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2007 Minnesota Statutes

This is a historical version of this statute section. Also view the most recent published version.

245A.08 HEARINGS.
    Subdivision 1. Receipt of appeal; conduct of hearing. Upon receiving a timely appeal or
petition pursuant to section 245A.05, 245A.07, subdivision 3, or 245C.28, the commissioner shall
issue a notice of and order for hearing to the appellant under chapter 14 and Minnesota Rules,
parts 1400.8505 to 1400.8612.
    Subd. 2. Conduct of hearings. At any hearing provided for by section 245A.05, 245A.07,
subdivision 3
, or 245C.28, the appellant may be represented by counsel and has the right to call,
examine, and cross-examine witnesses. The administrative law judge may require the presence of
witnesses and evidence by subpoena on behalf of any party.
    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.
    (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 sections
626.556, subdivision 10i, and 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.
    (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.
    (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.
    (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;
    (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; and
    (3) the individual has a hearing right under section 245C.27.
    (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 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.
    (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.
    Subd. 3. Burden of proof. (a) At a hearing regarding a licensing sanction under section
245A.07, including consolidated hearings under subdivision 2a, the commissioner may
demonstrate reasonable cause for action taken by submitting statements, reports, or affidavits to
substantiate the allegations that the license holder failed to comply fully with applicable law or
rule. If the commissioner demonstrates that reasonable cause existed, the burden of proof shifts
to the license holder to demonstrate by a preponderance of the evidence that the license holder
was in full compliance with those laws or rules that the commissioner alleges the license holder
violated, at the time that the commissioner alleges the violations of law or rules occurred.
(b) At a hearing on denial of an application, the applicant bears the burden of proof to
demonstrate by a preponderance of the evidence that the appellant has complied fully with this
chapter and other applicable law or rule and that the application should be approved and a
license granted.
    Subd. 4. Recommendation of administrative law judge. The administrative law judge shall
recommend whether or not the commissioner's order should be affirmed. The recommendations
must be consistent with this chapter and the rules of the commissioner. The recommendations
must be in writing and accompanied by findings of fact and conclusions and must be mailed to the
parties by certified mail to their last known addresses as shown on the license or application.
    Subd. 5. Notice of the commissioner's final order. After considering the findings of fact,
conclusions, and recommendations of the administrative law judge, the commissioner shall issue
a final order. The commissioner shall consider, but shall not be bound by, the recommendations of
the administrative law judge. The appellant must be notified of the commissioner's final order
as required by chapter 14 and Minnesota Rules, parts 1400.8505 to 1400.8612. The notice must
also contain information about the appellant's rights under chapter 14 and Minnesota Rules, parts
1400.8505 to 1400.8612. The institution of proceedings for judicial review of the commissioner's
final order shall not stay the enforcement of the final order except as provided in section 14.65.
    Subd. 5a. Granting a subsequent license. (a) A license holder and each controlling
individual of a license holder whose license has been revoked because of noncompliance with
applicable law or rule must not be granted a license for five years following the revocation.
Notwithstanding the five-year restriction, when a license is revoked because a person, other
than the license holder, resides in the home where services are provided and that person has a
disqualification that is not set aside and no variance has been granted, the former license holder
may reapply for a license when:
(1) the person with a disqualification, who is not a minor child, is no longer residing in the
home and is prohibited from residing in or returning to the home; or
(2) the person with the disqualification is a minor child, the restriction applies until the minor
child becomes an adult and permanently moves away from the home or five years, whichever
is less.
(b) An applicant whose application was denied must not be granted a license for two years
following a denial, unless the applicant's subsequent application contains new information which
constitutes a substantial change in the conditions that caused the previous denial.
History: 1987 c 333 s 8; 1989 c 282 art 2 s 81; 1990 c 568 art 2 s 46; 1997 c 248 s 28,29;
1999 c 245 art 4 s 10; 2000 c 327 s 6; 1Sp2001 c 9 art 14 s 22; 2002 c 379 art 1 s 113; 2003 c 15
art 1 s 33; 2004 c 288 art 1 s 21-23; 1Sp2005 c 4 art 1 s 15,16; 2007 c 112 s 11

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