An Act To Amend the Structure of the Office of Advocacy
Maine Legislature, Session 121, LD 1621
Committee: Health and Human Services
Sponsors: BRENNAN, KANE, WESTON, CAMPBELL, CURLEY, EARLE, LA VERRIERE-BOUCHER, LEWIN, SHIELDS, WALCOTT
Amends: 34-B MRSA §1207, 34-B MRSA §5605, 34-B MRSA §5606, 34-B MRSA §560

Legislative Document 
No. 1621 
S.P.572 
In Senate, May 21, 2003 
An Act To Amend the Structure of the Office of Advocacy 
Reference to the Committee on Health and Human Services suggested and ordered printed. 
JOY 1. O'BRIEN 
Secretary of the Senate 
Presented by Senator BRENNAN of Cumberland. (GOVERNOR'S BILL) 
Cosponsored by Representative KANE of Saco and 
Senator: WESTON of Waldo, Representatives: CAMPBELL of Newfield, CURLEY of 
Scarborough, EARLE of Damariscotta, LA VERRIERE-BOUCHER of Biddeford, LEWIN of 
Eliot, SHIELDS of Auburn, WALCOTT of Lewiston. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 34·B MRSA §1204, sub·§2, 'Ire, as amended by PL 2001, c. 
493, §3, is further amended to read: 
C. 
The commissioner shall appoint the following officials 
to serve at the commissioner's pleasure: 
(1) 
Associate Commissioners; 
(2) 
Superintendent, Augusta Mental Healtr Institute; 
(3) 
Superintendent, Bangor Mental Health Institute; 
(6) 
Director, Elizabeth Levinson Cente.r; 
(8) 
Assistant to the Commissioner; 
(10) 
Regional 
Directors, 
who 
shall 
report 
to 
the 
. Associate Commissioner of Systems Operations; 
(11) 
Director, Office of Substance Abuse, 
who shall 
report directly to the commissioner; aBa 
(12) 
Deputy CommissionerT~ 
(13) 
Director of the Office of Advocacy and Adult 
Protective Services. 
Sec. 2. 34·B MRS A §1205, as amended by PL 1995, c. 560, Pt. 
K, §18, is further amended to read: 
§1205. 
Office of Advocacy and Adu1t Protective Services 
1. 
Estab1ishment. 
The 
Office 
of 
Advocacy 
and 
Adult 
Protective Services is established within the GfHee--&f--A4¥&eaey 
aBa-~~~-~~~~~~~-~ae department selely to investigate the 
claims 
and 
grievances 
of 
clients 
of 
the 
department, 
to 
investigate 
with 
the 
Department 
of 
Human 
Services, 
as 
appropriate, all allegations of adult and child abuse in state 
institutions and to advocate on behalf of clients for compliance 
by 
any 
institution, 
other 
facility 
or 
agency 
administered, 
licensed 
or 
funded 
by 
the 
department 
with 
all 
laws, 
administrative 
rules 
and 
institutional 
and 
other 
policies 
relating to the rights and dignity of clients. 
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2-A. 
Office administration. 
The Office of Advocacy and 
Adult Protective Services and its staff are directly managed and 
supervised by a director. 
The director selects advocates and 
adult protective investigators to carry out the purposes of this 
section. 
A. 
The director is appointed by the commissioner and is a 
confidential, unclassified state employee. 
The director is 
responsible for and has full authority for providing general 
supervision to all employees of the office: establishing 
performance 
standards 
for all 
employees 
of 
the office: 
creating and maintaining policies, procedures, protocols and 
case tracking and closure systems: 
and providing regular 
reports 
about 
the 
activities 
of 
the 
office 
to 
the 
commissioner, the Consumer Advisory Board, the Legislature 
and the public. 
The director may assign such supervisory 
duties to an advocate or an adult protective investigator as 
the 
director 
determines 
necessary 
for 
the 
effective 
functioning of the office. 
B. 
Five advocacy positions are primarily responsible for 
adult protective investigations. 
The 
remaining positions 
are devoted to advocacy services. 
All advocates and adult 
protective investigators 
are classified state employees. 
The commissioner has the ability to move positions from one 
responsibility 
to 
the 
other 
in 
order 
to 
create 
the 
appropriate balance between adult protective and advocacy 
services. 
3. 
Duties. 
The Office of Advocacy and Adult Protective 
Services, 
through the 
eaieI-~¥G-Ga-t,e.--and--~k~-etaeF director, 
advocates and adult protective investigators, shall: 
A. 
Receive or refer complaints made by clients of the 
department and represent the interests of clients in any 
matter pertaining to the rights and dignity of clients; 
B. 
Intercede on behalf of these clients with officials of 
the 
institutions, 
facilities 
and 
agencies 
administered, 
licensed or funded by the department, except that the Office 
of Advocacy and Adult Protective Services may refuse to take 
action on any complaint wh~eh ~ 
it eeems considers to be 
trivial or moot or for which there is clearly another remedy 
available; 
C. 
Assist clients in any hearing or grievance proceeding of 
the department; 
D. 
Refer clients to other agencies or entities for the 
purpose of advocating for the rights and dignity of these 
persons; 
E. 
Act as an information source regarding the rights of all 
clients, 
keeping 
itself 
informed 
about 
all 
laws, 
administrative rules and institutional and other policies 
relating to the rights and dignity of the clients and about 
relevant legal decisions and other developments related to 
the field of mental health and mental retardation, both in 
this State and in other parts of the country;. 
F. 
Make and publish reports necessary to the performance of 
the duties described in this section. 
The eh:ie.f--aG't'e-ea1::e 
director may report findings of the office to groups outside 
the 
department, 
such 
as 
legislative 
bodies, 
advisory 
committees, 
commissions, 
law enforcement agencies and the 
press, 
and may authorize the advocates in the Office of 
Advocacy and Adult Protective Services to so communicate. 
At least annually, the eh~ef-aevgea~e director shall report 
both 
in 
person 
and 
in writing 
to 
the 
joint 
standing 
committee of the Legislature having jurisdiction over mental 
health and mental retardation matters; aRe 
G. 
Negotiate joint working agreements with the Department 
of 
Human 
Services 
concerning 
procedures 
and 
respective 
responsibilities 
for 
conducting 
investigations 
in 
state 
institutions of allegations of abuse pursuant to the Child 
and Family Services and Child Protection Act, 
Title 22, 
chapter 107l T : 
and 
H. 
Provide adult protective services as described in Title 
22, section 3473. 
4. 
Access to files and records. 
The Office of AdvocacYT 
~h""eQ~h--t.-he--di-i-e-f--ad-¥GGa-1::e---af'lEl--1::he--&t-he-l'--aeveea1::esT and Adult 
Protective Services has access, limited only by the law, to the 
files, 
records and personnel of any institution, facility or 
agency administered, licensed or funded by the department. 
All 
persons with knowledge about an incident related to client care, 
including 
client-to-client 
assault, 
staff-to-client 
assault, 
client-to-staff assault, excessive use of seclusion or mechanical 
or 
chemical 
restraint, 
incidents 
stemming 
from 
questionable 
psychiatric and medical practice or any other alleged abuse or 
neglect, shall immediately report the details of that incident to 
the Office of Advocacy and Adult Protectiye Seryices. 
A copy of 
any incident report sha;t;t 
I!lll§..t be provided to the Office of 
Advocacy and Adult Protectiye Seryices by the person making the 
report. 
A. 
Subpoenas: obtaining criminal histonr record. 
The 
director may: 
A. 
Issue a 
subpoena reguiring a 
person to disclose or 
proyide to 
the Office of Adyocacy and Adult Protectiye 
Services information or records in that person's possession 
that are necessary and releyant to an investigation of a 
report of suspected rights violations of a serious nature. 
(1) 
The Office of the Attorney General may apply to 
the District Court to enforce a subpoena. 
( 2) 
A person who complies with a subpoena is immune 
from ciyil or criminal liability that might otherwise 
result 
from 
the act of 
turning oyer 
or proyiding 
information or records to the Office of Adyocacy and 
Adult Protective Services: and 
B. 
Obtain nonconviction data and other criminal history 
record information under Title 16, chapter 3, subchapter 8 
that the director determines releyant to an inyestigation of 
a report of suspected rights violations of a serious nature. 
The 
confidentiality 
of 
information 
or 
records 
obtained 
by 
subpoena must be treated in accordance with this section. 
5. 
Confidentiality. 
Requests 
for 
action sha;t;t ~ 
be 
treated confidentially as follows. 
A. 
Any client request for action by the office and all 
written records or accounts related to the request shall 
must be confidential as to the identity of the client. 
B. 
The 
records 
and 
accounts 
may 
be 
released only 
as 
provided by law. 
6. 
Definition. 
For the purposes of this section, "client" 
means a person included in the d~finition of client under section 
1001, subsection 2, and a person seeking or requesting services 
as a client. 
7. 
Protection 
for 
advocates. 
Advocates 
may 
not 
be 
disciplined or sanctioned for any actions taken on behalf of 
clients. 
This protection does not apply to issues or problems 
with meeting performance or management standards established by 
the director. 
8. 
Budqet. 
When 
submitting any budget request to the 
Legislature, the department and the Governor shall provide that 
any 
funds 
for 
the Office 
of 
Advocacy 
and 
Adult 
Protective 
Services be listed in a separate account. 
Sec. 3. 34-B MRSA §1207, sub-§5, 1JD, as amended by PL 1995, c. 
560, Pt. K, §19, is further amended to read: 
D. 
By September 1, 1994, the department shall adopt rules 
to implement this subsection. 
The rules must include, but 
are not limited to, an appeal process for persons who are 
denied access to information under paragraph B. 
The appeal 
process 
must 
determine 
whether 
the 
person 
requesting 
information is a person who lives with or provides direct 
care to a client, whether disclosure of the information is 
in the best interest of the client and whether denial of 
access 
to 
the 
information 
will 
result 
in 
significant 
deterioration 
in 
the 
client's 
daily 
functioning. 
The 
commissioner shall appoint an advisory committee pursuant to 
Title 5, section 12002, subsection 1, paragraph A to assist 
the department in the development of the rules. 
The members 
of the advisory committee are not entitled to reimbursement 
for 
expenses 
or 
legislative 
per 
diem. 
The 
advisory 
committee must include, but is not limited to, proportionate 
representation from each of the following: 
(1) 
Consumers nominated by the Director of the Office 
of 
Advocacy 
and 
beRSaffieF--A~~aiFs Adult 
Protective 
Services: 
(2) 
Members of the statewide alliance for the mentally 
ill; 
(3) 
Mental health service providers; and 
(4) 
The 
protection 
and 
advocacy 
agency 
designated 
pursuant to Title 5, section 19502. 
Sec. 4. 34-B MRSA §5605, sub-§13, 1JB, as amended by PL 2001, 
c. 245, §1, is further amended to read: 
B. 
Treatment programs 
involving the use of noxious 
or 
painful stimuli or other aversive or severely intrusive 
techniques may be used only to correct behavior more harmful 
to the person with mental retardation or autism than is the 
treatment program and only: 
(1) 
On the recommendation of a physician, psychiatrist 
or psychologist; and 
(2) 
wi th 
the 
approval, 
following 
a 
case-by-case 
review, 
of the chief administrative officer of the 
residential facility; a representative of the person's 
residence, 
day program or work site; an advocate or 
adult protective investigator of the aepaFt:FReat: Office 
of 
Advocacy 
and 
Adult 
Protective 
Services; 
a 
representative of the Division of Mental Retardation; 
and a representative of the Consumer Advisory Board. 
Sec. 5. 34-B MRSA §5605, sub-§14, 1\D-l, as enacted by PL 2001, 
c. 245, §3, is amended to read: 
0-1. 
A device whose effect is to 
reduce or inhibit a 
person's 
movement 
in 
any 
way 
but 
whose 
purpose 
is 
to 
maintain 
or 
ensure 
the 
safety 
of 
the 
person 
is 
not 
considered 
behavioral treatment. 
Such a device may be used 
only in conformity with applicable state and federal rules 
and 
regulations, 
when 
recommended 
by 
a 
qualified 
professional after approval of the person's service plan and 
when 
use 
of 
the 
device 
is 
approved 
by 
the 
chief 
administrative officer of the residential care facility; a 
representative of the person's residence, 
day program or 
work site; an advocate of the aepaFt:FReat: Office of Advocacy 
and 
Adult 
Protective Services; 
a 
representative 
of 
the 
Division of Mental Retardation; and a representative of the 
Consumer Advisory Board. 
Sec. 6. 34-B MRSA §5606, sub-§l, as amended by PL 1993, c. 
326, §10, is further amended to read: 
1. 
Report and investigation. 
Any alleged violation of the 
rights 
of 
a 
person 
receiving 
services 
must 
be 
reported 
immediately to the Office of Advocacy 
9~--t-he--aepaFt:FReat:--and--t:9 
t:Re-At:t:9Faey-GeaeFal~s-9~~iee and Adult Protective Services. 
A. 
The Office of Advocacy and Adult Protective Services 
shall conduct an investigation of each alleged violation 
pursuant to section 1205. 
B. 
The Office of Advocacy and Adult Protective Services 
shall submit a written report of the findings and results of 
the investigation to the chief administrative officer of the 
facility 
in 
which 
the 
rights 
of 
the 
person 
receiving 
services were allegedly violated and to the commissioner 
within 6 1Q working days after the day of the occurrence or 
discovery of the alleged incident. 
Sec. 7. 34-B MRSA §560S, sub-§2, as amended by PL 1993, c. 
410, Pt. CCC, §42, is further amended to read: 
2. 
Duties. 
The 
government 
of 
the 
persons 
receiving 
services shall work closely with the division and the Office of 
Advocacy and Adult Protective Services to promote the interests 
and welfare of all residents in the facility. 
Sec. 
S. 
Report. 
The 
Department 
of 
Behavioral 
and 
Developmental 
Services 
shall 
study the effectiveness of 
the 
organizational structure of the new Office of Advocacy and Adult 
Protective Services and submit a report to the Joint Standing 
Committee on Health and Human Services on or before July 1, 
2004. 
The 
report 
must 
include its 
recommendations 
for 
any 
necessary 
additional 
or 
amending 
legislation 
affecting 
the 
organizational structure of the Office of Advocacy and Adult 
Protective Services, taking into consideration the anticipated 
effects 
of 
any 
legislation 
proposed 
by 
the 
Department 
of 
Behavioral and Developmental Services and the Department of Human 
Services 
to 
merge. 
The 
Department 
of 
Behavioral 
and 
Developmental Services shall provide a copy of the report to the 
Consumer 
Advisory 
Board 
and 
to 
the 
Special 
Master 
in 
the 
Community 
Consent 
Decree 
case 
in 
advance 
of 
the 
report's 
submission to the committee. 
Sec. 9. Transition provisions. 
1. 
The Office of Advocacy and Adult Protective Services 
within the Department of Behavioral and Developmental Services is 
the successor in every way to the powers, duties and functions of 
the former Office of Advocacy. 
2. 
All 
existing 
rules, 
regulations 
and 
procedures 
in 
effect, 
in operation or promulgated in or by the Office of 
Advocacy 
or any of its administrative units or officers are 
hereby declared in effect and continue in effect until rescinded, 
revised or amended by the proper authority. 
3. 
All 
existing 
contracts, 
agreements 
and 
compacts 
currently in effect in the Office of Advocacy continue in effect. 
4. 
Any positions authorized and allocated subject to the 
personnel laws to the former Office of Advocacy are transferred 
to the Office of Advocacy and A,dult Protective Services and may 
continue to be authorized. 
5. 
All records, property and equipment previously belonging 
to or allocated for the use of the former Office of Advocacy 
become, on the effective date of this Act, part of the property 
of the Office of Advocacy and Adult Protective Services. 
6. 
All existing forms, 
licenses, letterheads and similar 
items bearing the name of or referring to the Office of Advocacy 
may be utilized by the Office of Advocacy and Adult Protective 
Services until existing supplies of those items are exhausted. 
SUMMARY 
This bill amends the structure of the Office of Advocacy by 
including adult protective services. 
The bill requires 
the 
Office 
of 
Advocacy 
to 
provide 
adult protective services 
as 
described in the Maine Revised Statutes, Title 22, section 3473. 
The bill also requires that the Department of Behavioral and 
Developmental Services study the new structure of the Office of 
Advocacy 
and 
Adult 
Protective 
Services 
and 
submit 
its 
recommendations to the Joint Standing Committee on Health and 
Human Services by July 1, 2004.