DHS
Disqualifications
What is a disqualification?
A disqualification is an action taken by the
Minnesota Department of Human Services (DHS) or the Minnesota Department of
Health (MDH) stopping you from working in a direct care job (health care, child
care, nursing home, foster care license, etc.) for a period of time because of
something in your background report. This is sometimes also called your “record.”
How do
I get a “record” with DHS or MDH?
If you apply for a foster care or daycare
license, or when you are hired for a direct care job, the state performs a
background check on you. This means the
state investigates you to see if there is anything in your background the law says
should stop you from working in those types of jobs.
You will receive a letter in the mail from
the DHS telling you there is a problem with your background report. The letter also tells you about your rights
to fight the disqualification.
How
does my employer find out?
The state sends your employer a colored piece
of paper with the results of the background check.
What kinds of things disqualify me and for
how long?
The following information on your record
disqualifies you from working in direct care jobs in
1. Criminal
Convictions
5. Welfare
Fraud
Even if you were
never convicted of a crime, a civil or administrative welfare fraud
determination will disqualify you from a direct care position for 7 years. An
administrative welfare fraud determination happens when you are accused of
wrongfully obtaining welfare benefits.
You are not charged with a crime, but the county cuts you off benefits for
a period of time, usually 1 to 10 years.
If you are accused of welfare fraud, you can appeal and defend yourself
at a fair hearing through the Department of Human Services. For information on how to appeal, see the
“Welfare Appeals” Factsheet on www.LawHelpMN.org.
1. Get
the Disqualification off Your Record
Try to get the state to change their
decision. If they do, you will no longer have a disqualifying mark on your
record and you can work in any direct care job.
What you can do depends on the type of disqualifying mark you have on
your record. Below are some things you can do depending on the type of
disqualification.
a. If you are not the
person who was found guilty or pled guilty, tell DHS and they can help you
submit fingerprints to clear up the identity mistake. But this does not have any impact on the
criminal court case.
b. File papers with the court to get a
criminal expungement in the county where the disqualifying crime occurred.
Expungement is the process of going to court to ask a judge to seal (hide from
the public) a criminal record. An expungement removes the disqualification if
the judge agrees to seal the conviction and the judge directs the court order to
DHS and MDH.
Many times, people get a criminal expungement order, but
they are still disqualified because the court order is limited to court records
only. Make sure to notify both DHS and MDH - in writing - if you file papers
for an expungement. This process can take up to 9 months. For more information
on expungement, see the Factsheet “Basics on Criminal Expungement,” which can
be found on www.LawHelpMN.org.
c. Apply for a pardon
from the Minnesota Board of Pardons. DHS usually stops using a criminal
conviction against you if the Minnesota Board of Pardons grants you a pardon.
This process can take up to 9 months. Contact the Minnesota Board of Pardons
for more information at 651-642-0284.
See the “Challenging
a Maltreatment Determination” Factsheet for information about how to get this
type of disqualification off your record. You can find the Factsheet online at www.LawHelpMN.org.
a. Rescind
(cancel) the Decision. Give
information in writing to DHS to show you did not commit the crime or you acted
in self-defense. You may be able to get DHS to remove the disqualification from
your record. But, if the charges against you were dismissed before trial, it is not a reason to remove the
disqualification. If your request to
rescind the decision is denied, appeal in writing and request a fair hearing in
front of a judge. You must appeal before
the deadline (usually 15-30 days) or you do not get to fight the
disqualification.
b.
Expungement.
Expungement is the process of going to court to ask a judge to seal
(hide from the public) a criminal record.
You can file a motion for a criminal expungement with the court in the
county where the disqualifying charge occurred. An expungement removes the
disqualification if the judge agrees to seal the charge and directs the order to DHS and MDH. You should notify both agencies in writing or
serve (give the agencies the court papers) when you file a motion for an
expungement. This process can take up to 9 months.
You cannot be
disqualified if you voluntarily terminated your rights with good cause. Good cause means the termination
occurred for good reasons other than you being unfit to care for the child.
Review the court’s termination order to see what the court decided and make
sure DHS has the right information about what happened.
If you have only been
accused of non-criminal welfare fraud, you can appeal the determination through
the county where you received benefits and request a fair hearing with DHS. However, if your appeal deadline has passed
or you gave up your hearing rights, you cannot re-open the welfare fraud case
to try to get your disqualification removed. You also cannot expunge or pardon
this type of disqualification because it is not criminal.
2. Try
to Get Permission to Work Even With the Disqualifying Mark
If you cannot get the
disqualifying mark off of your record, you can still try to work at your job,
but only if the disqualifying act does not permanently prevent you from working
in direct care. Below are some things
you can do.
§
Make a “Set-Aside” Request
You usually have 30
days after receiving your disqualification notice to send DHS proof that you are
not a risk of harm to the patients you care for. You must explain what
happened, how you have changed, and show why you can be trusted around
patients. Instructions for how to provide this information are in your
disqualification notice. If successful, you can return to work at the job that
you were disqualified from and work without supervision. If you change jobs,
you will have to send a new “set-aside” request to DHS. It takes DHS 1 to 3
months to make a decision on a “set-aside” request.
§
Request a “Variance”
Your employer can
request a “variance” from DHS. This
means you can work at your job under constant supervision. Only your employer
can request a variance, so ask your boss to consider doing this if you cannot
get a “set-aside.” It takes DHS 1 to 3 months to make a decision on a “variance”
request.
Other Things to Consider
Your local Legal Aid
office may be able to help you (if you qualify based on your income). You can
find the office nearest you online at www.LawHelpMN.org.
For more information on expungement, see the Factsheet “Basics on Criminal
Expungement,” which can also be found on www.LawHelpMN.org.
Volunteer attorneys may be available to take
your case, if you do not qualify for legal aid. The following volunteer
agencies can be contacted by phone
Volunteer Lawyers’ Network – 612-752-6677
Volunteer Attorney Program – 218-723-4005
Private civil attorneys (if you can afford to
pay an attorney) can be located by contacting the Minnesota State Bar
Association’s Attorney Referral Service online at www.mnfindalawyer.com.
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MN Legal Services Coalition
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