CR 10-009 - Approve Entering Into Minnesota Department of Health 2009 Environmental Health Services Delegarion AgreementJanuary 8, 2010 Council Report No. 2010 -009
Approve Entering Into Minnesota Department of Health
2009 Environmental Health Services Delegation Agreement
Proposed Action
Staff recommends the Council approve the following motion: Move to approve and enter into the Minnesota
Department of Health 2009 Environmental Health Services Dele ation Agreement
Overview
The Minnesota Department of Health (MDH) and its local partners have revised the existing Delegation
Agreement for Environmental Health Services, in the areas of food, beverage and lodging, public swimming
pools, and children's camps. The Delegation Agreement is a formal agreement between the MDH and city
and county boards of health that give responsibility for regulating all or some of these types of facilities to
local partners.
Primary Issues to consider
If the city doesn't enter into the 2009 agreement when the current MDH Delegation Agreement ends
(June 30, 2010), the Minnesota Department of Health would take over the inspection and licensing of
all Hopkins food, beverage, lodging and public pool facilities. The City of Hopkins would have no
responsibility for inspections and licensing.
Customer Service would be affected if the Minnesota Department of Health took over the plan reviews
and inspections. The State is not staffed to take over and there would be lag time in plan review and
inspection service.
The City Attorney, Building Official, and Environmental Health Specialist have reviewed the MDH
Delegation Agreement.
Supporting Documents
• Background and requirements of the Agreement
• Mutual Aid Agreement
p
Christopher P. Kearney
Building Official
Financial Impact: $ None Budgeted: Y/N Source:
Related Documents (CIP, ERP, etc.):
Notes:
Council Report 2010 -009
Page 2
Background
Current Minnesota Department of Health Delegation Agreement
The MDH Delegation Agreement currently in place with the city was written and executed in September,
1987. In 1998 the current agreement was amended to include the adoption of the new food code. Agencies
with existing agreements will be allowed to remain "status quo" (i.e., they will sign a new agreement covering
only those program areas for which they are currently responsible).
Major Changes in the New Delegation Agreement
1. The Delegation Agreement and Manual are based on the FDA standards and customized to fit
Minnesota's needs.
2. Emergency Planning required in case of outbreak.
3. Electronic Inspection Reporting and data sharing with the MDH is now required.
MDH Requirements
The Minnesota Department of Health requires the following in order to enter into the new Delegation
Agreement.
MDH Requirements
City Status
Appropriate Ordinance In Place
Yes
MDH Licensed Environmental Health
Specialist
Yes
Larry J. Myers
Support Staff In Place
Yes
Other Inspection Staff
Continuing Education
Yes
Current
Electronic Inspection Reporting
Software
Yes
MN State Rapid Inspection
Recorded # of Licensed Facilities
Yes
125+/-
Coverage for Emergency and
Outbreak Situations
Yes
City Entered into Twin Cities
Environmental Health Mutual Aid
Agreement February 2009
Will the new agreement be revised?
MDH and its local partners may review /revise the new agreement every five years.
Alternatives
Approve the Minnesota Department of Health Delegation Agreement. This action would allow the
City to continue to perform food, lodging, and swimming pool inspections.
2. Do not approve Minnesota Department of Health Delegation Agreement. The State of Minnesota
would take over environmental inspections.
Staff recommends Alternative #1.
Delegation Agreement Between and
Minnesota Department of Health
This Agreement, effective on the first day of , 20_, is between the State of Minnesota
acting through its Commissioner of Health ( "Minnesota Department of Health" or "MDH ") and
the [board of health or other jurisdiction] ( "Board ")
1. AUTHORITY AND DELEGATION
1.1 MDH, charged with protecting the public health under Minnesota Statutes,
Chapters 144, 157, and 327, has the duty to inspect, license, and regulate: food,
beverage, and lodging establishments; public pools and related facilities; youth
camps; manufactured home parks and recreational'camping areas.
1.2 Minnesota Statutes, Section 145A.07, Subd. 1 authorizes MDH to enter into an
agreement to delegate these duties to the Board. MDH delegates its authority to
the Board according to this Agreement but nevertheless remains ultimately
responsible for the performance of these duties under Minnesota Statutes, Section
145A.07, Subd. 3(h).
1.3 The Board, having jurisdiction over
[description of
jurisdiction], accepts this delegation and agrees to the terms of this Agreement
regarding inspection and licensing of regulated establishments and enforcement of
the applicable laws for the purpose of preventing and abating public health risks.
MDH - EHS Delegation Agreement, 6/26/2009
2. SCOPE
2.1 Delegated Responsibilities This delegation applies to the following regulated
areas as indicated by the checked boxes:
❑ A. Food, Beverage, and Lodging Establishments, as defined in and governed
by Minnesota Statutes, Chapter 157 and Minnesota Statutes, Chapter 327,
Minnesota Rules, parts 4626.0010 to 4626.1870, and Minnesota Rules,
parts 4625.0100 to 4625.2300;
❑ B. Food Manager Certification requirements for food establishments, as
defined in and governed by Minnesota Rules, parts 4626.2000 to
4626.2010;
❑ C. Manufactured Home Parks and Recreational Camping Areas, as defined in
and governed by Minnesota Statutes, Sections 327.14 to 327.28, and
Minnesota Rules, parts 4630.0200 to 4630.2210;
❑ D. Youth Camps, as defined in and governed by Minnesota Statutes, Sections
144.71 to 144.74, and Minnesota Rules, parts 4630.2300 to 4630.4700;
❑ E. Public Pools, as defined and governed by Minnesota Statutes, Section
144.1222, and Minnesota Rules, parts 4717.0150 to 4717.3970.
❑ F. Variances to Minnesota Rules for:
O (1) Lodging, as specified in Minnesota Rules, part 4717.7000, subpart
1 (D);
O (2) Manufactured home parks and recreational camping areas, as
specified in Minnesota Rules, part 4717.7000, subpart 1 (E);
O (3) Youth camps, as specified in Minnesota Rules, part 4717.7000,
subpart 1 (F); and
MDH EHS Delegation Agreement, 6/26/2009 -2-
O (4) Food establishments, as specified in Minnesota Rules, parts
4626.1690 to 4626.1715.
2.2 Responsibilities not delegated MDH retains exclusive authority for the following
areas:
A. License renewal under Minnesota Statutes, Section 157.16, Subd 2, except
as specified in paragraph 3.2(C) 1 of this agreement;
B. Certification of food managers under Minnesota Statutes, Section 157.16,
Subd. 2(a) and Minnesota Rules, parts 4626.2015 to 4626.2025;
C. Establishment fees under Minnesota Statutes, Section 157.16, Subd 3,
except as specified in paragraph 3.2(C) 1 of this agreement;
D. Collection of the Statewide Hospitality Fee, under Minnesota Statutes,
Section 157.16, Subd. 3(a).
E. Public swimming pool plan review and approval under Minnesota Rules,
parts 4717.0310 and 4717.0450; and
F. Variances for public swimming pools, as defined in Minnesota Rules, part
4717.7000, subpart 1 (F).
3. TERMS OF THE AGREEMENT
3.1 MDH's Responsibilities:
A. General
(1) Beginning on , and through the duration of this
Agreement, MDH will not enforce the statutes and rules stated in
paragraph 2.1 in the Board's jurisdiction, except as stated in this
Agreement or at the request of the Board.
MDH - EHS Delegation Agreement, 6/26/2009 -3 -
(2) To ensure consistent regulation and enforcement statewide, MDH
will review the Board's ordinances or proposed changes to existing
ordinances and provide a written response. MDH will review and
provide comments within 30 days of receipt of the proposed
ordinance language being submitted to MDH.
(3) MDH will coordinate a review of the Minnesota Food Code
(Minnesota Rules, part 4626) following the release of each new
Food and Drug Administration Model Food Code or Supplement.
(4) MDH will evaluate the Board's compliance with the delegation
agreement to ensure that its programs are adequate to assure
compliance by regulated parties with the standards and
requirements established in the statutes and rules stated in
paragraph 2.1.
(5) MDH staff will be available to advise the Board regarding issues
covered under this Agreement.
(6) MDH will refer to the Board any complaints that MDH receives
concerning matters under the Board's jurisdiction.
B. Illness Investigation and Response
(1) MDH will maintain an emergency communication system for
notifying and communicating with the Board, local boards of
health, industry, and others about serious threats to food safety and
public health.
(2) MDH will lead epidemiological surveillance and investigations
and will consult with the Board as necessary during investigations.
MDH - EHS Delegation Agreement, 6/26/2009 -4-
(3) MDH will summarize and report the results of epidemiological
investigations.
C. Training and Technical Assistance
MDH will offer to the Board training and consultation for program areas
listed under the SCOPE throughout the duration of this Agreement.
3.2 Board's Responsibilities:
A. Regulatory Authority
(1) The Board must have ordinances that incorporate the requirements
of the statutes and rules stated in paragraph 2.1, items (A), (B),(C),
(D), and (E) for licensing, inspection and enforcement authority.
As stated in Minnesota Statutes, Section 145A.05, Subd. 1,
ordinances may not conflict with or be less restrictive than the
relevant Minnesota Statutes or Rules.
(2) Ordinances must establish authority for enforcement and describe
actions to ensure compliance.
(3) The Board may not enact or amend any ordinance related to the
statutes and rules stated in paragraph 2.1 (except fee provisions)
without MDH's prior review of and comment on the proposed
ordinance language. Within 30 days of promulgation of any new
or amended ordinance that is within the scope of this Agreement,
the Board will provide MDH with a copy of they new or amended
ordinance.
B. Trained Regulatory Staff
MDH - EHS Delegation Agreement, 6/26/2009 - 5 -
(1) The Board will maintain qualified inspection personnel, as defined
in this section, to enforce the statutes, rules, and local ordinances
encompassed in this Agreement.
(2) Inspections required in Minnesota Statutes, Chapter 157 and
Minnesota Rules, parts 4630.2210 and 4630.1900 must be
performed by Environmental Health Special ist/Sanitarians who
possess the qualifications stated in Minnesota Rules, parts
4695.2500 to 4695.2800. These qualifications include:
(a) Current registration with the State as Environmental Health
Specialist/Sanitarian; or
(b) Possession of a baccalaureate or post baccalaureate degree
in environmental health, sanitary science, sanitary
engineering, or other related environmental health field that
includes at least 30 semester or 45 quarter hour credits in
the physical or biological sciences; and registration as an
Environmental Health Specialist/Sanitarian within 2 years
from the date of appointment.
(3) Inspections in excess of those required in Minnesota Statutes,
Chapter 157 and Minnesota Rules, parts 4630.2210 and 4630.1900
may be performed by less qualified staff who must:
(a) be enrolled in a baccalaureate or post baccalaureate
degree program in environmental health, sanitary
science, sanitary engineering, or other related
environmental field; and
MDH - EHS Delegation Agreement, 6/26/2009 -6-
(b) be supervised by a registered Environmental Health
Specialist /Sanitarian.
(4) If the Board's inspection staff consists of a single person, that
person must be a fully qualified Registered Environmental Health
Special ist/Sanitarian.
(5) The Board will prepare and submit to MDH on an annual basis, a
staffing plan to assure adequate program coverage. The staffing
plan may include mutual aid agreements, cooperative agreements
or other tools to address staffing shortages, or the need for
additional staff during emergencies or special circumstances.
(6) The Board will notify MDH in the event of unexpected staff
changes leading to inadequate or unqualified staffing. MDH may
perform a program evaluation under the following circumstances.
(a) If the Board has inadequate or unqualified staffing,
the Board remains responsible for providing both
routine and emergency services covered by this
Agreement.
(b) If the Board has inadequate or unqualified staffing:
(i) Within 10 business days of the staff s
departure, the Board must submit a written
plan for providing routine and emergency
services until qualified staff are hired. This
plan must include the name, credentials and
contact information for staff performing
MDH - EHS Delegation Agreement, 6/26/2009 -7-
delegated duties. MDH will provide written
approval or rejection of the plan within 10
business days of receipt.
(ii) While the Board has inadequate or
unqualified staffing, the Board must submit
to MDH on a monthly basis, inspection
reports for all inspections conducted during
the previous 30 days.
(iii) The Board will have 180 days from the time
of the staff s departure to hire qualified staff.
If qualified staff cannot be hired within 180
days, MDH will terminate the Agreement
and immediately begin providing routine
and emergency services in the Board's
jurisdiction.
(7) If the Board is a Community Health Board, the Board may enter
into agreements with other qualified persons to carry out its
delegated duties, as stated in Minnesota Statutes, Section 145A.04
subd. 5 and Minnesota Statutes 145A.07 subd. 3(d). Before the
parties enter into such an agreement, the Board must obtain
MDH's written approval.
C. Risk -Based Inspections and a Uniform Inspection Program:
MDH - EHS Delegation Agreement, 6/26/2009 - 8 -
(1) The Board must license each establishment on an annual basis. The
Board will establish reasonable license fees in accordance with
Minnesota Statutes, Section 145A.04, Subd. 4(c).
(2) The Board must classify and inspect each:
(a) food, beverage, lodging, and pool establishment according
to the inspection frequency and risk category as stated in
Minnesota Statutes, Section 157.20; and
(b) manufactured home park and recreational camping areas
according to Minnesota Rules, parts 4630.2210 and
4630.1900.
(3) The Board will conduct inspections, respond to complaints, and
document follow -up activities. The Board must:
(a) identify and address hazards;
(b) incorporate education into the inspection process; and
(c) promote active managerial control concepts in food
establishments.
(4) The Board may submit to MDH a written proposal for alternative
inspection methods and practices, in accordance with Minnesota
Statutes, Section 157.20, Subd. 4, for use in the Board's
jurisdiction.
(5) The Board's inspection staff must maintain inspection reports that
include, at a minimum, the following elements: identification of
health and safety violations, corrective actions, enforcement
actions, follow -up activities, and complaint response.
MDH - EHS Delegation Agreement, 6/26/2009 -9-
(6) For every licensed establishment, the Board must provide, at a
minimum, the following information to MDH by March 31 of each
calendar year in a format to be negotiated:
(a) Type of facility (e.g., food establishment, MHP, etc),
establishment name, establishment address, and risk
category of each licensed establishment;
(b) All hazards emergency contact name and information for
each licensed establishment; and
(c) Establishment owner name and /or establishment operator
name for each establishment.
(7) The Board must review plans for new construction, renovation, or
conversion of licensed establishments.
(8) The Board may grant variances as stated in paragraph 2.1, item (F)
of the SCOPE, and must submit to MDH a copy of each variance
within 30 days of the variance being granted.
(9) The Board agrees that MDH may accompany the Board's staff in
their work, make independent assessments of risk factors or
hazards, and perform program activities in consultation with the
Board as circumstances warrant.
D. Illness Investigation and Response
(1) The Board will investigate and document illness and injury reports
according to Minnesota Statutes, Section 145A.04, Subd. 6, using a
protocol approved by MDH.
MDH - EHS Delegation Agreement, 6/26/2009 - 10-
(2) The Board will record and transmit all foodborne illness
complaints to MDH within one business day via fax, phone, or an
approved electronic method. The report must contain the contact
information for both the complainant and the establishment.
(3) The Board will have qualified staff available for emergency
coverage on a 24 -hour a day basis and provide an after -hours
contact number to MDH.
E. Compliance and Enforcement:
(1) The Board will seek compliance by using tine enforcement tools
specified in ordinance and written policies and procedures. If tine
Board's initial enforcement actions fail to achieve compliance, the
Board will exert its enforcement authority by undertaking one or
more of the following significant actions:
(a) Seeking injunctions under Minnesota Statutes, Section
145A.04, Subd. 9;
(b) Referring the matter to the Board's legal counsel to initiate
criminal or administrative actions against noncompliant
parties; and
(c) Pursuing other enforcement mechanisms such as license
revocation.
(2) The Board will document each violation it investigates including
the date of discovery, nature of the violation, any enforcement
action taken, and the resolution of the violation. The Board will
retain this data according to the Board's record retention policy.
MDH - EHS Delegation Agreement, 6/26/2009
Upon request, the Board must forward to MDH a written summary
of such significant enforcement actions as those referenced in
paragraph 3.2 E (1)(a — c). This summary will be forwarded to
MDH within 30 days of receipt of MDH's request.
F. Industry and Community Relations:
The Board must actively participate in work groups, advisory boards, or
committees that foster communication and information sharing to improve
public health outcomes in the program areas as stated in paragraph 2.1.
G. Program Support, Resources, and Assessment:
(1) The Board will conduct a self - assessment using the materials
known as the "Program Evaluation Protocol and Tools" at least
once every three years. The Board will provide MDH with the
written results of the program self - assessment at least 30 days prior
to MDH's regularly scheduled, program evaluation conducted
under Section 4 below.
(2) The Board must make its program records available to MDH upon
request.
(3) The Board must maintain all licensing and inspection information
in an electronic format and make it available to MDH upon
request. The Board will cooperate with MDH to establish a
compatible system that allows efficient sharing of electronic
licensing and inspection data.
4. MDH ASSESSMENT OF BOARD'S PERFORMANCE
4.1 Program Evaluation:
MDH - EHS Delegation Agreement, 6/26/2009 - 12-
A. MDH will evaluate the Board's performance for compliance with this
Agreement using the materials known as the "Program Evaluation
Protocol and Tools ". MDH will limit its evaluations to no more than one
formal evaluation per year, and no less than one formal evaluation every
five (5) years, except when the performance of the Board warrants more
frequent evaluation.
B. MDH will use the following criteria for evaluating the Board's
performance:
(1) Whether the Board has exercised the regulatory authority delegated
to it under this Agreement by adopting ordinances covering the
duties of licensing, inspection, reporting and enforcement of the
statutes and rules stated in paragraph 2.1.
(2) Whether the Board has established a written procedure for
licensing, inspecting, and enforcement for all establishments in the
jurisdiction regulated by the statutes and rules stated in paragraph
2.1(A), (C), and (D).
(3) Whether the Board has inspected, licensed or permitted all such
establishments according to requirements in statute, rule, or
ordinance.
(4) Whether the Board has enforced the statutes, rules and ordinances
to remove the risk to the public in a manner that corresponds to the
circumstances of the risk involved. MDH will evaluate this factor
according to the following criteria:
MDH - EHS Delegation Agreement, 6/26/2009 -13 -
(a) Whether the Board has identified and documented
violations of statutes, rules, and ordinances; and
(b) Whether the Board has determined a reasonable and
appropriate time period for a violator to remove a hazard,
has taken appropriate enforcement measures, and can
assure MDH that the hazard has been removed.
C. MDH will report its evaluation findings in writing to the Board within 60
days after completion of the evaluation. MDH's report will assess the
Board's performance to be one of the following:
(1) Acceptable, which may take one of two forms: Acceptablei or
Acceptable With Improvements Needed, meaning the Board must
make specific improvements that are enumerated in the report,
within a timeframe that is mutually agreed upon by the Board and
MDH;
(2) Conditionally Acceptable, meaning that immediate, priority
improvements are required. The Board must submit a written plan
of correction within 30 days. The plan must include a timetable for
correction and must be approved by MDH. Conditionally
Acceptable status may be resolved in one of two ways:
(a) The Board may be reassigned to Acceptable status if the
Board makes needed improvements according to its written
plan; or
MDH - EHS Delegation Agreement, 6/26/2009 - 14 -
(b) The Board may be reassigned to Unacceptable status if the
Board fails to provide a written plan of correction, or fails
to make corrections according to the written plan.
(3) Unacceptable, meaning that the program evaluation has identified
certain specified problems of a critical nature that make the
program unacceptable. The Board must submit a written plan of
correction within 30 days. The plan must include a timetable for
correction and must be approved by MDH. Unacceptable status
may be resolved in one of two ways:
(a) The Board may be reassigned to an Acceptable or
Conditionally Acceptable status if the Board makes needed
improvements according to its written plan; or
(b) The Board may be subject to Termination if the Board fails
to provide a written plan of correction, or fails to make
corrections according to the written plan.
(4) Termination, meaning that the situation requires MDH to terminate
the delegation immediately, and that all delegated duties
immediately revert to MDH.
D. If there are disputes concerning the evaluation findings that cannot be
resolved through an informal process, the Board will have an opportunity
to appeal its position to the Commissioner of Health.
E. While the Board's status is designated as Conditionally Acceptable, or
Unacceptable, MDH may conduct the plan reviews for new and
remodeled construction of establishments under the Board's jurisdiction.
MDH - EHS Delegation Agreement, 6/26/2009 -15 -
When MDH conducts plan reviews under this condition, the Board will
pay service fees of $100 /hour per inspector to MDH.
F. While the Board's status is Unacceptable, MDH will conduct the Board's
inspections and plan reviews. Until the Board's status is no longer
Unacceptable, the Board will pay service fees of $100 /hour per inspector
to MDH for all inspections and plan reviews conducted by MDH.
4.2 Termination:
A. MDH may terminate this Agreement for the following reasons:
(1) The Board is unable or unwilling to carry out the terms of this
Agreement; or
(2) The Board fails to demonstrate that it has carried out license,
inspection, reporting and enforcement activities under this
Agreement; or
(3) MDH has evidence to establish that the Board's failure to act poses
an immediate threat to public health.
B. MDH will provide to the Board, in writing, the reasons for immediate
termination.
5. OTHER TERMS
5.1 Voluntary Termination: Either party may voluntarily terminate this Agreement by
written notice to the other no later than January 1 of the year before the calendar
year in which the termination will be effective. If either party terminates this
agreement, a minimum of five (5) years must pass before the parties begin a new
agreement.
MDH - EHS Delegation Agreement, 6/26/2009 - 16-
5.2 Merger: The parties' entire Agreement is contained in this document. This
Agreement supersedes any other agreements between the parties, either verbal or
written, about the terms of this Agreement. MDH retains all functions and duties
not included in this Agreement.
5.3 Amendment: The parties may amend this Agreement only by written agreement
signed by the parties.
5.4 Liaison: Both MDH and the Board will assign a person to be liaison with the
other party.
5.5 Statutory or Rule Changes: Successor or amended statutes and rules apply to this
Agreement and are automatically incorporated into this Agreement upon their
effective date.
5.6 Exclusion: Actions under the Emergency Health Powers Act (Minnesota Statutes,
Chapter 12) are excluded from this Agreement.
5.7 Severability: A determination that any provision of this Agreement is invalid,
illegal, or unenforceable does not affect the enforceability of any other provision.
5.8 Each party agrees that it will be responsible for its own acts and the results thereof
to the extent authorized by law and will not be responsible for the acts of the other
party and the results thereof. The State's liability will be governed by the
Minnesota Tort Claims Act, Minnesota Statutes, Section 3.736 and other
applicable law. The Board's liability will be governed by the Municipal Tort
Claims Act, Minnesota Statutes, Chapter 466 and other applicable law.
MDH - EHS Delegation Agreement, 6/26/2009 - 17-
The parties' duly authorized officers have executed this Agreement on the date shown.
MINNESOTA DEPARTMENT OF HEALTH
Dated: B
Commissioner of Health
Dated:
By:
Its:
Dated: B
Dated:
Its:
Its:
MDH - EHS Delegation Agreement, 6/26/2009 - 18-