Page 1 - 131LR0403(03)
STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-THREE
_____
H.P. 1230 - L.D. 1925
An Act to Clarify and Improve the Laws Relating to the Background Check
Center and the Maine Certified Nursing Assistant and Direct Care Worker
Registry
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 22 MRSA §1812-G, sub-§1-B, ¶E, as enacted by PL 2015, c. 196, §9, is
amended to read:
E. "Disqualifying offense" means a substantiation for abuse, neglect or exploitation
misappropriation of property, or a criminal conviction identified in rules adopted by
the department that prohibits employment as a certified nursing assistant or a direct
care worker in accordance with subsection 2‑C.
Sec. 2. 22 MRSA §1812-G, sub-§1-B, ¶F, as enacted by PL 2015, c. 196, §9, is
amended to read:
F. "Employer" means a person or licensed, certified or registered provider or other
entity that employs direct access workers, including certified nursing assistants and
direct care workers, to provide direct contact services in home, community or other
health care or direct access settings. An individual who employs an unlicensed person
to provide care for that individual is not an employer for the purposes of this section,
except when required by rules adopted by the department.
Sec. 3. 22 MRSA §1812-G, sub-§1-B, ¶J, as enacted by PL 2015, c. 196, §9, is
amended to read:
J. "Nondisqualifying criminal conviction" means a criminal conviction identified in
rules adopted by the department pursuant to subsection 18 that is included as a notation
on the registry but does not prohibit employment as a certified nursing assistant or a
direct care worker.
Sec. 4. 22 MRSA §1812-G, sub-§1-B, ¶K, as enacted by PL 2015, c. 196, §9, is
repealed.
Sec. 5. 22 MRSA §1812-G, sub-§1-B, ¶L, as enacted by PL 2015, c. 196, §9, is
amended to read:
APPROVED
JUNE 20, 2023
BY GOVERNOR
CHAPTER
241
PUBLIC LAW Page 2 - 131LR0403(03)
L. "Registry" means the Maine Registry of Certified Nursing Assistants and Direct
Care Workers established in subsection 1, which identifies individuals qualified and
eligible for employment as a certified nursing assistant or a registered direct care
worker and individuals who are not eligible for employment as a certified nursing
assistant or direct care worker due to notations for disqualifying offenses.
Sec. 6. 22 MRSA §1812-G, sub-§2-A, as enacted by PL 2015, c. 196, §9, is
amended to read:
2-A. Registry listing.
must be listed on the registry. The registry must contain a listing of certified nursing
assistants and direct care workers that are ineligible for employment based on notations for
disqualifying offenses. Direct care workers registered for training, education or compliance
purposes may apply for registration and listing on the registry. Direct care workers who
may be listed on the registry include but are not limited to the following:
A. Behavior specialists;
B. Behavioral health professionals;
C. Certified residential care aides;
D. Certified residential medication aides;
E. Direct support professionals;
F. Mental health rehabilitation technicians;
G. Mental health support specialists;
H. Other qualified mental health professionals;
I. Personal care attendants or personal support specialists;
J. Registered medical assistants;
K. Residential care specialists;
L. Community health workers; and
M. Other direct care workers described in rules adopted by the department pursuant to
subsection 18.
Sec. 7. 22 MRSA §1812-G, sub-§2-C, as enacted by PL 2015, c. 196, §9, is
amended to read:
2-C. Registry notations.
and direct care worker listed on the registry a notation of:
A. Disqualifying criminal convictions;
B. Nondisqualifying criminal convictions, except that a notation is not required on the
registry for Class D and Class E criminal convictions over 10 years old that did not
involve as a victim of the act a patient, client or resident; and
C. Substantiated findings, including but not limited to the following information:
(1) Documentation of an investigation of a certified nursing assistant or a direct
care worker, including the nature of the allegation and evidence supporting a Page 3 - 131LR0403(03)
determination that substantiates the allegation of abuse, neglect or
misappropriation of property of a client, patient or resident;
(2) Documentation of substantiated findings of abuse, neglect or misappropriation
of property of a client, patient or resident;
(3) If the certified nursing assistant or direct care worker appealed the
substantiated finding, the date of the hearing; and
(4) The statement of the certified nursing assistant or direct care worker disputing
the allegation of abuse, neglect or misappropriation of property of a client, patient
or resident if the certified nursing assistant or direct care worker submitted such a
statement; and.
D. Petitions filed by a certified nursing assistant or direct care worker for removal of
an employment ban issued by the department that was based on a criminal conviction
and the department’s review and determination.
Sec. 8. 22 MRSA §1812-G, sub-§3-A, as enacted by PL 2015, c. 196, §9, is
repealed and the following enacted in its place:
3-A. Listing on the registry; direct care worker.
technical rules regarding listing direct care workers on the registry, including but not
limited to the following:
A. Direct care workers with disqualifying offenses must be listed on the registry; and
B. The notation for direct care workers listed on the registry for substantiated findings
must include the following information:
(1) Documentation of an investigation of a direct care worker, including the nature
of the allegation and evidence supporting a determination that substantiates the
allegation of abuse, neglect or misappropriation of property of a client, patient or
resident;
(2) Documentation of substantiated findings of abuse, neglect or misappropriation
of property of a client, patient or resident;
(3) If the direct care worker appealed the substantiated finding, the date of the
hearing; and
(4) The statement of the direct care worker disputing the allegation of abuse,
neglect or misappropriation of property of a client, patient or resident if the direct
care worker submitted such a statement.
Sec. 9. 22 MRSA §1812-G, sub-§3-B
3-B. Petition for removal of a substantiated finding of neglect or
misappropriation of property.
finding of neglect or misappropriation of property is placed on the registry, a direct care
worker may petition the department to remove the notation from the registry if the
substantiated complaint is a one-time occurrence and there is no pattern of neglect or
misappropriation of property.
Sec. 10. 22 MRSA §1812-G, sub-§4,
amended to read: Page 4 - 131LR0403(03)
4. Department verification of credentials and training.
the credentials and training of certified nursing assistants and registered direct care workers
listed on the registry.
Sec. 11. 22 MRSA §1812-G, sub-§4-A, as amended by PL 2015, c. 196, §9, is
further amended to read:
4-A. Provider verification fee.
fee not to exceed $25 annually per provider for verification of a certified nursing assistant's
or registered direct care worker's credentials and training. Providers may not pass the cost
on to the individual certified nursing assistant or registered direct care worker. Provider
verification fees collected by the department must be placed in a special revenue account
to be used by the department to operate the registry, including but not limited to the cost of
criminal history record checks. The department may adopt rules necessary to implement
this subsection. Rules adopted pursuant to this subsection are routine technical rules as
defined in Title 5, chapter 375, subchapter 2‑A.
Sec. 12. 22 MRSA §1812-G, sub-§5-A, as enacted by PL 2015, c. 196, §9, is
amended to read:
5-A. Employment eligibility verification; direct care access worker. An employer,
including a health care institution, facility or other organization that employs an individual
as a direct care access worker, shall verify that the direct care access worker, if listed on
the registry, has no disqualifying notations and has complied with the training or education
requirements for registration, if applicable offenses.
Sec. 13. 22 MRSA §1812-G, sub-§6,
Pt. A, §16, is amended to read:
6. Prohibited employment based on disqualifying offenses.
disqualifying offense, including a substantiated complaint or a disqualifying criminal
conviction, may not work as a certified nursing assistant or a direct care access worker, and
an employer is subject to penalties for employing a disqualified or otherwise ineligible
person in accordance with applicable federal or state laws.
Sec. 14. 22 MRSA §1812-G, sub-§6-A, as amended by PL 2015, c. 494, Pt. A,
§§17 and 18, is further amended to read:
6-A. Background check.
subject to a background check as defined by rules adopted by the department pursuant to
chapter 1691 and according to the following:
A. A training program for certified nursing assistants or direct care workers must
secure or pay for a background check on each individual who applies for enrollment.
The individual's current name and all previous names are subject to the background
check. A copy of the background check is given to the individual who, upon successful
completion of the training, submits it with an application to be listed on the registry as
a certified nursing assistant or a registered direct care worker.
(1) Prior to enrolling an individual, a training program for certified nursing
assistants or direct care workers must notify individuals that a background check
will be conducted and that certain disqualifying offenses, including criminal Page 5 - 131LR0403(03)
convictions, may prohibit an individual from working as a certified nursing
assistant or a direct care worker.
B. Pursuant to sections 1717, 1724, 2137, 2149‑A, 7706, 8606 and, 9005 and 9054
and Title 34‑B, section 1225, licensed, certified or registered providers shall secure and
pay for a background check prior to hiring an individual who will work in direct contact
with clients, patients or residents, including a certified nursing assistant or a direct care
worker.
C. The department may secure a background check on certified nursing assistants and
registered direct care workers on the registry every 2 years.
D. A person or other legal entity that is not otherwise licensed by the department and
that employs or places a certified nursing assistant or direct care worker to provide
services allowing direct access shall secure and pay for a background check in
accordance with state law and rules adopted by the department.
Sec. 15. 22 MRSA §1812-G, sub-§6-B,
repealed.
Sec. 16. 22 MRSA §1812-G, sub-§6-C, ¶A, as enacted by PL 2015, c. 196, §9, is
amended to read:
A. A disqualifying criminal conviction within the previous 10 years prohibits
employment as a certified nursing assistant or a direct care access worker.
(1) An individual with a disqualifying criminal conviction is subject to an
employment ban of 5, 10 or 30 years. The department shall adopt rules that specify
disqualifying criminal convictions that prohibit employment for 5 years,
disqualifying criminal convictions that prohibit employment for 10 years and
disqualifying criminal convictions that prohibit employment for 30 years.
Sec. 17. 22 MRSA §1812-G, sub-§6-C, ¶B, as enacted by PL 2015, c. 196, §9, is
amended to read:
B. Nondisqualifying criminal convictions do not prohibit employment as a certified
nursing assistant or a direct care access worker.
Sec. 18. 22 MRSA §1812-G, sub-§6-D, as enacted by PL 2015, c. 196, §9, is
repealed.
Sec. 19. 22 MRSA §1812-G, sub-§8,
repealed.
Sec. 20. 22 MRSA §1812-G, sub-§10,
amended to read:
10. Complaint investigation.
allegations against certified nursing assistants or registered direct care access workers of
abuse, neglect, exploitation or misappropriation of property of a client, patient or resident.
Sec. 21. 22 MRSA §1812-G, sub-§11,
amended to read:
11. Issue a decision.
issue a written decision that the allegation of abuse, neglect, exploitation or Page 6 - 131LR0403(03)
misappropriation of property of a client, patient or resident is unsubstantiated or
substantiated. Each allegation of abuse, neglect or misappropriation of property must be
considered separately. A substantiated finding must be based on factors established by
department rules. The written decision must include at least the following information:
A. Whether the allegation is unsubstantiated or substantiated;
B. A description of the factors supporting a substantiated finding;
C. If a notation of a substantiated finding is entered on the registry;
D. A description of the employment prohibition, if any; and
E. Notice of the right to appeal the department’s decision pursuant to subsection 12.
Sec. 22. 22 MRSA §1812-G, sub-§13,
amended to read:
13. Substantiated finding; lifetime employment ban.
or a registered direct care worker with a notation on the registry of a substantiated finding
on the registry of abuse of a patient, client or resident is banned for life from employment
as either a certified nursing assistant or a direct care worker.
Sec. 23. 22 MRSA §1812-G, sub-§14,
repealed.
Sec. 24. 22 MRSA §1812-G, sub-§15,
repealed.
Sec. 25. 22 MRSA §1812-G, sub-§16,
repealed.
Sec. 26. 22 MRSA §1812-G, sub-§17,
repealed.
Sec. 27. 22 MRSA §1812-J, as amended by PL 2015, c. 299, §§11 to 17 and c. 494,
Pt. D, §3, is further amended by amending the section headnote to read:
§1812-J. Unlicensed assistive persons Direct care workers
Sec. 28. 22 MRSA §1812-J, sub-§1, ¶A-2, as amended by PL 2015, c. 299, §11,
is further amended to read:
A-2. "Disqualifying offense" means a substantiation of abuse, neglect or exploitation
or a criminal conviction identified in rules adopted by the department that prohibit
employment as an unlicensed assistive person a direct care worker.
Sec. 29. 22 MRSA §1812-J, sub-§1, ¶A-3, as amended by PL 2015, c. 299, §11,
is further amended to read:
A-3. "Health care and direct access services settings" means settings in which
individuals receive services that require direct access by a certified nursing assistant or
unlicensed assistive person a direct care worker or other employee in providing direct
care and related services.
Sec. 30. 22 MRSA §1812-J, sub-§1, ¶A-4, as enacted by PL 2011, c. 257, §3, is
amended to read: Page 7 - 131LR0403(03)
A-4. "High severity" means the level, as established by the department by rule, of
abuse, neglect or misappropriation of property of a client, patient or resident that forms
the basis for a substantiated finding after investigation of a complaint against an
unlicensed assistive person a direct care worker of abuse, neglect or misappropriation
of property of a client, patient or resident.
Sec. 31. 22 MRSA §1812-J, sub-§1, ¶A-5, as enacted by PL 2011, c. 257, §3, is
amended to read:
A-5. "Indicated finding" means an administrative determination made by the
department, after investigation of a complaint against an unlicensed assistive person a
direct care worker of abuse, neglect or misappropriation of property of a client, patient
or resident, that the abuse, neglect or misappropriation of property of a client, patient
or resident was of low to moderate severity based on criteria established by the
department by rule and that the person is not prohibited from employment as an
unlicensed assistive person a direct care worker.
Sec. 32. 22 MRSA §1812-J, sub-§1, ¶A-6, as enacted by PL 2011, c. 257, §3, is
amended to read:
A-6. "Low to moderate severity" means the level, as established by the department by
rule, of abuse, neglect or misappropriation of property of a client, patient or resident
that forms the basis for an indicated finding after investigation of a complaint against
an unlicensed assistive person a direct care worker of abuse, neglect or
misappropriation of property of a client, patient or resident.
Sec. 33. 22 MRSA §1812-J, sub-§1, ¶A-7, as enacted by PL 2011, c. 257, §3, is
amended to read:
A-7. "Nondisqualifying criminal conviction" means a criminal conviction identified
in rules adopted by the department that is included as a notation on the registry but
does not prohibit employment as an unlicensed assistive person a direct care worker.
Sec. 34. 22 MRSA §1812-J, sub-§1, ¶B, as amended by PL 2015, c. 299, §12, is
further amended to read:
B. "Registry" means the Maine Registry of Certified Nursing Assistants and Direct
Care Workers, which is a list of certified nursing assistants, with notations if applicable,
and a list of direct care workers registered for training, education or compliance
purposes, or unlicensed assistive persons with notations and is established under
section 1812‑G.
Sec. 35. 22 MRSA §1812-J, sub-§1, ¶C-1, as enacted by PL 2011, c. 257, §3, is
amended to read:
C-1. "Substantiated finding" means an administrative determination made by the
department, after investigation of a complaint against an unlicensed assistive person a
direct care worker of abuse, neglect or misappropriation of property of a client, patient
or resident, that the abuse, neglect or misappropriation of property of a client, patient
or resident was of high severity based on criteria established by the department by rule.
Sec. 36. 22 MRSA §1812-J, sub-§1, ¶D, as amended by PL 2015, c. 299, §13, is
further amended to read: Page 8 - 131LR0403(03)
D. "Unlicensed assistive person Direct care worker" means an unlicensed individual
who by virtue of employment has direct access to and provides direct care or direct
contact assistance with activities of daily living or other services to individuals in
homes, assisted living programs, residential care facilities, hospitals and other health
care and direct access services settings. "Unlicensed assistive person Direct care
worker" includes but is not limited to a direct support professional, residential care
specialist, behavioral health professional, personal support specialist, mental health
support specialist, mental health rehabilitation technician, behavior specialist, other
qualified mental health professional, certified residential medication aide and
registered medical assistant and other direct access workers or direct care workers as
described in rules adopted by the department. "Unlicensed assistive person Direct care
worker" does not include a certified nursing assistant employed in the capacity of a
certified nursing assistant.
Sec. 37. 22 MRSA §1812-J, sub-§1, ¶E, as enacted by PL 2011, c. 257, §3, is
amended to read:
E. "Unsubstantiated finding" means an administrative determination made by the
department, after investigation of a complaint against an unlicensed assistive person a
direct care worker of abuse, neglect or misappropriation of property of a client, patient
or resident, that no abuse, neglect or misappropriation of property of a client, patient
or resident was found to support an indicated finding or a substantiated finding of
abuse, neglect or misappropriation of property of a client, patient or resident.
Sec. 38. 22 MRSA §1812-J, sub-§1, ¶F, as enacted by PL 2015, c. 299, §14, is
repealed.
Sec. 39. 22 MRSA §1812-J, sub-§1, ¶G
G. "Registered direct care worker" means an individual listed on the registry.
"Registered direct care worker" does not include a certified nursing assistant employed
in the capacity of a certified nursing assistant or a direct care worker listed on the
registry with notations for disqualifying offenses.
Sec. 40. 22 MRSA §1812-J, sub-§2, as amended by PL 2015, c. 299, §15, is further
amended to read:
2. Complaint investigation.
allegations of abuse, neglect, exploitation or misappropriation of property of a client,
patient or resident in a home or health care setting against unlicensed assistive persons
direct care workers.
Sec. 41. 22 MRSA §1812-J, sub-§3, as amended by PL 2011, c. 257, §5, is further
amended to read:
3. Substantiated finding of complaint; registry listing.
an unlicensed assistive person a direct care worker is substantiated by the department and
the unlicensed assistive person direct care worker is listed on the registry pursuant to
subsection 4, the department's decision becomes final agency action as defined in Title 5,
section 8002, subsection 4. The department shall notify the employer of the unlicensed
assistive person direct care worker that a substantiated finding of a complaint has been
listed as a notation on the registry. Page 9 - 131LR0403(03)
Sec. 42. 22 MRSA §1812-J, sub-§3-A, as enacted by PL 2011, c. 257, §6, is
amended to read:
3-A. Indicated finding of complaint; no registry listing.
the department of a complaint against an unlicensed assistive person a direct care worker
does not prohibit employment and is not listed as a notation on the registry. The
department's complaint investigation decision becomes final agency action as defined in
Title 5, section 8002, subsection 4.
Sec. 43. 22 MRSA §1812-J, sub-§4, as amended by PL 2015, c. 299, §16, is further
amended to read:
4. Registry listing.
as a direct care worker direct care workers with a disqualifying offense substantiated
finding notation and may register an unlicensed assistive person or direct care worker for
training, education and compliance purposes. Disqualifying notations must include but are
not limited to the following information:
A. Documentation of the department's investigation, including the nature of the
allegation and the evidence that led the department to substantiate the allegation of
abuse, neglect, exploitation or misappropriation of property;
B. The date of the hearing, if the unlicensed assistive person direct care worker chose
to appeal the department finding that the complaint was substantiated; and
C. The unlicensed assistive person's direct care worker's statement to the department
disputing the allegation, if the unlicensed assistive person direct care worker chose to
submit one; and.
D. Notations indicating the listed unlicensed assistive person is not in compliance with
training or educational requirements.
Sec. 44. 22 MRSA §1812-J, sub-§5, as enacted by PL 2009, c. 215, §2, is amended
to read:
5. Right to hearing.
care worker of the right to request a hearing to contest the finding that the complaint under
subsection 3 was substantiated.
Sec. 45. 22 MRSA §1812-J, sub-§6, as amended by PL 2011, c. 257, §7, is
repealed.
Sec. 46. 22 MRSA §1812-J, sub-§7, as amended by PL 2015, c. 494, Pt. D, §3, is
further amended to read:
7. Prohibited employment based on disqualifying offenses.
employs an unlicensed assistive person a direct care worker to provide direct access
services shall conduct a comprehensive background check in accordance with state law and
rules adopted by the department and is subject to the employment restrictions set out in
section 1812‑G and chapter 1691 and other applicable federal and state laws. The employer
is subject to penalties for employing a disqualified or otherwise ineligible person in
accordance with applicable federal or state laws.
Sec. 47. 22 MRSA §1812-J, sub-§7-A is enacted to read: Page 10 - 131LR0403(03)
7-A. Background check.
workers.
A. A training program for direct care workers may secure or pay for a background
check pursuant to chapter 1691 on each individual who applies for enrollment in the
program. The background check may check the individual's current name and all
previous names. The background check result may be shared with the individual's
prospective employer upon successful completion of the program.
(1) Prior to enrolling an individual, a training program for direct care workers must
notify individuals that a background check may be conducted and that certain
disqualifying offenses, including criminal convictions, may prohibit an individual
from working as a direct care worker.
B. Pursuant to sections 1717, 1724, 2137, 2149-A, 7706, 8606, 9005 and 9054 and
Title 34-B, section 1225, licensed, certified or registered providers shall secure and pay
for a background check prior to hiring an individual who will work in direct contact
with clients, patients or residents, including a direct care worker.
C. The department may review the results of a background check completed in
accordance with chapter 1691 on a registered direct care worker.
D. A person that is not otherwise licensed by the department that employs or places a
direct care worker to provide services allowing direct access shall secure and pay for a
background check in accordance with state law and rules adopted by the department.
Sec. 48. 22 MRSA §9053, sub-§2, as enacted by PL 2015, c. 299, §25, is amended
to read:
2. Assisted housing program.
facility licensed pursuant to chapter 1663 or an independent housing with services program
exempt from licensing pursuant to chapter 1663.
Sec. 49. 22 MRSA §9053, sub-§3, as enacted by PL 2015, c. 299, §25, is amended
to read:
3. Background check.
identifiable information and, data and biometric identifiers for comparison with criminal
record repositories and registry databases that are relevant to an individual's identity and
background, including monitoring for future offenses through a rap back monitoring
program.
Sec. 50. 22 MRSA §9053, sub-§5-A is enacted to read:
5-A. Biometric identifier.
biological, anatomical or physiological characteristic used for identification of an
individual, including, but not limited to, fingerprints, retinal or iris scans and palm prints.
Sec. 51. 22 MRSA §9053, sub-§14, as enacted by PL 2015, c. 299, §25, is amended
to read:
14. Direct access worker.
of employment has direct access to a Medicare or Medicaid beneficiary or other protected
individual served by a provider subject to this chapter generally provides to individuals
direct contact assistance or has direct access regardless of setting. "Direct access worker" Page 11 - 131LR0403(03)
does not include an individual performing repairs, deliveries, installations or similar
services who does not have direct access without supervision. "Direct access worker"
includes but is not limited to the following individuals:
A. An individual seeking employment as a direct access worker;
B. An employee who is employed upon the effective date of this chapter and who is
required to have a background check in accordance with section 9058 9058-A;
C. A former employee who consents, prior to leaving employment, to periodic review
of that employee's criminal background for a fixed time;
D. An independent contractor pursuant to Title 26, section 1043, subsection 11,
paragraph E or Title 39‑A, section 102, subsection 13‑A or a worker who is placed with
a provider by a temporary nurse agency or a personal care agency or a placement
agency registered pursuant to section 1717; and
E. A volunteer, student or other person with direct access who routinely performs
unsupervised functions similar to those performed by a direct access worker for a
provider.; and
F. A direct care worker pursuant to section 1812-J, subsection 1, paragraph G.
Sec. 52. 22 MRSA §9053, sub-§19, as enacted by PL 2015, c. 299, §25, is repealed
and the following enacted in its place:
19. Grandfathered employee.
subject to the requirements of this chapter who has been employed prior to October 1, 2023,
is subject to section 9058-A and has not previously submitted biometric identifier data for
a background check under this chapter.
Sec. 53. 22 MRSA §9053, sub-§21-A is enacted to read:
21-A. Hospital. "Hospital" means an entity licensed pursuant to chapter 405.
Sec. 54. 22 MRSA §9053, sub-§24-A is enacted to read:
24-A. Noncriminal justice submitting entity.
entity" means the agency responsible for initiating requests under the rap back monitoring
program pursuant to federal implementation guidance documents.
Sec. 55. 22 MRSA §9053, sub-§28-A is enacted to read:
28-A. Portability.
the results of a background check eligibility determination and information from the rap
back monitoring program to a new employer.
Sec. 56. 22 MRSA §9053, sub-§29, as amended by PL 2019, c. 660, §6, is further
amended to read:
29. Provider.
entity that employs direct care access workers to provide long-term care and in-home and
community-based services under this chapter.
Sec. 57. 22 MRSA §9053, sub-§32, as enacted by PL 2015, c. 299, §25, is amended
to read: Page 12 - 131LR0403(03)
32. Residential care facility.
facility licensed or exempted from licensing pursuant to chapter 1663.
Sec. 58. 22 MRSA §9053, sub-§32-A is enacted to read:
32-A. Substance use disorder treatment agency.
agency" means an approved treatment facility or program licensed pursuant to Title 5,
chapter 521.
Sec. 59. 22 MRSA §9054, sub-§2, as enacted by PL 2015, c. 299, §25, is amended
to read:
2. Employer obligations.
Background Check Center to conduct a comprehensive background check that includes a
criminal history records check for all direct access workers. The employer shall comply
with the requirements of this chapter, including, but not limited to, a biometric identifier-
based background check, when making employment-related decisions for direct access
workers.
Sec. 60. 22 MRSA §9054, sub-§5, as enacted by PL 2015, c. 299, §25, is amended
to read:
5. Subsequent background check; 5 years.
subsequent background check in accordance with rules adopted pursuant to this chapter.
Criminal history record checks for all direct access workers using a biometric identifier
must be completed every 5 years subsequent to the date of hire or the anniversary date of a
previous background check completed through use of the Background Check Center.
Sec. 61. 22 MRSA §9054, sub-§7, ¶O,
amended to read:
O. Mental health services facilities or providers; and
Sec. 62. 22 MRSA §9054, sub-§7, ¶P,
amended to read:
P. Drug treatment centers.;
Sec. 63. 22 MRSA §9054, sub-§7, ¶Q
Q. Substance use disorder treatment agencies; and
Sec. 64. 22 MRSA §9054, sub-§7, ¶R is enacted to read:
R. Hospitals.
Sec. 65. 22 MRSA §9054, sub-§8, ¶B, as enacted by PL 2015, c. 299, §25, is
repealed.
Sec. 66. 22 MRSA §9054, sub-§8, ¶B-1 is enacted to read:
B-1. Collecting fingerprints to determine eligibility of individuals to work in direct
access positions in accordance with standards adopted by department rule, and in
accordance with applicable policies and rules of the Department of Public Safety,
Bureau of State Police. The Bureau of State Police shall take, or cause to be taken, an
individual's fingerprints, along with any other information necessary for a statewide
and nationwide criminal history record check. All fingerprints must be maintained by Page 13 - 131LR0403(03)
the State Bureau of Identification and the Federal Bureau of Investigation in
accordance with their policies and procedures, and the Background Check Center shall
obtain the results of the fingerprinting queries from the State Bureau of Identification;
Sec. 67. 22 MRSA §9054, sub-§8, ¶F,
amended to read:
F. Specifying offenses, including offenses that may appear in publicly available
criminal record information, that disqualify an individual from employment as a direct
access worker for a term of 5, 10 or 30 years or, for disqualifying offenses that occur
in health care settings, the lifetime of the individual, including, but not limited to,
convictions and other events or notations;
Sec. 68. 22 MRSA §9054, sub-§10, as enacted by PL 2015, c. 299, §25, is amended
to read:
10. Background check report content.
employers whether the individual submitted for a background check has offenses that
disqualify the individual for employment as a direct access worker. The background check
report must include information specific to the individual along with information about the
source and type of offense sufficient to allow the individual named in the report to
challenge the information. The content of the background check report must include, but is
not limited to, notice that the individual submitted for a background check has is:
A. No disqualifying offenses;
A-1. Eligible for hire; or
B. A disqualifying offense; or
B-1. Ineligible for hire and the length of any ban on employment as a result.
C. A criminal charge without disposition that upon final disposition may result in a
disqualifying offense.
Sec. 69. 22 MRSA §9054, sub-§13, as enacted by PL 2015, c. 299, §25, is amended
to read:
13. Waiver; disqualifying offense.
mandates an employment prohibition by an employer subject to this chapter, an individual
who is banned from employment because of a disqualifying criminal offense may initiate
a request for a waiver under subsection 8, paragraph H in accordance with a process
established by rules adopted pursuant to this chapter under the following circumstances:
A. The individual is seeking to be employed or is currently employed by an employer
subject to the requirements of this chapter;
B. The employer has chosen to sponsor the individual's request for the removal of the
ban in order to create or maintain an employment relationship; and
C. The employer must attest to the department that the decision to sponsor the waiver
request occurred after the employer considered the objectively reasonable factors under
subsection 15 and the following factors:
(1) The nature and gravity of the disqualifying offense or offenses;
(2) The time that has passed since the disqualifying offense or offenses; Page 14 - 131LR0403(03)
(3) The nature of the employment held or sought;
(4) Whether the criminal conduct was employment-related; and
(5) A reasonable conclusion that the individual does not pose a threat of harm to
a protected individual or others in the care and support of the individual.
The waiver must be sought with respect to the prospective or continued employment by a
specific employer that is willing to sponsor the individual's request. An employee seeking
a waiver may be conditionally employed in accordance with section 9057, subsection 4 and
section 9058 9058-A, subsection 3 until the waiver is denied.
Sec. 70. 22 MRSA §9055, sub-§2, as enacted by PL 2015, c. 299, §25, is amended
to read:
2. Special revenue account.
deposited in a special revenue account in the Division division of Licensing licensing and
Regulatory Services certification and dedicated for Background Check Center operations.
Sec. 71. 22 MRSA §9056, sub-§2, as enacted by PL 2015, c. 299, §25, is amended
to read:
2. Rap back monitoring program.
services pursuant to federal or state rap back monitoring to report new criminal record
events to the Background Check Center for noncriminal justice purposes. The bureau is
authorized as the State's noncriminal justice submitting entity for federal rap back
monitoring. Requests under the rap back monitoring program include the following
procedures:
A. The noncriminal justice submitting entity submits to an electronic repository
biometric identifier data of a direct access worker;
B. The electronic repository retains the biometric identifier data for a period of time
specified in the State's subscription with the electronic repository; and
C. The electronic repository notifies the noncriminal justice submitting entity of any
new criminal record events tied to the biometric identifier data that may disqualify an
individual from continued employment as a direct access worker.
Sec. 72. 22 MRSA §9056, sub-§3, as enacted by PL 2015, c. 299, §25, is amended
to read:
3. Collection of identifier data.
Check Center to collect the personally identifiable information and biometric identifier and
relevant data of individuals as needed to meet the requirements of the rap back monitoring
program or as otherwise required by this chapter and other laws.
Sec. 73. 22 MRSA §9056, sub-§4, ¶A, as enacted by PL 2015, c. 299, §25, is
amended to read:
A. Maintain the personally identifiable information and biometric identifier data in the
criminal history records repository;
Sec. 74. 22 MRSA §9056, sub-§4, ¶B, as enacted by PL 2015, c. 299, §25, is
amended to read: Page 15 - 131LR0403(03)
B. Compare the personally identifiable data, biometric identifier data or other data or
both to criminal records to conduct a criminal record check and disseminate the results
of this record check to authorized entities;
Sec. 75. 22 MRSA §9057, sub-§4, ¶D-1 is enacted to read:
D-1. The individual provides evidence to the employer that the individual has
submitted the individual's biometric identifier data for the background check;
Sec. 76. 22 MRSA §9057, sub-§4, ¶E, as enacted by PL 2015, c. 299, §25, is
amended to read:
E. The employer verifies and documents that the individual has submitted the
individual's biometric identifier data required for the background check and the
mandatory identity verification and employment eligibility documents required by
rules adopted in accordance with this chapter; and
Sec. 77. 22 MRSA §9058, as enacted by PL 2015, c. 299, §25, is repealed.
Sec. 78. 22 MRSA §9058-A is enacted to read:
§9058-A. Grandfathered employees prior to biometric identifier reporting
1. Background check.
access workers shall use the Background Check Center to secure a background check and
a background check report using biometric identifier data for each direct access worker.
2. Gradual implementation of grandfathered employee background checks with
biometric identifier data.
a staged and orderly process based on the type of provider and the number of direct access
workers employed that employers must follow to implement the background checks using
biometric identifier data for grandfathered employees consistent with this chapter. The
department may grant an employer a deadline extension for good cause shown, which may
not be unreasonably withheld.
3. Background check deadline.
direct access employment for up to 60 calendar days from the date the grandfathered
employee's first biometric identifier background check is initiated in accordance with
subsection 2 and if:
A. The grandfathered employee signs a consent to release information and agrees in
writing to submit to the background check process;
B. The grandfathered employee signs a statement declaring that a background check
will not reveal any disqualifying offenses or that an offense that appears is inaccurate;
C. The employer verifies and documents that the grandfathered employee has
submitted the biometric identifier data and mandatory identity verification and
employment eligibility documents required by rules adopted in accordance with section
9065;
D. The employer initiates the background check by entering the individual into the
Background Check Center database as a grandfathered employee; and
E. The grandfathered employee is not identified in the Background Check Center
database as a disqualified person. Page 16 - 131LR0403(03)
4. Disqualified grandfathered employee.
a disqualifying background check report is subject to the provisions of subsection 3 and
must be able to correct disqualifying offense information that appears in the background
check report through the inaccurate records corrections process within 60 calendar days
after the disqualifying report is issued. The grandfathered employee is subject to direct
personal supervision during the conditional employment period as described in rules
adopted pursuant to this chapter until a final background check report indicates that no
disqualifying offenses appear in the updated records.
5. Termination; disqualified grandfathered employees.
terminate or remove from direct access employment any grandfathered employee who has
not submitted the documents required in subsection 3, who refused to submit a biometric
identifier or otherwise participate in the background check or who fails to receive a final
nondisqualifying background check report in accordance with subsection 4.
Sec. 79. 22 MRSA §9062, sub-§1, ¶B, as enacted by PL 2015, c. 299, §25, is
amended to read:
B. Failure or refusal to terminate or remove from direct access employment an
employee who is disqualified for employment based on the requirements of this
chapter; and
Sec. 80. 22 MRSA §9062, sub-§1, ¶C, as enacted by PL 2015, c. 299, §25, is
amended to read:
C. Substantial noncompliance with the procedures established by this chapter.; and
Sec. 81. 22 MRSA §9062, sub-§1, ¶D is enacted to read:
D. Failure to enroll in the Background Check Center.
Sec. 82. 22 MRSA §9066 is enacted to read:
§9066. Portability
1. Portability authorized. A direct access worker may choose to transfer the worker's
background check report to another employer. The direct access worker may choose to
transfer confidential information contained in the worker's background check report, as
long as the background check used a biometric identifier, when:
A. The direct access worker agrees to submit to the requirements of this chapter;
B. The direct access worker signs a statement releasing the confidential information
to the new employer;
C. The employer verifies and documents that the direct access worker has submitted
the mandatory identity verification and employment eligibility documents required by
rules adopted in accordance with this chapter; and
D. The employer ensures the background check was completed within the last 5 years
and enters the direct access worker into the rap back monitoring program.