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An Act Regarding the Employment of Certified Nursing Assistants and Direct Care Workers
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 22 MRSA §1717, sub-§1, ¶C, as amended by PL 2007, c. 324, §2, is further amended to read:
 
C. "Personal care agency" means a business entity or subsidiary of a business entity that is not otherwise licensed by the Division of Licensing and Regulatory Services and that hires and employs an unlicensed assistive personnelperson to provide assistance with activities of daily living and related tasks to individuals in the places in which they reside, either permanently or temporarily. An individual who hires and employs an unlicensed assistive personnelperson to provide care for that individual is not a personal care agency, except when permitted by rule of the department.
Sec. 2. 22 MRSA §1717, sub-§1, ¶D, as amended by PL 2007, c. 324, §2, is further amended to read:
 
D. "Unlicensed assistive personnelperson" or "direct care worker" means individualsan individual employed to provide hands-on assistance with activities of daily living or other services to individuals in private homes, assisted living centersprograms, residential care facilities, hospitals and other health care and direct care settings. "Unlicensed assistive person" and "direct care worker" include but are not limited to a direct support professional, residential care specialist, 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 care workers as described in rules adopted by the department. "Unlicensed assistive personnelperson" doesand "direct care worker" do not include a certified nursing assistantsassistant employed in theirthe capacity asof a certified nursing assistantsassistant.
Sec. 3. 22 MRSA §1717, sub-§3, as amended by PL 2011, c. 257, §1, is repealed.
Sec. 4.  22 MRSA §1717, sub-§§3-A and 3-B  are enacted to read:
 
3-A.  Prohibited employment.     A personal care agency or a placement agency may not hire or place an individual who:
 
A.  While working as a certified nursing assistant, was the subject of a complaint investigation by the state survey agency that resulted in a substantiated complaint that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
B.  While working as an unlicensed assistive person, was the subject of a complaint investigation by the department that resulted in a substantiated finding that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
C.  While working as a certified nursing assistant, received a disqualifying criminal conviction that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G; or
 
D.  Has a disqualifying criminal conviction as determined pursuant to section 1812-G, subsection 2-D.
 
3-B.  Employer criminal background checks prior to hiring.     Prior to hiring an individual who will work in direct contact with a consumer, a personal care agency or a placement agency shall obtain criminal history record information on that individual, including, at a minimum, criminal history record information from the Department of Public Safety, State Bureau of Identification. The personal care agency or the placement agency shall pay for the criminal background check required by this subsection.
 
A.  A personal care agency or a placement agency may not employ an individual with a disqualifying criminal conviction on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G to work in direct contact with a consumer.
 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not banned for that conduct if the certified nursing assistant or unlicensed assistive person was employed as a certified nursing assistant or unlicensed assistive person on the effective date of this paragraph and the conduct occurred prior to the effective date as long as the certified nursing assistant or unlicensed assistive person continues to work for the same employer at the same facility or program. When there is a change of employer or employment at a specific facility or program, the certified nursing assistant or unlicensed assistive person is subject to this subsection.
Sec. 5. 22 MRSA §1717, sub-§4, ¶B, as amended by PL 2007, c. 324, §2, is further amended to read:
 
B. A person who operates a personal care agency or placement agency in violation of the employment prohibitions in subsection 33-A commits a civil violation for which a fine of not less than $500 per day of operation in violation but not more than $10,000 per day may be adjudged, beginning on the first day that a violation occurs. Each day of violation constitutes a separate offense.
Sec. 6. 22 MRSA §1812-G, as amended by PL 2011, c. 257, §2, is further amended to read:
§ 1812-G.Maine Registry of Certified Nursing Assistants and Direct Care Workers
 
1. Established.   The Maine Registry of Certified Nursing Assistants and Direct Care Workers is established in compliance with federal and state requirements. The Department of Health and Human Services shall maintain the registry.
 
1-A. Definitions.   As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
 
A. "Certified nursing assistant" means an individual who has successfully completed an approved nursing assistant training program, holds a certificate of training and meets the eligibility requirements established by the State Board of Nursing for listing on the registry.
 
A-1.  "Abuse" means the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish.
 
A-2.  "Criminal conviction" means a disqualifying criminal conviction and a nondisqualifying criminal conviction.
 
A-3.  "Disqualifying criminal conviction" means a criminal conviction that prohibits employment as a certified nursing assistant or an unlicensed assistive person.
 
A-4.  "Health and direct care setting" means a setting in which a certified nursing assistant or unlicensed assistive person is providing direct care in the capacity of a certified nursing assistant or unlicensed assistive person.
 
A-5.  "Misappropriation of property" means the deliberate misplacement, exploitation or wrongful temporary or permanent use of a client's, patient's or resident's belongings or money without that client's, patient's or resident's consent.
 
A-6.  "Neglect" means the failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.
 
A-7.  "Nondisqualifying criminal conviction" means a criminal conviction that is included as a notation on the registry but does not prohibit employment as a certified nursing assistant or an unlicensed assistive person.
 
B. "Registry" means the Maine Registry of Certified Nursing Assistants and Direct Care Workers established in subsection 1, which is a list of certified nursing assistants, with notations if applicable, and a list of unlicensed assistive persons with notations.
 
B-1.  "State survey agency" means the agency specified under 42 United States Code, Sections 1395aa and 1396 responsible for determining whether institutions and agencies meet requirements for participation in the State's Medicare and Medicaid programs.
 
C. "Unlicensed assistive person" or "direct care worker" means an individual employed to provide hands-on assistance with activities of daily living or other services to individuals in private homes, assisted living programs, residential care facilities, hospitals and other health care and direct care settings. "Unlicensed assistive person" and "direct care worker" include but are not limited to a direct support professional, residential care specialist, 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 care workers as described in rules adopted by the department. "Unlicensed assistive person" and "direct care worker" do not include a certified nursing assistant employed in the capacity of a certified nursing assistant.
 
2. Registry listing.   The registry must contain a listing of certified nursing assistants and a listing of any unlicensed assistive persons who have notations pursuant to section 1812-J. The listing must include, for any certified nursing assistant listed, a notation of:
 
A.  Any criminal convictions, except for Class D and Class E convictions over 10 years old that did not involve as a victim of the act a patient, client or resident of a health care entity; and
 
B.  Any specific documented findings by the state survey agency of abuse, neglect or misappropriation of property of a resident, client or patient. For purposes of this section, "state survey agency" means the agency specified under 42 United States Code, Sections 1395aa and 1396 responsible for determining whether institutions and agencies meet requirements for participation in the State's Medicare and Medicaid programs.
 
The registry must also contain a listing of any unlicensed assistive persons who have notations pursuant to section 1812-J.
 
2-A.  Registry notations.     For a certified nursing assistant listed on the registry, the registry must include a notation of:
 
A.  Any criminal conviction of the certified nursing assistant discovered by the department; and
 
B.  Any substantiated complaint against the certified nursing assistant with specific documented findings by the state survey agency of abuse, neglect or misappropriation of property of a resident, client or patient. Only the state survey agency may investigate complaints against a certified nursing assistant of abuse, neglect or misappropriation of property of a resident, client or patient. The registry notation must include but is not limited to the following information:
 
(1) Documentation of the state survey agency investigation, including the nature of the allegation and the evidence that led the state survey agency to substantiate the allegation of abuse, neglect or misappropriation of property;
 
(2) The date of the hearing, if the certified nursing assistant chose to appeal the state survey agency finding that the complaint was substantiated; and
 
(3) The certified nursing assistant's statement to the state survey agency disputing the allegation, if the certified nursing assistant chose to submit a statement.
 
2-B.  Criminal background checks.     The department shall obtain criminal history record information on an active certified nursing assistant every 2 years.
 
2-C.  Time limit on consideration of prior criminal conviction.     The department shall examine criminal convictions within the last 30 years when making a decision concerning the impact a conviction has on a certified nursing assistant's employability.
 
2-D.  Conviction for specific named crime.     The department shall categorize criminal convictions as disqualifying convictions or nondisqualifying convictions. Specific named crimes must be based on crimes under Title 17-A, Part 2 or similar conduct for convictions in other jurisdictions. In determining nondisqualifying criminal convictions, the department shall consider whether moral character and conduct demonstrate that the individual will respect the person and property of the people in the individual's care.
 
A.  A disqualifying criminal conviction prohibits employment as a certified nursing assistant in health care and direct care settings as a certified nursing assistant for either a 10-year period or a 30-year period.
 
B.  A nondisqualifying criminal conviction does not prohibit employment as a certified nursing assistant.
 
2-E.  Length of employment ban; criminal conviction.     The department shall specify by rule which disqualifying criminal convictions prohibit employment for 30 years and which disqualifying criminal convictions prohibit employment for 10 years.
 
2-F.  Petition for removal of an employment ban; criminal conviction.     An individual may petition the department for removal of an employment ban that is based on a disqualifying criminal conviction prior to its expiration only if the criminal conviction recorded in the criminal history record information on which the ban is based is erroneous.
 
2-G.  Substantiated complaint; lifetime employment ban.     An individual may not be employed in a health care or direct care setting as a certified nursing assistant if that individual has a notation on the registry of a complaint involving abuse, neglect or misappropriation of property of a resident, client or patient that was investigated and substantiated by the state survey agency. Except as provided in subsection 2-H, an employment ban based on a substantiated complaint is a lifetime ban from employment as a certified nursing assistant. A certified nursing assistant with a notation of any substantiated complaint on the registry may not be employed as an unlicensed assistive person.
 
2-H.  Petition for removal of substantiated finding of neglect.     No sooner than 12 months after the date a substantiated finding of neglect is placed as a notation on the registry, an individual may petition the department for removal of the substantiated finding of neglect. The successful petitioner must meet the removal criteria established by the department by rule. Criteria must include but are not limited to an assessment of the risk of reoffending and the conduct of the petitioner.
 
3. Eligibility requirements for listing.   The State Board of Nursing shall adopt rules pursuant to the Maine Administrative Procedure Act defining eligibility requirements for listing on the registry, including rules regarding temporary listing of nursing assistants who have received training in another jurisdiction. The rules must permit nursing assistants to work under the supervision of a registered professional nurse in a facility providing assisted living services as defined in chapter 1664 and must recognize work in those facilities for the purpose of qualifying for and continuing listing on the registry. Rules adopted regarding the work of nursing assistants in facilities providing assisted living services are routine technical rules as defined by Title 5, chapter 375, subchapter 2-A.
 
4. Verification of credentials and training.   The department shall verify the credentials and training of all certified nursing assistant applicants to the registry.
 
4-A. Provider verification fee.   The department may establish a provider verification fee not to exceed $25 annually per provider for verification of a certified nursing assistant's credentials and training. Providers may not pass the cost on to the individual certified nursing assistant. 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.
 
5. Verifying certified nursing assistant listing.   A health care institution, facility or organization that employs a certified nursing assistant shall, before hiring a certified nursing assistant, verify with the registry that the certified nursing assistant is listed on the registry.
 
6.  Registry notations.     Except as otherwise provided in this section:
 
A.  An individual may not be employed in a hospital, nursing facility, home health agency or assisted housing program as a certified nursing assistant if that individual has been convicted in a court of law of a crime involving abuse, neglect or misappropriation of property in a health care setting; and
 
B.  An individual may not be employed in a hospital, nursing facility, home health agency or assisted housing program as a certified nursing assistant if that individual:
 
(1) Has been the subject of a complaint involving abuse or neglect that was substantiated by the department pursuant to its responsibility to license hospitals, nursing facilities, home health agencies and assisted housing programs and that was entered on the registry; or
 
(2) Has been the subject of a complaint involving the misappropriation of property in a health care setting that was substantiated by the department and entered on the registry.
 
7.  Time limit on consideration of prior criminal conviction.     Except as otherwise provided in this section, an individual may not be employed in a hospital, nursing facility, home health agency or assisted housing program as a certified nursing assistant if that individual has a prior criminal conviction within the last 10 years of:
 
A.  A crime for which incarceration of 3 years or more may be imposed under the laws of the state in which the conviction occurred; or
 
B.  A crime for which incarceration of less than 3 years may be imposed under the laws of the state in which the conviction occurred involving sexual misconduct or involving abuse, neglect or exploitation in a setting other than a health care setting.
 
8. Exception; conviction prior to June 2, 2003.   TheIf a criminal conviction occurred prior to June 2, 2003, restrictions on employment under subsections 6 and 7pursuant to this section do not apply to an individual listed and active on the registry as a certified nursing assistant prior to the effective date of this subsectionJune 2, 2003, as long as the individual meets other state and federal requirements for certified nursing assistants and continues to maintain an active status by timely reregistration as required by the rules.
 
8-A.  Exception; currently employed certified nursing assistants.     A certified nursing assistant who would otherwise be banned for conduct that is prohibited pursuant to this section is not banned for that conduct if the certified nursing assistant was employed as a certified nursing assistant on the effective date of this subsection and the conduct occurred prior to the effective date as long as the certified nursing assistant continues to work for the same employer at the same facility or program. When there is a change of employer or employment at the specific facility or program, the certified nursing assistant is subject to this section.
 
9. Notification.   APrior to the acceptance of any applicant, a nursing assistant training program must notify applicants to thatthe program of theemployment restrictions under subsections 6 and 7 prior to the acceptance of any applicantthat may be imposed pursuant to this section.
 
10.  Amending the list of named crimes; advisory board.     The department shall establish, chair and staff an advisory board consisting of no more than 10 individuals who represent various users of the registry. The advisory board must include representatives of the department, other state agencies, organizations representing direct care workers, victim advocacy organizations, the district attorney's office and employers. At least once every 2 years, the advisory board shall convene to:
 
A.  Recommend changes to the list of named crimes in the registry; and
 
B.  Provide the rational basis for each change under paragraph A to the department.
 
11.  Rules.     The department shall adopt rules necessary to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 7. 22 MRSA §1812-J, as amended by PL 2011, c. 257, §§3 to 8, is further amended to read:
§ 1812-J.Unlicensed assistive persons
 
1. Definitions.   As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
 
A. "Certified nursing assistant" means an individual who has successfully completed an approved nursing assistant training program, holds a certificate of training and meets the eligibility requirements established by the State Board of Nursing for listing on the registry.
 
A-1. "Abuse" means the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish.
 
A-2. "Disqualifying criminal conviction" means a criminal conviction identified in rules adopted by the department that prohibit employment as an unlicensed assistive person.
 
A-3. "Health care and direct care settings" means settings in which a certified nursing assistant or unlicensed assistive person is providing direct care in that assistant's or person's capacity as a certified nursing assistant or an unlicensed assistive person.
 
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 of abuse, neglect or misappropriation of property of a client, patient or resident.
 
A-5.  "Indicated finding" means an administrative determination made by the department, after investigation of a complaint against an unlicensed assistive person 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-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 indicatedadverse finding after investigation of a complaint against an unlicensed assistive person of abuse, neglect or misappropriation of property of a client, patient or resident.
 
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-8.  "Adverse finding" means an administrative determination made by the department, after investigation of a complaint, that the level of abuse, neglect or misappropriation of property was of low to moderate severity.
 
A-9.  "Finding" means an adverse finding, a substantiated finding and an unsubstantiated finding.
 
A-10.  "Misappropriation of property" means the deliberate misplacement, exploitation or wrongful temporary or permanent use of a client's, patient's or resident's belongings or money without that client's, patient's or resident's consent.
 
A-11.  "Neglect" means the failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.
 
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 unlicensed assistive persons with notations and is established under section 1812-G.
 
C. "State survey agency" means the agency specified in 42 United States Code, Sections 1395aa and 1396 responsible for determining whether institutions and agencies meet requirements for participation in the State's Medicare and Medicaid programs and authorized to investigate and substantiate complaints against certified nursing assistants.
 
C-1. "Substantiated finding" means an administrative determination made by the department, after investigation of a complaint against an unlicensed assistive person of abuse, neglect or misappropriation of property of a client, patient or resident, that the level of 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.
 
D. "Unlicensed assistive person" or "direct care worker" means an individual employed to provide hands-on assistance with activities of daily living or other services to individuals in private homes, assisted living programs, residential care facilities, hospitals and other health care and direct care settings. "Unlicensed assistive person" and "direct care worker" include but are not limited to a direct support professional, residential care specialist, 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 care workers as described in rules adopted by the department. "Unlicensed assistive person" and "direct care worker" do not include a certified nursing assistant employed in the capacity of a certified nursing assistant.
 
E. "Unsubstantiated finding" means an administrative determination made by the department, after investigation of a complaint against an unlicensed assistive person 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 residentevidence was found to support an indicated finding oreither a substantiated finding or an adverse finding of abuse, neglect or misappropriation of property of a client, patient or resident.
 
2. Complaint investigation.   The department may investigate complaints of abuse, neglect or misappropriation of property of a client, patient or resident in a private home or health care or direct care setting against unlicensed assistive persons employed or placed by a licensed, certified or registered agency or facility.
 
2-A. Department decision after investigation of complaint.   Based on criteria established by rule, the department, after investigation of a complaint of abuse, neglect or misappropriation of property of a client, patient or resident, shall:
 
A. Make a substantiated finding;
 
B. Make an indicatedadverse finding; or
 
C. Make an unsubstantiated finding.
 
3. Substantiated finding of complaint; registry listing.   A substantiated finding must be listed as a notation on the registry. When a complaint against an unlicensed assistive person is substantiated by the department and the unlicensed assistive person is listed on the registry pursuant to subsection 4, the department's decision becomes final agency action as defined inunder Title 5, section 8002, subsection 4 chapter 375. The department shall notify the employer of the unlicensed assistive person that a substantiated finding of a complaint has been listed as a notation on the registry.
 
3-A. Adverse finding of complaint; no registry listing.   An indicatedadverse finding by the department of a complaint against an unlicensed assistive person does not prohibit employment as an unlicensed assistive person and is not listed as a notation on the registry. The department's complaint investigation decision becomes final agency action as defined inunder Title 5, section 8002, subsection 4chapter 375.
 
3-B.  Determination of high severity.     The department shall establish by rule criteria for determining high severity. Criteria must include but are not limited to conduct that poses a threat of harm to future consumers.
 
3-C.  Determination of low to moderate severity.     The department shall establish by rule criteria for determining low to moderate severity. Criteria must include but are not limited to conduct that poses no threat of harm to future consumers.
 
3-D.  Unsubstantiated finding; no registry notation.     An unsubstantiated finding by the department of a complaint against an unlicensed assistive person does not prohibit employment and is not listed as a notation on the registry. The department's complaint investigation decision becomes final agency action under Title 5, chapter 375.
 
4. Registry listing.   The registry listing for an unlicensed assistive person with a notation must include but is 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 or misappropriation of property;
 
B. The date of the hearing, if the unlicensed assistive person chose to appeal the department finding that the complaint was substantiated; and
 
C. The unlicensed assistive person's statement to the department disputing the allegation, if the unlicensed assistive person chose to submit one.
 
5. Right to hearing.   The department shall notify the unlicensed assistive person of the right to request a hearing to contest the finding that the complaint under subsection 3 was substantiated.
 
6. Petition for removal of a substantiated finding of abuse, neglect or misappropriation of property.   No sooner than 12 months after the date an abuse, neglect or misappropriation of property substantiated finding is placed on the registry, an unlicensed assistive person may petition the department to remove a notation from the registry if the substantiated complaint of abuse, neglect or misappropriation of property is a one-time occurrence and there is no pattern of abuse, neglect or misappropriation of property. The successful petitioner must meet the removal criteria established by the department by rule. Criteria must include but are not limited to an assessment of the risk of reoffending and the conduct of the petitioner.
 
7. Prohibited employment based on substantiated complaint.   The following unlicensed assistive persons may not be employed or placed by a licensed, certified or registered agency or facility:
 
A. An unlicensed assistive person listed on the registry with a notation for a substantiated finding; or
 
B. An unlicensed assistive person who, while working as a certified nursing assistant, had a notation on the registry for a substantiated finding of a complaint by the state survey agency for abuse, neglect or misappropriation of property of a client, patient or resident.
 
AnSubject to subsection 6, an employment ban based on a substantiated finding of a complaint is a lifetime employment ban.
 
8. Rules.   The department may adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
 
9.  Employer background checks prior to hiring.     An employer subject to licensing, certification and registration laws under this Title shall obtain criminal history record information prior to hiring an individual who will work in direct contact with consumers and may not employ an individual with a disqualifying criminal conviction on the registry.
 
10.  Exception; currently employed unlicensed assistive persons.     An unlicensed assistive person who would otherwise be banned for conduct that is prohibited under this section is not banned for that conduct if the unlicensed assistive person was employed as an unlicensed assistive person on the effective date of this subsection and the conduct occurred prior to the effective date as long as the unlicensed assistive person continues to work for the same employer at the same facility or program. When there is a change of employer or employment at a specific facility or program, the unlicensed assistive person is subject to this section.
 
11.  Notification.     Prior to the acceptance of an application to a training program for an unlicensed assistive person, the training program shall notify the applicant to the program of the employment restrictions under this section.
Sec. 8. 22 MRSA §2131, sub-§4, ¶B, as enacted by PL 2009, c. 621, §3, is amended to read:
 
B. A person who operates a temporary nurse agency in violation of the employment prohibitions in section 21382138-A commits a civil violation for which a fine of not less than $500 per day but not more than $10,000 per day may be adjudged. Each day constitutes a separate violation.
Sec. 9. 22 MRSA §2138, as amended by PL 2011, c. 257, §16, is repealed.
Sec. 10.  22 MRSA §2138-A  is enacted to read:
§ 2138-A. Prohibited employment
 
1.  Prohibited employment.     A temporary nurse agency may not hire, employ or place an individual who:
 
A.  While working as a certified nursing assistant, was the subject of a complaint investigation by the state survey agency that resulted in a substantiated complaint that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
B.  While working as an unlicensed assistive person, was the subject of a complaint investigation by the department that resulted in a substantiated finding that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
C.  While working as a certified nursing assistant, received a disqualifying criminal conviction that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G; or
 
D.  Has a disqualifying criminal conviction as determined pursuant to section 1812-G, subsection 2-D.
 
2.  Employer criminal background checks prior to hiring.     Prior to hiring an individual who will work in direct contact with a consumer, a temporary nurse agency shall obtain criminal history record information on that individual, including, at a minimum, criminal history record information from the Department of Public Safety, State Bureau of Identification. The temporary nurse agency shall pay for the criminal background check required by this subsection.
 
A.  A temporary nurse agency may not employ an individual with a disqualifying criminal conviction on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G to work in direct contact with a consumer.
 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not banned for that conduct if the certified nursing assistant or unlicensed assistive person was employed as a certified nursing assistant or unlicensed assistive person on the effective date of this paragraph and the conduct occurred prior to the effective date as long as the certified nursing assistant or unlicensed assistive person continues to work for the same temporary nurse agency. When there is a change of employer, the certified nursing assistant or unlicensed assistive person is subject to this section.
 
3.  Rules.     The department shall adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 11. 22 MRSA §2149-A, sub-§2, as amended by PL 2011, c. 257, §17, is repealed.
Sec. 12.  22 MRSA §2149-A, sub-§§3 to 5  are enacted to read:
 
3.  Prohibited employment.     A home health care provider may not hire an individual who:
 
A.  While working as a certified nursing assistant, was the subject of a complaint investigation by the state survey agency that resulted in a substantiated complaint that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
B.  While working as an unlicensed assistive person, was the subject of a complaint investigation by the department that resulted in a substantiated finding that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
C.  While working as a certified nursing assistant, received a disqualifying criminal conviction that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G; or
 
D.  Has a disqualifying criminal conviction as determined pursuant to section 1812-G, subsection 2-D.
 
4.  Employer criminal background checks prior to hiring.     Prior to hiring an individual who will work in direct contact with a consumer, a home health care provider shall obtain criminal history record information on that individual, including, at a minimum, criminal history record information from the Department of Public Safety, State Bureau of Identification. The home health care provider shall pay for the criminal background check required by this subsection.
 
A.  A home health care provider may not employ an individual with a disqualifying criminal conviction on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G to work in direct contact with a consumer.
 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not banned for that conduct if the certified nursing assistant or unlicensed assistive person was employed as a certified nursing assistant or unlicensed assistive person on the effective date of this paragraph and the conduct occurred prior to the effective date as long as the certified nursing assistant or unlicensed assistive person continues to work for the same home health care provider. When there is a change of employer, the certified nursing assistant or unlicensed assistive person is subject to this subsection.
 
5.  Rules.     The department shall adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 13. 22 MRSA §7851, sub-§4, as enacted by PL 2003, c. 634, §6, is repealed.
Sec. 14.  22 MRSA §7851, sub-§§5 to 7  are enacted to read:
 
5.  Prohibited employment.     A licensed assisted housing program may not hire an individual who:
 
A.  While working as a certified nursing assistant, was the subject of a complaint investigation by the state survey agency that resulted in a substantiated complaint that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
B.  While working as an unlicensed assistive person, was the subject of a complaint investigation by the department that resulted in a substantiated finding that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
C.  While working as a certified nursing assistant, received a disqualifying criminal conviction that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G; or
 
D.  Has a disqualifying criminal conviction as determined pursuant to section 1812-G, subsection 2-D.
 
6.  Employer criminal background checks prior to hiring.     Prior to hiring an individual who will work in direct contact with a consumer, a licensed assisted housing program shall obtain criminal history record information on that individual, including, at a minimum, criminal history record information from the Department of Public Safety, State Bureau of Identification. The licensed assisted housing program shall pay for the criminal background check required by this subsection.
 
A.  A licensed assisted housing program may not employ an individual with a disqualifying criminal conviction on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G to work in direct contact with a consumer.
 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not banned for that conduct if the certified nursing assistant or unlicensed assistive person was employed as a certified nursing assistant or unlicensed assistive person on the effective date of this paragraph and the conduct occurred prior to the effective date as long as the certified nursing assistant or unlicensed assistive person continues to work for the same licensed assisted housing program at the same facility. When there is a change of employer, the certified nursing assistant or unlicensed assistive person is subject to this subsection.
 
7.  Rules.     The department shall adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 15. 22 MRSA §8606, as amended by PL 2011, c. 257, §18, is repealed.
Sec. 16.  22 MRSA §8607  is enacted to read:
§ 8607. Prohibited employment
 
1.  Prohibited employment.     An adult day care program may not hire an individual who:
 
A.  While working as a certified nursing assistant, was the subject of a complaint investigation by the state survey agency that resulted in a substantiated complaint that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
B.  While working as an unlicensed assistive person, was the subject of a complaint investigation by the department that resulted in a substantiated finding that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G;
 
C.  While working as a certified nursing assistant, received a disqualifying criminal conviction that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G; or
 
D.  Has a disqualifying criminal conviction as determined pursuant to section 1812-G, subsection 2-D.
 
2.  Employer criminal background checks prior to hiring.     Prior to hiring an individual who will work in direct contact with a consumer, an adult day care program shall obtain criminal history record information on that individual, including, at a minimum, criminal history record information from the Department of Public Safety, State Bureau of Identification. The adult day care program shall pay for the criminal background check required by this subsection.
 
A.  An adult day care program may not employ an individual with a disqualifying criminal conviction on the Maine Registry of Certified Nursing Assistants and Direct Care Workers under section 1812-G to work in direct contact with a consumer.
 
B.  A certified nursing assistant or unlicensed assistive person who would otherwise be banned for conduct that is prohibited pursuant to section 1812-G or 1812-J is not banned for that conduct if the certified nursing assistant or unlicensed assistive person was employed as a certified nursing assistant or unlicensed assistive person on the effective date of this paragraph and the conduct occurred prior to the effective date as long as the certified nursing assistant or unlicensed assistive person continues to work for the same adult day care program. When there is a change of employer, the certified nursing assistant or unlicensed assistive person is subject to this subsection.
 
3.  Rules.     The department shall adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 17. 22 MRSA §9005, sub-§1, as enacted by PL 2011, c. 444, §1, is amended to read:
 
1. Criminal history record information.   A veterans' adult day health care program shall obtain criminal history record information about applicantsan applicant for positionsa position as an unlicensed assistive personnelperson as defined in section 1717, subsection 1, paragraph D and may not hire an individual who:
 
A. Has worked as a certified nursing assistant and has been the subject of a notation by the state survey agency for a substantiated complaint of abuse, neglect or misappropriation of property in a health care setting that was entered on the Maine Registry of Certified Nursing Assistants;
 
B. Has been convicted in a court of law of a crime involving abuse, neglect or misappropriation of property in a health care setting; or
 
C. Has a prior criminal conviction within the last 10 years of:
 
(1) A crime for which incarceration of 3 years or more may be imposed under the laws of the state in which the conviction occurred; or
 
(2) A crime for which incarceration of less than 3 years may be imposed under the laws of the state in which the conviction occurred involving sexual misconduct or involving abuse, neglect or exploitation in a setting other than a health care setting.
 
SUMMARY
This bill implements the recommendations of the working group created under Resolve 2009, chapter 68, which reviewed employment bans based on criminal convictions, the rational basis for the employment ban and the length of the employment ban prohibiting an individual from working as a certified nursing assistant or unlicensed assistive person.
It prohibits the employment of a certified nursing assistant who, while working as a certified nursing assistant, was the subject of a complaint investigation by the division of licensing and regulatory services within the Department of Health and Human Services, which is the designated state survey agency pursuant to federal law, that resulted in a substantiated complaint that was placed as a notation on the Maine Registry of Certified Nursing Assistants and Direct Care Workers or received a disqualifying criminal conviction that was placed as a notation on the registry or has any disqualifying criminal conviction. It prohibits the employment of an unlicensed assistive person who, while working as an unlicensed assistive person, was the subject of a complaint investigation by the Department of Health and Human Services that resulted in a substantiated finding that was placed as a notation on the registry. It requires the department to categorize criminal convictions as either disqualifying or nondisqualifying convictions and to set 10-year bans and 30-year bans on employment for disqualifying convictions. It sets a lifetime ban on employment for substantiated complaints involving abuse, neglect or misappropriation of property. It provides for petitions for the removal of employment bans. It grandfathers in certain currently employed certified nursing assistants and unlicensed assistive persons, but provides that if they change their employers or employment at a specific facility or program, they become subject to the law. It provides for the department to establish an advisory board to recommend changes to the list of named crimes in the registry. It requires the department to obtain criminal history record information for certified nursing assistants every 2 years and employers to obtain criminal history record information prior to hiring an individual.