LICENSING/BACKGROUND CHECKS/COLLATERAL SANCTIONS
Prepared by:
Melinda Hugdahl, Staff Attorney
Legal Services Advocacy Project
651-222-3749, ext. 107
mthugdahl@mnlsap.org

I. ADMISSIBILITY OF CRIMINAL RECORDS IN CIVIL SUITS
Chapter 59, Article 5, Section 6 (HF 1301)
Adds Minn. Stat. § 181.986
Effective August 1, 2009 and applies to actions commenced on or after that date

Prohibits use of criminal history records as evidence in civil actions against employers, agents, or employees for the employee's conduct if: (1) the employee's duties posed the same risk as other duties or employment in general; (2) before the act giving rise to the lawsuit, the employee was pardoned or the employee's criminal records were sealed; or (3) the record is of an arrest or charges that did not result in a conviction. Expressly provides that the new section does not supersede other sections requiring criminal background checks.
Adds Minn. Stat. § 181.986, subd. 1 (Establishment of Inadmissibility)
Adds Minn. Stat. § 181.986, subd. 2 (No supersession of other laws)

II. CHILD PROTECTION -- CHILDREN'S SERVICES WORKER
Chapter 142, Article 3, Sections 6 - 8 (SF 1447)
Amends Minn. Stat. §§ 299C.61, subd. 6; and 299C.62, subds. 3 and 4
Effective August 1, 2009

Adds independent contractors to the definition of "children's service worker." Adds that independent contractors are subject to background studies and are afforded all the rights of children's service workers. Requires the service provider to determine whether the worker qualifies as an independent contractor.
Amends Minn. Stat. § 299C.61, subd. 6 (definition)
Amends Minn. Stat. § 299C.62, subd. 3 (rights)
Amends Minn. Stat. § 299C.62, subd. 4 (determination of status)

III. CONSIDERATION OF CRIMINAL RECORDS IN PUBLIC EMPLOYMENT
Chapter 59, Article 5, Section 11 (HF 1301)
Adds Minn. Stat. § 364.021
Effective August 1, 2009

Prohibits a public employer from inquiring into or considering the criminal record/history of an applicant for public employment until the applicant has been selected for an interview. (This is the so-called "ban the box" bill.) Exempts the Department of Corrections or public employers having, during the hiring process: (1) a statutory duty to conduct a criminal history background check; or (2) a duty to take into account a potential employee's criminal history. Allows public employers to notify applicants that a criminal history may disqualify the candidate.

IV. COUNTY LICENSING - CHILD CARE
Chapter 142, Article 2, Section 20 (SF 1447)
Amends Minn. Stat. § 245A.16, subd. 1
Effective August 1, 2009

Prohibits a county agency that has been designated or licensed to perform licensing functions on behalf of the Department of Human Services (DHS) from granting a variance exceeding the maximum family child care capacity of 14 children. Excepts certain residential not-for-profit agencies that are exempted under current law.

V. DATA PRACTICES - DHS LICENSING
Chapter 142, Article 1, Sections 3 and 4; and Article 2, Section 31 (SF 1447)
Amends Minn. Stat. §§ 13.46, subds. 3 and 4; and 245C.22, subd. 7
Effective August 1, 2009

A. Data on License Applicants
Adds that data collected on applicants for a license is confidential and cannot be disclosed except as set forth in existing law.
Amends Minn. Stat. § 13.46, subd. 3

B. Data on Licensees

1. When Data Becomes Public

a) Issuance of Orders
Provides that information will become public, rather than when the licensing change is made, instead when the order is issued: (1) for a conditional licensing; (2) to suspend a license; (3) to revoke a license; and (4) to forfeit a fine.
Amends Minn. Stat. § 13.46, subd. 4
b) Maltreatment Licensing Determinations or Disqualifications
Provides that information about a child care or foster care license holder or applicant disqualified or held responsible for maltreatment will become public when the licensing sanction or denial is issued.
Amends Minn. Stat. § 13.46, subd. 4

C. Data on Reporters of Alleged Violations and Maltreatment
Classifies reporters of alleged licensing violations and alleged maltreatment as confidential.
Amends Minn. Stat. §§ 245C.22, subd. 7; and 245C.22, subd. 7

VI. DEPARTMENT OF HUMAN SERVICES BACKGROUND STUDIES AND DISQUALIFICATIONS
Chapter 142, Article 2, Sections 25 - 30; 31 - 37; and 49 (SF 1447)
Amends Minn. Stat. §§ 245C.08, subds. 1, 2, and 4; 245C.13, subd. 2; 245C.15, subds. 1 - 4; 245C.24, subds. 2 and 3; 245C.25; 245C.27, subd. 1; and 256.045, subds. 3 and 3b
Repeals Minn. Stat. § 245C.10, subd. 1
Various Effective Dates

A. Background Studies

1. DHS Study
Expands DHS' background study review to include juvenile court records in all licensing cases under Minn. Stat. § 245C.03, subdivision 1, without limitation. Limits review to circumstances where "reasonable cause" exists. Requires the court to assist in the investigation by releasing records related to delinquency proceedings upon request by DHS.
Amends Minn. Stat. § 245C.08, subds. 1 and 4
Effective August 1, 2009

2. County Agency Study
Limits review of juvenile court records to circumstances where:
(1) the subject is between13 and 23 years old and living in the household where services will be provided; and (2) where there is reasonable cause, for anyone for whom DHS is required to conduct a background study. Removes previous limitation on juvenile records review to within the five years preceding the background study.
Amends Minn. Stat. § 245C.08, subds. 2 and 4
Effective August 1, 2009

3. Processing of Study
Requires, where more time is needed to complete a background study, that the interim notice indicate whether the subject must be under continuous, direct supervision while the results are pending.
Amends Minn. Stat. § 245C.13, subd. 2
Effective August 1, 2009

4. Payment of Fees for Study
Repeals the statute exempting the subject from paying the fees.
Repeals Minn. Stat. § 245C.10, subd. 1
Effective August 1, 2009

B. Disqualifications

1. Based on Alford Pleas

a) Permanent and 15-Year Disqualifications
Provides that a disqualification period begins from the date the Alford plea was entered in court.
Amends Minn. Stat. § 245C.15, subd. 1 (permanent disqualification)
Amends Minn. Stat. § 245C.15, subd. 2 (15-year disqualification)
Effective May 22, 2009

b) 10-Year and 7-Year Disqualifications
Provides that a disqualification period begins from the date the Alford plea was entered in court.
Amends Minn. Stat. § 245C.15, subd. 3 (10-year disqualification)
Amends Minn. Stat. § 245C.15, subd. 4 (7-year Disqualification)
Effective August 1, 2009

c) Fair Hearings
Adds Alford pleas to cases where the reconsideration decision is the final agency determination.
Amends Minn. Stat. § 245C.27, subd. 1
Effective August 1, 2009

2. Based on Voluntary Termination of Parental Rights
Eliminates voluntary termination of parental rights as a basis for permanent disqualification, codifying a decision by the Minnesota Court of Appeals striking the provision as unconstitutional. Adds voluntary termination of parental rights as a 15-year disqualification.
Amends Minn. Stat. § 245C.15, subd.1 (permanent disqualification)
Amends Minn. Stat. § 245C.15, subd. 2 (15-year disqualification)
Effective May 22, 2009

3. Consolidated Maltreatment and Disqualification Reconsiderations
Clarifies that DHS must conduct the reconsideration of a disqualification in consolidated reconsiderations of disqualifications where DHS disqualified a person for a foster care license based upon a previous county maltreatment determination.
Amends Minn. Stat. § 245C.25
Effective August 1, 2009

4. Disqualifying Crimes

a) 15-Year Disqualification
Adds aiding an offender to the list of crimes resulting in a 15-year disqualification
Amends Minn. Stat. § 245C.15, subd. 2
Effective May 22, 2009

b) 10-Year Bar to Set Aside Disqualification
Adds criminal vehicular operation causing death to the list of crimes resulting in 10-year bar to set aside a disqualification.
Amends Minn. Stat. § 245C.24, subd. 3
Effective May 22, 2009

5. Referee Affirmation of DHS Disqualification
Requires the risk of harm assessment currently required of a DHS referee affirming a DHS qualification to be based on the criteria for a risk of harm set aside, found at Minn. Stat. § 245C.22 (rather than the criteria for immediate risk of harm, found at Minn. Stat. § 245C.16).
Amends Minn. Stat. § 256.045, subd. 3b
Effective August 1, 2009

6. State Agency Hearings
Clarifies that state agency hearings for disqualifications do not include cases where a set aside was granted after reconsideration.
Amends Minn. Stat. § 256.045, subd. 3
Effective August 1, 2009

7. Variance for Persons Adopted by a Foster Care Provider
Permits DHS discretion to grant a variance to a permanent disqualification bar for a person adopted by the foster care provider where: (1) the adopted person received services in the home in the previous six months; and (2) the variance is recommended by the county responsible for any other people residing in the home and the licensing agency.
Amends Minn. Stat. § 245C.24, subd. 2
Effective May 22, 2009

VII. LICENSING EXEMPTION
Chapter 142, Article 2, Sections 12 and 13 (SF 1447)
Amends Minn. Stat. § 245A.03, subd. 2
Adds Minn. Stat. § 245A.03, subd. 8
Effective August 1, 2009

A. New Exemptions for Child Care Licensure
Adds exemptions from DHS licensing requirements under Chapter 245A for the following programs:

• Those offered by the YMCA, YWCA, and the Jewish Community Center of Greater Minneapolis or the Jewish Community Center of Greater St. Paul (JCC);
• Private chemical dependency services, if the services are not paid out of the consolidated chemical dependency treatment fund; and
• Those in nonpublic schools serving only children who are at least 33 months old for no more than four hours per day per child, if the agency is accredited by an accrediting entity that: (1) is formally recognized by the Department of Education as a nonpublic school accrediting organization; or (2) requires background studies and receives and investigates complaints about the services provided. Requires the program to provide documentation verifying accreditation upon request from DHS.
  Amends Minn. Stat. § 245A.03, subd. 2

B. Permission to Seek Licensure
Permits any exempt group to apply for licensure, and requires DHS to process the application in the same manner as any non-exempt application.
Adds Minn. Stat. § 245A.03, subd. 8

VIII. LICENSING PROCEDURES AND REQUIREMENTS
Chapter 142, Article 2, Sections 14 - 18, and 23 (SF 1447)
Amends Minn. Stat. §§ 245A.04, subds. 5 and 7; 245A.05; 245A.07, subds. 1 and 3; and 245C.04, subd. 1
Effective August 1, 2009

A. Applicants - Appeal of Denial of License
Clarifies the process for serving an appeal of a licensure denial, requiring that: (1) if mailed, the appeal must be postmarked and sent to DHS within 20 calendar days after the applicant received the denial notice; and (2) if personally served, the appeal must be received by DHS within 20 calendar days after the applicant received the notice of denial.
Amends Minn. Stat. § 245A.05

B. DHS Powers

1. Expansions

a. Access to Locations and Information
Grants DHS access to: (1) physical plant and grounds when additionally investigating maltreatment allegations; and (2) electronic records when investigating licensing cases and maltreatment allegations.
Amends Minn. Stat. § 245A.04, subd. 5

b. Authority Denial of License
Extends DHS' authority to deny a license to a controlling individual. Expands the criteria for denial to include persons: (1) who received a disqualification that has not been set aside and where no variance has been granted; (2) over 13 years old living in a household that received a disqualification that has not been set aside and where no variance has been granted; and (3) associated with persons who may have unsupervised access to children or vulnerable adults, who received a disqualification that has not been set aside, and where no variance has been granted.
Amends Minn. Stat. § 245A.05

c. Reissuance of License
Expands DHS' ability to reissue a license to a holder, applicant, or controlling individual who was disqualified but who obtained a variance.
Amends Minn. Stat. § 245A.04, subd. 7

2. Restrictions

a. On Issuing a License Following a Revocation
Prohibits DHS from issuing a license for five years following a revocation. Requires revocation of other licenses where a license of a holder, applicant, or controlling individual has been revoked.
Amends Minn. Stat. § 245A.04, subd. 7

b. On Reissuing License Where an Outstanding Debt Exists
Prohibits DHS from reissuing a license if there is outstanding debt related to a licensing fee, licensing fine, or settlement agreement concerning a delinquent payment.
Amends Minn. Stat. § 245A.04, subd. 7

c. On Proposing Suspension, Fine, or Injunction
Eliminates DHS' authority to "propose" a suspension, fine, or injunction against a program that fails to comply with the law or rules.
Amends Minn. Stat. § 245A.07, subd.1

C. License Holders

1. Appeal of Suspension or Revocation
Allows a license holder appealing a suspension or revocation to continue to operate until DHS issues a final order in the matter.
Amends Minn. Stat. § 245A.07, subd. 3

2. Fines
Clarifies that license holders must be fined $200 for each violation of the background study requirements under Chapter 245C.
Amends Minn. Stat. § 245A.07, subd. 3

3. Notification to DHS
Requires a license holder to notify DHS through the online background study system or by letter when: (1) the holder returns from an absence of 45 consecutive days or longer; or (2) a program that has discontinued direct contact services for at least 45 consecutive days begins providing services again. Requires retention of a copy of the notification in the holder's program's files.
Amends Minn. Stat. § 245C.04, subd. 1

4. Transfers of Licenses
Prohibits a license from being transferred to another controlling individual in the licensed program.
Amends Minn. Stat. § 245A.04, subd. 7

IX. MALTREATMENT DETERMINATIONS
Chapter 142, Article 2, Sections 43 - 48 (SF 1447)
Amends Minn. Stat. §§ 626.556, subds. 2, 10e, and 10f; 626.557, subds. 9c and 12b; 626.5572, subd. 13
Effective August 1, 2009

A. Definition of Neglect
Modifies the definition of "neglect" to cover either the commission or omission of existing statutorily prescribed acts which occurs "other than by accidental means."
Amends Minn. Stat. § 626.556, subd. 2

B. Maltreatment of Minors

1. Applicability of Provisions
Clarifies that the provisions for both individual disqualification and facility licensure apply where maltreatment of a minor has been determined to have been committed by the person who is also the facility license holder, notwithstanding other existing provisions of law that require consideration of statutory mitigating factors.
Amends Minn. Stat. § 626.556, subd. 10e

2. Notification of Private Agencies
Requires a county responsible for investigating or assessing alleged maltreatment to notify the private agency of the determination in cases where a child foster care facility is licensed by a private agency. Requires the notification to include: (1) a summary of the specific reasons for the determination; and (2) identifying private data. Prohibits disclosure of the identity of the maltreatment reporter.
Amends Minn. Stat. § 626.556, subd. 10f

C. Maltreatment of Vulnerable Adults

1. Applicability of Provisions
Clarifies that the provisions for both individual disqualification and facility licensure apply where substantiated maltreatment of a vulnerable adult has been determined to have been committed by the person who is also the facility license holder.
Amends Minn. Stat. § 626.557, subd. 9c

2. Identity of Reporter
Requires the name of the maltreatment reporter to be kept confidential after an assessment of allegations of maltreatment of a vulnerable adult.
Amends Minn. Stat. § 626.557, subd. 12b

3. Lead Agency
Designates the Department of Health as an additional lead agency for residential facilities federally certified as intermediate care facilities for persons with developmental disabilities in cases involving alleging maltreatment of a vulnerable adult. Removes DHS as the lead agency for personal care provider organizations.
Amends Minn. Stat. § 626.5572, subd. 13

X. MULTIPLE LICENSES
Chapter 142, Article 2, Section 24 (SF 1447)
Amends Minn. Stat. § 245C.07
Effective May 22, 2009

Requires separate background studies for each program for license holders, applicants, or entities owning multiple programs licensed by DHS, the Department of Health or Department of Corrections for foster care or adoption. Requires a license holder for multiple programs who closes one or more programs to immediately notify DHS which staff will be transferred to another location so that the background studies on those individuals can be paired with the active program.

XI. NOTICE TO STUDENTS AT POST-SECONDARY INSTITUTIONS
Chapter 95, Article 2, Section 2 (SF 2083)
Adds Minn. Stat. § 135A.157
Effective August 1, 2009

Requires post-secondary institutions to notify accepted students -- at or before acceptance of admission, and at or before the time the student selects a major - that criminal arrests, charges, or convictions may impact the student's employment possibilities in specific careers, and may limit the student's ability to receive financial aid. Expressly provides that there is no liability for failure to provide the notice.

XII. POLICIES ON HIRING PRACTICES
Chapter 59, Article 5, Section 11 (HF 1301)
Effective August 1, 2009

Permits the Department of Administration, the Minnesota State Colleges and Universities, the University of Minnesota, and statutory and home rule charter cities to adopt policies that address the goal of improving employment for local residents or former criminal offenders.

XIII. SCHOOL BACKGROUND CHECKS
Chapter 115 (HF 523)
Amends Minn. Stat. § 123B.03, subd. 1a
Effective May 20, 2009

Modifies the scope of mandatory school board or other hiring authority background checks. Expands the scope to include all past disciplinary actions, not just sexual misconduct or attempted sexual misconduct occurred between the teacher and a student. Limits the scope to exclude actions based on court-ordered child support or maintenance payment arrearages.

XIV. USE OF CRIMINAL HISTORY DATA
Chapter 59, Article 6, Sections 1 - 5, 21, 22, and 24 (HF 1301)
Amends Minn. Stat. §§ 13.87, subd.1; 84.027, subd. 17; 122A.18, subd. 8; 123B.03, subd. 1; 246.13, subd. 2; 518.165, subd. 5; 524.5-118, subd. 2; and 628.69, subd. 6
Effective August 1, 2009

A. Definitional Change
Narrows the definition of "criminal history data" to only data maintained in criminal history records compiled by the Bureau of Criminal Apprehension and eliminates all other information disseminated through the criminal justice information system, including, but not limited to fingerprints, photographs, identification data, arrest data, prosecution data, criminal court data, custody data, and supervision data.
Amends Minn. Stat. § 13.87, subd.1

B. Conforming Changes
Amends several sections of law permitting or requiring background checks to reflect the modified definition of criminal history data, including sections of law relating to: (1) volunteer instructor applicants for safety training and education programs conducted by the Department of Public Safety; (2) licenses issued by the Board of Teaching and the Department of Education; (3) anyone offered employment in a school and any paid or volunteers (except student volunteers) given the opportunity to provide athletic coaching services or other extracurricular academic coaching services to a school; (4) access by DHS to data on persons receiving state-operated services; (5) background studies of guardians ad litem; (6) a court-ordered background study of guardians and conservators in probate matters; and (7) county attorneys filing the required pretrial diversion program report with the Bureau of Criminal Apprehension.

Amends Minn. Stat. § 84.027, subd. 17 (volunteer instructor applicants)
Amends Minn. Stat. § 122A.18, subd. 8 (teaching licenses)
Amends Minn. Stat. § 123B.03, subd. 1 (school employees and coaches)
Amends Minn. Stat. § 246.13, subd. 2 (access to data by DHS)
Amends Minn. Stat. § 518.165, subd. 5 (study on guardians ad litem)
Amends Minn. Stat. § 524.5-118, subd. 2 (study on guardians and conservators)
Amends Minn. Stat. § 628.69, subd. 6 (county attorney reports)