Setting Aside a DHS Disqualification in Minnesota: Reconsideration and Variance

The two grounds for reconsideration

When DHS sends a disqualification notice, it includes instructions for requesting reconsideration under § 245C.21. For most disqualifications, you can request reconsideration on either or both of two grounds:

• Correctness. You argue the disqualification is factually or legally wrong — for example, the record is mistaken, it isn’t you, the offense doesn’t actually qualify, or the look-back period has passed.
• Risk of harm (set-aside). You concede the disqualifying event but argue you do not pose a risk to the people served, asking DHS to set aside the disqualification. DHS weighs factors such as the nature and seriousness of the offense, how long ago it happened, the number of incidents, your conduct since, and the vulnerability of the people served (the § 245C.22 risk-of-harm analysis).

A successful correctness challenge means DHS rescinds the disqualification. A successful set-aside means the disqualification stays on the record but is set aside for that program, so you can work there.

Set-aside vs. variance — what’s the difference?

• A set-aside is granted to you based on a risk-of-harm analysis. Once set aside for a program, it generally allows you to work in that setting.
• A variance is requested by the license holder (your employer) under § 245C.30 — the employer asks DHS to allow you to work despite the disqualification, often with conditions. A variance is the route when a set-aside isn’t available but the employer wants to keep you.

A set-aside can also follow you: if DHS has already set aside your disqualification for one program, a later background study for a similar program may carry that set-aside forward when the criteria are met (with special rules in some fields, such as substance-use disorder treatment).

The big exception: permanent bars

There is a critical limit. For crimes the legislature has designated as permanent disqualifications, DHS is barred from granting a set-aside or variance based on risk of harm. For these “permanent bar” offenses, your only available reconsideration ground is correctness — challenging whether the disqualification is accurate in the first place. If a permanent-bar disqualification is correct, there is generally no set-aside or variance available. This is why identifying early whether an offense is a permanent bar (versus a time-limited disqualification) matters so much.

Deadlines and how to respond

The disqualification notice sets a deadline to request reconsideration, and it is short — so act quickly. A strong reconsideration request typically includes a clear written explanation, documentation supporting correctness or rehabilitation (treatment records, employment history, character references, time elapsed without further incidents), and a direct response to the risk-of-harm factors DHS weighs. DHS reviews the request and issues a written decision; set-aside notices are generally issued within a set number of working days when granted.

Why this is worth doing right

For many people, a DHS disqualification is the single biggest consequence of a criminal case — it can end a career in care work. Reconsideration is a real and frequently successful remedy, but it is a one-shot, deadline-driven, evidence-based process, and the strategy differs completely depending on whether you’re arguing correctness, risk of harm, or facing a permanent bar. Getting it right the first time — ideally with the criminal case and the disqualification handled together — gives you the best chance of keeping your ability to work.