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An Act Regarding the Maine Registry 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, ¶¶A-1 to A-3  are enacted to read:
 
A-1.  "Direct access" means access to the property, personally identifiable information, financial information or resources of an individual or physical access to an individual who is a Medicare or Medicaid beneficiary or other individual served by a provider subject to this chapter.
 
A-2.  "Direct access personnel" means individuals employed in positions that have direct access.
 
A-3.  "Direct care worker" means a worker who by virtue of employment has direct access to provide direct contact assistance with activities of daily living for individuals in homes, assisted living centers, residential care facilities, hospitals and other health care settings. "Direct care worker" does not include a certified nursing assistant employed in that person's capacity as a certified nursing assistant.
Sec. 2. 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 unlicensed assistivedirect access personnel or individuals who work in direct contact with clients, patients or residents 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 unlicensed assistivedirect access personnel or individuals who work in direct contact with clients, patients or residents to provide care for that individual is not a personal care agency, except when permitted by rule of the department.
Sec. 3. 22 MRSA §1717, sub-§1, ¶D, as amended by PL 2007, c. 324, §2, is repealed.
Sec. 4. 22 MRSA §1717, sub-§2, as amended by PL 2007, c. 324, §2, is further amended to read:
 
2. Registration of personal care agencies and placement agencies.   Beginning August 1, 1998, a personal care agency not otherwise licensed by the department shall register with the department. Beginning January 1, 2008, a placement agency not otherwise licensed by the department shall register with the department. The department shall adopt rules establishing the annual registration fee, which must be at leastbetween $25 and $250. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 5. 22 MRSA §1717, sub-§3, as amended by PL 2011, c. 257, §1, is further amended to read:
 
3. Prohibited employment based on disqualifying offenses.   A personal care agency or a placement agency shall obtain criminal history record information about applicants for positions as unlicensed assistive personnel or home care services workers and may not hire or place an individual who:conduct a comprehensive background check for direct access personnel 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 other applicable federal and state laws when hiring, employing or placing direct access personnel, including, but not limited to, a certified nursing assistant or a direct care worker.
 
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 and Direct Care Workers;
 
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.
Sec. 6.  22 MRSA §1717, sub-§3-A  is enacted to read:
 
3-A.  Verification of listing on the registry.     Prior to hiring a certified nursing assistant or a direct care worker, a personal care agency or a placement agency shall check the Maine Registry of Certified Nursing Assistants and Direct Care Workers established pursuant to section 1812-G and verify that a certified nursing assistant or direct care worker listed on the registry has no disqualifying notations.
 
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. 7. 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 3 or 3-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. 8. 22 MRSA §1724, first ¶, as reallocated by RR 2009, c. 2, §49, is further amended to read:
Beginning October 1, 2010, a facility or health care provider subject to the licensing or certification processes of chapter 405, 412 or 419 shall obtain, prior to hiring an individual who will work in direct contact with a consumer, 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. A facility or provider subject to licensing under chapter 419 shall conduct a comprehensive background check for individuals employed in positions that have direct access to a consumer's property, personally identifiable information, financial information or resources in accordance with applicable federal and state laws. The comprehensive background check must be conducted in accordance with state law and rules adopted by the department. The facility or health care provider shall pay for the comprehensive or criminal background check required by this section as applicable.
Sec. 9. 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 and make it accessible through a public website portal.
 
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.
 
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.
 
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 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.
 
1-B.  Definitions.     As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
 
A.  "Abuse" means the infliction of injury, unreasonable confinement, intimidation or cruel punishment that causes or is likely to cause physical harm or pain or mental anguish; sexual abuse or sexual exploitation; or the intentional, knowing or reckless deprivation of essential needs. "Abuse" includes acts and omissions.
 
B.  "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.
 
C.  "Direct access" means access to the property, personally identifiable information, financial information or resources of an individual or physical access to an individual who is a Medicare or Medicaid beneficiary or other individual served by a provider subject to this chapter.
 
D.  "Direct care worker" means an individual employed in a home, community or other health care or direct access setting who provides direct contact assistance with personal care, activities of daily living or other services to individuals. "Direct care worker" does not include certified nursing assistants employed in their capacity as certified nursing assistants.
 
E.  "Disqualifying offense" means a substantiation for abuse, neglect or exploitation, 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.
 
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.
 
G.  "Health care or direct access setting" means a setting in which individuals receive services that require direct access by a certified nursing assistant or a direct care worker or other employee in providing care and related services.
 
H.  "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 person's consent.
 
I.  "Neglect" means a threat to a person's health or welfare by failure to provide goods or services necessary to avoid physical or mental injury or impairment or the threat of injury or impairment.
 
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.
 
K.  "Registered direct care worker" means an individual listed on the registry for training, education or compliance purposes in accordance with rules adopted pursuant to this chapter. "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.
 
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.
 
M.  "Substantiated finding" means an administrative determination made by the department after investigation of a complaint against a certified nursing assistant or a direct care worker of abuse, neglect or misappropriation of property of a client, patient or resident.
 
N.  "Unsubstantiated finding" means an administrative determination made by the department after investigation of a complaint against a certified nursing assistant or a direct care worker that no evidence of abuse, neglect or misappropriation of property of a client, patient or resident was found to support a substantiated finding.
 
2.  Contents.     The registry must contain a listing of certified nursing assistants. 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 listing.     All active certified nursing assistants employed in the State 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 or 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.
 
2-B.  Individual information.     The registry must include information for each listed certified nursing assistant and direct care worker as required by rules adopted by the department pursuant to subsection 18.
 
2-C.  Registry notations.     The registry must include for a certified nursing assistant 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;
 
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 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.
 
3. Eligibility requirements for listing; certified nursing assistant.   The State Board of Nursing shall adopt rules pursuant to the Maine Administrative Procedure Act defining eligibility requirements for listing on the registry as a certified nursing assistant, including rules regarding temporary listing of nursing assistants who have received training in another jurisdiction. The rules must permit certified nursing assistants to work under the supervision of a registered professional nurse in a facility providing assisted livinghousing 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 certified nursing assistants in facilities providing assisted livinghousing services are routine technical rules as defined by Title 5, chapter 375, subchapter 2-A.
 
3-A.  Listing on the registry; direct care worker.     A direct care worker listed for purposes other than a disqualifying notation may be listed on the registry as a registered direct care worker for 2-year renewable periods. The department shall adopt routine 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.  Direct care workers without disqualifying offenses who are registered for training, education or compliance purposes must comply with requirements for continued listing on the registry.
 
The rules may include provisions for direct care workers registered for training, education or compliance purposes including provisions for the temporary listing of direct care workers who received training in another jurisdiction.
 
A certified nursing assistant in good standing on the registry may qualify for registration as a direct care worker.
 
4. Department verification of credentials and training.   The department shallmay verify the credentials and training of all certified nursing assistant applicants to theassistants and registered direct care workers listed on 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 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.
 
5. Employment eligibility verification; certified nursing assistant.  AAn employer, including a health care institution, facility or other organization that employs an individual as a certified nursing assistant, shall, before hiring a certified nursing assistant, verify with the registry that the certified nursing assistant is listed as active and has no disqualifying notations on the registry.
 
5-A.  Employment eligibility verification; direct care worker.     An employer, including a health care institution, facility or other organization that employs an individual as a direct care worker, shall verify that the direct care worker, if listed on the registry, has no disqualifying notations and has complied with the training or education requirements for registration, if applicable.
 
6. Prohibited employment based on disqualifying offenses.   Except as otherwise provided in this section: An individual with a disqualifying offense including a substantiated complaint or a disqualifying criminal conviction may not work as a certified nursing assistant or a direct care worker and an employer is subject to penalties for employing a disqualified or otherwise ineligible person in accordance with applicable federal or state laws.
 
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.
 
6-A.  Background check.     Certified nursing assistants and direct care workers are subject to a background check as defined by rules adopted by the department and according to the following:
 
A.  A training program for certified nursing assistants or direct care workers must secure and 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 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, 9005 and Title 34-B, section 1225, licensed, certified or registered providers must 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 must secure and pay for a background check in accordance with state law or rules adopted by the department.
 
6-B.  Convictions within previous 10 years; impact on employment eligibility.     The department shall determine the effect of a criminal conviction within the previous 10 years on the employability of an individual as a certified nursing assistant or direct care worker based on rules adopted by the department pursuant to subsection 18.
 
6-C.  Table of crimes.     Department rules must include a table of crimes. Specific crimes listed on the table must be considered substantive offenses under Title 17-A, Part 2 or crimes identified in federal or state law that prohibit employment of an individual subject to this chapter. Convictions of specific crimes must be categorized in the table of crimes as disqualifying criminal convictions or nondisqualifying criminal convictions. Convictions in other jurisdictions for similar crimes must be identified as disqualifying or nondisqualifying convictions.
 
A.  A disqualifying criminal conviction within the previous 10 years prohibits employment as a certified nursing assistant or a direct care worker.
 
(1) An individual with a disqualifying criminal conviction is subject to an employment ban of 10 or 30 years. The department shall adopt rules that specify disqualifying criminal convictions that prohibit employment for 10 years and disqualifying criminal convictions that prohibit employment for 30 years.
 
B.  Nondisqualifying criminal convictions do not prohibit employment as a certified nursing assistant or a direct care worker.
 
6-D.  Petition for removal of an employment ban; criminal conviction.     Prior to the expiration of an employment ban under subsection 6-C, paragraph A, subparagraph (1), an individual may petition the department for removal of an employment ban that is based on a disqualifying criminal conviction. Unless otherwise prohibited, removal of the employment ban allows the individual to work as a certified nursing assistant or a direct care worker.
 
A.  No sooner than 5 years after an individual is discharged from the legal restraints imposed by the criminal conviction, an individual may petition the department for removal of a 10-year employment ban.
 
B.  No sooner than 15 years after an individual is discharged from the legal restraints imposed by the criminal conviction, an individual may petition the department for removal of a 30-year employment ban.
 
C.  A successful petitioner must meet the criteria established by department rules for removal of an employment ban. Criteria must include but not be limited to an assessment of the risk of reoffending and the conduct of the petitioner since the conviction.
 
A petition for removal of an employment ban submitted by a certified nursing assistant or a registered direct care worker must be denied if the conduct that led to the conviction would have resulted in a lifetime ban if that conduct had been investigated as a complaint that resulted in a substantiated finding under subsection 13.
 
D.  When the department grants a petition for removal of an employment ban, the individual, unless otherwise prohibited, may work as a certified nursing assistant or a direct care worker. The notation of the criminal conviction remains 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; certified nursing assistant convictions prior to June 2, 2003.   The restrictions on employment under subsections 6 and 7based on criminal convictions prior to June 2, 2003 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 reregistrationrenewal as required by the rules.
 
9.  Notification.     A nursing assistant training program must notify applicants to that program of the restrictions under subsections 6 and 7 prior to the acceptance of any applicant.
 
10.  Complaint investigation.     The department may investigate complaints and allegations against certified nursing assistants or registered direct care workers of abuse, neglect, exploitation or misappropriation of property of a client, patient or resident.
 
11.  Issue a decision.     After an investigation under subsection 10, the department shall issue a written decision that the allegation of abuse, neglect, exploitation or 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.
 
12.  Right to hearing; appeal.     In accordance with department rules, a certified nursing assistant or registered direct care worker may request an administrative hearing to appeal a substantiated finding under subsection 11.
 
13.  Substantiated finding; lifetime employment ban.     A certified nursing assistant or a registered direct care worker with a notation of a substantiated finding on the registry is banned for life from employment as either a certified nursing assistant or a direct care worker.
 
14.  Registration requirements; direct care workers.     An individual registered by the department as a direct care worker for training, education or compliance purposes must comply with requirements established by department rules, including but not limited to the following:
 
A.  Submission of a completed department-approved application form with required documents;
 
B.  Successful completion of training requirements; and
 
C.  Submission to a background check, if required.
 
15.  Department review of application; decision.     After review of an application for an initial or renewed registration for a direct care worker for training, education or compliance purposes, the department shall render a written decision to either deny or approve the application. The decision must be based on factors established by department rules and the factors must be included in the written decision.
 
A.  A department-issued registration for a direct care worker for training, education or compliance purposes is for a term of 2 years. The issued date and the expiration date must be on the registration.
 
16.  Renewal of registration.     Prior to expiration of a direct care worker's registration for training, education or compliance purposes, the direct care worker shall secure a department-issued renewed registration.
 
17.  Failure to renew registration prior to expiration.     Upon expiration of the 2-year registration under subsection 15, a direct care worker registered for training, education or compliance purposes pursuant to subsection 14 who fails to secure a department-issued renewed registration will receive a notation on the registry that may disqualify the direct care worker for employment in the capacity for which the training, education or compliance purposes were required. A direct care worker who elects not to renew a registration remains eligible for employment as a direct care worker in a capacity that does not require registration-level training or education pursuant to subsection 14, paragraph B.
 
18.  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. 10. 22 MRSA §1812-J, as amended by PL 2011, c. 257, §§3 to 8, is repealed.
Sec. 11. 22 MRSA §2137, first ¶, as enacted by PL 2009, c. 621, §5, is amended to read:
Beginning October 1, 2010, a temporary nurse agency shall obtain, prior to hiring, employing or placing an individual who will work in direct contact with a consumer, criminal history record information on that individual, including,or who has direct access to a consumer's property, personally identifiable information, financial information or resources, shall obtain a comprehensive background check in accordance with applicable federal and state laws.The comprehensive background check must include, 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 section.
Sec. 12. 22 MRSA §2138, as amended by PL 2011, c. 257, §16, is repealed and the following enacted in its place:
§ 2138. Prohibited employment based on disqualifying offenses
A temporary nurse agency shall conduct a comprehensive background check for direct access personnel, as defined in section 1717, subsection 1, paragraph A-2, 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 other applicable federal and state laws when hiring, employing or placing direct access personnel including a certified nursing assistant or a direct care worker.
The department may adopt rules necessary to implement this section. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 13. 22 MRSA §2149-A, sub-§2, as amended by PL 2011, c. 257, §17, is further amended to read:
 
2. Prohibited employment based on disqualifying offenses.   A home health care provider shall obtain criminal history record information about applicants for positions as unlicensed assistive personnel as defined in section 1717, subsection 1, paragraph D and may not hire an individual who:conduct a comprehensive background check for direct access personnel, as defined in section 1717, subsection 1, paragraph A-2, 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 other applicable federal and state laws when hiring, employing or placing direct access personnel including a certified nursing assistant or a direct care worker.
 
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 and Direct Care Workers;
 
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.
 
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. 14. 22 MRSA §7706, first ¶, as reallocated by RR 2009, c. 2, §61, is amended to read:
Beginning October 1, 2010, a facility or health care provider subject to the licensing or certification processes of chapter 1663, a nursery school subject to chapter 1675 or a hospice provider subject to chapter 1681 shall obtain, prior to hiring an individual who will work in direct contact with a consumer, criminal history record information on that individual, including,or who has direct access to a consumer's property, personally identifiable information, financial information or resources, shall obtain a comprehensive background check in accordance with applicable federal and state laws.The comprehensive background check must include, at a minimum, criminal history record information from the Department of Public Safety, State Bureau of Identification. The entity seeking to employ the individual shall pay for the criminal background check required by this section.
Sec. 15. 22 MRSA §7851, sub-§4, as enacted by PL 2003, c. 634, §6, is amended to read:
 
4. Prohibited employment based on disqualifying offenses.   A licensed assisted housing program may not hire as unlicensed assistive personnel as defined in section 1717, subsection 1, paragraph D an individual who is prohibited from employment as a certified nursing assistant pursuant to section 1812-G, subsection 6 or 7must conduct a comprehensive background check for direct access personnel, as defined in section 1717, subsection 1, paragraph A-2, 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 other applicable federal and state laws when hiring, employing or placing direct access personnel including a certified nursing assistant or a direct care worker.
 
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. 16. 22 MRSA §8606, as amended by PL 2011, c. 257, §18, is further amended to read:
§ 8606.Prohibited employment based on disqualifying offenses
 
1. Prohibited employment based on disqualifying offenses.   An adult day care program shall obtain criminal history record information about applicants for positions as unlicensed assistive personnel as defined in section 1717, subsection 1, paragraph D and may not hire an individual who:conduct a comprehensive background check for direct access personnel, as defined in section 1717, subsection 1, paragraph A-2, 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 other applicable federal and state laws when hiring, employing or placing direct access personnel, including, but not limited to, a certified nursing assistant or a direct care worker.
 
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 and Direct Care Workers;
 
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.
 
The department may 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. 17. 22 MRSA §9005, as enacted by PL 2011, c. 444, §1, is amended to read:
§ 9005.Prohibited employment based on disqualifying offenses
 
1. Prohibited employment based on disqualifying offenses.   A veterans' adult day health care program shall obtain criminal history record information about applicants for positions as unlicensed assistive personnel as defined in section 1717, subsection 1, paragraph D and may not hire an individual who:conduct a comprehensive background check for direct access personnel, as defined in section 1717, subsection 1, paragraph A-2, 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 other applicable federal and state laws when hiring, employing or placing direct access personnel, including, but not limited to, a certified nursing assistant or a direct care worker.
 
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.
 
The department may 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. 18. 34-B MRSA §1225, first ¶, as reallocated by RR 2009, c. 2, §94, is amended to read:
Beginning October 1, 2010, a facility or health care provider subject to the licensing provisions of section 1203-A shall obtain, prior to hiring an individual who will work in direct contact with a consumer, criminal history record information on that individual, including,or who has direct access to a consumer's property, personally identifiable information, financial information or resources, shall obtain a comprehensive background check in accordance with applicable federal and state laws.The comprehensive background check must include, at a minimum, criminal history record information from the Department of Public Safety, State Bureau of Identification. A facility or provider licensed under section 1203-A is subject to the employment restrictions set out in Title 22, section 1812-G and other applicable federal and state laws when employing direct access personnel, as defined in section 1717, subsection 1, paragraph A-2. The facility or health care provider shall pay for the criminal background check required by this section.
Sec. 19. Department implementation. The Department of Health and Human Services shall begin registering direct care workers for training, education or compliance purposes and listing them on the registry established pursuant to the Maine Revised Statutes, Title 22, section 1812-G after the department adopts rules pursuant to Title 22, section 1812-G.
 
SUMMARY
This bill amends the Maine Registry of Certified Nursing Assistants and Direct Care Workers in the following ways.
1. It clarifies the circumstances under which a person employed as a direct care worker is listed on the registry.
2. It amends the requirements for listing certified nursing assistants and direct care workers.
3. It requires employers to verify that an individual listed on the registry is eligible for employment as a certified nursing assistant or direct care worker.
4. It consolidates information and aligns language used across programs based on federal and state laws related to background checks, disqualifying offenses, prohibited employment, criminal convictions and substantiated findings related to complaints of abuse, neglect or misappropriation of property.
5. It describes the process of identifying the disqualifying offenses that adversely affect an individual's eligibility for employment as a certified nursing assistant or direct care worker.
6. It establishes the department's authority to adopt eligibility for listing on the registry and other requirements by rule.
7. It establishes statutory background check requirements and employment restrictions based on disqualifying offenses, including criminal convictions.
8. It replaces current ambiguous statutory language that bases employment bans on the length of the sentence that may be imposed with a requirement that the department adopt by rule a table of named crimes that form the rational basis for employment bans based on convictions.
9. It requires the department to adopt rules that list nondisqualifying criminal convictions that do not ban employment leaving hiring decisions to employer discretion.
10. It provides that disqualifying criminal convictions result in 10-year or 30-year employment bans and that the length of an employment ban may be shortened by filing a petition with the department to lift an employment ban prior to its expiration.
11. It consolidates complaint investigation requirements.