Job Disqualifications

A job disqualification is when the Minnesota Department of Human Services (DHS) or the Minnesota Department of Health (MDH) stops you from working in a job where you have “direct contact” with people getting services in a covered setting. It is usually because of something in your background report or record. Direct care jobs can be jobs in:

• Healthcare
• Child care
• Foster care
• Nursing homes

If you apply for a foster care or daycare license, or when you are hired for a direct contact job, the state does a background check on you. This means the state looks to see if there is anything in your background that should stop you from working in those types of jobs.

You will get 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 with an appeal.

The state sends your employer or person that wants to hire you a letter explaining that there is a problem with your background check. It also says whether they can let you work during an appeal of the results of the background check.

The following things on your record disqualify you from working in direct contact jobs in Minnesota. This is true even if these things happened in another state or they happened when you were a minor (under age 18).

Violent, sexual, drug, and theft-related convictions disqualify you from working in the health care field. Some violent and sex-related crimes disqualify you forever. Most other felonies disqualify you for 15 years, gross misdemeanors for 10 years, and misdemeanors for 7 years.

For work in a childcare setting, convictions for a violent misdemeanor committed against a child are a permanent disqualification. This includes convictions for child abuse, child endangerment, sexual assault, or a misdemeanor involving child pornography.

Arrests without charges filed and dismissed charges for violent, sexual, drug, and theft-related crimes can disqualify you just like criminal convictions if it is “more likely than not” they happened.

For example: if you are arrested for assault, but you plead guilty to the lesser charge of disorderly conduct which is a misdemeanor, the state can still disqualify you if “more likely than not” an assault happened.

When a child you care for is hurt or neglected and child protection gets involved, the county can make a “maltreatment determination.” This means they accuse you of abuse or neglect. Common examples of maltreatment are bruises or scratches, verbal threats or verbal abuse, or leaving your children alone without supervision. Maltreatment determinations can also be made when the victim is a “vulnerable adult.” This means the adult is someone the law says needs special protection from harm. An example is an elderly person or an adult with mental disabilities.

The maltreatment must be serious or “recurring” to be a disqualification. This means it causes physical or emotional injury or happens more than once.

If your disqualification is because of a maltreatment determination, it’s important to get more information about that type of case. See our fact sheet What is Maltreatment and How Can it Affect my Job?

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 getting welfare benefits when you shouldn’t have. 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 hearing through the Department of Human Services. For information on how to appeal, see our fact sheets Welfare Appeals to DHS and Welfare Fraud Cases and Hearings.

You can challenge a disqualification, but there are strict deadlines. Make sure you follow the time limits in the letter you get. It also depends on the reason for your disqualification. It is best to get a lawyer to help you. Your local Legal Aid office may be able to help you if you qualify. To find your local legal aid office by county go to www.lawhelpmn.org/providers-and-clinics.

You can try the things explained below. 

Try to get the state to change their decision. If they do, you won’t have a disqualifying mark on your record and you can work in any direct contact job. What you can do depends on the type of disqualifying mark you have. Below are some things you can do depending on the type of disqualification.

If your disqualification is because of Administrative (non-criminal) Welfare Fraud
If you have only been accused of non-criminal welfare fraud, you can appeal the determination through the county where you received benefits. Ask for a hearing with DHS. But if your appeal deadline has passed or you gave up your hearing rights, you can’t re-open the welfare fraud case to try to get your disqualification removed. You also can’t expunge or pardon this type of disqualification because it is not criminal.

You usually have 30 days after getting your disqualification notice to send DHS proof that you are not a risk 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 do this are in your disqualification notice. The deadline to do this may be as little as 15 days. It is important to read the letter you get carefully so you don’t miss any deadlines

Make a “Set-Aside” Request
You usually have 30 days after getting your disqualification notice to send DHS proof that you are not a risk 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 do this are in your disqualification notice.

If successful, you can go back to work at the job that you were disqualified from and work without supervision. If you change jobs after you get a set-aside you may automatically be granted a new set-aside when certain conditions are met. These conditions are:

• you were not disqualified for a felony,
• your new employer is licensed under the same law as your former employer,
• there is no new information showing you may be a risk to the people served by the new employer and
• your previous set aside was not limited to a specific client.
   

If you get a set aside and apply for another job, tell the employer you have been granted a set aside. 
 

Ask for a “Variance”
Your employer can ask for a “variance” from DHS. This means you can work at your job under constant supervision. Only your employer can ask for a variance, so ask your boss to think about doing this if you can’t get a “set-aside.” It can take DHS several months to make a decision on a “variance” request.

Wait out your disqualification period.
If your disqualifying act does not permanently disqualify you from working in direct contact, you can wait out your disqualification period. These periods last from 7-15 years from the date the offense happened for non-convictions and 7-15 years after you are discharged from probation or parole (“off paper”).

Move to another state.
Minnesota has some of the strictest background check laws for direct contact jobs in the nation. You may want to consider working in another state with less stringent direct care jobs.

Change Careers.
Background checks are done for all jobs where you may have direct contact with vulnerable people or patients. Strict state background checks do not apply to other careers, such as retail or food service. You may want to change jobs temporarily or permanently, depending on how severe your disqualification is.

Your local legal aid office may be able to help you if you qualify. To find your local legal aid office and other free or low-cost lawyers, go to www.lawhelpmn.org/providers-and-clinics.

Private civil lawyers can be located by contacting the Minnesota State Bar Association’s Attorney Referral Service online at www.mnfindalawyer.com.