorney or the attorney general may sue to enjoin a public
nuisance under sections 617.91 to 617.97.
(b)
A person who continuously or regularly engages in gang activity as a member of
a criminal gang may be made a defendant in a suit.
(c)
If the public nuisance involves the use of a place as provided in section
617.92, subdivision 2, the owner or a person who is responsible for maintaining
the place on behalf of the owner may be made a defendant in the suit pursuant
to the procedures applicable to owners under sections 617.81 to 617.87."
Page
3, line 8, delete everything after "activity" and insert
". The court in imposing
reasonable requirements must balance state interests in public safety against
constitutional freedoms."
Page
3, line 32, delete "provides credible evidence" and insert
"proves, by a preponderance of the evidence,"
We request the adoption of this report and repassage of the
bill.
Senate Conferees: Mee Moua, Don Betzold and Warren Limmer.
House Conferees: John Lesch, Joe Mullery and Tony Cornish.
Lesch moved that the report of the Conference Committee on
S. F. No. 493 be adopted and that the bill be repassed as
amended by the Conference Committee. The
motion prevailed.
S. F. No. 493, A bill for an act relating to public nuisances;
providing that certain criminal gang behavior is a public nuisance; authorizing
injunctive relief and other remedies; proposing coding for new law in Minnesota
Statutes, chapter 617.
The bill was read for the third time, as amended by Conference,
and placed upon its repassage.
The question was taken on the repassage of the bill and
the roll was called. There were 114
yeas and 15 nays as follows:
Those who voted in the affirmative were:
Anderson, S.
Anzelc
Atkins
Beard
Benson
Berns
Bigham
Bly
Brown
Brynaert
Bunn
Carlson
Clark
Cornish
Davnie
Demmer
Dill
Dittrich
Dominguez
Doty
Eastlund
Eken
Erhardt
Faust
Fritz
Gardner
Garofalo
Gottwalt
Greiling
Gunther
Hackbarth
Hamilton
Hansen
Hausman
Haws
Heidgerken
Hilstrom
Hilty
Hornstein
Hortman
Hosch
Jaros
Johnson
Juhnke
Kahn
Kalin
Knuth
Koenen
Kohls
Kranz
Laine
Lanning
Lenczewski
Lesch
Liebling
Lieder
Lillie
Loeffler
Madore
Magnus
Mahoney
Mariani
Marquart
Masin
McFarlane
McNamara
Moe
Morgan
Morrow
Mullery
Murphy, E.
Murphy, M.
Nelson
Norton
Olin
Otremba
Ozment
Paulsen
Paymar
Pelowski
Peppin
Peterson, A.
Peterson, N.
Peterson, S.
Poppe
Rukavina
Ruth
Ruud
Sailer
Sertich
Severson
Shimanski
Simon
Simpson
Slawik
Slocum
Smith
Solberg
Sviggum
Swails
Thao
Thissen
Tillberry
Tschumper
Urdahl
Wagenius
Walker
Ward
Wardlow
Welti
Winkler
Wollschlager
Zellers
Spk. Kelliher
Those who voted in the negative were:
Anderson, B.
Brod
Buesgens
Dean
DeLaForest
Emmer
Erickson
Finstad
Holberg
Hoppe
Huntley
Nornes
Olson
Seifert
Westrom
The bill was repassed, as amended by Conference, and its title
agreed to.
Madam Speaker:
I hereby announce that the Senate has concurred in and adopted
the report of the Conference Committee on:
S. F. No. 1724.
The Senate has repassed said bill in accordance with the
recommendation and report of the Conference Committee. Said Senate File is herewith transmitted to
the House.
Patrick E. Flahaven, Secretary of the Senate
CONFERENCE
COMMITTEE REPORT ON S. F. No. 1724
A bill for an act relating to human services; making changes to
licensing provisions; modifying data practices, program administration,
disaster plans, education programs, conditional license provisions,
suspensions, sanctions, and contested case hearings, child care center
training, family child care training requirements, vulnerable adults,
maltreatment of minors, background studies, disqualifications,
reconsiderations, disqualification set-asides, fair hearings, appeals, changing
definitions of neglect and physical abuse; amending Minnesota Statutes 2006,
sections 13.46, subdivisions 2, 4; 245A.03, subdivision 2; 245A.04, subdivision
11, by adding subdivisions; 245A.06, subdivision 4; 245A.07, subdivisions 2a,
3, by adding a subdivision; 245A.08, subdivision 2a; 245A.10, subdivision 2;
245A.14, subdivision 8; 245A.144; 245A.1445; 245A.145, subdivision 1; 245A.18,
subdivision 2; 245A.65, subdivision 1, by adding a subdivision; 245C.02, by
adding a subdivision; 245C.05, subdivision 3; 245C.07; 245C.08; 245C.09,
subdivision 1; 245C.11, by adding a subdivision; 245C.13, subdivision 2;
245C.14, subdivision 1; 245C.15, subdivisions 1, 2, 3, 4; 245C.16, subdivision
1; 245C.17, subdivisions 2, 3; 245C.21, subdivisions 2, 3; 245C.22,
subdivisions 4, 5; 245C.24, subdivision 3; 245C.27, subdivision 1; 245C.28,
subdivision 1; 245C.301; 256B.0919, by adding a subdivision; 256B.092, by
adding a subdivision; 270B.14, subdivision 1; 626.556, subdivisions 2, 10e,
10i; 626.557, subdivisions 9c, 9d; 626.5572, subdivision 17; proposing coding
for new law in Minnesota Statutes, chapter 245A; repealing Minnesota Statutes
2006, sections 245A.023; 245A.14, subdivisions 7, 9, 9a, 12, 13; 245C.06;
Minnesota Rules, parts 9502.0385; 9503.0035.
May
16, 2007
The Honorable James P.
Metzen
President of the Senate
The Honorable Margaret
Anderson Kelliher
Speaker of the House of
Representatives
We,
the undersigned conferees for S. F. No. 1724 report that we have agreed upon
the items in dispute and recommend as follows:
That
the Senate concur in the House amendments and that S. F. No. 1724 be further
amended as follows:
Delete
everything after the enacting clause and insert:
"Section
1. Minnesota Statutes 2006, section
13.46, subdivision 2, is amended to read:
Subd.
2. General. (a) Unless the data is summary data or a
statute specifically provides a different classification, data on individuals
collected, maintained, used, or disseminated by the welfare system is private
data on individuals, and shall not be disclosed except:
(1)
according to section 13.05;
(2)
according to court order;
(3)
according to a statute specifically authorizing access to the private data;
(4) to
an agent of the welfare system, including a law enforcement person, attorney,
or investigator acting for it in the investigation or prosecution of a criminal
or civil proceeding relating to the administration of a program;
(5) to
personnel of the welfare system who require the data to verify an individual's
identity; determine eligibility, amount of assistance, and the need to provide
services to an individual or family across programs; evaluate the effectiveness
of programs; assess parental contribution amounts; and investigate
suspected fraud;
(6) to
administer federal funds or programs;
(7)
between personnel of the welfare system working in the same program;
(8) to the Department of
Revenue to assess parental contribution amounts for purposes of section
252.27, subdivision 2a, administer and evaluate tax refund or tax credit
programs and to identify individuals who may benefit from these programs. The following information may be disclosed
under this paragraph: an individual's and their dependent's names, dates of
birth, Social Security numbers, income, addresses, and other data as required,
upon request by the Department of Revenue.
Disclosures by the commissioner of revenue to the commissioner of human
services for the purposes described in this clause are governed by section
270B.14, subdivision 1. Tax refund or
tax credit programs include, but are not limited to, the dependent care credit
under section 290.067, the Minnesota working family credit under section
290.0671, the property tax refund and rental credit under section 290A.04, and
the Minnesota education credit under section 290.0674;
(9)
between the Department of Human Services, the Department of Education, and
the Department of Employment and Economic Development for the purpose of
monitoring, and when applicable, the Department of Education, for the
following purposes:
(i)
to monitor
the eligibility of the data subject for unemployment benefits, for any
employment or training program administered, supervised, or certified by that
agency, for the purpose of administering;
(ii)
to administer
any rehabilitation program or child care assistance program, whether alone or
in conjunction with the welfare system, or;
(iii) to monitor and evaluate the
Minnesota family investment program by exchanging data on recipients and former
recipients of food support, cash assistance under chapter 256, 256D, 256J, or
256K, child care assistance under chapter 119B, or medical programs under
chapter 256B, 256D, or 256L; and
(iv)
to analyze public assistance employment services and program utilization, cost,
effectiveness, and outcomes as implemented under the authority established in
Title II, Sections 201-204 of the Ticket to Work and Work Incentives
Improvement Act of 1999. Health records
governed by section 144.335 and "protected health information" as
defined in Code of Federal Regulations, title 45, section 160.103, and governed
by Code of Federal Regulations, title 45, parts 160-164, including health care
claims utilization information, must not be exchanged under this clause;
(10)
to appropriate parties in connection with an emergency if knowledge of the
information is necessary to protect the health or safety of the individual or
other individuals or persons;
(11)
data maintained by residential programs as defined in section 245A.02 may be
disclosed to the protection and advocacy system established in this state
according to Part C of Public Law 98-527 to protect the legal and human rights
of persons with developmental disabilities or other related conditions who live
in residential facilities for these persons if the protection and advocacy system
receives a complaint by or on behalf of that person and the person does not
have a legal guardian or the state or a designee of the state is the legal
guardian of the person;
(12)
to the county medical examiner or the county coroner for identifying or locating
relatives or friends of a deceased person;
(13)
data on a child support obligor who makes payments to the public agency may be
disclosed to the Minnesota Office of Higher Education to the extent necessary
to determine eligibility under section 136A.121, subdivision 2, clause (5);
(14)
participant Social Security numbers and names collected by the telephone
assistance program may be disclosed to the Department of Revenue to conduct an
electronic data match with the property tax refund database to determine
eligibility under section 237.70, subdivision 4a;
(15)
the current address of a Minnesota family investment program participant may be
disclosed to law enforcement officers who provide the name of the participant
and notify the agency that:
(i) the
participant:
(A) is
a fugitive felon fleeing to avoid prosecution, or custody or confinement after
conviction, for a crime or attempt to commit a crime that is a felony under the
laws of the jurisdiction from which the individual is fleeing; or
(B) is
violating a condition of probation or parole imposed under state or federal
law;
(ii)
the location or apprehension of the felon is within the law enforcement
officer's official duties; and
(iii)
the request is made in writing and in the proper exercise of those duties;
(16)
the current address of a recipient of general assistance or general assistance
medical care may be disclosed to probation officers and corrections agents who
are supervising the recipient and to law enforcement officers who are investigating
the recipient in connection with a felony level offense;
(17)
information obtained from food support applicant or recipient households may be
disclosed to local, state, or federal law enforcement officials, upon their
written request, for the purpose of investigating an alleged violation of the
Food Stamp Act, according to Code of Federal Regulations, title 7, section
272.1(c);
(18)
the address, Social Security number, and, if available, photograph of any
member of a household receiving food support shall be made available, on
request, to a local, state, or federal law enforcement officer if the officer
furnishes the agency with the name of the member and notifies the agency that:
(i)
the member:
(A) is
fleeing to avoid prosecution, or custody or confinement after conviction, for a
crime or attempt to commit a crime that is a felony in the jurisdiction the
member is fleeing;
(B) is
violating a condition of probation or parole imposed under state or federal
law; or
(C)
has information that is necessary for the officer to conduct an official duty
related to conduct described in subitem (A) or (B);
(ii)
locating or apprehending the member is within the officer's official duties;
and
(iii)
the request is made in writing and in the proper exercise of the officer's
official duty;
(19)
the current address of a recipient of Minnesota family investment program,
general assistance, general assistance medical care, or food support may be
disclosed to law enforcement officers who, in writing, provide the name of the
recipient and notify the agency that the recipient is a person required to
register under section 243.166, but is not residing at the address at which the
recipient is registered under section 243.166;
(20)
certain information regarding child support obligors who are in arrears may be
made public according to section 518A.74;
(21)
data on child support payments made by a child support obligor and data on the
distribution of those payments excluding identifying information on obligees
may be disclosed to all obligees to whom the obligor owes support, and data on
the enforcement actions undertaken by the public authority, the status of those
actions, and data on the income of the obligor or obligee may be disclosed to
the other party;
(22)
data in the work reporting system may be disclosed under section 256.998,
subdivision 7;
(23)
to the Department of Education for the purpose of matching Department of
Education student data with public assistance data to determine students
eligible for free and reduced price meals, meal supplements, and free milk
according to United States Code, title 42, sections 1758, 1761, 1766, 1766a,
1772, and 1773; to allocate federal and state funds that are distributed based
on income of the student's family; and to verify receipt of energy assistance
for the telephone assistance plan;
(24)
the current address and telephone number of program recipients and emergency
contacts may be released to the commissioner of health or a local board of
health as defined in section 145A.02, subdivision 2, when the commissioner or
local board of health has reason to believe that a program recipient is a
disease case, carrier, suspect case, or at risk of illness, and the data are
necessary to locate the person;
(25)
to other state agencies, statewide systems, and political subdivisions of this
state, including the attorney general, and agencies of other states, interstate
information networks, federal agencies, and other entities as required by
federal regulation or law for the administration of the child support
enforcement program;
(26)
to personnel of public assistance programs as defined in section 256.741, for
access to the child support system database for the purpose of administration,
including monitoring and evaluation of those public assistance programs;
(27)
to monitor and evaluate the Minnesota family investment program by exchanging
data between the Departments of Human Services and Education, on recipients and
former recipients of food support, cash assistance under chapter 256, 256D,
256J, or 256K, child care assistance under chapter 119B, or medical programs
under chapter 256B, 256D, or 256L;
(28)
to evaluate child support program performance and to identify and prevent fraud
in the child support program by exchanging data between the Department of Human
Services, Department of Revenue under section 270B.14, subdivision 1,
paragraphs (a) and (b), without regard to the limitation of use in paragraph
(c), Department of Health, Department of Employment and Economic Development,
and other state agencies as is reasonably necessary to perform these functions;
or
(29)
counties operating child care assistance programs under chapter 119B may
disseminate data on program participants, applicants, and providers to the
commissioner of education.
(b)
Information on persons who have been treated for drug or alcohol abuse may only
be disclosed according to the requirements of Code of Federal Regulations,
title 42, sections 2.1 to 2.67.
(c)
Data provided to law enforcement agencies under paragraph (a), clause (15),
(16), (17), or (18), or paragraph (b), are investigative data and are
confidential or protected nonpublic while the investigation is active. The data are private after the investigation
becomes inactive under section 13.82, subdivision 5, paragraph (a) or (b).
(d)
Mental health data shall be treated as provided in subdivisions 7, 8, and 9,
but is not subject to the access provisions of subdivision 10, paragraph (b).
For
the purposes of this subdivision, a request will be deemed to be made in
writing if made through a computer interface system.
Sec.
2. Minnesota Statutes 2006, section
13.46, subdivision 4, is amended to read:
Subd.
4. Licensing
data. (a) As used in this
subdivision:
(1)
"licensing data" means all data collected, maintained, used, or
disseminated by the welfare system pertaining to persons licensed or registered
or who apply for licensure or registration or who formerly were licensed or
registered under the authority of the commissioner of human services;
(2)
"client" means a person who is receiving services from a licensee or
from an applicant for licensure; and
(3)
"personal and personal financial data" means Social Security numbers,
identity of and letters of reference, insurance information, reports from the
Bureau of Criminal Apprehension, health examination reports, and social/home
studies.
(b)(1)
Except as provided in paragraph (c), the following data on current applicants,
license holders, and former licensees are public: name, address, telephone
number of licensees, date of receipt of a completed application, dates of
licensure, licensed capacity, type of client preferred, variances granted,
record of training and education in child care and child development, type of
dwelling, name and relationship of other family members, previous license
history, class of license, the existence and status of complaints, and the
number of serious injuries to or deaths of individuals in the licensed program
as reported to the commissioner of human services, the local social services
agency, or any other county welfare agency.
For purposes of this clause, a serious injury is one that is treated by
a physician. When a correction order or
fine has been issued, a license is suspended, immediately suspended, revoked,
denied, or made conditional, or a complaint is resolved, the following data on
current and former licensees and applicants are public: the substance
and investigative findings of the licensing or maltreatment complaint,
licensing violation, or substantiated maltreatment; the record of informal
resolution of a licensing violation; orders of hearing; findings of fact;
conclusions of law; specifications of the final correction order, fine,
suspension, immediate suspension, revocation, denial, or conditional license
contained in the record of licensing action; and the status of any appeal of
these actions.
(2)
Notwithstanding sections 626.556, subdivision 11, and 626.557, subdivision 12b,
when any person subject to disqualification under section 245C.14 in connection
with a license to provide family day care for children, child care center
services, foster care for children in the provider's home, or foster care or
day care services for adults in the provider's home is a substantiated
perpetrator of maltreatment, and the substantiated maltreatment is a reason for
a licensing action, the identity of the substantiated perpetrator of
maltreatment is public data. For
purposes of this clause, a person is a substantiated perpetrator if the
maltreatment determination has been upheld under section 256.045; 626.556,
subdivision 10i; 626.557, subdivision 9d; or chapter 14, or if an individual or
facility has not timely exercised appeal rights under these sections.
(3)
For applicants who withdraw their application prior to licensure or denial of a
license, the following data are public: the name of the applicant, the city and
county in which the applicant was seeking licensure, the dates of the
commissioner's receipt of the initial application and completed application,
the type of license sought, and the date of withdrawal of the application.
(4)
For applicants who are denied a license, the following data are public: the
name and address of the applicant, the city and county in which the
applicant was seeking licensure, the dates of the commissioner's receipt of the
initial application and completed application, the type of license sought, the
date of denial of the application, the nature of the basis for the denial, the
record of informal resolution of a denial, orders of hearings, findings of
fact, conclusions of law, specifications of the final order of denial, and
the status of any appeal of the denial.
(5)
The following data on persons subject to disqualification under section 245C.14
in connection with a license to provide family day care for children, child
care center services, foster care for children in the provider's home, or
foster care or day care services for adults in the provider's home, are public:
the nature of any disqualification set aside under section 245C.22,
subdivisions 2 and 4, and the reasons for setting aside the disqualification;
the nature of any disqualification for which a variance was granted under
sections 245A.04, subdivision 9; and 245C.30, and the reasons for granting any
variance under section 245A.04, subdivision 9; and, if applicable, the
disclosure that any person subject to a background study under section 245C.03,
subdivision 1, has successfully passed a background study.
(6)
When maltreatment is substantiated under section 626.556 or 626.557 and the
victim and the substantiated perpetrator are affiliated with a program licensed
under chapter 245A, the commissioner of human services, local social services
agency, or county welfare agency may inform the license holder where the
maltreatment occurred of the identity of the substantiated perpetrator and the
victim.
(7)
Notwithstanding clause (1), for child foster care, only the name of the license
holder and the status of the license are public if the county attorney has
requested that data otherwise classified as public data under clause (1) be
considered private data based on the best interests of a child in placement in
a licensed program.
(c)
The following are private data on individuals under section 13.02, subdivision
12, or nonpublic data under section 13.02, subdivision 9: personal and personal
financial data on family day care program and family foster care program
applicants and licensees and their family members who provide services under
the license.
(d)
The following are private data on individuals: the identity of persons who have
made reports concerning licensees or applicants that appear in inactive
investigative data, and the records of clients or employees of the licensee or
applicant for licensure whose records are received by the licensing agency for
purposes of review or in anticipation of a contested matter. The names of reporters under sections
626.556 and 626.557 may be disclosed only as provided in section 626.556,
subdivision 11, or 626.557, subdivision 12b.
(e) Data
classified as private, confidential, nonpublic, or protected nonpublic under
this subdivision become public data if submitted to a court or administrative
law judge as part of a disciplinary proceeding in which there is a public
hearing concerning a license which has been suspended, immediately suspended,
revoked, or denied.
(f)
Data generated in the course of licensing investigations that relate to an
alleged violation of law are investigative data under subdivision 3.
(g)
Data that are not public data collected, maintained, used, or disseminated
under this subdivision that relate to or are derived from a report as defined
in section 626.556, subdivision 2, or 626.5572, subdivision 18, are subject to
the destruction provisions of sections 626.556, subdivision 11c, and 626.557,
subdivision 12b.
(h)
Upon request, not public data collected, maintained, used, or disseminated
under this subdivision that relate to or are derived from a report of
substantiated maltreatment as defined in section 626.556 or 626.557 may be
exchanged with the Department of Health for purposes of completing background
studies pursuant to section 144.057 and with the Department of Corrections for
purposes of completing background studies pursuant to section 241.021.
(i)
Data on individuals collected according to licensing activities under chapters
245A and 245C, and data on individuals collected by the commissioner of human
services according to maltreatment investigations under sections 626.556 and
626.557, may be shared with the Department of Human Rights, the Department of
Health, the Department of Corrections, the Ombudsman for Mental Health and
Developmental Disabilities, and the individual's professional regulatory board
when there is reason to believe that laws or standards under the jurisdiction
of those agencies may have been violated.
(j) In addition to the notice
of determinations required under section 626.556, subdivision 10f, if the
commissioner or the local social services agency has determined that an
individual is a substantiated perpetrator of maltreatment of a child based on
sexual abuse, as defined in section 626.556, subdivision 2, and the
commissioner or local social services agency knows that the individual is a
person responsible for a child's care in another facility, the commissioner or
local social services agency shall notify the head of that facility of this
determination. The notification must
include an explanation of the individual's available appeal rights and the
status of any appeal. If a notice is given
under this paragraph, the government entity making the notification shall
provide a copy of the notice to the individual who is the subject of the
notice.
(k)
All not public data collected, maintained, used, or disseminated under this
subdivision and subdivision 3 may be exchanged between the Department of Human
Services, Licensing Division, and the Department of Corrections for purposes of
regulating services for which the Department of Human Services and the
Department of Corrections have regulatory authority.
Sec.
3. Minnesota Statutes 2006, section
245A.03, subdivision 2, is amended to read:
Subd.
2. Exclusion
from licensure. (a) This chapter
does not apply to:
(1)
residential or nonresidential programs that are provided to a person by an individual
who is related unless the residential program is a child foster care placement
made by a local social services agency or a licensed child-placing agency,
except as provided in subdivision 2a;
(2)
nonresidential programs that are provided by an unrelated individual to persons
from a single related family;
(3)
residential or nonresidential programs that are provided to adults who do not
abuse chemicals or who do not have a chemical dependency, a mental illness, a
developmental disability, a functional impairment, or a physical disability;
(4)
sheltered workshops or work activity programs that are certified by the
commissioner of economic security;
(5)
programs operated by a public school for children 33 months or older;
(6)
nonresidential programs primarily for children that provide care or supervision
for periods of less than three hours a day while the child's parent or legal
guardian is in the same building as the nonresidential program or present
within another building that is directly contiguous to the building in which
the nonresidential program is located;
(7)
nursing homes or hospitals licensed by the commissioner of health except as
specified under section 245A.02;
(8)
board and lodge facilities licensed by the commissioner of health that provide
services for five or more persons whose primary diagnosis is mental illness
that do not provide intensive residential treatment;
(9)
homes providing programs for persons placed there by a county or a licensed
agency for legal adoption, unless the adoption is not completed within two
years;
(10)
programs licensed by the commissioner of corrections;
(11)
recreation programs for children or adults that are operated or approved by a
park and recreation board whose primary purpose is to provide social and
recreational activities;
(12) programs operated by a
school as defined in section 120A.22, subdivision 4, whose primary purpose is
to provide child care to school-age children;
(13)
Head Start nonresidential programs which operate for less than 45 days in each
calendar year;
(14)
noncertified boarding care homes unless they provide services for five or more
persons whose primary diagnosis is mental illness or a developmental
disability;
(15)
programs for children such as scouting, boys clubs, girls clubs, and sports and
art programs, and nonresidential programs for children provided for a
cumulative total of less than 30 days in any 12-month period;
(16)
residential programs for persons with mental illness, that are located in
hospitals;
(17)
the religious instruction of school-age children; Sabbath or Sunday schools; or
the congregate care of children by a church, congregation, or religious society
during the period used by the church, congregation, or religious society for
its regular worship;
(18)
camps licensed by the commissioner of health under Minnesota Rules, chapter
4630;
(19)
mental health outpatient services for adults with mental illness or children
with emotional disturbance;
(20)
residential programs serving school-age children whose sole purpose is cultural
or educational exchange, until the commissioner adopts appropriate rules;
(21)
unrelated individuals who provide out-of-home respite care services to persons
with developmental disabilities from a single related family for no more than
90 days in a 12-month period and the respite care services are for the
temporary relief of the person's family or legal representative;
(22)
respite care services provided as a home and community-based service to a
person with a developmental disability, in the person's primary residence;
(23)
community support services programs as defined in section 245.462, subdivision
6, and family community support services as defined in section 245.4871,
subdivision 17;
(24)
the placement of a child by a birth parent or legal guardian in a preadoptive
home for purposes of adoption as authorized by section 259.47;
(25)
settings registered under chapter 144D which provide home care services
licensed by the commissioner of health to fewer than seven adults; or
(26)
consumer-directed community support service funded under the Medicaid waiver
for persons with developmental disabilities when the individual who provided
the service is:
(i)
the same individual who is the direct payee of these specific waiver funds or
paid by a fiscal agent, fiscal intermediary, or employer of record; and
(ii)
not otherwise under the control of a residential or nonresidential program that
is required to be licensed under this chapter when providing the service.
(b) For purposes of paragraph
(a), clause (6), a building is directly contiguous to a building in which a
nonresidential program is located if it shares a common wall with the building
in which the nonresidential program is located or is attached to that building
by skyway, tunnel, atrium, or common roof.
(c)
Nothing in this chapter shall be construed to require licensure for any
services provided and funded according to an approved federal waiver plan where
licensure is specifically identified as not being a condition for the services
and funding.
Sec.
4. Minnesota Statutes 2006, section
245A.04, subdivision 11, is amended to read:
Subd.
11. Education program; additional requirement. (a) The education program offered in a
residential or nonresidential program, except for child care, foster care, or
services for adults, must be approved by the commissioner of education before
the commissioner of human services may grant a license to the program.
(b) A
residential program licensed by the commissioner of human services under
Minnesota Rules, parts 9545.0905 to 9545.1125 or 9545.1400 to 9545.1480
2960.0010 to 2960.0710, may serve persons through the age of 19 when:
(1)
the admission or continued stay is necessary for a person to complete a
secondary school program or its equivalent, or it is necessary to facilitate a
transition period after completing the secondary school program or its
equivalent for up to four months in order for the resident to obtain other
living arrangements;
(2)
the facility develops policies, procedures, and plans required under section
245A.65;
(3)
the facility documents an assessment of the 18- or 19-year-old person's risk of
victimizing children residing in the facility, and develops necessary risk
reduction measures, including sleeping arrangements, to minimize any risk of
harm to children; and
(4)
notwithstanding the license holder's target population age range, whenever
persons age 18 or 19 years old are receiving residential services, the age
difference among residents may not exceed five years.
(c)
Nothing in this paragraph precludes the license holder from seeking other
variances under subdivision 9.
Sec.
5. Minnesota Statutes 2006, section
245A.04, is amended by adding a subdivision to read:
Subd.
14. Policies
and procedures for program administration required and enforceable. (a) The license holder shall develop
program policies and procedures necessary to maintain compliance with licensing
requirements under Minnesota Statutes and Minnesota Rules.
(b)
The license holder shall:
(1)
provide training to program staff related to their duties in implementing the
program's policies and procedures developed under paragraph (a);
(2)
document the provision of this training; and
(3)
monitor implementation of policies and procedures by program staff.
(c)
The license holder shall keep program policies and procedures readily
accessible to staff and index the policies and procedures with a table of
contents or another method approved by the commissioner.
Sec. 6. Minnesota Statutes 2006, section 245A.04, is
amended by adding a subdivision to read:
Subd.
15. Pandemic
planning. Upon request, the
license holder must cooperate with state and local government disaster planning
agencies working to prepare for or react to emergencies presented by a pandemic
outbreak.
Sec.
7. Minnesota Statutes 2006, section
245A.06, subdivision 4, is amended to read:
Subd.
4. Notice
of conditional license; reconsideration of conditional license. If a license is made conditional, the
license holder must be notified of the order by certified mail or personal
service. If mailed, the notice must be
mailed to the address shown on the application or the last known address of the
license holder. The notice must state
the reasons the conditional license was ordered and must inform the license
holder of the right to request reconsideration of the conditional license by
the commissioner. The license holder
may request reconsideration of the order of conditional license by notifying
the commissioner by certified mail or personal service. The request must be made in writing. If sent by certified mail, the request must
be postmarked and sent to the commissioner within ten calendar days after the
license holder received the order. If a
request is made by personal service, it must be received by the commissioner
within ten calendar days after the license holder received the order. The license holder may submit with the
request for reconsideration written argument or evidence in support of the
request for reconsideration. A timely
request for reconsideration shall stay imposition of the terms of the
conditional license until the commissioner issues a decision on the request for
reconsideration. If the commissioner
issues a dual order of conditional license under this section and an order to
pay a fine under section 245A.07, subdivision 3, the license holder has a right
to a contested case hearing under chapter 14 and Minnesota Rules, parts
1400.8505 to 1400.8612. The scope of
the contested case hearing shall include the fine and the conditional
license. In this case, a
reconsideration of the conditional license will not be conducted under this
section. If the license holder does
not appeal the fine, the license holder does not have a right to a contested
case hearing and a reconsideration of the conditional license must be conducted
under this subdivision.
The commissioner's disposition of a request for
reconsideration is final and not subject to appeal under chapter 14.
Sec.
8. Minnesota Statutes 2006, section
245A.07, subdivision 2a, is amended to read:
Subd.
2a. Immediate suspension expedited hearing. (a) Within five working days of receipt of the license holder's
timely appeal, the commissioner shall request assignment of an administrative
law judge. The request must include a
proposed date, time, and place of a hearing.
A hearing must be conducted by an administrative law judge within 30
calendar days of the request for assignment, unless an extension is requested
by either party and granted by the administrative law judge for good
cause. The commissioner shall issue a
notice of hearing by certified mail or personal service at least ten working
days before the hearing. The scope of
the hearing shall be limited solely to the issue of whether the temporary
immediate suspension should remain in effect pending the commissioner's final
order under section 245A.08, regarding a licensing sanction issued under
subdivision 3 following the immediate suspension. The burden of proof in expedited hearings under this subdivision
shall be limited to the commissioner's demonstration that reasonable cause
exists to believe that the license holder's actions or failure to comply with
applicable law or rule poses, or if the actions of other individuals or
conditions in the program poses an imminent risk of harm to the health,
safety, or rights of persons served by the program.
(b)
The administrative law judge shall issue findings of fact, conclusions, and a
recommendation within ten working days from the date of hearing. The parties shall have ten calendar days to
submit exceptions to the administrative law judge's report. The record shall close at the end of the
ten-day period for submission of exceptions.
The commissioner's final order shall be issued within ten working days
from the close of the record. Within 90
calendar days after a final order affirming an immediate suspension, the
commissioner shall make a determination regarding whether a final licensing
sanction shall be issued under subdivision 3.
The license holder shall continue to be prohibited from operation of the
program during this 90-day period.
(c) When the final order under
paragraph (b) affirms an immediate suspension, and a final licensing sanction
is issued under subdivision 3 and the license holder appeals that sanction, the
license holder continues to be prohibited from operation of the program pending
a final commissioner's order under section 245A.08, subdivision 5, regarding
the final licensing sanction.
Sec.
9. Minnesota Statutes 2006, section
245A.07, subdivision 3, is amended to read:
Subd.
3. License
suspension, revocation, or fine.
(a) The commissioner may suspend or revoke a license, or impose a fine
if a license holder fails to comply fully with applicable laws or rules, if a
license holder or, a controlling individual, an individual living in the
household where the licensed services are provided or is otherwise subject
to a background study has a disqualification which has not been set aside
under section 245C.22, or if a license holder knowingly withholds relevant
information from or gives false or misleading information to the commissioner
in connection with an application for a license, in connection with the
background study status of an individual, or during an investigation,
or regarding compliance with applicable laws or rules. A license holder who has had a license
suspended, revoked, or has been ordered to pay a fine must be given notice of
the action by certified mail or personal service. If mailed, the notice must be mailed to the address shown on the
application or the last known address of the license holder. The notice must state the reasons the
license was suspended, revoked, or a fine was ordered.
(b) If
the license was suspended or revoked, the notice must inform the license holder
of the right to a contested case hearing under chapter 14 and Minnesota Rules,
parts 1400.8505 to 1400.8612. The
license holder may appeal an order suspending or revoking a license. The appeal of an order suspending or
revoking a license must be made in writing by certified mail or personal
service. If mailed, the appeal must be
postmarked and sent to the commissioner within ten calendar days after the
license holder receives notice that the license has been suspended or
revoked. If a request is made by
personal service, it must be received by the commissioner within ten calendar
days after the license holder received the order. Except as provided in subdivision 2a, paragraph (c), a timely
appeal of an order suspending or revoking a license shall stay the suspension
or revocation until the commissioner issues a final order.
(c)(1)
If the license holder was ordered to pay a fine, the notice must inform the
license holder of the responsibility for payment of fines and the right to a
contested case hearing under chapter 14 and Minnesota Rules, parts 1400.8505 to
1400.8612. The appeal of an order to
pay a fine must be made in writing by certified mail or personal service. If mailed, the appeal must be postmarked and
sent to the commissioner within ten calendar days after the license holder
receives notice that the fine has been ordered. If a request is made by personal service, it must be received by
the commissioner within ten calendar days after the license holder received the
order.
(2)
The license holder shall pay the fines assessed on or before the payment date
specified. If the license holder fails
to fully comply with the order, the commissioner may issue a second fine or
suspend the license until the license holder complies. If the license holder receives state funds,
the state, county, or municipal agencies or departments responsible for
administering the funds shall withhold payments and recover any payments made
while the license is suspended for failure to pay a fine. A timely appeal shall stay payment of the
fine until the commissioner issues a final order.
(3) A
license holder shall promptly notify the commissioner of human services, in
writing, when a violation specified in the order to forfeit a fine is
corrected. If upon reinspection the
commissioner determines that a violation has not been corrected as indicated by
the order to forfeit a fine, the commissioner may issue a second fine. The commissioner shall notify the license
holder by certified mail or personal service that a second fine has been
assessed. The license holder may appeal
the second fine as provided under this subdivision.
(4)
Fines shall be assessed as follows: the license holder shall forfeit $1,000 for
each determination of maltreatment of a child under section 626.556 or the
maltreatment of a vulnerable adult under section 626.557; the license holder
shall forfeit $200 for each occurrence of a violation of law or rule governing
matters of health, safety, or
supervision, including but not limited to the provision of adequate
staff-to-child or adult ratios, and failure to submit a background study; and
the license holder shall forfeit $100 for each occurrence of a violation of law
or rule other than those subject to a $1,000 or $200 fine above. For purposes of this section,
"occurrence" means each violation identified in the commissioner's
fine order.
(5)
When a fine has been assessed, the license holder may not avoid payment by
closing, selling, or otherwise transferring the licensed program to a third
party. In such an event, the license
holder will be personally liable for payment.
In the case of a corporation, each controlling individual is personally
and jointly liable for payment.
Sec.
10. Minnesota Statutes 2006, section
245A.07, is amended by adding a subdivision to read:
Subd.
6. Appeal
of multiple sanctions. (a)
When the license holder appeals more than one licensing action or sanction that
were simultaneously issued by the commissioner, the license holder shall
specify the actions or sanctions that are being appealed.
(b)
If there are different timelines prescribed in statutes for the licensing
actions or sanctions being appealed, the license holder must submit the appeal
within the longest of those timelines specified in statutes.
(c)
The appeal must be made in writing by certified mail or personal service. If mailed, the appeal must be postmarked and
sent to the commissioner within the prescribed timeline with the first day
beginning the day after the license holder receives the certified letter. If a request is made by personal service, it
must be received by the commissioner within the prescribed timeline with the
first day beginning the day after the license holder receives the certified
letter.
(d)
When there are different timelines prescribed in statutes for the appeal of
licensing actions or sanctions simultaneously issued by the commissioner, the
commissioner shall specify in the notice to the license holder the timeline for
appeal as specified under paragraph (b).
Sec.
11. Minnesota Statutes 2006, section
245A.08, subdivision 2a, is amended to read:
Subd.
2a. Consolidated contested case hearings. (a) When a denial of a license under section 245A.05 or a
licensing sanction under section 245A.07, subdivision 3, is based on a disqualification
for which reconsideration was requested and which was not set aside under
section 245C.22, the scope of the contested case hearing shall include the
disqualification and the licensing sanction or denial of a license, unless
otherwise specified in this subdivision.
When the licensing sanction or denial of a license is based on a
determination of maltreatment under section 626.556 or 626.557, or a
disqualification for serious or recurring maltreatment which was not set aside,
the scope of the contested case hearing shall include the maltreatment
determination, disqualification, and the licensing sanction or denial of a
license, unless otherwise specified in this subdivision. In such cases, a fair hearing under section
256.045 shall not be conducted as provided for in sections 245C.27, 626.556,
subdivision 10i, and 626.557, subdivision 9d.
When a fine is based on a determination that the license holder is
responsible for maltreatment and the fine is issued at the same time as the
maltreatment determination, if the license holder appeals the maltreatment and
fine, the scope of the contested case hearing shall include the maltreatment
determination and fine and reconsideration of the maltreatment determination
shall not be conducted as provided for in sections 626.556, subdivision 10i,
and 626.557, subdivision 9d.
(b) Except
for family child care and child foster care, reconsideration of a maltreatment
determination under sections 626.556, subdivision 10i, and 626.557, subdivision
9d, and reconsideration of a disqualification under section 245C.22, shall not
be conducted when:
(1)
a denial of a license under section 245A.05 or a licensing sanction under
section 245A.07, is based on a determination that the license holder is
responsible for maltreatment or the disqualification of a license holder is
based on serious or recurring maltreatment;
(2)
the denial of a license or licensing sanction is issued at the same time as the
maltreatment determination or disqualification; and
(3)
the license holder appeals the maltreatment determination or disqualification,
and denial of a license or licensing sanction.
In these cases, a fair hearing shall not be conducted under sections
245C.27, 626.556, subdivision 10i, and 626.557, subdivision 9d. The scope of the contested case hearing must
include the maltreatment determination, disqualification, and denial of a
license or licensing sanction.
Notwithstanding
clauses (1) to (3), if the license holder appeals the maltreatment
determination or disqualification, but does not appeal the denial of a license
or a licensing sanction, reconsideration of the maltreatment determination
shall be conducted under section 626.556, subdivision 10i, and section 626.557,
subdivision 9d, and reconsideration of the disqualification shall be conducted
under section 245C.22. In such cases, a
fair hearing shall also be conducted as provided under sections 245C.27,
626.556, subdivision 10i, and 626.557, subdivision 9d.
(c)
In
consolidated contested case hearings regarding sanctions issued in family child
care, child foster care, family adult day services, and adult foster care, the
county attorney shall defend the commissioner's orders in accordance with
section 245A.16, subdivision 4.
(c) (d) The commissioner's final
order under subdivision 5 is the final agency action on the issue of
maltreatment and disqualification, including for purposes of subsequent
background studies under chapter 245C and is the only administrative appeal of
the final agency determination, specifically, including a challenge to the
accuracy and completeness of data under section 13.04.
(d) (e) When consolidated hearings
under this subdivision involve a licensing sanction based on a previous
maltreatment determination for which the commissioner has issued a final order
in an appeal of that determination under section 256.045, or the individual
failed to exercise the right to appeal the previous maltreatment determination
under section 626.556, subdivision 10i, or 626.557, subdivision 9d, the
commissioner's order is conclusive on the issue of maltreatment. In such cases, the scope of the
administrative law judge's review shall be limited to the disqualification and
the licensing sanction or denial of a license.
In the case of a denial of a license or a licensing sanction issued to a
facility based on a maltreatment determination regarding an individual who is
not the license holder or a household member, the scope of the administrative
law judge's review includes the maltreatment determination.
(e) (f) The hearings of all
parties may be consolidated into a single contested case hearing upon consent
of all parties and the administrative law judge, if:
(1) a maltreatment
determination or disqualification, which was not set aside under section
245C.22, is the basis for a denial of a license under section 245A.05 or a
licensing sanction under section 245A.07, and;
(2) the disqualified subject is
an individual other than the license holder and upon whom a background study
must be conducted under section 245C.03, the hearings of all parties may be
consolidated into a single contested case hearing upon consent of all parties
and the administrative law judge.; and
(3)
the individual has a hearing right under section 245C.27.
(f)
Notwithstanding section 245C.27, subdivision 1, paragraph (c), (g) When a denial of a license
under section 245A.05 or a licensing sanction under section 245A.07 is based on
a disqualification for which reconsideration was requested and was not set
aside under section 245C.22, and the disqualification was based on a
conviction or an admission to any crimes listed in section 245C.15
individual otherwise has no hearing right under section 245C.27, the scope
of the administrative law judge's review shall include the denial or sanction
and a determination whether the disqualification should be set aside, unless
section 245C.24 prohibits the set-aside of the disqualification. In determining whether the disqualification
should be set aside, the administrative law judge shall consider the factors
under section 245C.22, subdivision 4, to determine whether the individual poses
a risk of harm to any person receiving services from the license holder.
(g) (h) Notwithstanding section
245C.30, subdivision 5, when a licensing sanction under section 245A.07 is based
on the termination of a variance under section 245C.30, subdivision 4, the
scope of the administrative law judge's review shall include the sanction and a
determination whether the disqualification should be set aside, unless
section 245C.24 prohibits the set-aside of the disqualification. In determining whether the disqualification
should be set aside, the administrative law judge shall consider the factors
under section 245C.22, subdivision 4, to determine whether the individual poses
a risk of harm to any person receiving services from the license holder.
Sec.
12. Minnesota Statutes 2006, section
245A.10, subdivision 2, is amended to read:
Subd.
2. County
fees for background studies and licensing inspections. (a) For purposes of family and group family
child care licensing under this chapter, a county agency may charge a fee to an
applicant or license holder to recover the actual cost of background studies,
but in any case not to exceed $100 annually.
A county agency may also charge a fee to an applicant or license holder
to recover the actual cost of licensing inspections, but in any case not to
exceed $150 annually.
(b) A
county agency may charge a fee to a legal nonlicensed child care provider or
applicant for authorization to recover the actual cost of background studies
completed under section 119B.125, but in any case not to exceed $100 annually.
(c)
Counties may elect to reduce or waive the fees in paragraph (a) or (b):
(1) in
cases of financial hardship;
(2) if the county has a shortage of providers in
the county's area;
(3)
for new providers; or
(4)
for providers who have attained at least 16 hours of training before seeking
initial licensure.
(d)
Counties may allow providers to pay the applicant fees in paragraph (a) or (b)
on an installment basis for up to one year.
If the provider is receiving child care assistance payments from the
state, the provider may have the fees under paragraph (a) or (b) deducted from
the child care assistance payments for up to one year and the state shall
reimburse the county for the county fees collected in this manner.
(e)
For purposes of adult foster care and child foster care licensing under this
chapter, a county agency may charge a fee to a corporate applicant or corporate
license holder to recover the actual cost of background studies. A county agency may also charge a fee to a
corporate applicant or corporate license holder to recover the actual cost of
licensing inspections, not to exceed $500 annually.
(f)
Counties may elect to reduce or waive the fees in paragraph (e) under the
following circumstances: (1) in cases of financial hardship; (2) if the county has a shortage of
providers in the county's area; or (3) for new providers.
EFFECTIVE DATE. This section is effective August 1, 2008.
Sec.
13. Minnesota Statutes 2006, section
245A.11, subdivision 7, is amended to read:
Subd.
7. Adult
foster care; variance for alternate overnight supervision. (a) The commissioner may grant a variance
under section 245A.04, subdivision 9, to rule parts requiring a caregiver to be
present in an adult foster care home during normal sleeping hours to allow for
alternative methods of overnight supervision.
The commissioner may grant the variance if the local county licensing
agency recommends the variance and the county recommendation includes
documentation verifying that:
(1)
the county has approved the license holder's plan for alternative methods of
providing overnight supervision and determined the plan protects the residents'
health, safety, and rights;
(2)
the license holder has obtained written and signed informed consent from each
resident or each resident's legal representative documenting the resident's or
legal representative's agreement with the alternative method of overnight
supervision; and
(3)
the alternative method of providing overnight supervision, which may include
the use of technology, is specified for each resident in the resident's:
(i) individualized plan of care; (ii) individual service plan under section
256B.092, subdivision 1b, if required; or (iii) individual resident placement
agreement under Minnesota Rules, part 9555.5105, subpart 19, if required.
(b) To
be eligible for a variance under paragraph (a), the adult foster care license
holder must not have had a licensing action under section 245A.06 or 245A.07
during the prior 24 months based on failure to provide adequate supervision,
health care services, or resident safety in the adult foster care home.
(c)
A license holder requesting a variance under this subdivision to utilize
technology as a component of a plan for alternative overnight supervision may
request the commissioner's review in the absence of a county
recommendation. Upon receipt of such a
request from a license holder, the commissioner shall review the variance
request with the county.
Sec.
14. Minnesota Statutes 2006, section
245A.14, subdivision 8, is amended to read:
Subd.
8. Experienced
aides; child care centers. (a) An
individual employed as an aide at a child care center may work with children
without being directly supervised for an amount of time that does not exceed 25
percent of the child care center's daily hours if:
(1) a
teacher is in the facility;
(2)
the individual has received within the last three years first aid
training within the last three years that meets the requirements
under section 245A.40, subdivision 3, and CPR training within the last
two years that meets the requirements under section 245A.40, subdivision
4;
(3)
the individual is at least 20 years old; and
(4)
the individual has at least 4,160 hours of child care experience as a staff
member in a licensed child care center or as the license holder of a family day
care home, 120 days of which must be in the employment of the current company.
(b) A
child care center that uses experienced aides under this subdivision must
notify parents or guardians by posting the notification in each classroom that
uses experienced aides, identifying which staff member is the experienced
aide. Records of experienced aide usage
must be kept on-site and given to the commissioner upon request.
(c) A
child care center may not use the experienced aide provision for one year
following two determined experienced aide violations within a one-year period.
(d) A
child care center may use one experienced aide per every four full-time child
care classroom staff.
Sec.
15. [245A.1435] REDUCTION OF RISK OF SUDDEN INFANT DEATH SYNDROME IN
LICENSED PROGRAMS.
When
a license holder is placing an infant to sleep, the license holder must place
the infant on the infant's back, unless the license holder has documentation
from the infant's parent directing an alternative sleeping position for the
infant, and must place the infant in a crib with a firm mattress. The license holder must not place pillows,
quilts, comforters, sheepskin, pillow-like stuffed toys, or other soft products
in the crib with the infant. Licensed
child care providers must meet the crib requirements under section 245A.146.
Sec.
16. Minnesota Statutes 2006, section
245A.144, is amended to read:
245A.144 SUDDEN INFANT DEATH AND SHAKEN BABY
SYNDROME FOR CHILD FOSTER CARE PROVIDERS.
(a) License
holders Licensed child foster care providers that care for infants must
document that before staff persons, and caregivers, and
helpers assist in the care of infants, they are instructed on the
standards in section 245A.1435 and receive training on reducing the risk of
sudden infant death syndrome and shaken baby syndrome. This section does not apply to emergency
relative foster care under section 245A.035.
The training on reducing the risk of sudden infant death syndrome
and shaken baby syndrome may be provided as:
(1)
orientation training to child care center staff under Minnesota Rules, part
9503.0035, subpart 1, and to child foster care providers, who care for
infants, under Minnesota Rules, part 2960.3070, subpart 1; or
(2)
initial training to family and group family child care providers under
Minnesota Rules, part 9502.0385, subpart 2;
(3) (2) in-service
training to child care center staff under Minnesota Rules, part 9503.0035,
subpart 4, and to child foster care providers, who care for infants, under
Minnesota Rules, part 2960.3070, subpart 2; or.
(4)
ongoing training to family and group family child care providers under
Minnesota Rules, part 9502.0385, subpart 3.
(b)
Training required under this section must be at least one hour in length and
must be completed at least once every five years. At a minimum, the training must address the risk factors related
to sudden infant death syndrome and shaken baby syndrome, means of reducing the
risk of sudden infant death syndrome and shaken baby syndrome in child care,
and license holder communication with parents regarding reducing the risk of
sudden infant death syndrome and shaken baby syndrome.
(c) Training for family and
group family child care providers must be approved by the county licensing
agency according to Minnesota Rules, part 9502.0385.
(d) (c) Training for
child foster care providers must be approved by the county licensing agency and
fulfills, in part, training required under Minnesota Rules, part 2960.3070.
Sec.
17. [245A.1444] TRAINING ON RISK OF SUDDEN INFANT DEATH SYNDROME AND
SHAKEN BABY SYNDROME BY OTHER PROGRAMS.
A
licensed chemical dependency treatment program that serves clients with infants
who sleep at the program and a licensed children's residential facility that
serves infants must document that before program staff persons or volunteers
assist in the care of infants, they are instructed on the standards in section
245A.1435 and they receive training on reducing the risk of sudden infant death
syndrome and shaken baby syndrome. The
training conducted under this section may be used to fulfill training
requirements under Minnesota Rules, parts 2960.0100, subpart 3; and 9530.6490,
subpart 4, item B.
This
section does not apply to child care centers or family child care programs
governed by sections 245A.40 and 245A.50.
Sec.
18. Minnesota Statutes 2006, section
245A.1445, is amended to read:
245A.1445 DANGERS OF SHAKING INFANTS AND
YOUNG CHILDREN.
The
commissioner shall make available for viewing by all licensed and legal
nonlicensed child care providers a video presentation on the dangers associated
with shaking infants and young children.
The video presentation shall be part of the initial and annual
training of licensed child care providers.
Legal nonlicensed child care providers may participate at their
option in a video presentation session offered under this section. The commissioner shall provide to child care
providers and interested individuals, at cost, copies of a video approved by
the commissioner of health under section 144.574 on the dangers associated with
shaking infants and young children.
Sec.
19. Minnesota Statutes 2006, section
245A.145, subdivision 1, is amended to read:
Subdivision
1. Policies
and procedures. (a) All licensed
child care providers must develop policies and procedures for reporting
suspected child maltreatment that fulfill the requirements in section 626.556
and must develop policies and procedures for reporting complaints about the
operation of a child care program. The
policies and procedures must include the telephone numbers of the local county
child protection agency for reporting suspected maltreatment; the county licensing
agency for family and group family child care providers; and the state
licensing agency for child care centers for reporting other concerns.
(b)
The policies and procedures required in paragraph (a) must:
(1) be
provided to the parents of all children at the time of enrollment in the child
care program; and
(2) be
made available upon request.
Sec.
20. Minnesota Statutes 2006, section
245A.18, subdivision 2, is amended to read:
Subd.
2. Child
passenger restraint systems; training requirement. (a) Family and group family child care,
child care centers, child foster care, and other Programs licensed by the
Department of Human Services under Minnesota Rules, chapter 2960, that
serve a child or children under nine years of age must document training that
fulfills the requirements in this subdivision.
(b) Before a license holder,
staff person, or caregiver, or helper transports a child or
children under age nine in a motor vehicle, the person transporting the child
must satisfactorily complete training on the proper use and installation of
child restraint systems in motor vehicles.
Training completed under this section may be used to meet initial or
ongoing training under the following:
(1) Minnesota Rules, part
2960.3070, subparts 1 and 2;.
(2)
Minnesota Rules, part 9502.0385, subparts 2 and 3; and
(3)
Minnesota Rules, part 9503.0035, subparts 1 and 4.
For all providers licensed
prior to July 1, 2006, the training required in this subdivision must be
obtained by December 31, 2007.
(c)
Training required under this section must be at least one hour in length,
completed at orientation or initial training, and repeated at least once every
five years. At a minimum, the training
must address the proper use of child restraint systems based on the child's
size, weight, and age, and the proper installation of a car seat or booster
seat in the motor vehicle used by the license holder to transport the child or
children.
(d)
Training under paragraph (c) must be provided by individuals who are certified
and approved by the Department of Public Safety, Office of Traffic Safety. License holders may obtain a list of
certified and approved trainers through the Department of Public Safety Web
site or by contacting the agency.
(e)
Child care providers that only transport school age children as defined in
section 245A.02, subdivision 16, in school buses as defined in section 169.01,
subdivision 6, clauses (1) to (4), are exempt from this subdivision.
Sec.
21. [245A.40] CHILD CARE CENTER TRAINING REQUIREMENTS.
Subdivision
1. Orientation. The child care center license holder must
ensure that every staff person and volunteer is given orientation training and
successfully completes the training before starting assigned duties. The orientation training in this subdivision
applies to volunteers who will have direct contact with or access to children
and who are not under the direct supervision of a staff person. Completion of the orientation must be
documented in the individual's personnel record. The orientation training must include information about:
(1)
the center's philosophy, child care program, and procedures for maintaining
health and safety and handling emergencies and accidents;
(2)
specific job responsibilities;
(3)
the behavior guidance standards in Minnesota Rules, part 9503.0055; and
(4)
the reporting responsibilities in section 626.556, and Minnesota Rules, part
9503.0130.
Subd.
2. Child
growth and development training.
(a) For purposes of child care centers, the director and all staff
hired after July 1, 2006, shall complete and document at least two hours of
child growth and development training within the first year of employment. For purposes of this subdivision,
"child growth and development training" means training in
understanding how children acquire language and develop physically,
cognitively, emotionally, and socially.
Training completed under this subdivision may be used to meet the
orientation training requirements under subdivision 1 and the in-service
training requirements under subdivision 7.
(b)
Notwithstanding paragraph (a), individuals are exempt from this requirement if
they:
(1) have taken a three-credit
college course on early childhood development within the past five years;
(2)
have received a baccalaureate or master's degree in early childhood education
or school-age child care within the past five years;
(3)
are licensed in Minnesota as a prekindergarten teacher, an early childhood
educator, a kindergarten to sixth grade teacher with a prekindergarten
specialty, an early childhood special education teacher, or an elementary
teacher with a kindergarten endorsement; or
(4)
have received a baccalaureate degree with a Montessori certificate within the
past five years.
Subd.
3. First
aid. All teachers and
assistant teachers in a child care center governed by Minnesota Rules, parts
9503.0005 to 9503.0170, and at least one staff person during field trips and
when transporting children in care, must satisfactorily complete first aid
training within 90 days of the start of work, unless the training has been
completed within the previous three years.
The first aid training must be repeated at least every three years,
documented in the person's personnel record and indicated on the center's
staffing chart, and provided by an individual approved as a first aid
instructor. This training may be less
than eight hours.
Subd.
4. Cardiopulmonary
resuscitation. (a) When
children are present in a child care center governed by Minnesota Rules, parts
9503.0005 to 9503.0170, at least one staff person must be present in the center
who has been trained in cardiopulmonary resuscitation (CPR) and in the
treatment of obstructed airways. The
CPR training must have been provided by an individual approved to provide CPR
instruction, must be repeated at least once every three years, and must be
documented in the staff person's records.
(b)
Cardiopulmonary resuscitation training may be provided for less than four
hours.
(c)
Persons qualified to provide cardiopulmonary resuscitation training shall
include individuals approved as cardiopulmonary resuscitation instructors.
Subd.
5. Sudden
infant death syndrome and shaken baby syndrome training. (a) License holders must document that
before staff persons care for infants, they are instructed on the standards in
section 245A.1435 and receive training on reducing the risk of sudden infant
death syndrome and shaken baby syndrome.
The training in this subdivision may be provided as orientation training
under subdivision 1 and in-service training under subdivision 7.
(b)
Training required under this subdivision must be at least one hour in length
and must be completed at least once every five years. At a minimum, the training must address the risk factors related
to sudden infant death syndrome and shaken baby syndrome, means of reducing the
risk of sudden infant death syndrome and shaken baby syndrome in child care,
and license holder communication with parents regarding reducing the risk of
sudden infant death syndrome and shaken baby syndrome.
(c)
The commissioner shall make available for viewing a video presentation on the
dangers associated with shaking infants and young children. The video presentation must be part of the
orientation and annual in-service training of licensed child care centers. The commissioner shall provide to child care
providers and interested individuals, at cost, copies of a video approved by
the commissioner of health under section 144.574 on the dangers associated with
shaking infants and young children.
Subd.
6. Child
passenger restraint systems; training requirement. (a) A license holder must comply with all
seat belt and child passenger restraint system requirements under section
169.685.
(b) Child care centers that
serve a child or children under nine years of age must document training that
fulfills the requirements in this subdivision.
(1)
Before a license holder transports a child or children under age nine in a
motor vehicle, the person placing the child or children in a passenger
restraint must satisfactorily complete training on the proper use and
installation of child restraint systems in motor vehicles. Training completed under this subdivision
may be used to meet orientation training under subdivision 1 and in-service
training under subdivision 7.
(2)
Training required under this subdivision must be at least one hour in length,
completed at orientation, and repeated at least once every five years. At a minimum, the training must address the
proper use of child restraint systems based on the child's size, weight, and
age, and the proper installation of a car seat or booster seat in the motor
vehicle used by the license holder to transport the child or children.
(3)
Training required under this subdivision must be provided by individuals who
are certified and approved by the Department of Public Safety, Office of
Traffic Safety. License holders may
obtain a list of certified and approved trainers through the Department of
Public Safety Web site or by contacting the agency.
(4)
Child care providers that only transport school-age children as defined in
section 245A.02, subdivision 16, in child care buses as defined in section
169.448, subdivision 1, paragraph (e), are exempt from this subdivision.
Subd.
7. In-service. (a) A license holder must ensure that an
annual in-service training plan is developed and carried out and that it meets
the requirements in clauses (1) to (7).
The in-service training plan must:
(1)
be consistent with the center's child care program plan;
(2)
meet the training needs of individual staff persons as specified in each staff
person's annual evaluation report;
(3)
provide training, at least one-fourth of which is by a resource not affiliated
with the license holder;
(4)
include Minnesota Rules, parts 9503.0005 to 9503.0170, relevant to the staff
person's position and must occur within two weeks of initial employment;
(5)
provide that at least one-half of the annual in-service training completed by a
staff person each year pertains to the age of children for which the person is
providing care;
(6)
provide that no more than four hours of each annual in-service training
requirement relate to administration, finances, and records training for a
teacher, assistant teacher, or aide; and
(7)
provide that the remainder of the in-service training requirement be met by
participation in training in child growth and development; learning environment
and curriculum; assessment and planning for individual needs; interactions with
children; families and communities; health, safety, and nutrition; and program
planning and evaluation.
(b)
For purposes of this subdivision, the following terms have the meanings given
them.
(1)
"Child growth and development training" has the meaning given it in
subdivision 2, paragraph (a).
(2)
"Learning environment and curriculum" means training in establishing
an environment that provides learning experiences to meet each child's needs,
capabilities, and interests, including early childhood education methods or
theory, recreation, sports, promoting creativity in the arts, arts and crafts
methods or theory, and early childhood special education methods or theory.
(3)
"Assessment and planning for individual needs" means training in
observing and assessing what children know and can do in order to provide curriculum
and instruction that addresses their developmental and learning needs,
including children with special needs.
(4)
"Interactions with children" means training in establishing
supportive relationships with children and guiding them as individuals and as
part of a group, including child study techniques and behavior guidance.
(5)
"Families and communities" means training in working collaboratively
with families, agencies, and organizations to meet children's needs and to
encourage the community's involvement, including family studies and parent
involvement.
(6)
"Health, safety, and nutrition" means training in establishing and
maintaining an environment that ensures children's health, safety, and
nourishment, including first aid, cardiopulmonary resuscitation, child
nutrition, and child abuse and neglect prevention.
(7)
"Program planning and evaluation" means training in establishing,
implementing, evaluating, and enhancing program operations.
(c)
The director and all program staff persons must annually complete a number of
hours of in-service training equal to at least two percent of the hours for
which the director or program staff person is annually paid, unless one of the
following is applicable.
(1)
A teacher at a child care center must complete one percent of working hours of
in-service training annually if the teacher:
(i)
possesses a baccalaureate or master's degree in early childhood education or
school-age care;
(ii)
is licensed in Minnesota as a prekindergarten teacher, an early childhood educator,
a kindergarten to sixth grade teacher with a prekindergarten specialty, an
early childhood special education teacher, or an elementary teacher with a
kindergarten endorsement; or
(iii)
possesses a baccalaureate degree with a Montessori certificate.
(2)
A teacher or assistant teacher at a child care center must complete one and
one-half percent of working hours of in-service training annually if the
individual is:
(i)
a registered nurse or licensed practical nurse with experience working with infants;
(ii)
possesses a Montessori certificate, a technical college certificate in early
childhood development, or a child development associate certificate; or
(iii)
possesses an associate of arts degree in early childhood education, a
baccalaureate degree in child development, or a technical college diploma in
early childhood development.
(d)
The number of required training hours may be prorated for individuals not
employed full time or for an entire year.
(e)
The annual in-service training must be completed within the calendar year for
which it was required. In-service
training completed by staff persons is transferable upon a staff person's
change in employment to another child care program.
(f)
The license holder must ensure that, when a staff person completes in-service
training, the training is documented in the staff person's personnel
record. The documentation must include
the date training was completed, the goal of the training and topics covered,
trainer's name and organizational affiliation, trainer's signed statement that
training was successfully completed, and the director's approval of the
training.
Subd.
8. Cultural
dynamics and disabilities training for child care providers. (a) The training required of licensed
child care center staff must include training in the cultural dynamics of early
childhood development and child care.
The cultural dynamics and disabilities training and skills development
of child care providers must be designed to achieve outcomes for providers of
child care that include, but are not limited to:
(1)
an understanding and support of the importance of culture and differences in
ability in children's identity development;
(2)
understanding the importance of awareness of cultural differences and
similarities in working with children and their families;
(3)
understanding and support of the needs of families and children with
differences in ability;
(4)
developing skills to help children develop unbiased attitudes about cultural
differences and differences in ability;
(5)
developing skills in culturally appropriate caregiving; and
(6)
developing skills in appropriate caregiving for children of different
abilities.
(b)
Curriculum for cultural dynamics and disability training shall be approved by
the commissioner.
(c)
The commissioner shall amend current rules relating to the training of the
licensed child care center staff to require cultural dynamics training. Timelines established in the rule amendments
for complying with the cultural dynamics training requirements must be based on
the commissioner's determination that curriculum materials and trainers are
available statewide.
(d)
For programs caring for children with special needs, the license holder shall
ensure that any additional staff training required by the child's individual
child care program plan required under Minnesota Rules, part 9503.0065, subpart
3, is provided.
Sec.
22. [245A.50] FAMILY CHILD CARE TRAINING REQUIREMENTS.
Subdivision
1. Initial
training. (a) License
holders, caregivers, and substitutes must comply with the training requirements
in this section.
(b)
Helpers who assist with care on a regular basis must complete six hours of
training within one year after the date of initial employment.
Subd.
2. Child
growth and development training.
(a) For purposes of family and group family child care, the license
holder and each adult caregiver who provides care in the licensed setting for
more than 30 days in any 12-month period shall complete and document at least
two hours of child growth and development training within the first year of
licensure. For purposes of this
subdivision, "child growth and development training" means training
in understanding how children acquire language and develop physically,
cognitively, emotionally, and socially.
(b)
Notwithstanding paragraph (a), individuals are exempt from this requirement if
they:
(1)
have taken a three-credit course on early childhood development within the past
five years;
(2)
have received a baccalaureate or masters degree in early childhood education or
school age child care within the past five years;
(3)
are licensed in Minnesota as a prekindergarten teacher, an early childhood
educator, a kindergarten to grade 6 teacher with a prekindergarten specialty,
an early childhood special education teacher, or an elementary teacher with a
kindergarten endorsement; or
(4)
have received a baccalaureate degree with a Montessori certificate within the
past five years.
Subd.
3. First
aid. (a) When children are
present in a family child care home governed by Minnesota Rules, parts
9502.0315 to 9502.0445, at least one staff person must be present in the home
who has been trained in first aid. The
first aid training must have been provided by an individual approved to provide
first aid instruction. First aid
training may be less than eight hours and persons qualified to provide first
aid training includes individuals approved as first aid instructors.
(b)
A family child care provider is exempt from the first aid training requirements
under this subdivision related to any substitute caregiver who provides less
than 30 hours of care during any 12-month period.
(c)
Video training reviewed and approved by the county licensing agency satisfies
the training requirement of this subdivision.
Subd.
4. Cardiopulmonary
resuscitation. (a) When
children are present in a family child care home governed by Minnesota Rules,
parts 9502.0315 to 9502.0445, at least one staff person must be present in the
home who has been trained in cardiopulmonary resuscitation (CPR) and in the
treatment of obstructed airways. The
CPR training must have been provided by an individual approved to provide CPR
instruction, must be repeated at least once every three years, and must be
documented in the staff person's records.
(b)
A family child care provider is exempt from the CPR training requirement in
this subdivision related to any substitute caregiver who provides less than 30
hours of care during any 12-month period.
(c)
Video training reviewed and approved by the county licensing agency satisfies
the training requirement of this subdivision.
Subd.
5. Sudden
infant death syndrome and shaken baby syndrome training. (a) License holders must document that
before staff persons, caregivers, and helpers assist in the care of infants,
they are instructed on the standards in section 245A.1435 and receive training
on reducing the risk of sudden infant death syndrome and shaken baby
syndrome. The training in this
subdivision may be provided as initial training under subdivision 1 or ongoing
training under subdivision 7.
(b)
Training required under this subdivision must be at least one hour in length
and must be completed at least once every five years. At a minimum, the training must address the risk factors related
to sudden infant death syndrome and shaken baby syndrome, means of reducing the
risk of sudden infant death syndrome and shaken baby syndrome in child care,
and license holder communication with parents regarding reducing the risk of
sudden infant death syndrome and shaken baby syndrome.
(c)
Training for family and group family child care providers must be approved by
the county licensing agency.
(d)
The commissioner shall make available for viewing by all licensed child care
providers a video presentation on the dangers associated with shaking infants
and young children. The video
presentation shall be part of the initial and ongoing training of licensed
child care providers. The commissioner
shall provide to child care providers and interested individuals, at cost,
copies of a video approved by the commissioner of health under section 144.574
on the dangers associated with shaking infants and young children.
Subd.
6. Child
passenger restraint systems; training requirement. (a) A license holder must comply with all
seat belt and child passenger restraint system requirements under section
169.685.
(b)
Family and group family child care programs licensed by the Department of Human
Services that serve a child or children under nine years of age must document training
that fulfills the requirements in this subdivision.
(1)
Before a license holder, staff person, caregiver, or helper transports a child
or children under age nine in a motor vehicle, the person placing the child or
children in a passenger restraint must satisfactorily complete training on the
proper use and installation of child restraint systems in motor vehicles. Training completed under this subdivision
may be used to meet initial training under subdivision 1, or ongoing training
under subdivision 7.
(2)
Training required under this subdivision must be at least one hour in length,
completed at initial training, and repeated at least once every five
years. At a minimum, the training must
address the proper use of child restraint systems based on the child's size,
weight, and age, and the proper installation of a car seat or booster seat in
the motor vehicle used by the license holder to transport the child or
children.
(3)
Training under this subdivision must be provided by individuals who are certified
and approved by the Department of Public Safety, Office of Traffic Safety. License holders may obtain a list of
certified and approved trainers through the Department of Public Safety Web
site or by contacting the agency.
(c)
Child care providers that only transport school age children as defined in
section 245A.02, subdivision 19, paragraph (f), in child care buses as defined
in section 169.448, subdivision 1, paragraph (e), are exempt from this
subdivision.
Subd.
7. Training
requirements for family and group family child care. For purposes of family and group family
child care, the license holder and each primary caregiver must complete eight
hours of training each year. For
purposes of this subdivision, a primary caregiver is an adult caregiver who
provides services in the licensed setting for more than 30 days in any 12-month
period. Ongoing training subjects must
be selected from the following areas:
(1)
"child growth and development training" has the meaning given in
subdivision 2, paragraph (a);
(2)
"learning environment and curriculum" includes training in
establishing an environment and providing activities that provide learning
experiences to meet each child's needs, capabilities, and interests;
(3)
"assessment and planning for individual needs" includes training in
observing and assessing what children know and can do in order to provide
curriculum and instruction that addresses their developmental and learning
needs, including children with special needs and bilingual children or children
for whom English is not their primary language;
(4)
"interactions with children" includes training in establishing
supportive relationships with children, guiding them as individuals and as part
of a group;
(5)
"families and communities" includes training in working
collaboratively with families and agencies or organizations to meet children's
needs and to encourage the community's involvement;
(6)
"health, safety, and nutrition" includes training in establishing and
maintaining an environment that ensures children's health, safety, and
nourishment, including child abuse, maltreatment, prevention, and reporting;
home and fire safety; child injury prevention; communicable disease prevention
and control; First Aid; and CPR; and
(7)
"program planning and evaluation" includes training in establishing,
implementing, evaluating, and enhancing program operations.
Subd.
8. Other
required training requirements.
(a) The training required of family and group family child care
providers and staff must include training in the cultural dynamics of early
childhood development and child care.
The cultural dynamics and disabilities training and skills development
of child care providers must be designed to achieve outcomes for providers of
child care that include, but are not limited to:
(1)
an understanding and support of the importance of culture and differences in
ability in children's identity development;
(2)
understanding the importance of awareness of cultural differences and
similarities in working with children and their families;
(3)
understanding and support of the needs of families and children with
differences in ability;
(4)
developing skills to help children develop unbiased attitudes about cultural
differences and differences in ability;
(5)
developing skills in culturally appropriate caregiving; and
(6)
developing skills in appropriate caregiving for children of different
abilities.
The
commissioner shall approve the curriculum for cultural dynamics and disability
training.
(b)
The provider must meet the training requirement in section 245A.14, subdivision
11, paragraph (a), clause (4), to be eligible to allow a child cared for at the
family child care or group family child care home to use the swimming pool
located at the home.
Sec.
23. Minnesota Statutes 2006, section
245A.65, subdivision 1, is amended to read:
Subdivision
1. License
holder requirements. All license
holders serving vulnerable adults shall establish and enforce written policies
and procedures related to suspected or alleged maltreatment, and shall orient
clients and mandated reporters who are under the control of the license holder
to these procedures, as defined in section 626.5572, subdivision 16.
(a)
License holders must establish policies and procedures allowing but not
mandating the internal reporting of alleged or suspected maltreatment. License holders shall ensure that the
policies and procedures on internal reporting:
(1)
meet all the requirements identified for the optional internal reporting
policies and procedures in section 626.557, subdivision 4a; and
(2)
identify the primary and secondary person or position to whom internal reports
may be made and the primary and secondary person or position responsible for
forwarding internal reports to the common entry point as defined in section
626.5572, subdivision 5. The secondary
person must be involved when there is reason to believe that the primary person
was involved in the alleged or suspected maltreatment.
(b) The license holder shall:
(1)
establish and maintain policies and procedures to ensure that an internal
review is completed and that corrective action is taken as necessary to
protect the health and safety of vulnerable adults when the facility has
reason to know that an internal or external report of alleged or suspected
maltreatment has been made. The review
must include an evaluation of whether related policies and procedures were
followed, whether the policies and procedures were adequate, whether there is a
need for additional staff training, whether the reported event is similar to
past events with the vulnerable adults or the services involved, and
whether there is a need for any further corrective action to
be taken by the facility license holder to protect the health
and safety of vulnerable adults;.
Based on the results of this review, the license holder must develop,
document, and implement a corrective action plan designed to correct current
lapses and prevent future lapses in performance by individuals or the license
holder, if any.
(2)
identify the primary and secondary person or position who will ensure that,
when required, internal reviews are completed.
The secondary person shall be involved when there is reason to believe
that the primary person was involved in the alleged or suspected maltreatment;
and
(3)
document and make internal reviews accessible to the commissioner upon the
commissioner's request. The
documentation provided to the commissioner by the license holder may consist of
a completed checklist that verifies completion of each of the requirements of
the review.
(c)
The license holder shall provide an orientation to the internal and external
reporting procedures to all persons receiving services. The orientation shall include the telephone
number for the license holder's common entry point as defined in section
626.5572, subdivision 5. If applicable,
the person's legal representative must be notified of the orientation. The program shall provide this orientation
for each new person within 24 hours of admission, or for persons who would
benefit more from a later orientation, the orientation may take place within 72
hours.
(d)
The license holder shall post a copy of the internal and external reporting
policies and procedures, including the telephone number of the common entry
point as defined in section 626.5572, subdivision 5, in a prominent location in
the program and have it available upon request to mandated reporters, persons
receiving services, and the person's legal representatives.
Sec.
24. Minnesota Statutes 2006, section
245A.65, is amended by adding a subdivision to read:
Subd.
1a. Determination
of vulnerable adult status. (a)
A license holder that provides services to adults who are excluded from the
definition of vulnerable adult under section 626.5572, subdivision 21, clause
(2), must determine whether the person is a vulnerable adult under section
626.5572, subdivision 21, clause (4).
This determination must be made within 24 hours of:
(1)
admission to the licensed program; and
(2)
any incident that:
(i)
was reported under section 626.557; or
(ii)
would have been required to be reported under section 626.557, if one or more
of the adults involved in the incident had been vulnerable adults.
(b)
Upon determining that a person receiving services is a vulnerable adult under
section 626.5572, subdivision 21, clause (4), all requirements relative to
vulnerable adults under section 626.557 and chapter 245A must be met by the
license holder.
Sec. 25. [245A.66]
REQUIREMENTS; MALTREATMENT OF MINORS.
Except
for family child care settings and foster care for children in the license
holder's residence, license holders serving children shall:
(1)
establish and maintain policies and procedures to ensure that an internal
review is completed and that corrective action is taken if necessary to protect
the health and safety of children in care when the facility has reason to know
that an internal or external report of alleged or suspected maltreatment has
been made. The review must include an
evaluation of whether:
(i)
related policies and procedures were followed;
(ii)
the policies and procedures were adequate;
(iii)
there is a need for additional staff training;
(iv)
the reported event is similar to past events with the children or the services
involved; and
(v)
there is a need for corrective action by the license holder to protect the
health and safety of children in care.
Based
on the results of this review, the license holder must develop, document, and
implement a corrective action plan designed to correct current lapses and
prevent future lapses in performance by individuals or the license holder, if
any;
(2)
identify the primary and secondary person or position who will ensure that,
when required, internal reviews are completed.
The secondary person shall be involved when there is reason to believe
that the primary person was involved in the alleged or suspected maltreatment;
and
(3)
document that the internal review has been completed and provide documentation
showing the review was completed to the commissioner upon the commissioner's
request. The documentation provided to
the commissioner by the license holder may consist of a completed checklist
that verifies completion of each of the requirements of the review.
Sec.
26. Minnesota Statutes 2006, section
245C.02, is amended by adding a subdivision to read:
Subd.
9a. Conviction. "Conviction" has the meaning
given in section 609.02, subdivision 5.
Sec.
27. Minnesota Statutes 2006, section
245C.05, subdivision 3, is amended to read:
Subd.
3. Additional
information from individual studied.
(a) For purposes of completing the background study, the
commissioner may request additional information of the individual, such as
the individual's Social Security number or race. The individual is not required to provide this information to the
commissioner.
(b)
The commissioner may also require additional information if the commissioner
determines the information is necessary to complete the background study. Failure to provide the required information
may result in a disqualification pursuant to section 245C.09.
Sec. 28. Minnesota Statutes 2006, section 245C.07, is
amended to read:
245C.07 STUDY SUBJECT AFFILIATED WITH
MULTIPLE FACILITIES.
(a)
When a license holder, applicant, or other entity owns multiple facilities
programs or services that are licensed by the Department of Human Services,
Department of Health, or Department of Corrections, only one background
study is required for an individual who provides direct contact services in one
or more of the licensed facilities programs or services if:
(1)
the license holder designates one individual with one address and telephone
number as the person to receive sensitive background study information for the
multiple licensed programs or services that depend on the same
background study; and
(2)
the individual designated to receive the sensitive background study information
is capable of determining, upon request of the department, whether a background
study subject is providing direct contact services in one or more of the
license holder's programs or services and, if so, at which location or
locations.
(b)
When a background study is being initiated by a licensed facility
program or service or a foster care provider that is also registered under
chapter 144D, a study subject affiliated with multiple licensed facilities
programs or services may attach to the background study form a cover letter
indicating the additional facilities' names of the programs or
services, addresses, and background study identification numbers.
When
the commissioner receives a notice, the commissioner shall notify each facility
program or service identified by the background study subject of the study
results.
The
background study notice the commissioner sends to the subsequent agencies shall
satisfy those facilities' programs' or services' responsibilities
for initiating a background study on that individual.
Sec.
29. Minnesota Statutes 2006, section
245C.08, is amended to read:
245C.08 BACKGROUND STUDY; INFORMATION
COMMISSIONER REVIEWS.
Subdivision
1. Background
studies conducted by commissioner of human services. (a) For a background study conducted by the
commissioner, the commissioner shall review:
(1)
information related to names of substantiated perpetrators of maltreatment of
vulnerable adults that has been received by the commissioner as required under
section 626.557, subdivision 9c, paragraph (i);
(2)
the commissioner's records relating to the maltreatment of minors in licensed
programs, and from county agency findings of maltreatment of minors as
indicated through the social service information system;
(3)
information from juvenile courts as required in subdivision 4 for individuals
listed in section 245C.03, subdivision 1, clauses (2), (5), and (6); and
(4)
information from the Bureau of Criminal Apprehension.
(b)
Notwithstanding expungement by a court, the commissioner may consider
information obtained under paragraph (a), clauses (3) and (4), unless the
commissioner received notice of the petition for expungement and the court
order for expungement is directed specifically to the commissioner.
Subd. 2. Background
studies conducted by a county or private agency. (a) For a background study conducted by a county or private
agency for child foster care, adult foster care, and family child care homes,
the commissioner shall review:
(1)
information from the county agency's record of substantiated maltreatment of
adults and the maltreatment of minors;
(2)
information from juvenile courts as required in subdivision 4 for individuals
listed in section 245C.03, subdivision 1, clauses (2), (5), and (6); and
(3)
information from the Bureau of Criminal Apprehension; and.
(4)
arrest and investigative records maintained by the Bureau of Criminal
Apprehension, county attorneys, county sheriffs, courts, county agencies, local
police, the National Criminal Records Repository, and criminal records from
other states.
(b) If
the individual has resided in the county for less than five years, the study
shall include the records specified under paragraph (a) for the previous county
or counties of residence for the past five years.
(c)
Notwithstanding expungement by a court, the county or private agency may
consider information obtained under paragraph (a), clauses (3) and (4), unless
the commissioner received notice of the petition for expungement and the court
order for expungement is directed specifically to the commissioner.
Subd.
3. Arrest
and investigative information. (a)
For any background study completed under this section, if the commissioner has
reasonable cause to believe the information is pertinent to the
disqualification of an individual, the commissioner also may review arrest and
investigative information from:
(1)
the Bureau of Criminal Apprehension;
(2)
the commissioner of health;
(3) a
county attorney;
(4) a
county sheriff;
(5) a
county agency;
(6) a
local chief of police;
(7)
other states;
(8)
the courts; or
(9)
the Federal Bureau of Investigation.;
(10)
the National Criminal Records Repository; and
(11)
criminal records from other states.
(b) The commissioner is not
required to conduct more than one review of a subject's records from the
Federal Bureau of Investigation if a review of the subject's criminal history
with the Federal Bureau of Investigation has already been completed by the
commissioner and there has been no break in the subject's affiliation with the
license holder who initiated the background study.
Subd.
4. Juvenile
court records. (a) The commissioner
shall review records from the juvenile courts for an individual studied under
section 245C.03, subdivision 1, clauses (2) and (5).
(b)
For individuals studied under section 245C.03, subdivision 1, clauses (1), (3),
(4), and (6), and subdivision 2, who are ages 13 to 17, the commissioner shall
review records from the juvenile courts when the commissioner has reasonable
cause.
(c)
The juvenile courts shall help with the study by giving the commissioner
existing juvenile court records on individuals described in section 245C.03,
subdivision 1, clauses (2), (5), and (6), relating to delinquency proceedings
held within either the five years immediately preceding the background study or
the five years immediately preceding the individual's 18th birthday, whichever
time period is longer.
(d)
For purposes of this chapter, a finding that a delinquency petition is proven
in juvenile court shall be considered a conviction in state district court.
(e) The
commissioner shall destroy juvenile court records obtained under this subdivision
when the subject of the records reaches age 23. Juvenile courts shall provide orders of involuntary and
voluntary termination of parental rights under section 260C.301 to the
commissioner upon request for purposes of conducting a background study under
this chapter.
Sec.
30. Minnesota Statutes 2006, section
245C.09, subdivision 1, is amended to read:
Subdivision
1. Disqualification;
licensing action. An applicant's,
license holder's, or other entity's failure or refusal to cooperate with the commissioner,
including failure to provide additional information required under section
245C.05, is reasonable cause to disqualify a subject, deny a license
application, or immediately suspend or revoke a license or registration.
Sec.
31. Minnesota Statutes 2006, section
245C.11, is amended by adding a subdivision to read:
Subd.
4. Background
study. A county agency may
accept a background study completed by the commissioner under this chapter in
place of the background study required under section 245A.16, subdivision 3,
for educational programs that train individuals by providing direct contact
services in licensed programs.
Sec.
32. Minnesota Statutes 2006, section
245C.13, subdivision 2, is amended to read:
Subd.
2. Direct
contact pending completion of background study. The subject of a background study may not perform any activity
requiring a background study under paragraph (b) until the commissioner has
issued one of the notices under paragraph (a).
(a)
Notices from the commissioner required prior to activity under paragraph (b)
include:
(1) a
notice of the study results under section 245C.17 stating that:
(i)
the individual is not disqualified; or
(ii)
more time is needed to complete the study but the individual is not required to
be removed from direct contact or access to people receiving services prior to
completion of the study as provided under section 245A.17 245C.17,
subdivision 1, paragraph (b) or (c);
(2) a
notice that a disqualification has been set aside under section 245C.23; or
(3) a
notice that a variance has been granted related to the individual under section
245C.30.
(b)
Activities prohibited prior to receipt of notice under paragraph (a) include:
(1)
being issued a license;
(2)
living in the household where the licensed program will be provided;
(3)
providing direct contact services to persons served by a program unless the
subject is under continuous direct supervision; or
(4)
having access to persons receiving services if the background study was
completed under section 144.057, subdivision 1, or 245C.03, subdivision 1,
paragraph (a), clause (2), (5), or (6), unless the subject is under continuous
direct supervision.
Sec.
33. Minnesota Statutes 2006, section
245C.14, subdivision 1, is amended to read:
Subdivision
1. Disqualification
from direct contact. (a) The
commissioner shall disqualify an individual who is the subject of a background
study from any position allowing direct contact with persons receiving services
from the license holder or entity identified in section 245C.03, upon receipt
of information showing, or when a background study completed under this chapter
shows any of the following:
(1) a
conviction of or, admission to, or Alford plea to one or
more crimes listed in section 245C.15, regardless of whether the conviction or
admission is a felony, gross misdemeanor, or misdemeanor level crime;
(2) a
preponderance of the evidence indicates the individual has committed an act or
acts that meet the definition of any of the crimes listed in section 245C.15,
regardless of whether the preponderance of the evidence is for a felony, gross
misdemeanor, or misdemeanor level crime; or
(3) an
investigation results in an administrative determination listed under section
245C.15, subdivision 4, paragraph (b).
(b) No
individual who is disqualified following a background study under section
245C.03, subdivisions 1 and 2, may be retained in a position involving direct
contact with persons served by a program or entity identified in section
245C.03, unless the commissioner has provided written notice under section
245C.17 stating that:
(1)
the individual may remain in direct contact during the period in which the
individual may request reconsideration as provided in section 245C.21,
subdivision 2;
(2)
the commissioner has set aside the individual's disqualification for that
program or entity identified in section 245C.03, as provided in section
245C.22, subdivision 4; or
(3)
the license holder has been granted a variance for the disqualified individual
under section 245C.30.
Sec.
34. Minnesota Statutes 2006, section
245C.15, subdivision 1, is amended to read:
Subdivision
1. Permanent
disqualification. (a) An individual
is disqualified under section 245C.14 if: (1) regardless of how much time
has passed since the discharge of the sentence imposed, if any, for the
offense; and (2) unless otherwise specified, regardless of the level of the
offense, the individual has committed any of the following offenses: sections 243.166
(violation of predatory offender registration law); 609.185 (murder in the
first degree); 609.19 (murder in the second degree); 609.195 (murder in the
third degree); 609.20 (manslaughter in the first degree); 609.205 (manslaughter
in the second degree); a felony offense under 609.221 or 609.222
(assault in the first or second degree); a felony offense under sections
609.2242 and 609.2243 (domestic assault), spousal abuse, child abuse or
neglect, or a crime against children; 609.2247 (domestic assault by
strangulation); 609.228 (great bodily harm caused by distribution of
drugs); 609.245 (aggravated robbery); 609.25 (kidnapping); 609.2661 (murder of
an unborn child in the first degree); 609.2662 (murder of an unborn child in
the second degree); 609.2663 (murder of an unborn child in the third degree);
609.322 (solicitation, inducement, and promotion of prostitution); a felony
offense under 609.324, subdivision 1 (other prohibited acts); 609.342
(criminal sexual conduct in the first degree); 609.343 (criminal sexual conduct
in the second degree); 609.344 (criminal sexual conduct in the third degree);
609.345 (criminal sexual conduct in the fourth degree); 609.3451 (criminal
sexual conduct in the fifth degree); 609.3453 (criminal sexual predatory
conduct); 609.352 (solicitation of children to engage in sexual conduct);
609.365 (incest); a felony offense under 609.377 (malicious punishment of a
child); a felony offense under 609.378 (neglect or endangerment of a child);
609.561 (arson in the first degree); 609.66, subdivision 1e (drive-by shooting);
609.749, subdivision 3, 4, or 5 (felony-level harassment; stalking); 609.855,
subdivision 5 (shooting at or in a public transit vehicle or facility); 617.23,
subdivision 2, clause (1), or subdivision 3, clause (1) (indecent exposure
involving a minor); 617.246 (use of minors in sexual performance
prohibited); or 617.247 (possession of pictorial representations of
minors). An individual also is
disqualified under section 245C.14 regardless of how much time has passed since
the involuntary termination of the individual's parental rights under section
260C.301.
(b) An
individual's aiding and abetting, attempt, or conspiracy to commit any of the
offenses listed in paragraph (a), as each of these offenses is defined in
Minnesota Statutes, permanently disqualifies the individual under section
245C.14.
(c) An
individual's offense in any other state or country, where the elements of the
offense are substantially similar to any of the offenses listed in paragraph
(a), permanently disqualifies the individual under section 245C.14.
(d)
When a disqualification is based on a judicial determination other than a
conviction, the disqualification period begins from the date of the court
order. When a disqualification is based
on an admission, the disqualification period begins from the date of an
admission in court. When a
disqualification is based on a preponderance of evidence of a disqualifying
act, the disqualification date begins from the date of the dismissal, the date
of discharge of the sentence imposed for a conviction for a disqualifying crime
of similar elements, or the date of the incident, whichever occurs last.
(e)
If the individual studied commits one of the offenses listed in paragraph (a)
that is specified as a felony-level only offense, but the sentence or level of
offense is a gross misdemeanor or misdemeanor, the individual is disqualified,
but the disqualification look-back period for the offense is the period
applicable to gross misdemeanor or misdemeanor offenses.
Sec.
35. Minnesota Statutes 2006, section
245C.15, subdivision 2, is amended to read:
Subd.
2. 15-year
disqualification. (a) An individual
is disqualified under section 245C.14 if: (1) less than 15 years have passed
since the discharge of the sentence imposed, if any, for the offense; and (2)
the individual has committed a felony-level violation of any of the following
offenses: sections 256.98 (wrongfully obtaining assistance); 268.182 (false
representation; concealment of facts); 393.07, subdivision 10, paragraph (c)
(federal Food Stamp Program fraud); 609.165 (felon ineligible to possess
firearm); 609.21 (criminal vehicular homicide and injury);
609.215 (suicide); 609.223 or 609.2231 (assault in the third or fourth degree);
repeat offenses under 609.224 (assault in the fifth degree); 609.229 (crimes
committed for benefit of a gang); 609.2325 (criminal abuse of a vulnerable
adult); 609.2335 (financial exploitation of a vulnerable adult); 609.235 (use
of drugs to injure or facilitate crime); 609.24 (simple robbery); 609.255
(false imprisonment); 609.2664 (manslaughter of an unborn child in the first
degree); 609.2665 (manslaughter of an unborn child in the second degree);
609.267 (assault of an unborn child in the first degree); 609.2671 (assault of
an unborn child in the second degree); 609.268 (injury or death of an unborn
child in the commission of a crime); 609.27 (coercion); 609.275 (attempt to
coerce); repeat offenses under 609.3451 (criminal sexual conduct in the
fifth degree); 609.466 (medical assistance fraud); 609.498, subdivision 1
or 1b (aggravated first degree or first degree tampering with a witness);
609.52 (theft); 609.521 (possession of shoplifting gear); 609.525 (bringing
stolen goods into Minnesota); 609.527 (identity theft); 609.53 (receiving
stolen property); 609.535 (issuance of dishonored checks); 609.562 (arson in
the second degree); 609.563 (arson in the third degree); 609.582 (burglary);
609.59 (possession of burglary tools); 609.611 (insurance fraud); 609.625
(aggravated forgery); 609.63 (forgery); 609.631 (check forgery; offering a
forged check); 609.635 (obtaining signature by false pretense); 609.66
(dangerous weapons); 609.67 (machine guns and short-barreled shotguns); 609.687
(adulteration); 609.71 (riot); 609.713 (terroristic threats); 609.82 (fraud in
obtaining credit); 609.821 (financial transaction card fraud); repeat
offenses under 617.23 (indecent exposure; penalties), not
involving a minor; repeat offenses under 617.241 (obscene materials and
performances; distribution and exhibition prohibited; penalty); 624.713
(certain persons not to possess firearms); chapter 152 (drugs; controlled
substance); or a felony-level conviction involving alcohol or drug use.
(b) An
individual is disqualified under section 245C.14 if less than 15 years has
passed since the individual's aiding and abetting, attempt, or conspiracy to
commit any of the offenses listed in paragraph (a), as each of these offenses
is defined in Minnesota Statutes.
(c)
For foster care and family child care an individual is disqualified under section
245C.14 if less than 15 years has passed since the individual's voluntary
termination of the individual's parental rights under section 260C.301,
subdivision 1, paragraph (b), or 260C.301, subdivision 3.
(d) An
individual is disqualified under section 245C.14 if less than 15 years has
passed since the discharge of the sentence imposed for an offense in any other
state or country, the elements of which are substantially similar to the
elements of the offenses listed in paragraph (a).
(e) If
the individual studied is convicted commits one of one of
the felonies offenses listed in paragraph (a), but the sentence or
level of offense is a gross misdemeanor or misdemeanor disposition,
the individual is disqualified but the disqualification lookback period for the
conviction offense is the period applicable to the gross
misdemeanor or misdemeanor disposition.
(f)
When a disqualification is based on a judicial determination other than a
conviction, the disqualification period begins from the date of the court order. When a disqualification is based on an
admission, the disqualification period begins from the date of an admission in
court. When a disqualification is based
on a preponderance of evidence of a disqualifying act, the disqualification
date begins from the date of the dismissal, the date of discharge of the
sentence imposed for a conviction for a disqualifying crime of similar
elements, or the date of the incident, whichever occurs last.
Sec.
36. Minnesota Statutes 2006, section
245C.15, subdivision 3, is amended to read:
Subd.
3. Ten-year
disqualification. (a) An individual
is disqualified under section 245C.14 if: (1) less than ten years have passed
since the discharge of the sentence imposed, if any, for the offense; and (2)
the individual has committed a gross misdemeanor-level violation of any of the
following offenses: sections 256.98 (wrongfully obtaining assistance); 268.182
(false representation; concealment of facts); 393.07, subdivision 10, paragraph
(c) (federal Food Stamp Program fraud); 609.21 (criminal vehicular homicide
and injury); 609.221 or 609.222 (assault in
the first or second degree); 609.223 or 609.2231 (assault in the third or
fourth degree); 609.224 (assault in
the fifth degree); 609.224, subdivision 2, paragraph (c) (assault in the fifth
degree by a caregiver against a vulnerable adult); 609.2242 and 609.2243
(domestic assault); 609.23 (mistreatment of persons confined); 609.231
(mistreatment of residents or patients); 609.2325 (criminal abuse of a
vulnerable adult); 609.233 (criminal neglect of a vulnerable adult); 609.2335
(financial exploitation of a vulnerable adult); 609.234 (failure to report
maltreatment of a vulnerable adult); 609.265 (abduction); 609.275 (attempt to
coerce); 609.324, subdivision 1a (other prohibited acts; minor engaged in
prostitution); 609.33 (disorderly house); 609.3451 (criminal sexual conduct
in the fifth degree); 609.377 (malicious punishment of a child); 609.378
(neglect or endangerment of a child); 609.466 (medical assistance fraud);
609.52 (theft); 609.525 (bringing stolen goods into Minnesota); 609.527
(identity theft); 609.53 (receiving stolen property); 609.535 (issuance of
dishonored checks); 609.582 (burglary); 609.59 (possession of burglary
tools); 609.611 (insurance fraud); 609.631 (check forgery; offering a
forged check); 609.66 (dangerous weapons); 609.71 (riot); 609.72, subdivision 3
(disorderly conduct against a vulnerable adult); repeat offenses under 609.746
(interference with privacy); 609.749, subdivision 2 (harassment; stalking); 609.82
(fraud in obtaining credit); 609.821 (financial transaction card fraud); repeat
offenses under 617.23 (indecent exposure), not involving a minor;
617.241 (obscene materials and performances); 617.243 (indecent literature,
distribution); 617.293 (harmful materials; dissemination and display to minors
prohibited); or violation of an order for protection under section 518B.01,
subdivision 14.
(b) An
individual is disqualified under section 245C.14 if less than ten years has
passed since the individual's aiding and abetting, attempt, or conspiracy to
commit any of the offenses listed in paragraph (a), as each of these offenses
is defined in Minnesota Statutes.
(c) An
individual is disqualified under section 245C.14 if less than ten years has
passed since the discharge of the sentence imposed for an offense in any other
state or country, the elements of which are substantially similar to the
elements of any of the offenses listed in paragraph (a).
(d) If
the defendant is convicted of one of the gross misdemeanors
individual studied commits one of the offenses listed in paragraph (a), but
the sentence or level of offense is a misdemeanor disposition, the
individual is disqualified but the disqualification lookback period for the conviction
offense is the period applicable to misdemeanors.
(e)
When a disqualification is based on a judicial determination other than a
conviction, the disqualification period begins from the date of the court
order. When a disqualification is based
on an admission, the disqualification period begins from the date of an
admission in court. When a
disqualification is based on a preponderance of evidence of a disqualifying
act, the disqualification date begins from the date of the dismissal, the date
of discharge of the sentence imposed for a conviction for a disqualifying crime
of similar elements, or the date of the incident, whichever occurs last.
Sec.
37. Minnesota Statutes 2006, section
245C.15, subdivision 4, is amended to read:
Subd.
4. Seven-year
disqualification. (a) An individual
is disqualified under section 245C.14 if: (1) less than seven years has passed
since the discharge of the sentence imposed, if any, for the offense; and (2)
the individual has committed a misdemeanor-level violation of any of the following
offenses: sections 256.98 (wrongfully obtaining assistance); 268.182 (false
representation; concealment of facts); 393.07, subdivision 10, paragraph (c)
(federal Food Stamp Program fraud); 609.21 (criminal vehicular homicide and
injury); 609.221 (assault in the first degree); 609.222 (assault in the second
degree); 609.223 (assault in the third degree); 609.2231 (assault in the fourth
degree); 609.224 (assault in the fifth degree); 609.2242 (domestic
assault); 609.2335 (financial exploitation of a vulnerable adult); 609.234
(failure to report maltreatment of a vulnerable adult); 609.2672 (assault of an
unborn child in the third degree); 609.27 (coercion); violation of an order for
protection under 609.3232 (protective order authorized; procedures; penalties);
609.466 (medical assistance fraud); 609.52 (theft); 609.525 (bringing stolen
goods into Minnesota); 609.527 (identity theft); 609.53 (receiving stolen
property); 609.535 (issuance of dishonored checks); 609.611 (insurance fraud);
609.66 (dangerous weapons); 609.665 (spring guns); 609.746 (interference with
privacy); 609.79 (obscene or harassing telephone calls); 609.795 (letter,
telegram, or package; opening; harassment); 609.82 (fraud in obtaining credit);
609.821 (financial transaction card fraud); 617.23 (indecent exposure;
penalties), not involving a minor; 617.293 (harmful materials;
dissemination and display to minors prohibited); or violation of an order for
protection under section 518B.01 (Domestic Abuse Act).
(b) An
individual is disqualified under section 245C.14 if less than seven years has
passed since a determination or disposition of the individual's:
(1)
failure to make required reports under section 626.556, subdivision 3, or
626.557, subdivision 3, for incidents in which: (i) the final disposition under
section 626.556 or 626.557 was substantiated maltreatment, and (ii) the
maltreatment was recurring or serious; or
(2)
substantiated serious or recurring maltreatment of a minor under section
626.556, a vulnerable adult under section 626.557, or serious or recurring
maltreatment in any other state, the elements of which are substantially
similar to the elements of maltreatment under section 626.556 or 626.557 for
which: (i) there is a preponderance of evidence that the maltreatment occurred,
and (ii) the subject was responsible for the maltreatment.
(c) An
individual is disqualified under section 245C.14 if less than seven years has
passed since the individual's aiding and abetting, attempt, or conspiracy to
commit any of the offenses listed in paragraphs (a) and (b), as each of these
offenses is defined in Minnesota Statutes.
(d) An
individual is disqualified under section 245C.14 if less than seven years has
passed since the discharge of the sentence imposed for an offense in any other state
or country, the elements of which are substantially similar to the elements of
any of the offenses listed in paragraphs (a) and (b).
(e)
When a disqualification is based on a judicial determination other than a
conviction, the disqualification period begins from the date of the court
order. When a disqualification is based
on an admission, the disqualification period begins from the date of an
admission in court. When a
disqualification is based on a preponderance of evidence of a disqualifying act,
the disqualification date begins from the date of the dismissal, the date of
discharge of the sentence imposed for a conviction for a disqualifying crime of
similar elements, or the date of the incident, whichever occurs last.
(f)
An individual is disqualified under section 245C.14 if less than seven years
has passed since the individual was disqualified under section 256.98,
subdivision 8.
Sec.
38. Minnesota Statutes 2006, section
245C.16, subdivision 1, is amended to read:
Subdivision
1. Determining
immediate risk of harm. (a) If the
commissioner determines that the individual studied has a disqualifying
characteristic, the commissioner shall review the information immediately
available and make a determination as to the subject's immediate risk of harm
to persons served by the program where the individual studied will have direct
contact with, or access to, people receiving services.
(b)
The commissioner shall consider all relevant information available, including
the following factors in determining the immediate risk of harm:
(1)
the recency of the disqualifying characteristic;
(2)
the recency of discharge from probation for the crimes;
(3)
the number of disqualifying characteristics;
(4) the intrusiveness or
violence of the disqualifying characteristic;
(5)
the vulnerability of the victim involved in the disqualifying characteristic;
(6)
the similarity of the victim to the persons served by the program where the
individual studied will have direct contact; and
(7)
whether the individual has a disqualification from a previous background study
that has not been set aside.; and
(8)
if the individual has a disqualification which may not be set aside because it
is a permanent bar under section 245C.24, subdivision 1, the commissioner may
order the immediate removal of the individual from any position allowing direct
contact with, or access to, persons receiving services from the program.
(c)
This section does not apply when the subject of a background study is regulated
by a health-related licensing board as defined in chapter 214, and the subject
is determined to be responsible for substantiated maltreatment under section
626.556 or 626.557.
(d) If
the commissioner has reason to believe, based on arrest information or an
active maltreatment investigation, that an individual poses an imminent risk of
harm to persons receiving services, the commissioner may order that the person
be continuously supervised or immediately removed pending the conclusion of the
maltreatment investigation or criminal proceedings.
Sec.
39. Minnesota Statutes 2006, section
245C.17, subdivision 2, is amended to read:
Subd.
2. Disqualification
notice sent to subject. (a) If the
information in the study indicates the individual is disqualified from direct
contact with, or from access to, persons served by the program, the
commissioner shall disclose to the individual studied:
(1)
the information causing disqualification;
(2)
instructions on how to request a reconsideration of the disqualification;
(3) an
explanation of any restrictions on the commissioner's discretion to set aside
the disqualification under section 245C.24, when applicable to the individual;
(4) a
statement indicating that if the individual's disqualification is set aside or
the facility is granted a variance under section 245C.30, the individual's
identity and the reason for the individual's disqualification will become
public data under section 245C.22, subdivision 7, when applicable to the
individual; and
(5)
the commissioner's determination of the individual's immediate risk of harm
under section 245C.16.
(b) If
the commissioner determines under section 245C.16 that an individual poses an
imminent risk of harm to persons served by the program where the individual
will have direct contact with, or access to, people receiving services,
the commissioner's notice must include an explanation of the basis of this
determination.
(c) If
the commissioner determines under section 245C.16 that an individual studied
does not pose a risk of harm that requires immediate removal, the individual
shall be informed of the conditions under which the agency that initiated the
background study may allow the individual to provide have direct
contact services with, or access to, people receiving services,
as provided under subdivision 3.
Sec. 40. Minnesota Statutes 2006, section 245C.17,
subdivision 3, is amended to read:
Subd.
3. Disqualification
notification. (a) The commissioner
shall notify an applicant, license holder, or other entity as provided in this
chapter who is not the subject of the study:
(1)
that the commissioner has found information that disqualifies the individual
studied from being in a position allowing direct contact with, or from
access to, persons people served by the program; and
(2)
the commissioner's determination of the individual's risk of harm under section
245C.16.
(b) If
the commissioner determines under section 245C.16 that an individual studied
poses an imminent risk of harm to persons served by the program where the
individual studied will have direct contact with, or access to, people
served by the program, the commissioner shall order the license holder to
immediately remove the individual studied from any position allowing direct
contact with, or access to, people served by the program.
(c) If
the commissioner determines under section 245C.16 that an individual studied
poses a risk of harm that requires continuous, direct supervision, the
commissioner shall order the applicant, license holder, or other entities as
provided in this chapter to:
(1)
immediately remove the individual studied from any position allowing direct
contact with, or access to, people receiving services; or
(2)
before allowing the disqualified individual to provide be in a
position allowing direct contact with, or access to, people receiving services,
the applicant, license holder, or other entity, as provided in this chapter,
must:
(i)
obtain from the disqualified individual a copy of the individual's notice of
disqualification from the commissioner that explains the reason for
disqualification;
(ii)
ensure that the individual studied is under continuous, direct supervision when
providing in a position allowing direct contact with, or
access to, people receiving services during the period in which the individual
may request a reconsideration of the disqualification under section 245C.21;
and
(iii)
ensure that the disqualified individual requests reconsideration within 30 days
of receipt of the notice of disqualification.
(d) If
the commissioner determines under section 245C.16 that an individual studied
does not pose a risk of harm that requires continuous, direct supervision, the
commissioner shall order the applicant, license holder, or other entities as
provided in this chapter to:
(1)
immediately remove the individual studied from any position allowing direct
contact with, or access to, people receiving services; or
(2)
before allowing the disqualified individual to provide be in any
position allowing direct contact with, or access to, people receiving services,
the applicant, license holder, or other entity as provided in this chapter
must:
(i)
obtain from the disqualified individual a copy of the individual's notice of
disqualification from the commissioner that explains the reason for
disqualification; and
(ii)
ensure that the disqualified individual requests reconsideration within 15 days
of receipt of the notice of disqualification.
(e) The commissioner shall not
notify the applicant, license holder, or other entity as provided in this
chapter of the information contained in the subject's background study unless:
(1)
the basis for the disqualification is failure to cooperate with the background
study or substantiated maltreatment under section 626.556 or 626.557;
(2)
the Data Practices Act under chapter 13 provides for release of the
information; or
(3)
the individual studied authorizes the release of the information.
Sec.
41. Minnesota Statutes 2006, section
245C.21, subdivision 2, is amended to read:
Subd.
2. Time
frame for requesting reconsideration.
(a) When the commissioner sends an individual a notice of
disqualification based on a finding under section 245C.16, subdivision 2,
paragraph (a), clause (1) or (2), the disqualified individual must submit the
request for a reconsideration within 30 calendar days of the individual's
receipt of the notice of disqualification.
If mailed, the request for reconsideration must be postmarked and sent
to the commissioner within 30 calendar days of the individual's receipt of the
notice of disqualification. If a
request for reconsideration is made by personal service, it must be received by
the commissioner within 30 calendar days after the individual's receipt of the
notice of disqualification. Upon
showing that the information under subdivision 3 cannot be obtained within 30
days, the disqualified individual may request additional time, not to exceed 30
days, to obtain the information.
(b)
When the commissioner sends an individual a notice of disqualification based on
a finding under section 245C.16, subdivision 2, paragraph (a), clause (3), the
disqualified individual must submit the request for reconsideration within 15
calendar days of the individual's receipt of the notice of
disqualification. If mailed, the
request for reconsideration must be postmarked and sent to the commissioner
within 15 calendar days of the individual's receipt of the notice of
disqualification. If a request for
reconsideration is made by personal service, it must be received by the
commissioner within 15 calendar days after the individual's receipt of the
notice of disqualification.
(c) An
individual who was determined to have maltreated a child under section 626.556
or a vulnerable adult under section 626.557, and who is disqualified on the
basis of serious or recurring maltreatment, may request a reconsideration of
both the maltreatment and the disqualification determinations. The request must be submitted within 30
calendar days of the individual's receipt of the notice of disqualification. If mailed, the request for reconsideration
must be postmarked and sent to the commissioner within 30 calendar days of the
individual's receipt of the notice of disqualification. If a request for reconsideration is made by
personal service, it must be received by the commissioner within 30 calendar
days after the individual's receipt of the notice of disqualification.
(d)
Except for family child care and child foster care, reconsideration of a
maltreatment determination under sections 626.556, subdivision 10i, and
626.557, subdivision 9d, and reconsideration of a disqualification under
section 245C.22, shall not be conducted when:
(1)
a denial of a license under section 245A.05, or a licensing sanction under
section 245A.07, is based on a determination that the license holder is responsible
for maltreatment or the disqualification of a license holder based on serious
or recurring maltreatment;
(2)
the denial of a license or licensing sanction is issued at the same time as the
maltreatment determination or disqualification; and
(3) the license holder appeals
the maltreatment determination, disqualification, and denial of a license or
licensing sanction. In such cases, a
fair hearing under section 256.045 must not be conducted under sections 245C.27,
626.556, subdivision 10i, and 626.557, subdivision 9d. Under section 245A.08, subdivision 2a, the
scope of the consolidated contested case hearing must include the maltreatment
determination, disqualification, and denial of a license or licensing sanction.
Notwithstanding
clauses (1) to (3), if the license holder appeals the maltreatment
determination or disqualification, but does not appeal the denial of a license
or a licensing sanction, reconsideration of the maltreatment determination
shall be conducted under section 626.556, subdivision 10i, and section 626.557,
subdivision 9d, and reconsideration of the disqualification shall be conducted
under section 245C.22. In such cases, a
fair hearing shall also be conducted as provided under sections 245C.27,
626.556, subdivision 10i, and 626.557, subdivision 9d.
Sec.
42. Minnesota Statutes 2006, section
245C.21, subdivision 3, is amended to read:
Subd.
3. Information
Disqualified individuals must provide when requesting reconsideration;
information for reconsideration.
(a) The disqualified individual requesting reconsideration must
submit information showing that:
(1)
the information the commissioner relied upon in determining the underlying
conduct that gave rise to the disqualification is incorrect;
(2)
for maltreatment, the information the commissioner relied upon in determining
that maltreatment was serious or recurring is incorrect; or
(3) the subject of the study does not pose a risk of
harm to any person served by the applicant, license holder, or other
entities as provided in this chapter, by addressing the information required
under section 245C.22, subdivision 4.
(b)
In order to determine the individual's risk of harm, the commissioner may
require additional information from the disqualified individual as part of the
reconsideration process. If the
individual fails to provide the required information, the commissioner may deny
the individual's request.
Sec.
43. Minnesota Statutes 2006, section
245C.22, subdivision 4, is amended to read:
Subd.
4. Risk
of harm; set aside. (a) The
commissioner may set aside the disqualification if the commissioner finds that
the individual has submitted sufficient information to demonstrate that the
individual does not pose a risk of harm to any person served by the applicant,
license holder, or other entities as provided in this chapter.
(b) In
determining whether the individual has met the burden of proof by demonstrating
the individual does not pose a risk of harm, the commissioner shall consider:
(1)
the nature, severity, and consequences of the event or events that led to the
disqualification;
(2)
whether there is more than one disqualifying event;
(3)
the age and vulnerability of the victim at the time of the event;
(4)
the harm suffered by the victim;
(5) vulnerability
of persons served by the program;
(6)
(6) (7) the time elapsed without a
repeat of the same or similar event;
(7) (8) documentation of successful
completion by the individual studied of training or rehabilitation pertinent to
the event; and
(8) (9) any other information
relevant to reconsideration.
(c) If
the individual requested reconsideration on the basis that the information
relied upon to disqualify the individual was incorrect or inaccurate and the
commissioner determines that the information relied upon to disqualify the
individual is correct, the commissioner must also determine if the individual
poses a risk of harm to persons receiving services in accordance with paragraph
(b).
Sec.
44. Minnesota Statutes 2006, section
245C.22, subdivision 5, is amended to read:
Subd.
5. Scope
of set aside. If the commissioner
sets aside a disqualification under this section, the disqualified individual
remains disqualified, but may hold a license and have direct contact with or
access to persons receiving services.
The commissioner's set aside of a disqualification is limited solely to
the licensed program, applicant, or agency specified in the set aside notice
under section 245C.23, unless otherwise specified in the notice. For personal care provider organizations,
the commissioner's set-aside may further be limited to a specific individual
who is receiving services.
Sec.
45. Minnesota Statutes 2006, section
245C.24, subdivision 3, is amended to read:
Subd.
3. Ten-year
bar to set aside disqualification.
(a) The commissioner may not set aside the disqualification of an
individual in connection with a license to provide family child care for
children, foster care for children in the provider's home, or foster care or
day care services for adults in the provider's home if: (1) less than ten years
has passed since the discharge of the sentence imposed, if any, for the
offense; or (2) when disqualified based on a preponderance of evidence determination
under section (disseminating
or displaying harmful material to minors); a felony-level conviction involving
alcohol or drug use, a gross misdemeanor offense under 609.324, subdivision 1
(other prohibited acts); a gross misdemeanor offense under 609.378 (neglect or
endangerment of a child); a gross misdemeanor offense under 609.377 (malicious
punishment of a child); 245A.14 245C.14, subdivision 1, paragraph (a),
clause (2), or an admission under section 245A.14 245C.14,
subdivision 1, paragraph (a), clause (1), and less than ten years has passed
since the individual committed the act or admitted to committing the act,
whichever is later; and (3) the individual has committed a violation of any of
the following offenses: sections 609.165 (felon ineligible to possess firearm);
criminal vehicular homicide under 609.21 (criminal vehicular homicide and injury);
609.215 (aiding suicide or aiding attempted suicide); felony violations under
609.223 or 609.2231 (assault in the third or fourth degree); 609.229 (crimes committed for benefit of a
gang); 609.713 (terroristic threats); 609.235 (use of drugs to injure or to
facilitate crime); 609.24 (simple robbery); 609.255 (false imprisonment);
609.562 (arson in the second degree); 609.71 (riot); 609.498, subdivision 1 or
1b (aggravated first degree or first degree tampering with a witness); burglary
in the first or second degree under 609.582 (burglary); 609.66 (dangerous
weapon); 609.665 (spring guns); 609.67 (machine guns and short-barreled
shotguns); 609.749, subdivision 2 (gross misdemeanor harassment; stalking);
152.021 or 152.022 (controlled substance crime in the first or second degree);
152.023, subdivision 1, clause (3) or (4) or subdivision 2, clause (4)
(controlled substance crime in the third degree); 152.024, subdivision 1,
clause (2), (3), or (4) (controlled substance crime in the fourth degree); 609.224,
subdivision 2, paragraph (c) (fifth-degree assault by a caregiver against a
vulnerable adult); 609.23 (mistreatment of persons confined); 609.231
(mistreatment of residents or patients); 609.2325 (criminal abuse of a
vulnerable adult); 609.233 (criminal neglect of a vulnerable adult); 609.2335
(financial exploitation of a vulnerable adult); 609.234 (failure to report);
609.265 (abduction); 609.2664 to 609.2665 (manslaughter of an unborn child in
the first or second degree); 609.267 to 609.2672 (assault of an unborn child in
the first, second, or third degree); 609.268 (injury or death of an unborn
child in the commission of a crime); repeat offenses under 617.23 (indecent
exposure); 617.293 or 609.72, subdivision 3 (disorderly conduct
against a vulnerable adult); or 624.713 (certain persons not to possess
firearms).
(b)
The commissioner may not set aside the disqualification of an individual if
less than ten years have passed since the individual's aiding and abetting,
attempt, or conspiracy to commit any of the offenses listed in paragraph (a) as
each of these offenses is defined in Minnesota Statutes.
(c)
The commissioner may not set aside the disqualification of an individual if
less than ten years have passed since the discharge of the sentence imposed for
an offense in any other state or country, the elements of which are
substantially similar to the elements of any of the offenses listed in
paragraph (a).
Sec.
46. Minnesota Statutes 2006, section
245C.27, subdivision 1, is amended to read:
Subdivision
1. Fair
hearing when disqualification is not set aside. (a) If the commissioner does not set aside a disqualification of
an individual under section 245C.22 who is disqualified on the basis of a
preponderance of evidence that the individual committed an act or acts that
meet the definition of any of the crimes listed in section 245C.15; for a
determination under section 626.556 or 626.557 of substantiated maltreatment
that was serious or recurring under section 245C.15; or for failure to make
required reports under section 626.556, subdivision 3; or 626.557, subdivision
3, pursuant to section 245C.15, subdivision 4, paragraph (b), clause (1), the
individual may request a fair hearing under section 256.045, unless the
disqualification is deemed conclusive under section 245C.29.
(b)
The fair hearing is the only administrative appeal of the final agency
determination for purposes of appeal by the disqualified individual. The disqualified individual does not have
the right to challenge the accuracy and completeness of data under section
13.04.
(c) Except
as provided under paragraph (e), if the individual was disqualified based
on a conviction or admission to any crimes listed in section 245C.15,
subdivisions 1 to 4, or for a disqualification under section 256.98,
subdivision 8, the reconsideration decision under section 245C.22 is the
final agency determination for purposes of appeal by the disqualified individual
and is not subject to a hearing under section 256.045. If the individual was disqualified based on
a judicial determination, that determination is treated the same as a
conviction for purposes of appeal.
(d)
This subdivision does not apply to a public employee's appeal of a
disqualification under section 245C.28, subdivision 3.
(e)
Notwithstanding paragraph (c), if the commissioner does not set aside a
disqualification of an individual who was disqualified based on both a
preponderance of evidence and a conviction or admission, the individual may
request a fair hearing under section 256.045, unless the disqualifications are
deemed conclusive under section 245C.29.
The scope of the hearing conducted under section 256.045 with regard to
the disqualification based on a conviction or admission shall be limited solely
to whether the individual poses a risk of harm, according to section 256.045,
subdivision 3b. In this case, the
reconsideration decision under section 245C.22 is not the final agency decision
for purposes of appeal by the disqualified individual.
Sec.
47. Minnesota Statutes 2006, section
245C.28, subdivision 1, is amended to read:
Subdivision
1. License
holder. (a) If a maltreatment
determination or a disqualification for which reconsideration was requested and
which was not set aside is the basis for a denial of a license under section
245A.05 or a licensing sanction under section 245A.07, the license holder has
the right to a contested case hearing under chapter 14 and Minnesota Rules,
parts 1400.8505 to 1400.8612. The
license holder must submit the appeal under section 245A.05 or 245A.07,
subdivision 3.
(b) The
license holder must submit the appeal in accordance with section 245A.05 or
245A.07, subdivision 3. As provided
under section 245A.08, subdivision 2a, if the denial of a license or
licensing sanction is based on a disqualification for which reconsideration was
requested and was not set-aside, the scope of the consolidated contested
case hearing must include:
(1) the disqualification, to
the extent the license holder otherwise has a hearing right on the
disqualification under this chapter; and
(2) the licensing sanction or
denial of a license.
(c) If
the disqualification was based on a determination of substantiated serious or
recurring maltreatment under section 626.556 or 626.557, the appeal must be
submitted in accordance with sections 245A.07, subdivision 3, and 626.556,
subdivision 10i, or 626.557, subdivision 9d.
As provided for under section 245A.08, subdivision 2a, if the
denial of a license or licensing sanction is based on a determination of
maltreatment under section 626.556 or 626.557, or a disqualification for
serious or recurring maltreatment which was not set-aside, the scope of the
contested case hearing must include:
(1) the maltreatment
determination, if the maltreatment is not conclusive under section 245C.29;
(2)
the
disqualification, if the disqualification is not conclusive under section
245C.29; and
(3) the licensing sanction or
denial of a license. In such cases, a
fair hearing must not be conducted under section 256.045. If the disqualification was based on a
determination of substantiated serious or recurring maltreatment under section
626.556 or 626.557, the appeal must be submitted under sections 245A.07,
subdivision 3, and 626.556, subdivision 10i, or 626.557, subdivision 9d.
(d)
Except for family child care and child foster care, reconsideration of a
maltreatment determination under sections 626.556, subdivision 10i, and
626.557, subdivision 9d, and reconsideration of a disqualification under
section 245C.22, must not be conducted when:
(1)
a denial of a license under section 245A.05, or a licensing sanction under
section 245A.07, is based on a determination that the license holder is responsible
for maltreatment or the disqualification of a license holder based on serious
or recurring maltreatment;
(2)
the denial of a license or licensing sanction is issued at the same time as the
maltreatment determination or disqualification; and
(3)
the license holder appeals the maltreatment determination, disqualification,
and denial of a license or licensing sanction.
In such cases a fair hearing under section 256.045 must not be conducted
under sections 245C.27, 626.556, subdivision 10i, and 626.557, subdivision
9d. Under section 245A.08, subdivision
2a, the scope of the consolidated contested case hearing must include the
maltreatment determination, disqualification, and denial of a license or
licensing sanction.
Notwithstanding
clauses (1) to (3), if the license holder appeals the maltreatment
determination or disqualification, but does not appeal the denial of a license
or a licensing sanction, reconsideration of the maltreatment determination
shall be conducted under section 626.556, subdivision 10i, and section 626.557,
subdivision 9d, and reconsideration of the disqualification shall be conducted
under section 245C.22. In such cases, a
fair hearing shall also be conducted as provided under sections 245C.27,
626.556, subdivision 10i, and 626.557, subdivision 9d.
Sec.
48. Minnesota Statutes 2006, section
245C.301, is amended to read:
245C.301 NOTIFICATION OF SET-ASIDE OR
VARIANCE.
(a)
Except as provided under paragraph paragraphs (b) and (c),
if required by the commissioner, family child care providers and child
care centers must provide a written notification to parents considering
enrollment of a child or parents of a child attending the family child care or
child care center if the program employs or has living in the home any
individual who is the subject of either a set-aside or variance.
(b)
Notwithstanding paragraph (a), family child care license holders are not
required to disclose that the program has an individual living in the home who
is the subject of a set-aside or variance if:
(1)
the household member resides in the residence where the family child care is
provided;
(2)
the subject of the set-aside or variance is under the age of 18 years; and
(3)
the set-aside or variance relates to a disqualification under section 245C.15,
subdivision 4, for a misdemeanor-level theft crime as defined in section
609.52.
(c)
The notice specified in paragraph (a) is not required when the period of
disqualification in section 245C.15, subdivisions 2 to 4, has been exceeded.
EFFECTIVE DATE. This section is effective the day following final enactment.
Sec.
49. Minnesota Statutes 2006, section
256B.0919, is amended by adding a subdivision to read:
Subd.
4. County
certification; licensed providers; related individual; developmentally disabled. (a) Notwithstanding any provision to the
contrary, a county may certify an adult foster care license holder to provide
foster care services to an individual with a developmental disability, who is
related to the provider, if the following conditions are met:
(1)
the individual is 18 years of age or older;
(2)
the individual's service plan meets the standards of section 256B.092 and
specifies any special conditions necessary to prevent a conflict of interest
for the provider;
(3)
the provider is not the legal guardian or conservator of the related
individual;
(4)
the provider maintains a license under Minnesota Rules, parts 9555.5105 to
9555.6265, to serve unrelated foster care recipients;
(5)
the provider maintains a license under chapter 245B; and
(6) the county certifies the
provider meets the adult foster care provider standards established in
Minnesota Rules, parts 9555.5105 to 9555.6265, for services provided to the
related individual.
(b)
The county shall complete an annual certification review to ensure compliance
with paragraph (a), clauses (1) to (6).
(c)
Notwithstanding section 256I.04, subdivision 2a, clause (2), the adult foster
care provider certified by the county under this subdivision may be reimbursed
for room and board costs through the group residential housing program.
Sec.
50. Minnesota Statutes 2006, section
256B.092, is amended by adding a subdivision to read:
Subd.
4d. Medicaid
reimbursement; licensed provider; related individuals. The commissioner shall seek a federal amendment
to the home and community-based services waiver for individuals with
developmental disabilities, to allow Medicaid reimbursement for the provision
of supported living services to a related individual when the following
conditions have been met:
(1)
the individual is 18 years of age or older;
(2)
the provider is certified initially and annually thereafter, by the county, as
meeting the provider standards established in chapter 245B and the federal
waiver plan;
(3)
the provider has been certified by the county as meeting the adult foster care
provider standards established in Minnesota Rules, parts 9555.5105 to
9555.6265;
(4)
the provider is not the legal guardian or conservator of the related
individual; and
(5)
the individual's service plan meets the standards of section 256B.092 and
specifies any special conditions necessary to prevent a conflict of interest
for the provider.
Sec.
51. Minnesota Statutes 2006, section
270B.14, subdivision 1, is amended to read:
Subdivision
1. Disclosure
to commissioner of human services.
(a) On the request of the commissioner of human services, the
commissioner shall disclose return information regarding taxes imposed by
chapter 290, and claims for refunds under chapter 290A, to the extent provided
in paragraph (b) and for the purposes set forth in paragraph (c).
(b)
Data that may be disclosed are limited to data relating to the identity,
whereabouts, employment, income, and property of a person owing or alleged to
be owing an obligation of child support.
(c)
The commissioner of human services may request data only for the purposes of
carrying out the child support enforcement program and to assist in the
location of parents who have, or appear to have, deserted their children. Data received may be used only as set forth
in section 256.978.
(d)
The commissioner shall provide the records and information necessary to
administer the supplemental housing allowance to the commissioner of human
services.
(e) At
the request of the commissioner of human services, the commissioner of revenue
shall electronically match the Social Security numbers and names of
participants in the telephone assistance plan operated under sections 237.69 to
237.711, with those of property tax refund filers, and determine whether each
participant's household income is within the eligibility standards for the
telephone assistance plan.
(f) The commissioner may
provide records and information collected under sections 295.50 to 295.59 to
the commissioner of human services for purposes of the Medicaid Voluntary
Contribution and Provider-Specific Tax Amendments of 1991, Public Law
102-234. Upon the written agreement by
the United States Department of Health and Human Services to maintain the
confidentiality of the data, the commissioner may provide records and
information collected under sections 295.50 to 295.59 to the Centers for
Medicare and Medicaid Services section of the United States Department of
Health and Human Services for purposes of meeting federal reporting
requirements.
(g)
The commissioner may provide records and information to the commissioner of
human services as necessary to administer the early refund of refundable tax
credits.
(h) The commissioner may disclose information to the
commissioner of human services necessary to verify income for eligibility and
premium payment under the MinnesotaCare program, under section 256L.05,
subdivision 2.
(i)
The commissioner may disclose information to the commissioner of human services
necessary to verify whether applicants or recipients for the Minnesota family
investment program, general assistance, food support, and Minnesota
supplemental aid program have claimed refundable tax credits under chapter 290
and the property tax refund under chapter 290A, and the amounts of the credits.
(j)
The commissioner may disclose information to the commissioner of human services
necessary to verify income for purposes of calculating parental contribution
amounts under section 252.27, subdivision 2a.
Sec.
52. Minnesota Statutes 2006, section
626.556, subdivision 2, is amended to read:
Subd.
2. Definitions. As used in this section, the following terms
have the meanings given them unless the specific content indicates otherwise:
(a)
"Family assessment" means a comprehensive assessment of child safety,
risk of subsequent child maltreatment, and family strengths and needs that is
applied to a child maltreatment report that does not allege substantial child
endangerment. Family assessment does
not include a determination as to whether child maltreatment occurred but does
determine the need for services to address the safety of family members and the
risk of subsequent maltreatment.
(b)
"Investigation" means fact gathering related to the current safety of
a child and the risk of subsequent maltreatment that determines whether child
maltreatment occurred and whether child protective services are needed. An investigation must be used when reports
involve substantial child endangerment, and for reports of maltreatment in
facilities required to be licensed under chapter 245A or 245B; under sections
144.50 to 144.58 and 241.021; in a school as defined in sections 120A.05,
subdivisions 9, 11, and 13, and 124D.10; or in a nonlicensed personal care
provider association as defined in sections 256B.04, subdivision 16, and
256B.0625, subdivision 19a.
(c)
"Substantial child endangerment" means a person responsible for a
child's care, a person who has a significant relationship to the child as
defined in section 609.341, or a person in a position of authority as defined
in section 609.341, who by act or omission commits or attempts to commit an act
against a child under their care that constitutes any of the following:
(1)
egregious harm as defined in section 260C.007, subdivision 14;
(2)
sexual abuse as defined in paragraph (d);
(3)
abandonment under section 260C.301, subdivision 2;
(4) neglect as defined in
paragraph (f), clause (2), that substantially endangers the child's physical or
mental health, including a growth delay, which may be referred to as failure to
thrive, that has been diagnosed by a physician and is due to parental neglect;
(5)
murder in the first, second, or third degree under section 609.185, 609.19, or
609.195;
(6)
manslaughter in the first or second degree under section 609.20 or 609.205;
(7)
assault in the first, second, or third degree under section 609.221, 609.222,
or 609.223;
(8)
solicitation, inducement, and promotion of prostitution under section 609.322;
(9)
criminal sexual conduct under sections 609.342 to 609.3451;
(10)
solicitation of children to engage in sexual conduct under section 609.352;
(11)
malicious punishment or neglect or endangerment of a child under section
609.377 or 609.378;
(12)
use of a minor in sexual performance under section 617.246; or
(13)
parental behavior, status, or condition which mandates that the county attorney
file a termination of parental rights petition under section 260C.301,
subdivision 3, paragraph (a).
(d)
"Sexual abuse" means the subjection of a child by a person
responsible for the child's care, by a person who has a significant
relationship to the child, as defined in section 609.341, or by a person in a
position of authority, as defined in section 609.341, subdivision 10, to any
act which constitutes a violation of section 609.342 (criminal sexual conduct
in the first degree), 609.343 (criminal sexual conduct in the second degree),
609.344 (criminal sexual conduct in the third degree), 609.345 (criminal sexual
conduct in the fourth degree), or 609.3451 (criminal sexual conduct in the
fifth degree). Sexual abuse also
includes any act which involves a minor which constitutes a violation of
prostitution offenses under sections 609.321 to 609.324 or 617.246. Sexual abuse includes threatened sexual
abuse.
(e)
"Person responsible for the child's care" means (1) an individual
functioning within the family unit and having responsibilities for the care of
the child such as a parent, guardian, or other person having similar care
responsibilities, or (2) an individual functioning outside the family unit and
having responsibilities for the care of the child such as a teacher, school
administrator, other school employees or agents, or other lawful custodian of a
child having either full-time or short-term care responsibilities including, but
not limited to, day care, babysitting whether paid or unpaid, counseling,
teaching, and coaching.
(f)
"Neglect" means:
(1)
failure by a person responsible for a child's care to supply a child with
necessary food, clothing, shelter, health, medical, or other care required for
the child's physical or mental health when reasonably able to do so;
(2)
failure to protect a child from conditions or actions that seriously endanger
the child's physical or mental health when reasonably able to do so, including
a growth delay, which may be referred to as a failure to thrive, that has been
diagnosed by a physician and is due to parental neglect;
(3) failure to provide for
necessary supervision or child care arrangements appropriate for a child after
considering factors as the child's age, mental ability, physical condition,
length of absence, or environment, when the child is unable to care for the
child's own basic needs or safety, or the basic needs or safety of another
child in their care;
(4)
failure to ensure that the child is educated as defined in sections 120A.22 and
260C.163, subdivision 11, which does not include a parent's refusal to provide
the parent's child with sympathomimetic medications, consistent with section
125A.091, subdivision 5;
(5)
nothing in this section shall be construed to mean that a child is neglected
solely because the child's parent, guardian, or other person responsible for
the child's care in good faith selects and depends upon spiritual means or
prayer for treatment or care of disease or remedial care of the child in lieu
of medical care; except that a parent, guardian, or caretaker, or a person
mandated to report pursuant to subdivision 3, has a duty to report if a lack of
medical care may cause serious danger to the child's health. This section does not impose upon persons,
not otherwise legally responsible for providing a child with necessary food,
clothing, shelter, education, or medical care, a duty to provide that care;
(6)
prenatal exposure to a controlled substance, as defined in section 253B.02,
subdivision 2, used by the mother for a nonmedical purpose, as evidenced by
withdrawal symptoms in the child at birth, results of a toxicology test
performed on the mother at delivery or the child at birth, or medical effects
or developmental delays during the child's first year of life that medically
indicate prenatal exposure to a controlled substance;
(7)
"medical neglect" as defined in section 260C.007, subdivision 6,
clause (5);
(8)
chronic and severe use of alcohol or a controlled substance by a parent or
person responsible for the care of the child that adversely affects the child's
basic needs and safety; or
(9)
emotional harm from a pattern of behavior which contributes to impaired
emotional functioning of the child which may be demonstrated by a substantial
and observable effect in the child's behavior, emotional response, or cognition
that is not within the normal range for the child's age and stage of
development, with due regard to the child's culture.
(g)
"Physical abuse" means any physical injury, mental injury, or
threatened injury, inflicted by a person responsible for the child's care on a
child other than by accidental means, or any physical or mental injury that
cannot reasonably be explained by the child's history of injuries, or any
aversive or deprivation procedures, or regulated interventions, that have not
been authorized under section 121A.67 or 245.825.
Abuse
does not include reasonable and moderate physical discipline of a child
administered by a parent or legal guardian which does not result in an
injury. Abuse does not include the use
of reasonable force by a teacher, principal, or school employee as allowed by
section 121A.582. Actions which are not
reasonable and moderate include, but are not limited to, any of the following
that are done in anger or without regard to the safety of the child:
(1)
throwing, kicking, burning, biting, or cutting a child;
(2)
striking a child with a closed fist;
(3)
shaking a child under age three;
(4)
striking or other actions which result in any nonaccidental injury to a child
under 18 months of age;
(5)
unreasonable interference with a child's breathing;
(6) threatening a child with a
weapon, as defined in section 609.02, subdivision 6;
(7)
striking a child under age one on the face or head;
(8)
purposely giving a child poison, alcohol, or dangerous, harmful, or controlled
substances which were not prescribed for the child by a practitioner, in order
to control or punish the child; or other substances that substantially affect
the child's behavior, motor coordination, or judgment or that results in
sickness or internal injury, or subjects the child to medical procedures that
would be unnecessary if the child were not exposed to the substances;
(9)
unreasonable physical confinement or restraint not permitted under section
609.379, including but not limited to tying, caging, or chaining; or
(10)
in a school facility or school zone, an act by a person responsible for the
child's care that is a violation under section 121A.58.
(h)
"Report" means any report received by the local welfare agency,
police department, county sheriff, or agency responsible for assessing or
investigating maltreatment pursuant to this section.
(i)
"Facility" means:
(1) a
licensed or unlicensed day care facility, residential facility, agency,
hospital, sanitarium, or other facility or institution required to be licensed
under sections 144.50 to 144.58, 241.021, or 245A.01 to 245A.16, or chapter
245B;
(2) a
school as defined in sections 120A.05, subdivisions 9, 11, and 13; and 124D.10;
or
(3) a
nonlicensed personal care provider organization as defined in sections 256B.04,
subdivision 16, and 256B.0625, subdivision 19a.
(j)
"Operator" means an operator or agency as defined in section 245A.02.
(k)
"Commissioner" means the commissioner of human services.
(l)
"Practice of social services," for the purposes of subdivision 3,
includes but is not limited to employee assistance counseling and the provision
of guardian ad litem and parenting time expeditor services.
(m)
"Mental injury" means an injury to the psychological capacity or
emotional stability of a child as evidenced by an observable or substantial
impairment in the child's ability to function within a normal range of
performance and behavior with due regard to the child's culture.
(n)
"Threatened injury" means a statement, overt act, condition, or
status that represents a substantial risk of physical or sexual abuse or mental
injury. Threatened injury includes, but
is not limited to, exposing a child to a person responsible for the child's
care, as defined in paragraph (e), clause (1), who has:
(1)
subjected a child to, or failed to protect a child from, an overt act or
condition that constitutes egregious harm, as defined in section 260C.007,
subdivision 14, or a similar law of another jurisdiction;
(2)
been found to be palpably unfit under section 260C.301, paragraph (b), clause
(4), or a similar law of another jurisdiction;
(3)
committed an act that has resulted in an involuntary termination of parental
rights under section 260C.301, or a similar law of another jurisdiction; or
(4)
committed an act that has resulted in the involuntary transfer of permanent
legal and physical custody of a child to a relative under section 260C.201,
subdivision 11, paragraph (d), clause (1), or a similar law of another
jurisdiction.
(o)
Persons who conduct assessments or investigations under this section shall take
into account accepted child-rearing practices of the culture in which a child
participates and accepted teacher discipline practices, which are not injurious
to the child's health, welfare, and safety.
(p)
"Accidental" means a sudden, not reasonably foreseeable, and
unexpected occurrence or event which:
(1)
is not likely to occur and could not have been prevented by exercise of due
care; and
(2)
if occurring while a child is receiving services from a facility, happens when
the facility and the employee or person providing services in the facility are
in compliance with the laws and rules relevant to the occurrence of event.
Sec.
53. Minnesota Statutes 2006, section
626.556, subdivision 10e, is amended to read:
Subd.
10e. Determinations. (a) The
local welfare agency shall conclude the family assessment or the investigation
within 45 days of the receipt of a report.
The conclusion of the assessment or investigation may be extended to
permit the completion of a criminal investigation or the receipt of expert
information requested within 45 days of the receipt of the report.
(b)
After conducting a family assessment, the local welfare agency shall determine
whether services are needed to address the safety of the child and other family
members and the risk of subsequent maltreatment.
(c)
After conducting an investigation, the local welfare agency shall make two
determinations: first, whether maltreatment has occurred; and second, whether
child protective services are needed.
(d) If
the commissioner of education conducts an assessment or investigation, the
commissioner shall determine whether maltreatment occurred and what corrective
or protective action was taken by the school facility. If a determination is made that maltreatment
has occurred, the commissioner shall report to the employer, the school board,
and any appropriate licensing entity the determination that maltreatment
occurred and what corrective or protective action was taken by the school
facility. In all other cases, the
commissioner shall inform the school board or employer that a report was
received, the subject of the report, the date of the initial report, the
category of maltreatment alleged as defined in paragraph (f), the fact that
maltreatment was not determined, and a summary of the specific reasons for the
determination.
(e)
When maltreatment is determined in an investigation involving a facility, the
investigating agency shall also determine whether the facility or individual
was responsible, or whether both the facility and the individual were
responsible for the maltreatment using the mitigating factors in paragraph
(i). Determinations under this
subdivision must be made based on a preponderance of the evidence and are
private data on individuals or nonpublic data as maintained by the commissioner
of education.
(f)
For the purposes of this subdivision, "maltreatment" means any of the
following acts or omissions:
(1)
physical abuse as defined in subdivision 2, paragraph (g);
(2)
neglect as defined in subdivision 2, paragraph (f);
(3)
sexual abuse as defined in subdivision 2, paragraph (d);
(4)
mental injury as defined in subdivision 2, paragraph (m); or
(5)
maltreatment of a child in a facility as defined in subdivision 2, paragraph
(i).
(g)
For the purposes of this subdivision, a determination that child protective
services are needed means that the local welfare agency has documented
conditions during the assessment or investigation sufficient to cause a child
protection worker, as defined in section 626.559, subdivision 1, to conclude
that a child is at significant risk of maltreatment if protective intervention
is not provided and that the individuals responsible for the child's care have
not taken or are not likely to take actions to protect the child from
maltreatment or risk of maltreatment.
(h)
This subdivision does not mean that maltreatment has occurred solely because
the child's parent, guardian, or other person responsible for the child's care
in good faith selects and depends upon spiritual means or prayer for treatment
or care of disease or remedial care of the child, in lieu of medical care. However, if lack of medical care may result
in serious danger to the child's health, the local welfare agency may ensure
that necessary medical services are provided to the child.
(i)
When determining whether the facility or individual is the responsible party,
or whether both the facility and the individual are responsible for
determined maltreatment in a facility, the investigating agency shall consider
at least the following mitigating factors:
(1)
whether the actions of the facility or the individual caregivers were according
to, and followed the terms of, an erroneous physician order, prescription,
individual care plan, or directive; however, this is not a mitigating factor
when the facility or caregiver was responsible for the issuance of the erroneous
order, prescription, individual care plan, or directive or knew or should have
known of the errors and took no reasonable measures to correct the defect
before administering care;
(2)
comparative responsibility between the facility, other caregivers, and
requirements placed upon an employee, including the facility's compliance with
related regulatory standards and the adequacy of facility policies and
procedures, facility training, an individual's participation in the training,
the caregiver's supervision, and facility staffing levels and the scope of the
individual employee's authority and discretion; and
(3)
whether the facility or individual followed professional standards in
exercising professional judgment.
(j)
Individual counties may implement more detailed definitions or criteria that
indicate which allegations to investigate, as long as a county's policies are
consistent with the definitions in the statutes and rules and are approved by
the county board. Each local welfare
agency shall periodically inform mandated reporters under subdivision 3 who
work in the county of the definitions of maltreatment in the statutes and rules
and any additional definitions or criteria that have been approved by the
county board.
Sec.
54. Minnesota Statutes 2006, section
626.556, subdivision 10i, is amended to read:
Subd.
10i. Administrative reconsideration regarding
maltreatment, may request the investigating agency to reconsider its final
determination regarding maltreatment.
The request for reconsideration must be submitted in writing to the
investigating agency within 15 calendar days after receipt of notice of the
final determination regarding maltreatment or, if the request is made by an
interested person who is not entitled to notice, within 15 days after receipt
of the notice by the parent or guardian of the child. If mailed, the request for reconsideration must be postmarked and
sent to the investigating agency within 15 calendar days of the individual's or
facility's receipt of the final determination.
If the request for reconsideration is made by personal service, it must
be received by the investigating agency within 15 calendar days after the
individual's or facility's receipt of the final determination. Effective January 1, 2002, an individual who
was determined to have maltreated a child under this section and who was
disqualified on the basis of serious or recurring maltreatment under sections
245C.14 and 245C.15, may request reconsideration of the maltreatment
determination and the disqualification.
The request for reconsideration of the maltreatment determination and
the disqualification must be submitted within 30 calendar days of the individual's
receipt of the notice of disqualification under sections 245C.16 and
245C.17. If mailed, the request for
reconsideration of the maltreatment determination and the disqualification must
be postmarked and sent to the investigating agency within 30 calendar days of
the individual's receipt of the maltreatment determination and notice of
disqualification. If the request for
reconsideration is made by personal service, it must be received by the
investigating agency within 30 calendar days after the individual's receipt of
the notice of disqualification.of final determination of
maltreatment and disqualification based on serious or recurring maltreatment;
review panel. (a) Administrative
reconsideration is not applicable in family assessments since no determination
concerning maltreatment is made. For
investigations, except as provided under paragraph (e), an individual or
facility that the commissioner of human services, a local social service
agency, or the commissioner of education determines has maltreated a child, an
interested person acting on behalf of the child, regardless of the
determination, who contests the investigating agency's final determination
(b)
Except as provided under paragraphs (e) and (f), if the investigating agency
denies the request or fails to act upon the request within 15 working days
after receiving the request for reconsideration, the person or facility
entitled to a fair hearing under section 256.045 may submit to the commissioner
of human services or the commissioner of education a written request for a
hearing under that section. Section
256.045 also governs hearings requested to contest a final determination of the
commissioner of education. For reports
involving maltreatment of a child in a facility, an interested person acting on
behalf of the child may request a review by the Child Maltreatment Review Panel
under section 256.022 if the investigating agency denies the request or fails
to act upon the request or if the interested person contests a reconsidered
determination. The investigating agency
shall notify persons who request reconsideration of their rights under this
paragraph. The request must be
submitted in writing to the review panel and a copy sent to the investigating
agency within 30 calendar days of receipt of notice of a denial of a request
for reconsideration or of a reconsidered determination. The request must specifically identify the
aspects of the agency determination with which the person is dissatisfied.
(c)
If, as a result of a reconsideration or review, the investigating agency
changes the final determination of maltreatment, that agency shall notify the
parties specified in subdivisions 10b, 10d, and 10f.
(d)
Except as provided under paragraph (f), if an individual or facility contests
the investigating agency's final determination regarding maltreatment by
requesting a fair hearing under section 256.045, the commissioner of human
services shall assure that the hearing is conducted and a decision is reached
within 90 days of receipt of the request for a hearing. The time for action on the decision may be
extended for as many days as the hearing is postponed or the record is held
open for the benefit of either party.
(e)
Effective January 1, 2002, if an individual was disqualified under sections
245C.14 and 245C.15, on the basis of a determination of maltreatment, which was
serious or recurring, and the individual has requested reconsideration of the
maltreatment determination under paragraph (a) and requested reconsideration of
the disqualification under sections 245C.21 to 245C.27, reconsideration of the
maltreatment determination and reconsideration of the disqualification shall be
consolidated into a single reconsideration.
If reconsideration of the maltreatment determination is denied or the
disqualification is not set aside under sections 245C.21 to 245C.27, the
individual may request a fair hearing under section 256.045. If an individual requests a fair hearing on
the maltreatment determination and the disqualification, the scope of the fair
hearing shall include both the maltreatment determination and the
disqualification.
(f)
Effective January 1, 2002, if a maltreatment determination or a
disqualification based on serious or recurring maltreatment is the basis for a
denial of a license under section 245A.05 or a licensing sanction under section
245A.07, the license holder has the right to a contested case hearing under
chapter 14 and Minnesota Rules, parts 1400.8505 to 1400.8612. As provided for under section 245A.08,
subdivision 2a, the scope of the contested case hearing shall include the maltreatment
determination, disqualification, and licensing sanction or denial of a
license. In such cases, a fair hearing
regarding the maltreatment determination and disqualification shall not
be conducted under paragraph (b).
When a fine is based on a determination that the license holder is responsible
for maltreatment and the fine is issued at the same time as the maltreatment
determination, if the license holder appeals the maltreatment and fine,
reconsideration of the maltreatment determination shall not be conducted under
this section section 256.045.
Except for family child care and
child foster care, reconsideration of a maltreatment determination as provided
under this subdivision, and reconsideration of a disqualification as provided
under section 245C.22, shall also not be conducted when:
(1)
a denial of a license under section 245A.05 or a licensing sanction under
section 245A.07, is based on a determination that the license holder is
responsible for maltreatment or the disqualification of a license holder based
on serious or recurring maltreatment;
(2)
the denial of a license or licensing sanction is issued at the same time as the
maltreatment determination or disqualification; and
(3)
the license holder appeals the maltreatment determination or disqualification,
and denial of a license or licensing sanction.
Notwithstanding
clauses (1) to (3), if the license holder appeals the maltreatment
determination or disqualification, but does not appeal the denial of a license
or a licensing sanction, reconsideration of the maltreatment determination
shall be conducted under section 626.556, subdivision 10i, and section 626.557,
subdivision 9d, and reconsideration of the disqualification shall be conducted
under section 245C.22. In such cases, a
fair hearing shall also be conducted as provided under sections 245C.27,
626.556, subdivision 10i, and 626.557, subdivision 9d.
If the
disqualified subject is an individual other than the license holder and upon
whom a background study must be conducted under chapter 245C, the hearings of
all parties may be consolidated into a single contested case hearing upon
consent of all parties and the administrative law judge.
(g)
For purposes of this subdivision, "interested person acting on behalf of
the child" means a parent or legal guardian; stepparent; grandparent;
guardian ad litem; adult stepbrother, stepsister, or sibling; or adult aunt or
uncle; unless the person has been determined to be the perpetrator of the
maltreatment.
Sec.
55. Minnesota Statutes 2006, section
626.557, subdivision 9c, is amended to read:
Subd.
9c. Lead agency; notifications, dispositions, and determinations. (a) Upon request of the reporter, the lead
agency shall notify the reporter that it has received the report, and provide
information on the initial disposition of the report within five business days
of receipt of the report, provided that the notification will not endanger the
vulnerable adult or hamper the investigation.
(b)
Upon conclusion of every investigation it conducts, the lead agency shall make
a final disposition as defined in section 626.5572, subdivision 8.
(c)
When determining whether the facility or individual is the responsible party
for substantiated maltreatment or whether both the facility and the
individual are responsible for substantiated maltreatment, the lead agency
shall consider at least the following mitigating factors:
(1) whether the actions of the
facility or the individual caregivers were in accordance with, and followed the
terms of, an erroneous physician order, prescription, resident care plan, or
directive. This is not a mitigating
factor when the facility or caregiver is responsible for the issuance of the
erroneous order, prescription, plan, or directive or knows or should have known
of the errors and took no reasonable measures to correct the defect before
administering care;
(2)
the comparative responsibility between the facility, other caregivers, and
requirements placed upon the employee, including but not limited to, the
facility's compliance with related regulatory standards and factors such as the
adequacy of facility policies and procedures, the adequacy of facility
training, the adequacy of an individual's participation in the training, the
adequacy of caregiver supervision, the adequacy of facility staffing levels,
and a consideration of the scope of the individual employee's authority; and
(3)
whether the facility or individual followed professional standards in
exercising professional judgment.
(d)
The lead agency shall complete its final disposition within 60 calendar days. If the lead agency is unable to complete its
final disposition within 60 calendar days, the lead agency shall notify the
following persons provided that the notification will not endanger the
vulnerable adult or hamper the investigation: (1) the vulnerable adult or the
vulnerable adult's legal guardian, when known, if the lead agency knows them to
be aware of the investigation and (2) the facility, where applicable. The notice shall contain the reason for the delay
and the projected completion date. If
the lead agency is unable to complete its final disposition by a subsequent
projected completion date, the lead agency shall again notify the vulnerable
adult or the vulnerable adult's legal guardian, when known if the lead agency
knows them to be aware of the investigation, and the facility, where
applicable, of the reason for the delay and the revised projected completion
date provided that the notification will not endanger the vulnerable adult or
hamper the investigation. A lead
agency's inability to complete the final disposition within 60 calendar days or
by any projected completion date does not invalidate the final disposition.
(e)
Within ten calendar days of completing the final disposition, the lead agency
shall provide a copy of the public investigation memorandum under subdivision
12b, paragraph (b), clause (1), when required to be completed under this
section, to the following persons: (1) the vulnerable adult, or the vulnerable
adult's legal guardian, if known unless the lead agency knows that the
notification would endanger the well-being of the vulnerable adult; (2) the
reporter, if the reporter requested notification when making the report,
provided this notification would not endanger the well-being of the vulnerable
adult; (3) the alleged perpetrator, if known; (4) the facility; and (5) the
ombudsman for older Minnesotans, or the ombudsman for mental health and
developmental disabilities, as appropriate.
(f)
The lead agency shall notify the vulnerable adult who is the subject of the report
or the vulnerable adult's legal guardian, if known, and any person or facility
determined to have maltreated a vulnerable adult, of their appeal or review
rights under this section or section 256.021.
(g)
The lead agency shall routinely provide investigation memoranda for
substantiated reports to the appropriate licensing boards. These reports must include the names of
substantiated perpetrators. The lead
agency may not provide investigative memoranda for inconclusive or false
reports to the appropriate licensing boards unless the lead agency's
investigation gives reason to believe that there may have been a violation of
the applicable professional practice laws.
If the investigation memorandum is provided to a licensing board, the
subject of the investigation memorandum shall be notified and receive a summary
of the investigative findings.
(h) In
order to avoid duplication, licensing boards shall consider the findings of the
lead agency in their investigations if they choose to investigate. This does not preclude licensing boards from
considering other information.
(i) The lead agency must
provide to the commissioner of human services its final dispositions, including
the names of all substantiated perpetrators.
The commissioner of human services shall establish records to retain the
names of substantiated perpetrators.
Sec.
56. Minnesota Statutes 2006, section
626.557, subdivision 9d, is amended to read:
Subd.
9d. Administrative reconsideration of final disposition of maltreatment
and disqualification based on serious or recurring maltreatment; review
panel. (a) Except as provided under
paragraph (e), any individual or facility which a lead agency determines has
maltreated a vulnerable adult, or the vulnerable adult or an interested person
acting on behalf of the vulnerable adult, regardless of the lead agency's
determination, who contests the lead agency's final disposition of an
allegation of maltreatment, may request the lead agency to reconsider its final
disposition. The request for reconsideration
must be submitted in writing to the lead agency within 15 calendar days after
receipt of notice of final disposition or, if the request is made by an
interested person who is not entitled to notice, within 15 days after receipt
of the notice by the vulnerable adult or the vulnerable adult's legal
guardian. If mailed, the request for
reconsideration must be postmarked and sent to the lead agency within 15
calendar days of the individual's or facility's receipt of the final
disposition. If the request for
reconsideration is made by personal service, it must be received by the lead
agency within 15 calendar days of the individual's or facility's receipt of the
final disposition. An individual who
was determined to have maltreated a vulnerable adult under this section and who
was disqualified on the basis of serious or recurring maltreatment under
sections 245C.14 and 245C.15, may request reconsideration of the maltreatment
determination and the disqualification.
The request for reconsideration of the maltreatment determination and
the disqualification must be submitted in writing within 30 calendar days of
the individual's receipt of the notice of disqualification under sections
245C.16 and 245C.17. If mailed, the
request for reconsideration of the maltreatment determination and the
disqualification must be postmarked and sent to the lead agency within 30
calendar days of the individual's receipt of the notice of
disqualification. If the request for
reconsideration is made by personal service, it must be received by the lead
agency within 30 calendar days after the individual's receipt of the notice of
disqualification.
(b)
Except as provided under paragraphs (e) and (f), if the lead agency denies the
request or fails to act upon the request within 15 working days after receiving
the request for reconsideration, the person or facility entitled to a fair
hearing under section 256.045, may submit to the commissioner of human services
a written request for a hearing under that statute. The vulnerable adult, or an interested person acting on behalf of
the vulnerable adult, may request a review by the Vulnerable Adult Maltreatment
Review Panel under section 256.021 if the lead agency denies the request or
fails to act upon the request, or if the vulnerable adult or interested person
contests a reconsidered disposition.
The lead agency shall notify persons who request reconsideration of
their rights under this paragraph. The
request must be submitted in writing to the review panel and a copy sent to the
lead agency within 30 calendar days of receipt of notice of a denial of a
request for reconsideration or of a reconsidered disposition. The request must specifically identify the
aspects of the agency determination with which the person is dissatisfied.
(c)
If, as a result of a reconsideration or review, the lead agency changes the
final disposition, it shall notify the parties specified in subdivision 9c,
paragraph (d).
(d)
For purposes of this subdivision, "interested person acting on behalf of
the vulnerable adult" means a person designated in writing by the
vulnerable adult to act on behalf of the vulnerable adult, or a legal guardian
or conservator or other legal representative, a proxy or health care agent
appointed under chapter 145B or 145C, or an individual who is related to the
vulnerable adult, as defined in section 245A.02, subdivision 13.
(e) If
an individual was disqualified under sections 245C.14 and 245C.15, on the basis
of a determination of maltreatment, which was serious or recurring, and the
individual has requested reconsideration of the maltreatment determination
under paragraph (a) and reconsideration of the disqualification under sections
245C.21 to 245C.27, reconsideration of the maltreatment determination and
requested reconsideration of the disqualification shall be consolidated into a single
reconsideration. If reconsideration of
the maltreatment determination is denied or if the disqualification is not set
aside under sections 245C.21 to 245C.27, the individual may request a fair
hearing under section 256.045. If an
individual requests a fair hearing on the maltreatment determination and the
disqualification, the scope of the fair hearing shall include both the
maltreatment determination and the disqualification.
(f) If
a maltreatment determination or a disqualification based on serious or
recurring maltreatment is the basis for a denial of a license under section
245A.05 or a licensing sanction under section 245A.07, the license holder has
the right to a contested case hearing under chapter 14 and Minnesota Rules,
parts 1400.8505 to 1400.8612. As
provided for under section 245A.08, the scope of the contested case hearing shall
must include the maltreatment determination, disqualification, and
licensing sanction or denial of a license.
In such cases, a fair hearing shall must not be conducted
under paragraph (b). When a fine is
based on a determination that the license holder is responsible for
maltreatment and the fine is issued at the same time as the maltreatment
determination, if the license holder appeals the maltreatment and fine,
reconsideration of the maltreatment determination shall not be conducted under
this section. section 256.045.
Except for family child care and child foster care, reconsideration of a
maltreatment determination under this subdivision, and reconsideration of a
disqualification under section 245C.22, must not be conducted when:
(1)
a denial of a license under section 245A.05, or a licensing sanction under
section 245A.07, is based on a determination that the license holder is
responsible for maltreatment or the disqualification of a license holder based
on serious or recurring maltreatment;
(2)
the denial of a license or licensing sanction is issued at the same time as the
maltreatment determination or disqualification; and
(3)
the license holder appeals the maltreatment determination or disqualification,
and denial of a license or licensing sanction.
Notwithstanding
clauses (1) to (3), if the license holder appeals the maltreatment determination
or disqualification, but does not appeal the denial of a license or a licensing
sanction, reconsideration of the maltreatment determination shall be conducted
under section 626.556, subdivision 10i, and section 626.557, subdivision 9d,
and reconsideration of the disqualification shall be conducted under section
245C.22. In such cases, a fair hearing
shall also be conducted as provided under sections 245C.27, 626.556,
subdivision 10i, and 626.557, subdivision 9d.
If the
disqualified subject is an individual other than the license holder and upon
whom a background study must be conducted under chapter 245C, the hearings of
all parties may be consolidated into a single contested case hearing upon
consent of all parties and the administrative law judge.
(g)
Until August 1, 2002, an individual or facility that was determined by the
commissioner of human services or the commissioner of health to be responsible
for neglect under section 626.5572, subdivision 17, after October 1, 1995, and
before August 1, 2001, that believes that the finding of neglect does not meet
an amended definition of neglect may request a reconsideration of the
determination of neglect. The
commissioner of human services or the commissioner of health shall mail a
notice to the last known address of individuals who are eligible to seek this
reconsideration. The request for
reconsideration must state how the established findings no longer meet the
elements of the definition of neglect.
The commissioner shall review the request for reconsideration and make a
determination within 15 calendar days.
The commissioner's decision on this reconsideration is the final agency
action.
(1)
For purposes of compliance with the data destruction schedule under subdivision
12b, paragraph (d), when a finding of substantiated maltreatment has been
changed as a result of a reconsideration under this paragraph, the date of the
original finding of a substantiated maltreatment must be used to calculate the
destruction date.
(2) For purposes of any
background studies under chapter 245C, when a determination of substantiated
maltreatment has been changed as a result of a reconsideration under this
paragraph, any prior disqualification of the individual under chapter 245C that
was based on this determination of maltreatment shall be rescinded, and for
future background studies under chapter 245C the commissioner must not use the
previous determination of substantiated maltreatment as a basis for
disqualification or as a basis for referring the individual's maltreatment
history to a health-related licensing board under section 245C.31.
Sec.
57. Minnesota Statutes 2006, section
626.5572, subdivision 17, is amended to read:
Subd.
17. Neglect.
"Neglect" means:
(a)
The failure or omission by a caregiver to supply a vulnerable adult with care
or services, including but not limited to, food, clothing, shelter, health
care, or supervision which is:
(1)
reasonable and necessary to obtain or maintain the vulnerable adult's physical
or mental health or safety, considering the physical and mental capacity or
dysfunction of the vulnerable adult; and
(2)
which is not the result of an accident or therapeutic conduct.
(b)
The absence or likelihood of absence of care or services, including but not
limited to, food, clothing, shelter, health care, or supervision necessary to
maintain the physical and mental health of the vulnerable adult which a
reasonable person would deem essential to obtain or maintain the vulnerable
adult's health, safety, or comfort considering the physical or mental capacity
or dysfunction of the vulnerable adult.
(c)
For purposes of this section, a vulnerable adult is not neglected for the sole
reason that:
(1)
the vulnerable adult or a person with authority to make health care decisions
for the vulnerable adult under sections 144.651, 144A.44, chapter 145B, 145C,
or 252A, or sections 253B.03 or 524.5-101 to 524.5-502, refuses consent or
withdraws consent, consistent with that authority and within the boundary of
reasonable medical practice, to any therapeutic conduct, including any care,
service, or procedure to diagnose, maintain, or treat the physical or mental
condition of the vulnerable adult, or, where permitted under law, to provide
nutrition and hydration parenterally or through intubation; this paragraph does
not enlarge or diminish rights otherwise held under law by:
(i) a
vulnerable adult or a person acting on behalf of a vulnerable adult, including
an involved family member, to consent to or refuse consent for therapeutic
conduct; or
(ii) a
caregiver to offer or provide or refuse to offer or provide therapeutic
conduct; or
(2)
the vulnerable adult, a person with authority to make health care decisions for
the vulnerable adult, or a caregiver in good faith selects and depends upon
spiritual means or prayer for treatment or care of disease or remedial care of
the vulnerable adult in lieu of medical care, provided that this is consistent
with the prior practice or belief of the vulnerable adult or with the expressed
intentions of the vulnerable adult;
(3)
the vulnerable adult, who is not impaired in judgment or capacity by mental or
emotional dysfunction or undue influence, engages in consensual sexual
contact with:
(i) a
person including a facility staff person when a consensual sexual personal
relationship existed prior to the caregiving relationship; or
(ii) a
personal care attendant, regardless of whether the consensual sexual personal
relationship existed prior to the caregiving relationship; or
(4) an individual makes an
error in the provision of therapeutic conduct to a vulnerable adult which does
not result in injury or harm which reasonably requires medical or mental health
care; or
(5) an
individual makes an error in the provision of therapeutic conduct to a
vulnerable adult that results in injury or harm, which reasonably requires the
care of a physician, and:
(i)
the necessary care is provided in a timely fashion as dictated by the condition
of the vulnerable adult;
(ii)
if after receiving care, the health status of the vulnerable adult can be
reasonably expected, as determined by the attending physician, to be restored
to the vulnerable adult's preexisting condition;
(iii)
the error is not part of a pattern of errors by the individual;
(iv)
if in a facility, the error is immediately reported as required under section
626.557, and recorded internally in the facility;
(v) if
in a facility, the facility identifies and takes corrective action and
implements measures designed to reduce the risk of further occurrence of this
error and similar errors; and
(vi)
if in a facility, the actions required under items (iv) and (v) are
sufficiently documented for review and evaluation by the facility and any
applicable licensing, certification, and ombudsman agency.
(d)
Nothing in this definition requires a caregiver, if regulated, to provide
services in excess of those required by the caregiver's license, certification,
registration, or other regulation.
(e) If
the findings of an investigation by a lead agency result in a determination of
substantiated maltreatment for the sole reason that the actions required of a
facility under paragraph (c), clause (5), item (iv), (v), or (vi), were not
taken, then the facility is subject to a correction order. An individual will not be found to have neglected
or maltreated the vulnerable adult based solely on the facility's not having
taken the actions required under paragraph (c), clause (5), item (iv), (v), or
(vi). This must not alter the lead
agency's determination of mitigating factors under section 626.557, subdivision
9c, paragraph (c).
Sec.
58. BACKGROUND STUDY REVIEW.
(a)
The Collateral Consequences Committee described in Laws 2006, chapter 260,
article 1, section 45, or successor entity, shall review the background study
provisions contained in Minnesota Statutes, chapter 245C, as well as set-aside
and variance policies. The committee
shall recommend changes in these laws to recodify and simplify them, and
recommend appropriate substantive changes to them consistent with good public
policy and public safety.
(b)
By February 1, 2008, the committee shall report its findings and
recommendations to the chairs and ranking minority members of the senate and
house of representatives committees having jurisdiction over human services and
criminal justice policy.
Sec.
59. REPEALER.
(a)
Minnesota Statutes 2006, sections 245A.023; 245A.14, subdivisions 7, 9, 9a, 12,
and 13; and 245C.06, are repealed.
(b)
Minnesota Rules, parts 9502.0385; and 9503.0035, are repealed."
Delete
the title and insert:
"A bill for an act relating to human services; making
changes to licensing provisions; modifying data practices, program
administration, disaster plans, education programs, conditional license
provisions, suspensions, sanctions, and contested case hearings, child care
center training, family child care training requirements, vulnerable adults,
maltreatment of minors, background studies, disqualifications,
reconsiderations, disqualification set-asides, fair hearings, appeals, changing
definitions of neglect and physical abuse; amending Minnesota Statutes 2006,
sections 13.46, subdivisions 2, 4; 245A.03, subdivision 2; 245A.04, subdivision
11, by adding subdivisions; 245A.06, subdivision 4; 245A.07, subdivisions 2a,
3, by adding a subdivision; 245A.08, subdivision 2a; 245A.10, subdivision 2;
245A.11, subdivision 7; 245A.14, subdivision 8; 245A.144; 245A.1445; 245A.145,
subdivision 1; 245A.18, subdivision 2; 245A.65, subdivision 1, by adding a
subdivision; 245C.02, by adding a subdivision; 245C.05, subdivision 3; 245C.07;
245C.08; 245C.09, subdivision 1; 245C.11, by adding a subdivision; 245C.13,
subdivision 2; 245C.14, subdivision 1; 245C.15, subdivisions 1, 2, 3, 4;
245C.16, subdivision 1; 245C.17, subdivisions 2, 3; 245C.21, subdivisions 2, 3;
245C.22, subdivisions 4, 5; 245C.24, subdivision 3; 245C.27, subdivision 1;
245C.28, subdivision 1; 245C.301; 256B.0919, by adding a subdivision; 256B.092,
by adding a subdivision; 270B.14, subdivision 1; 626.556, subdivisions 2, 10e,
10i; 626.557, subdivisions 9c, 9d; 626.5572, subdivision 17; proposing coding
for new law in Minnesota Statutes, chapter 245A; repealing Minnesota Statutes
2006, sections 245A.023; 245A.14, subdivisions 7, 9, 9a, 12, 13; 245C.06;
Minnesota Rules, parts 9502.0385; 9503.0035."
We request the adoption of this report and repassage of the
bill.
Senate Conferees: Yvonne Prettner Solon, Linda Higgins and
Michelle L. Fischbach.
House Conferees: John Lesch, Neva Walker and Jim Abeler.
Lesch moved that the report of the Conference Committee on
S. F. No. 1724 be adopted and that the bill be repassed as
amended by the Conference Committee.
The motion prevailed.
S. F. No. 1724, A bill for an act relating to human services;
making changes to licensing provisions; modifying data practices, program
administration, disaster plans, education programs, conditional license
provisions, suspensions, sanctions, and contested case hearings, child care
center training, family child care training requirements, vulnerable adults,
maltreatment of minors, background studies, disqualifications,
reconsiderations, disqualification set-asides, fair hearings, appeals, changing
definitions of neglect and physical abuse; amending Minnesota Statutes 2006,
sections 13.46, subdivisions 2, 4; 245A.03, subdivision 2; 245A.04, subdivision
11, by adding subdivisions; 245A.06, subdivision 4; 245A.07, subdivisions 2a,
3, by adding a subdivision; 245A.08, subdivision 2a; 245A.10, subdivision 2;
245A.14, subdivision 8; 245A.144; 245A.1445; 245A.145, subdivision 1; 245A.18, subdivision
2; 245A.65, subdivision 1, by adding a subdivision; 245C.02, by adding a
subdivision; 245C.05, subdivision 3; 245C.07; 245C.08; 245C.09, subdivision 1;
245C.11, by adding a subdivision; 245C.13, subdivision 2; 245C.14, subdivision
1; 245C.15, subdivisions 1, 2, 3, 4; 245C.16, subdivision 1; 245C.17,
subdivisions 2, 3; 245C.21, subdivisions 2, 3; 245C.22, subdivisions 4, 5;
245C.24, subdivision 3; 245C.27, subdivision 1; 245C.28, subdivision 1;
245C.301; 256B.0919, by adding a subdivision; 256B.092, by adding a
subdivision; 270B.14, subdivision 1; 626.556, subdivisions 2, 10e, 10i;
626.557, subdivisions 9c, 9d; 626.5572, subdivision 17; proposing coding for
new law in Minnesota Statutes, chapter 245A; repealing Minnesota Statutes 2006,
sections 245A.023; 245A.14, subdivisions 7, 9, 9a, 12, 13; 245C.06; Minnesota
Rules, parts 9502.0385; 9503.0035.
The bill was read for the third time, as amended by Conference,
and placed upon its repassage.
The question was taken on the
repassage of the bill and the roll was called.
There were 103 yeas and 27 nays as follows:
Those who voted in the affirmative were:
Anderson, S.
Anzelc
Atkins
Benson
Berns
Bigham
Bly
Brod
Brown
Brynaert
Bunn
Carlson
Clark
Cornish
Davnie
Demmer
Dill
Dittrich
Dominguez
Doty
Eastlund
Eken
Erhardt
Faust
Fritz
Gardner
Gottwalt
Greiling
Hansen
Hausman
Haws
Heidgerken
Hilstrom
Hilty
Hornstein
Hortman
Hosch
Huntley
Jaros
Johnson
Juhnke
Kahn
Kalin
Knuth
Koenen
Kranz
Laine
Lanning
Lenczewski
Lesch
Liebling
Lieder
Lillie
Loeffler
Madore
Mahoney
Mariani
Marquart
Masin
McFarlane
McNamara
Moe
Morgan
Morrow
Mullery
Murphy, E.
Murphy, M.
Nelson
Norton
Olin
Otremba
Ozment
Paulsen
Paymar
Pelowski
Peterson, A.
Peterson, N.
Peterson, S.
Poppe
Rukavina
Ruth
Ruud
Sailer
Sertich
Simon
Slawik
Slocum
Smith
Solberg
Swails
Thissen
Tillberry
Tingelstad
Tschumper
Urdahl
Wagenius
Walker
Ward
Wardlow
Welti
Winkler
Wollschlager
Spk. Kelliher
Those who voted in the negative were:
Anderson, B.
Beard
Buesgens
Dean
DeLaForest
Emmer
Erickson
Finstad
Garofalo
Gunther
Hackbarth
Hamilton
Holberg
Hoppe
Kohls
Magnus
Nornes
Olson
Peppin
Seifert
Severson
Shimanski
Simpson
Sviggum
Thao
Westrom
Zellers
The bill was repassed, as amended by Conference, and its title
agreed to.
CALENDAR FOR THE DAY
S. F. No. 1262 was reported to the House.
Thissen moved to amend S. F.
No. 1262, the second engrossment, as follows:
Page 3, line 21, delete
everything after "manufacture"
Page 3, line 22, delete
"distribute for free"
Page 3, after line 23,
insert "(b) No person shall offer for sale, sell, label, or distribute
for free any jewelry represented to contain safe levels of lead, unless the
jewelry is made entirely from a Class 1, Class 2, or Class 3 material, or any
combination thereof."
Page 3, line 24, delete
"(b)" and insert "(c)" and delete everything
after "manufacture"
Page
3, line 25, delete "or distribute for free"
Page 4, after line 2,
insert:
"(d) Notwithstanding
paragraph (b), no person shall offer for sale, sell, distribute for free, or
label any jewelry as children's jewelry represented to contain safe levels of
lead, unless the jewelry is made entirely from one or more of the following
materials:
(1) a nonmetallic material
that is a Class 1 material;
(2) a nonmetallic material
that is a Class 2 material;
(3) a metallic material that
is either a Class 1 material or contains less than 0.06 percent (600 parts per
million) lead by weight;
(4) glass or crystal
decorative components that weigh in total no more than one gram, excluding any
glass or crystal decorative component that contains less than 0.02 percent (200
parts per million) lead by weight and has no intentionally added lead;
(5) printing ink or ceramic
glaze that contains less than 0.06 percent (600 parts per million) lead by
weight; or
(6) Class 3 material that
contains less than 0.02 percent (200 parts per million) lead by weight."
Page 4, line 3, delete
"(c)" and insert "(e)"
Page 4, line 11, delete
"(d)" and insert "(f)"
Page 4, delete lines 14 and
15
Page 4, line 16, delete
"4" and insert "3"
Page 5, line 12, delete
"5" and insert "4"
Renumber the sections in
sequence and correct the internal references
Amend the title accordingly
The motion prevailed and the amendment was adopted.
S. F. No. 1262, A bill for an act relating to commerce;
regulating the manufacture and sale of jewelry products containing lead;
proposing coding for new law in Minnesota Statutes, chapter 325E.
The bill was read for the third time, as amended, and placed
upon its final passage.
The question was taken on the
passage of the bill and the roll was called.
There were 123 yeas and 7 nays as follows:
Those who voted in the affirmative were:
Anderson, S.
Anzelc
Atkins
Beard
Benson
Berns
Bigham
Bly
Brod
Brown
Brynaert
Bunn
Carlson
Clark
Cornish
Davnie
Dean
DeLaForest
Demmer
Dill
Dittrich
Dominguez
Doty
Eastlund
Eken
Erhardt
Faust
Finstad
Fritz
Gardner
Garofalo
Gottwalt
Greiling
Gunther
Hamilton
Hansen
Hausman
Haws
Heidgerken
Hilstrom
Hilty
Hoppe
Hornstein
Hortman
Hosch
Huntley
Jaros
Johnson
Juhnke
Kahn
Kalin
Knuth
Koenen
Kohls
Kranz
Laine
Lanning
Lenczewski
Lesch
Liebling
Lieder
Lillie
Loeffler
Madore
Magnus
Mahoney
Mariani
Marquart
Masin
McFarlane
McNamara
Moe
Morgan
Morrow
Mullery
Murphy, E.
Murphy, M.
Nelson
Nornes
Norton
Olin
Otremba
Ozment
Paulsen
Paymar
Pelowski
Peppin
Peterson, A.
Peterson, N.
Peterson, S.
Poppe
Rukavina
Ruth
Ruud
Sailer
Seifert
Sertich
Severson
Shimanski
Simon
Simpson
Slawik
Slocum
Smith
Solberg
Sviggum
Swails
Thao
Thissen
Tillberry
Tingelstad
Tschumper
Urdahl
Wagenius
Walker
Ward
Wardlow
Welti
Westrom
Winkler
Wollschlager
Zellers
Spk. Kelliher
Those who voted in the negative were:
Anderson, B.
Buesgens
Emmer
Erickson
Hackbarth
Holberg
Olson
The bill was passed, as amended, and its title agreed to.
S. F. No. 221 was reported to the House.
There being no objection, S. F. No. 221 was
temporarily laid over on Calendar for the Day.
S. F. No. 1271 was reported to the House.
Smith moved to amend S. F.
No. 1271, the second engrossment, as follows:
Delete everything after the
enacting clause and insert:
"Section 1. Minnesota Statutes 2006, section 518.68,
subdivision 2, is amended to read:
Subd. 2. Contents. The required notices must be substantially
as follows:
IMPORTANT NOTICE
1. PAYMENTS TO PUBLIC AGENCY
According to Minnesota
Statutes, section 518A.50, payments ordered for maintenance and support must be
paid to the public agency responsible for child support enforcement as long as
the person entitled to receive the payments is receiving or has applied for public
assistance or has applied for support and maintenance collection services. MAIL PAYMENTS TO:
2. DEPRIVING ANOTHER OF CUSTODIAL OR PARENTAL RIGHTS -- A FELONY
A person may be charged with
a felony who conceals a minor child or takes, obtains, retains, or fails to
return a minor child from or to the child's parent (or person with custodial or
visitation rights), according to Minnesota Statutes, section 609.26. A copy of that section is available from any
district court clerk.
3. NONSUPPORT OF A SPOUSE OR CHILD -- CRIMINAL PENALTIES
A person who fails to pay
court-ordered child support or maintenance may be charged with a crime, which
may include misdemeanor, gross misdemeanor, or felony charges, according to
Minnesota Statutes, section 609.375. A copy
of that section is available from any district court clerk.
4. RULES OF SUPPORT, MAINTENANCE, PARENTING TIME
(a) Payment of support or
spousal maintenance is to be as ordered, and the giving of gifts or making
purchases of food, clothing, and the like will not fulfill the obligation.
(b) Payment of support must
be made as it becomes due, and failure to secure or denial of parenting time is
NOT an excuse for nonpayment, but the aggrieved party must seek relief through
a proper motion filed with the court.
(c) Nonpayment of support is
not grounds to deny parenting time. The
party entitled to receive support may apply for support and collection
services, file a contempt motion, or obtain a judgment as provided in Minnesota
Statutes, section 548.091.
(d) The payment of support
or spousal maintenance takes priority over payment of debts and other
obligations.
(e) A party who accepts
additional obligations of support does so with the full knowledge of the
party's prior obligation under this proceeding.
(f) Child support or
maintenance is based on annual income, and it is the responsibility of a person
with seasonal employment to budget income so that payments are made throughout
the year as ordered.
(g) Reasonable parenting
time guidelines are contained in Appendix B, which is available from the court
administrator.
(h) The nonpayment of
support may be enforced through the denial of student grants; interception of
state and federal tax refunds; suspension of driver's, recreational, and
occupational licenses; referral to the department of revenue or private
collection agencies; seizure of assets, including bank accounts and other
assets held by financial institutions; reporting to credit bureaus; interest
charging, income withholding, and contempt proceedings; and other enforcement
methods allowed by law.
(i) The public authority may
suspend or resume collection of the amount allocated for child care expenses if
the conditions of section 518A.40, subdivision 4, are met.
(j) The public authority may
remove or resume a medical support offset if the conditions of section 518A.41,
subdivision 16, are met.
(k) The public authority may
suspend or resume interest charging on child support judgments if the
conditions of section 548.091, subdivision 1a, are met.
5. MODIFYING CHILD SUPPORT
If either the obligor or
obligee is laid off from employment or receives a pay reduction, child support
may be modified, increased, or decreased.
Any modification will only take effect when it is ordered by the court,
and will only relate back to the time that a motion is filed. Either the obligor or obligee may file a
motion to modify child support, and may request the public agency for
help. UNTIL A MOTION IS FILED, THE
CHILD SUPPORT OBLIGATION WILL CONTINUE AT THE CURRENT LEVEL. THE COURT IS NOT PERMITTED TO REDUCE SUPPORT
RETROACTIVELY.
6. PARENTAL RIGHTS FROM MINNESOTA STATUTES, SECTION 518.17,
SUBDIVISION 3
Unless otherwise provided by
the Court:
(a) Each party has the right
of access to, and to receive copies of, school, medical, dental, religious
training, and other important records and information about the minor
children. Each party has the right of
access to information regarding health or dental insurance available to the
minor children. Presentation of a copy
of this order to the custodian of a record or other information about the minor
children constitutes sufficient authorization for the release of the record or
information to the requesting party.
(b) Each party shall keep
the other informed as to the name and address of the school of attendance of
the minor children. Each party has the
right to be informed by school officials about the children's welfare,
educational progress and status, and to attend school and parent teacher
conferences. The school is not required
to hold a separate conference for each party.
(c) In case of an accident
or serious illness of a minor child, each party shall notify the other party of
the accident or illness, and the name of the health care provider and the place
of treatment.
(d) Each party has the right
of reasonable access and telephone contact with the minor children.
7. WAGE AND INCOME DEDUCTION OF SUPPORT AND MAINTENANCE
Child support and/or spousal
maintenance may be withheld from income, with or without notice to the person
obligated to pay, when the conditions of Minnesota Statutes, section 518A.53
have been met. A copy of those sections
is available from any district court clerk.
8. CHANGE OF ADDRESS OR RESIDENCE
Unless otherwise ordered,
each party shall notify the other party, the court, and the public authority
responsible for collection, if applicable, of the following information within
ten days of any change: the residential and mailing address, telephone number,
driver's license number, Social Security number, and name, address, and
telephone number of the employer.
9. COST OF LIVING INCREASE OF SUPPORT AND MAINTENANCE
Child Basic support and/or
spousal maintenance may be adjusted every two years based upon a change in the
cost of living (using Department of Labor Consumer Price Index ..........,
unless otherwise specified in this order) when the conditions of Minnesota
Statutes, section 518A.75, are met.
Cost of living increases are compounded. A copy of Minnesota Statutes, section 518A.75, and forms
necessary to request or contest a cost of living increase are available from
any district court clerk.
10. JUDGMENTS FOR UNPAID SUPPORT
If a person fails to make a
child support payment, the payment owed becomes a judgment against the person
responsible to make the payment by operation of law on or after the date the
payment is due, and the person entitled to receive the payment or the public
agency may obtain entry and docketing of the judgment WITHOUT NOTICE to the
person responsible to make the payment under Minnesota Statutes, section
548.091. Interest begins to accrue on a
payment or installment of child support whenever the unpaid amount due is
greater than the current support due, according to Minnesota Statutes, section
548.091, subdivision 1a.
11. JUDGMENTS FOR UNPAID MAINTENANCE
A judgment for unpaid
spousal maintenance may be entered when the conditions of Minnesota Statutes,
section 548.091, are met. A copy of
that section is available from any district court clerk.
12. ATTORNEY FEES AND COLLECTION COSTS FOR
ENFORCEMENT OF CHILD SUPPORT
A judgment for attorney fees
and other collection costs incurred in enforcing a child support order will be
entered against the person responsible to pay support when the conditions of
section 518A.735, are met. A copy of
sections 518.14 and 518A.735 and forms necessary to request or contest these
attorney fees and collection costs are available from any district court clerk.
13. PARENTING TIME EXPEDITOR PROCESS
On request of either party
or on its own motion, the court may appoint a parenting time expeditor to
resolve parenting time disputes under Minnesota Statutes, section
518.1751. A copy of that section and a
description of the expeditor process is available from any district court
clerk.
14. PARENTING TIME REMEDIES AND PENALTIES
Remedies and penalties for
the wrongful denial of parenting time are available under Minnesota Statutes,
section 518.175, subdivision 6. These
include compensatory parenting time; civil penalties; bond requirements;
contempt; and reversal of custody. A
copy of that subdivision and forms for requesting relief are available from any
district court clerk.
Sec. 2. Minnesota Statutes 2006, section 518A.28, is
amended to read:
518A.28 PROVIDING INCOME INFORMATION.
(a) In any case where the
parties have joint children for which a child support order must be determined,
the parties shall serve and file with their initial pleadings or motion
documents, a financial affidavit, disclosing all sources of gross income for
purposes of section 518A.29. The
financial affidavit shall include relevant supporting documentation necessary
to calculate the parental income for child support under section 518A.26,
subdivision 15, including, but not limited to, pay stubs for the most recent
three months, employer statements, or statements of receipts and expenses if
self-employed. Documentation of
earnings and income also include relevant copies of each parent's most recent
federal tax returns, including W-2 forms, 1099 forms, unemployment benefit
statements, workers' compensation statements, and all other documents
evidencing earnings or income as received that provide verification for the
financial affidavit. The commissioner
of human services state court administrator shall prepare a
financial affidavit form that must may be used by the parties for
disclosing information under this section.
The parties may provide the information required under this section
in a substantially similar affidavit form.
(b) In addition to the requirements
of paragraph (a), at any time after an action seeking child support has been
commenced or when a child support order is in effect, a party or the public
authority may require the other party to give them a copy of the party's most
recent federal tax returns that were filed with the Internal Revenue
Service. The party shall provide a copy
of the tax returns within 30 days of receipt of the request unless the request
is not made in good faith. A request
under this paragraph may not be made more than once every two years, in the
absence of good cause.
(c) If a parent under the
jurisdiction of the court does not serve and file the financial affidavit with
the parent's initial pleading or motion documents, the court shall set income
for that parent based on credible evidence before the court or in accordance
with section 518A.32. Credible evidence
may include documentation of current or recent income, testimony of the other
parent concerning recent earnings and income levels, and the parent's wage reports
filed with the Minnesota Department of Employment and Economic Development
under section 268.044. The court may
consider credible evidence from one party that the financial affidavit
submitted by the other party is false or inaccurate.
(d) If the court determines
that a party does not have access to documents that are required to be
disclosed under this section, the court may consider the testimony of that
party as credible evidence of that party's income.
Sec. 3. Minnesota Statutes 2006, section 518A.32,
subdivision 1, is amended to read:
Subdivision 1. General. This section applies to child support
orders, including orders for past support or reimbursement of public
assistance, issued under this chapter, chapter 256, 257, 518B, or 518C. If a parent is voluntarily unemployed,
underemployed, or employed on a less than full-time basis, or there is no
direct evidence of any income, child support must be calculated based on a
determination of potential income. For
purposes of this determination, it is rebuttably presumed that a parent can be
gainfully employed on a full-time basis.
As used in this section, "full time" means 40 hours of work in
a week except in those industries, trades, or professions in which most
employers, due to custom, practice, or agreement, use a normal work week of
more or less than 40 hours in a week.
Sec. 4. Minnesota Statutes 2006, section 518A.32,
subdivision 3, is amended to read:
Subd. 3. Parent
not considered voluntarily unemployed or, underemployed, or
employed on a less than full-time basis. A parent is not considered voluntarily unemployed or,
underemployed, or employed on a less than full-time basis upon a showing
by the parent that:
(1) the unemployment or,
underemployment, or employment on a less than full-time basis is
temporary and will ultimately lead to an increase in income; or
(2) the unemployment or,
underemployment, or employment on a less than full-time basis represents
a bona fide career change that outweighs the adverse effect of that parent's diminished
income on the child.; or
(3) the unemployment,
underemployment, or employment on a less than full-time basis is because a
parent is physically or mentally incapacitated or due to incarceration, except
where the reason for incarceration is the parent's nonpayment of support.
EFFECTIVE DATE. This section is effective retroactively from January 1, 2007.
Sec. 5. Minnesota Statutes 2006, section 518A.32,
subdivision 5, is amended to read:
Subd. 5. Caretaker. If a parent stays at home to care for a
child who is subject to the child support order, the court may consider the
following factors when determining whether the parent is voluntarily unemployed
or, underemployed, or employed on a less than full-time basis:
(1) the parties' parenting
and child care arrangements before the child support action;
(2) the stay-at-home
parent's employment history, recency of employment, earnings, and the
availability of jobs within the community for an individual with the parent's
qualifications;
(3) the relationship between
the employment-related expenses, including, but not limited to, child care and
transportation costs required for the parent to be employed, and the income the
stay-at-home parent could receive from available jobs within the community for an
individual with the parent's qualifications;
(4) the child's age and
health, including whether the child is physically or mentally disabled; and
(5) the availability of
child care providers.
This subdivision does not
apply if the parent stays at home only to care for other nonjoint children.
Sec. 6. Minnesota Statutes 2006, section 518A.32,
subdivision 6, is amended to read:
Subd. 6. Economic
conditions. A self-employed parent
is not considered to be voluntarily unemployed or, underemployed,
or employed on a less than full-time basis if that parent can show that the
parent's net self-employment income is lower because of economic conditions
that are directly related to the source or sources of that parent's income.
Sec. 7. Minnesota Statutes 2006, section 518A.39,
subdivision 2, is amended to read:
Subd. 2. Modification. (a) The terms of an order respecting
maintenance or support may be modified upon a showing of one or more of the
following, any of which makes the terms unreasonable and unfair: (1)
substantially increased or decreased gross income of an obligor or obligee; (2)
substantially increased or decreased need of an obligor or obligee or the child
or children that are the subject of these proceedings; (3) receipt of
assistance under the AFDC program formerly codified under sections 256.72 to
256.87 or 256B.01 to 256B.40, or chapter 256J or 256K; (4) a change in the cost
of living for either party as measured by the Federal Bureau of Labor
Statistics; (5) extraordinary medical expenses of the child not provided for
under section 518A.41; (6) a change in the availability of appropriate
health care coverage or a substantial increase or decrease in health care
coverage costs; (7) the addition of work-related or education-related child
care expenses of the obligee or a substantial increase or decrease in existing
work-related or education-related child care expenses; or (7) (8)
upon the emancipation of the child, as provided in subdivision 5.
(b) It is presumed that
there has been a substantial change in circumstances under paragraph (a) and
the terms of a current support order shall be rebuttably presumed to be
unreasonable and unfair if:
(1) the application of the
child support guidelines in section 518A.35, to the current circumstances of the
parties results in a calculated court order that is at least 20 percent and at
least $75 per month higher or lower than the current support order or, if the
current support order is less than $75, it results in a calculated court order
that is at least 20 percent per month higher or lower;
(2)
the medical support provisions of the order established under section 518A.41
are not enforceable by the public authority or the obligee;
(3) health coverage ordered
under section 518A.41 is not available to the child for whom the order is
established by the parent ordered to provide;
(4) the existing support
obligation is in the form of a statement of percentage and not a specific
dollar amount; or
(5) the gross income of an
obligor or obligee has decreased by at least 20 percent through no fault or
choice of the party.; or
(6) a deviation was granted
based on the factor in section 518A.43, subdivision 1, clause (4), and the
child no longer resides in a foreign country or the factor is otherwise no
longer applicable.
(c) A child support order is
not presumptively modifiable solely because an obligor or obligee becomes
responsible for the support of an additional nonjoint child, which is born
after an existing order. Section 518A.33
shall be considered if other grounds are alleged which allow a modification of
support.
(d) On a motion for
modification of maintenance, including a motion for the extension of the
duration of a maintenance award, the court shall apply, in addition to all
other relevant factors, the factors for an award of maintenance under section
518.552 that exist at the time of the motion.
On a motion for modification of support, the court:
(1) shall apply section
518A.35, and shall not consider the financial circumstances of each party's spouse,
if any; and
(2) shall not consider
compensation received by a party for employment in excess of a 40-hour work
week, provided that the party demonstrates, and the court finds, that:
(i) the excess employment
began after entry of the existing support order;
(ii) the excess employment
is voluntary and not a condition of employment;
(iii) the excess employment
is in the nature of additional, part-time employment, or overtime employment
compensable by the hour or fractions of an hour;
(iv) the party's
compensation structure has not been changed for the purpose of affecting a
support or maintenance obligation;
(v) in the case of an
obligor, current child support payments are at least equal to the guidelines
amount based on income not excluded under this clause; and
(vi) in the case of an
obligor who is in arrears in child support payments to the obligee, any net
income from excess employment must be used to pay the arrearages until the
arrearages are paid in full.
(e) A modification of support
or maintenance, including interest that accrued pursuant to section 548.091,
may be made retroactive only with respect to any period during which the
petitioning party has pending a motion for modification but only from the date
of service of notice of the motion on the responding party and on the public
authority if public assistance is being furnished or the county attorney is the
attorney of record.
(f)
Except for an award of the right of occupancy of the homestead, provided in
section 518.63, all divisions of real and personal property provided by section
518.58 shall be final, and may be revoked or modified only where the court
finds the existence of conditions that justify reopening a judgment under the
laws of this state, including motions under section 518.145, subdivision
2. The court may impose a lien or
charge on the divided property at any time while the property, or subsequently
acquired property, is owned by the parties or either of them, for the payment
of maintenance or support money, or may sequester the property as is provided
by section 518A.71.
(g) The court need not hold
an evidentiary hearing on a motion for modification of maintenance or support.
(h) Sections 518.14 and
518A.735 shall govern the award of attorney fees for motions brought under this
subdivision.
(i) Except as expressly
provided, an enactment, amendment, or repeal of law does not constitute a
substantial change in the circumstances for purposes of modifying a child
support order.
(j) There may be no
modification of an existing child support order during the first year following
January 1, 2007, except as follows:
(1) there is at least a 20
percent change in the gross income of the obligor;
(2) there is a change in the
number of joint children for whom the obligor is legally responsible and
actually supporting;
(3) a parent or another
caregiver of the child who is supported by the existing support order begins to
receive public assistance, as defined in section 256.741;
(4) there are additional
work-related or education-related child care expenses of the obligee or a
substantial increase or decrease in existing work-related or education-related
child care expenses;
(5) there is a change in the
availability of health care coverage, as defined in section 518A.41,
subdivision 1, paragraph (a), or a substantial increase or decrease in the cost
of existing health care coverage;
(6) the child supported by
the existing child support order becomes disabled; or
(7) both parents consent to
modification of the existing order under section 518A.34.
A modification under clause
(4) may be granted only with respect to child care support. A modification under clause (5) may be
granted only with respect to medical support.
This paragraph expires January 1, 2008.
(k) On the first
modification under the income shares method of calculation, the modification of
basic support may be limited if the amount of the full variance would create
hardship for either the obligor or the obligee.
Sec. 8. Minnesota Statutes 2006, section 518A.40,
subdivision 1, is amended to read:
Subdivision 1. Child
care costs. Unless otherwise agreed
to by the parties and approved by the court, the court must order that
work-related or education-related child care costs of joint children be divided
between the obligor and obligee based on their proportionate share of the
parties' combined monthly PICS. The
amount of work-related or education-related child care costs required by this
subdivision to be divided between the obligor and obligee is the total amount
received by the child care provider from the obligee and any public agency for
the joint child or children. Child
care costs shall be adjusted by the amount of the estimated federal and state
child care credit payable on behalf of a joint child. The Department of Human Services shall develop tables to
calculate the applicable credit based upon the custodial parent's PICS.
Sec.
9. Minnesota Statutes 2006, section
518A.40, subdivision 4, is amended to read:
Subd. 4. Change
in child care. (a) When a court
order provides for child care expenses, and child care support is not
assigned under section 256.741, the public authority, if the public
authority provides child support enforcement services, the public
authority must suspend collecting the amount allocated for child care
expenses when:
(1) either party informs the
public authority that no child care costs are being incurred; and
(2) the public authority
verifies the accuracy of the information with the other party obligee.
The suspension is effective
as of the first day of the month following the date that the public authority
received the verification. The public authority will
resume collecting child care expenses when either party provides information
that child care costs have resumed, or when a child care support assignment
takes effect under section 256.741, subdivision 4. The resumption is effective as of the first day of the month
after the date that the public authority received the information.
(b) If the parties provide
conflicting information to the public authority regarding whether child care
expenses are being incurred, or if the public authority is unable to verify
with the obligee that no child care costs are being incurred, the public
authority will continue or resume collecting child care expenses. Either party, by motion to the court, may
challenge the suspension, continuation, or resumption of the collection
of child care expenses under this subdivision. If the public authority suspends collection activities for the
amount allocated for child care expenses, all other provisions of the court
order remain in effect.
(c) In cases where there is
a substantial increase or decrease in child care expenses, the parties may
modify the order under section 518A.39.
Sec. 10. Minnesota Statutes 2006, section 518A.41,
subdivision 1, is amended to read:
Subdivision 1. Definitions. The definitions in this subdivision apply to
this chapter and chapter 518.
(a) "Health care
coverage" means medical, dental, or other health care benefits that
are provided by a one or more health plan plans. Health care coverage does not include any
form of medical assistance under chapter 256B or MinnesotaCare under chapter
256L public coverage.
(b) "Health
carrier" means a carrier as defined in sections 62A.011, subdivision 2,
and 62L.02, subdivision 16.
(c) "Health plan"
means a plan meeting the definition under section 62A.011, subdivision 3, a
group health plan governed under the federal Employee Retirement Income
Security Act of 1974 (ERISA), a self-insured plan under sections 43A.23 to
43A.317 and 471.617, or a policy, contract, or certificate issued by a
community-integrated service network licensed under chapter 62N. Health plan includes plans, other
than any form of public coverage, that provides medical, dental, or other
health care benefits and is:
(1) provided on an
individual and or group basis;
(2) provided by an employer
or union;
(3) purchased in the private
market; and or
(4) available to a person
eligible to carry insurance for the joint child, including a party's spouse
or parent.
Health
plan includes, but is not limited to, a plan providing for
dependent-only dental or vision coverage and a plan provided through a party's
spouse or parent meeting the definition under section 62A.011,
subdivision 3, except that the exclusion of coverage designed solely to provide
dental or vision care under section 62A.011, subdivision 3, clause (6), does
not apply to the definition of health plan under this section; a group health
plan governed under the federal Employee Retirement Income Security Act of 1974
(ERISA); a self-insured plan under sections 43A.23 to 43A.317 and 471.617; and
a policy, contract, or certificate issued by a community-integrated service
network licensed under chapter 62N.
(d) "Medical
support" means providing health care coverage for a joint child by
carrying health care coverage for the joint child or by contributing to the
cost of health care coverage, public coverage, unreimbursed medical expenses,
and uninsured medical expenses of the joint child.
(e) "National medical
support notice" means an administrative notice issued by the public
authority to enforce health insurance provisions of a support order in
accordance with Code of Federal Regulations, title 45, section 303.32, in cases
where the public authority provides support enforcement services.
(f) "Public
coverage" means health care benefits provided by any form of medical
assistance under chapter 256B or MinnesotaCare under chapter 256L.
(g) "Uninsured medical
expenses" means a joint child's reasonable and necessary health-related
expenses if the joint child is not covered by a health plan or public coverage
when the expenses are incurred.
(h) "Unreimbursed
medical expenses" means a joint child's reasonable and necessary
health-related expenses if a joint child is covered by a health plan or public
coverage and the plan or coverage does not pay for the total cost of the
expenses when the expenses are incurred.
Unreimbursed medical expenses do not include the cost of premiums. Unreimbursed medical expenses include, but
are not limited to, deductibles, co-payments, and expenses for orthodontia, and
prescription eyeglasses and contact lenses, but not over-the-counter medications
if coverage is under a health plan.
Sec. 11. Minnesota Statutes 2006, section 518A.41,
subdivision 2, is amended to read:
Subd. 2. Order. (a) A completed national medical support
notice issued by the public authority or a court order that complies with this
section is a qualified medical child support order under the federal Employee
Retirement Income Security Act of 1974 (ERISA), United States Code, title 29,
section 1169(a).
(b) Every order addressing
child support must state:
(1) the names, last known
addresses, and Social Security numbers of the parents and the joint child that
is a subject of the order unless the court prohibits the inclusion of an
address or Social Security number and orders the parents to provide the address
and Social Security number to the administrator of the health plan;
(2) if a joint child is
not presently enrolled in health care coverage, whether appropriate health
care coverage for the joint child is available and, if so, state:
(i) which parent must
carry the parents' responsibilities for carrying health care
coverage;
(ii) the cost of premiums
and how the cost is allocated between the parents;
(iii) how unreimbursed
expenses will be allocated and collected by the parents; and
(iv) (iii) the
circumstances, if any, under which the an obligation to provide
health care coverage for the joint child will shift from one parent to the
other; and
(3) if appropriate health
care coverage is not available for the joint child, whether a contribution for
medical support is required.; and
(4) how unreimbursed or
uninsured medical expenses will be allocated between the parents.
Sec. 12. Minnesota Statutes 2006, section 518A.41,
subdivision 3, is amended to read:
Subd. 3. Determining
appropriate health care coverage. (a)
In determining whether a parent has appropriate health care coverage for the
joint child, the court must evaluate the health plan using consider the
following factors:
(1) accessible
coverage. Dependent health care
coverage is accessible if the covered joint child can obtain services from a
health plan provider with reasonable effort by the parent with whom the joint
child resides. Health care coverage is
presumed accessible if:
(i) primary care coverage is
available within 30 minutes or 30 miles of the joint child's residence and
specialty care coverage is available within 60 minutes or 60 miles of the joint
child's residence;
(ii) the coverage is
available through an employer and the employee can be expected to remain
employed for a reasonable amount of time; and
(iii) no preexisting
conditions exist to delay coverage unduly;
(2) (1) comprehensive
comprehensiveness of health care coverage providing medical benefits. Dependent health care coverage providing
medical benefits is presumed comprehensive if it includes medical and
hospital coverage and provides for preventive, emergency, acute, and chronic
care. If both parents have health care
coverage providing medical benefits that meets the minimum
requirements is presumed comprehensive under this paragraph, the
court must determine which health care parent's coverage is more
comprehensive by considering whether what other benefits are included
in the coverage includes:;
(i) basic dental coverage;
(ii) orthodontia;
(iii) eyeglasses;
(iv) contact lenses;
(v) mental health services;
or
(vi) substance abuse
treatment;
(2) accessibility. Dependent health care coverage is accessible
if the covered joint child can obtain services from a health plan provider with
reasonable effort by the parent with whom the joint child resides. Health care coverage is presumed accessible
if:
(i) primary care is
available within 30 minutes or 30 miles of the joint child's residence and
specialty care is available within 60 minutes or 60 miles of the joint child's
residence;
(ii) the health care coverage
is available through an employer and the employee can be expected to remain
employed for a reasonable amount of time; and
(iii) no preexisting
conditions exist to unduly delay enrollment in health care coverage;
(3) affordable coverage. Dependent health care coverage is affordable
if it is reasonable in cost; and
(4) (3) the joint
child's special medical needs, if any.; and
(b) (4) affordability. Dependent health care coverage is affordable
if it is reasonable in cost. If
both parents have health care coverage available for a joint child, and the
court determines under paragraph (a), clauses (1) and (2), that the
available coverage is comparable with regard to accessibility and
comprehensiveness of medical benefits, accessibility, and the joint child's
special needs, the least costly health care coverage is the presumed
to be the most appropriate health care coverage for the joint child.
Sec. 13. Minnesota Statutes 2006, section 518A.41,
subdivision 4, is amended to read:
Subd. 4. Ordering
health care coverage. (a) If a
joint child is presently enrolled in health care coverage, the court must order
that the parent who currently has the joint child enrolled continue that
enrollment unless the parents parties agree otherwise or a parent
party requests a change in coverage and the court determines that other
health care coverage is more appropriate.
(b) If a joint child is not
presently enrolled in health care coverage providing medical benefits,
upon motion of a parent or the public authority, the court must determine
whether one or both parents have appropriate health care coverage providing
medical benefits for the joint child and order the parent with
appropriate health care coverage available to carry the coverage for the joint
child.
(c) If only one parent has
appropriate health care coverage providing medical benefits available,
the court must order that parent to carry the coverage for the joint child.
(d) If both parents have
appropriate health care coverage providing medical benefits available,
the court must order the parent with whom the joint child resides to carry the
coverage for the joint child, unless:
(1) either parent a
party expresses a preference for health care coverage providing
medical benefits available through the parent with whom the joint child
does not reside;
(2) the parent with whom the
joint child does not reside is already carrying dependent health care coverage providing
medical benefits for other children and the cost of contributing to the
premiums of the other parent's coverage would cause the parent with whom the
joint child does not reside extreme hardship; or
(3) the parents parties
agree as to provide which parent will carry health care coverage
providing medical benefits and agree on the allocation of costs.
(e) If the exception in
paragraph (d), clause (1) or (2), applies, the court must determine which
parent has the most appropriate coverage providing medical benefits available
and order that parent to carry coverage for the joint child. If the court determines under subdivision
3, paragraph (a), clauses (1) and (2), that the parents' health care coverage
for the joint child is comparable with regard to accessibility and
comprehensiveness, the court must presume that the parent with the least costly
health care coverage to carry coverage for the joint child.
(f) If neither parent has
appropriate health care coverage available, the court must order the parents
to:
(1) contribute toward the
actual health care costs of the joint children based on a pro rata share; or
(2) if the joint child is
receiving any form of medical assistance under chapter 256B or MinnesotaCare
under chapter 256L public coverage, the parent with whom the joint
child does not reside shall contribute a monthly amount toward the actual cost
of medical assistance under chapter 256B or MinnesotaCare under chapter 256L
public coverage. The amount of contribution
of the noncustodial parent parent's contribution is the
amount the noncustodial parent would pay for the child's premiums if the
noncustodial parent's PICS income meets the eligibility requirements for public
coverage. determined by applying the noncustodial parent's PICS to the
premium schedule for public coverage.
If the noncustodial parent's PICS meets the eligibility requirements for
public coverage, the contribution is the amount the noncustodial parent would
pay for the child's premium. If the
noncustodial parent's PICS exceeds the eligibility requirements for public
coverage, the contribution is the amount of the premium for the highest
eligible income on the appropriate premium schedule for public coverage. For purposes of determining the premium
amount, the noncustodial parent's household size is equal to one parent plus
the child or children who are the subject of the child support order. If the noncustodial parent's PICS income
exceeds the eligibility requirements for public coverage, the court must order
the noncustodial parent's contribution toward the full premium cost of the
child's or children's coverage. The
custodial parent's obligation is determined under the requirements for public
coverage as set forth in chapter 256B or 256L.
The court may order the parent with whom the child resides to apply
for public coverage for the child.
(g) If neither parent has
appropriate health care coverage available, the court may order the parent with
whom the child resides to apply for public coverage for the child.
(h) The commissioner of human
services must publish a table with the premium schedule for public coverage and
update the chart for changes to the schedule by July 1 of each year.
(i) If a joint child is not
presently enrolled in health care coverage providing dental benefits, upon
motion of a parent or the public authority, the court must determine whether
one or both parents have appropriate dental health care coverage for the joint
child, and the court may order a parent with appropriate dental health care
coverage available to carry the coverage for the joint child.
(j) If a joint child is not
presently enrolled in available health care coverage providing benefits other
than medical benefits or dental benefits, upon motion of a parent or the public
authority, the court may determine whether that other health care coverage for
the joint child is appropriate, and the court may order a parent with that
appropriate health care coverage available to carry the coverage for the joint
child.
Sec. 14. Minnesota Statutes 2006, section 518A.41,
subdivision 5, is amended to read:
Subd. 5. Medical
support costs; unreimbursed and uninsured medical expenses. (a) Unless otherwise agreed to by the
parties and approved by the court, the court must order that the cost of health
care coverage and all unreimbursed and uninsured medical expenses under the
health plan be divided between the obligor and obligee based on their
proportionate share of the parties' combined monthly PICS. The amount allocated for medical support
is considered child support but is not subject to a cost-of-living adjustment
under section 518A.75.
(b) If a party owes a joint
child support obligation for a child and is ordered to carry health care
coverage for the joint child, and the other party is ordered to contribute to
the carrying party's cost for coverage, the carrying party's child support
payment must be reduced by the amount of the contributing party's contribution.
(c) If a party owes a joint
child support obligation for a child and is ordered to contribute to the other
party's cost for carrying health care coverage for the joint child, the
contributing party's child support payment must be increased by the amount of
the contribution.
(d) If the party ordered to
carry health care coverage for the joint child already carries dependent health
care coverage for other dependents and would incur no additional premium costs
to add the joint child to the existing coverage, the court must not order the
other party to contribute to the premium costs for coverage of the joint child.
(e) If a party ordered to
carry health care coverage for the joint child does not already carry dependent
health care coverage but has other dependents who may be added to the ordered
coverage, the full premium costs of the dependent health care coverage must be
allocated between the parties in proportion to the party's share of the
parties' combined PICS, unless the parties agree otherwise.
(f) If a party ordered to
carry health care coverage for the joint child is required to enroll in a
health plan so that the joint child can be enrolled in dependent health care
coverage under the plan, the court must allocate the costs of the dependent
health care coverage between the parties.
The costs of the health care coverage for the party ordered to carry the
coverage for the joint child must not be allocated between the parties.
Sec. 15. Minnesota Statutes 2006, section 518A.41,
subdivision 12, is amended to read:
Subd. 12. Spousal
or former spousal coverage. The
court must require the parent with whom the joint child does not reside to
provide dependent health care coverage for the benefit of the parent with whom
the joint child resides if the parent with whom the child does not reside is
ordered to provide dependent health care coverage for the parties' joint child
and adding the other parent to the coverage results in no additional premium
cost.
Sec. 16. Minnesota Statutes 2006, section 518A.41,
subdivision 15, is amended to read:
Subd. 15. Enforcement. (a) Remedies available for collecting and
enforcing child support apply to medical support.
(b) For the purpose of
enforcement, the following are additional support:
(1) the costs of individual
or group health or hospitalization coverage;
(2) dental coverage;
(3) medical costs ordered by
the court to be paid by either party, including health and dental insurance
health care coverage premiums paid by the obligee because of the
obligor's failure to obtain coverage as ordered; and
(4) liabilities established
under this subdivision.
(c) A party who fails to
carry court-ordered dependent health care coverage is liable for the joint
child's uninsured medical expenses unless a court order provides
otherwise. A party's failure to carry
court-ordered coverage, or to provide other medical support as ordered, is a basis
for modification of a support order under section 518A.39, subdivision 2.
(d) Payments by the health
carrier or employer for services rendered to the dependents that are directed
to a party not owed reimbursement must be endorsed over to and forwarded to the
vendor or appropriate party or the public authority. A party retaining insurance reimbursement not owed to the party
is liable for the amount of the reimbursement.
Sec. 17. Minnesota Statutes 2006, section 518A.41,
subdivision 16, is amended to read:
Subd. 16. Offset. (a) If a party is the parent with primary
physical custody as defined in section 518A.26, subdivision 17, and is an
obligor ordered to contribute to the other party's cost for carrying health
care coverage for the joint child, the other party's child support obligation
is and spousal maintenance obligations are subject to an offset
under subdivision 5.
(b) The public authority, if
the public authority provides child support enforcement services, may
remove the offset to a party's child support obligation when:
(1) the party's
court-ordered health care coverage for the joint child terminates;
(2) the party does not
enroll the joint child in other health care coverage; and
(3) a modification motion is
not pending.
The public authority must
provide notice to the parties of the action.
If neither party requests a hearing, the public authority must remove
the offset effective the first day of the month following termination of the
joint child's health care coverage.
(c) The public authority, if
the public authority provides child support enforcement services, may resume
the offset when the party ordered to provide health care coverage for the joint
child has resumed the court-ordered health care coverage or enrolled the joint
child in other health care coverage.
The public authority must provide notice to the parties of the
action. If neither party requests a
hearing, the public authority must resume the offset effective the first day of
the month following certification that health care coverage is in place for the
joint child.
(c) (d) A party may contest the
public authority's action to remove or resume the offset to the child
support obligation if the party makes a written request for a hearing within 30
days after receiving written notice. If
a party makes a timely request for a hearing, the public authority must
schedule a hearing and send written notice of the hearing to the parties by
mail to the parties' last known addresses at least 14 days before the
hearing. The hearing must be conducted
in district court or in the expedited child support process if section 484.702
applies. The district court or child
support magistrate must determine whether removing or resuming the
offset is appropriate and, if appropriate, the effective date for the removal
or resumption.
(d) If the party does not
request a hearing, the public authority will remove the offset effective the
first day of the month following termination of the joint child's health care
coverage.
Sec. 18. Minnesota Statutes 2006, section 518A.43,
subdivision 1, is amended to read:
Subdivision 1. General
factors. Among other reasons,
deviation from the presumptive child support obligation computed under section
518A.34 is intended to encourage prompt and regular payments of child support
and to prevent either parent or the joint children from living in poverty. In addition to the child support guidelines
and other factors used to calculate the child support obligation under section
518A.34, the court must take into consideration the following factors in
setting or modifying child support or in determining whether to deviate upward
or downward from the presumptive child support obligation:
(1) all earnings, income,
circumstances, and resources of each parent, including real and personal
property, but excluding income from excess employment of the obligor or obligee
that meets the criteria of section 518A.29, paragraph (b);
(2)
the extraordinary financial needs and resources, physical and emotional
condition, and educational needs of the child to be supported;
(3) the standard of living
the child would enjoy if the parents were currently living together, but
recognizing that the parents now have separate households;
(4) whether the child
resides in a foreign country for more than one year that has a substantially
higher or lower cost of living than this country;
(5) which parent receives the
income taxation dependency exemption and the financial benefit the parent
receives from it;
(5) (6) the parents'
debts as provided in subdivision 2; and
(6) (7) the obligor's
total payments for court-ordered child support exceed the limitations set forth
in section 571.922.
Sec. 19. Minnesota Statutes 2006, section 518A.75,
subdivision 3, is amended to read:
Subd. 3. Result
of hearing. If, at a hearing pursuant
to this section, the obligor establishes an insufficient cost of living or
other increase in income that prevents fulfillment of the adjusted maintenance
or child basic support obligation, the court or child support
magistrate may direct that all or part of the adjustment not take effect. If, at the hearing, the obligor does not
establish this insufficient increase in income, the adjustment shall take
effect as of the date it would have become effective had no hearing been
requested.
Sec. 20. Minnesota Statutes 2006, section 548.091,
subdivision 1a, is amended to read:
Subd. 1a. Child
support judgment by operation of law.
(a) Any payment or installment of support required by a judgment or
decree of dissolution or legal separation, determination of parentage, an order
under chapter 518C, an order under section 256.87, or an order under section
260B.331 or 260C.331, that is not paid or withheld from the obligor's income as
required under section 518A.53, or which is ordered as child support by judgment,
decree, or order by a court in any other state, is a judgment by operation of
law on and after the date it is due, is entitled to full faith and credit in
this state and any other state, and shall be entered and docketed by the court
administrator on the filing of affidavits as provided in subdivision 2a. Except as otherwise provided by paragraph
paragraphs (b) and (e), interest accrues from the date the unpaid
amount due is greater than the current support due at the annual rate provided
in section 549.09, subdivision 1, plus two percent, not to exceed an
annual rate of 18 percent. A payment or
installment of support that becomes a judgment by operation of law between the
date on which a party served notice of a motion for modification under section
518A.39, subdivision 2, and the date of the court's order on modification may
be modified under that subdivision.
(b) Notwithstanding the
provisions of section 549.09, upon motion to the court and upon proof by the
obligor of 12 consecutive months of complete and timely payments of both
current support and court-ordered paybacks of a child support debt or
arrearage, the court may order interest on the remaining debt or arrearage to
stop accruing. Timely payments are
those made in the month in which they are due.
If, after that time, the obligor fails to make complete and timely
payments of both current support and court-ordered paybacks of child support
debt or arrearage, the public authority or the obligee may move the court for
the reinstatement of interest as of the month in which the obligor ceased
making complete and timely payments.
The court shall provide
copies of all orders issued under this section to the public authority. The state court administrator shall prepare
and make available to the court and the parties forms to be submitted by the
parties in support of a motion under this paragraph.
(c)
Notwithstanding the provisions of section 549.09, upon motion to the court, the
court may order interest on a child support debt or arrearage to stop accruing
where the court finds that the obligor is:
(1) unable to pay support
because of a significant physical or mental disability;
(2) a recipient of
Supplemental Security Income (SSI), Title II Older Americans Survivor's
Disability Insurance (OASDI), other disability benefits, or public assistance
based upon need; or
(3) institutionalized or
incarcerated for at least 30 days for an offense other than nonsupport of the
child or children involved, and is otherwise financially unable to pay support.
(d) If the conditions in
paragraph (c) no longer exist, upon motion to the court, the court may order
interest accrual to resume retroactively from the date of service of the motion
to resume the accrual of interest.
(e) Notwithstanding section
549.09, the public authority must suspend the charging of interest when:
(1) the obligor makes a
request to the public authority that the public authority suspend the charging
of interest;
(2) the public authority
provides full IV-D child support services; and
(3) the obligor has made,
through the public authority, 12 consecutive months of complete and timely
payments of both current support and court-ordered paybacks of a child support
debt or arrearage.
Timely payments are those
made in the month in which they are due.
Interest charging must be
suspended on the first of the month following the date of the written notice of
the public authority's action to suspend the charging of interest. If, after interest charging has been suspended,
the obligor fails to make complete and timely payments of both current support
and court-ordered paybacks of child support debt or arrearage, the public
authority may resume the charging of interest as of the first day of the month
in which the obligor ceased making complete and timely payments.
The public authority must
provide written notice to the parties of the public authority's action to
suspend or resume the charging of interest.
The notice must inform the parties of the right to request a hearing to
contest the public authority's action.
The notice must be sent by first class mail to the parties' last known
addresses.
A party may contest the
public authority's action to suspend or resume the charging of interest if the
party makes a written request for a hearing within 30 days of the date of
written notice. If a party makes a
timely request for a hearing, the public authority must schedule a hearing and
send written notice of the hearing to the parties by mail to the parties' last
known addresses at least 14 days before the hearing. The hearing must be conducted in district court or in the
expedited child support process if section 484.702 applies. The district court or child support magistrate
must determine whether suspending or resuming the interest charging is appropriate
and, if appropriate, the effective date.
EFFECTIVE DATE. This section is effective January 1, 2008."
Amend the title accordingly
The motion prevailed and the amendment was adopted.
S. F. No. 1271, A bill for an act
relating to family law; clarifying and modifying child support laws; modifying
enforcement provisions; extending time periods for enforcing child support
judgments; amending Minnesota Statutes 2006, sections 518.68, subdivision 2;
518A.28; 518A.32, subdivisions 1, 3, 5, 6; 518A.39, subdivision 2; 518A.40,
subdivisions 1, 4; 518A.41, subdivisions 1, 2, 3, 4, 5, 12, 15, 16; 518A.42,
subdivision 1; 518A.43, subdivision 1; 518A.46, subdivision 5; 518A.75,
subdivision 3; 541.04; 548.09, subdivision 1; 548.091, subdivisions 1a, 3b; 550.01.
The bill was read for the third time, as amended, and placed
upon its final passage.
The question was taken on the passage of the bill and the roll
was called. There were 132 yeas and 0
nays as follows:
Those who voted in the affirmative were:
Abeler
Anderson, B.
Anderson, S.
Anzelc
Atkins
Beard
Benson
Berns
Bigham
Bly
Brod
Brown
Brynaert
Buesgens
Bunn
Carlson
Clark
Cornish
Davnie
Dean
DeLaForest
Demmer
Dill
Dittrich
Dominguez
Doty
Eastlund
Eken
Emmer
Erhardt
Erickson
Faust
Finstad
Fritz
Gardner
Garofalo
Gottwalt
Greiling
Gunther
Hackbarth
Hamilton
Hansen
Hausman
Haws
Heidgerken
Hilstrom
Hilty
Holberg
Hoppe
Hornstein
Hortman
Hosch
Huntley
Jaros
Johnson
Juhnke
Kahn
Kalin
Knuth
Koenen
Kohls
Kranz
Laine
Lanning
Lenczewski
Lesch
Liebling
Lieder
Lillie
Loeffler
Madore
Magnus
Mahoney
Mariani
Marquart
Masin
McFarlane
McNamara
Moe
Morgan
Morrow
Mullery
Murphy, E.
Murphy, M.
Nelson
Nornes
Norton
Olin
Olson
Otremba
Ozment
Paulsen
Paymar
Pelowski
Peppin
Peterson, A.
Peterson, N.
Peterson, S.
Poppe
Rukavina
Ruth
Ruud
Sailer
Scalze
Seifert
Sertich
Severson
Shimanski
Simon
Simpson
Slawik
Slocum
Smith
Solberg
Sviggum
Swails
Thao
Thissen
Tillberry
Tingelstad
Tschumper
Urdahl
Wagenius
Walker
Ward
Wardlow
Welti
Westrom
Winkler
Wollschlager
Zellers
Spk. Kelliher
The bill was passed, as amended, and its title agreed to.
S. F. No. 1396 was reported to the House.
There being no objection, S. F. No. 1396 was
temporarily laid over on Calendar for the Day.
The Speaker called Pelowski to the Chair.
H. F. No. 1283 was reported to the House.
Eastlund
moved to amend H. F. No. 1283, the fourth engrossment, as follows: