An Act To Clarify and Affirm the Scope of Services Available to Persons with Mental Retardation or Autism No. 1907 May 16,2007
Maine Legislature, Session 123, LD 1907
Committee: Health and Human Services
Sponsors: BRANNIGAN, GROSE
Amends: 3 MRSA §959, 5 MRSA §12004-I, 34-B MRSA §1205, 34-B MRSA §1210, 34-B MRSA §5001, 34-B MRSA §5003, 34-B MRSA §5003-A, 34-B MRSA §5005, 34-B MRSA §5201, 34-B MRSA §5470-B, 34-B MRSA §5601, 34-B MRSA §6004

Legislative Document 
S.P.707 
An Act To Clarify and Affirm the Scope of Services Available to 
Persons with Mental Retardation or Autism 
No. 1907 
May 16,2007 
Reference to the Committee on Health and Human Services suggested and ordered printed. 
JOY J. O'BRIEN 
Secretary of the Senate 
Presented by Senator BRANNIGAN of Cumberland. (GOVERNOR'S BILL) 
Cosponsored by Representative GROSE of Woolwich. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. I. 3 MRSA §959, sub-§I, V, as amended by PL 2005, c. 397, Pt. C, §3, is 
further amended to read: 
F. 
The joint standing committee of the Legislature having jurisdiction over health 
and human services matters shall use the following list as a guideline for scheduling 
reviews: 
(2) Office of Substance Abuse in 2005; 
(3) Maifte AdviseF)' CefflHlittee eft Meatal RetardatieB iB 2007; 
(6) Department of Health and Human Services in 2009; 
(7) Board of the Maine Children's Trust Incorporated in 2011; and 
(9) Maine Developmental Disabilities Council in 2011. 
Sec. 2. 5 MRSA §12004-I, sub-§61, as amended by PL 1989, c. 73, §1, is 
repealed. 
Sec. 3. 5 MRSA §12004-I, sub-§61-A is enacted to read: 
61-A. 
Mental Health 
and Mental 
Retardation 
Maine 
Developmental 
Services 
Oversight and 
Advisory Board 
Expenses for All 
Members; 
Expenses and 
Legislative Per 
Diem for 
Nonsalaried or 
Nonpaid Members 
34-B MRS A § 1223 
Sec. 4. 34-B MRSA §1205, as amended by PL 2005, c. 397, Pt. A, §§43 to 46 and 
c. 457, Pt. 00, §2 and affected by §5 and as repealed and replaced by c. 519, Pt. RR, §2 
and affected by §4, is repealed. 
Sec. 5. 34-B MRSA §1210, as amended by PL 1993, c. 410, Pt. CCC, §13, is 
repealed. 
Sec. 6. 34-8 MRS A §1223 is enacted to read: 
§1223. Maine Developmental Services Oversight and Advisory Board 
1. 
Composition. 
The Maine Developmental Services Oversight and Advisory 
Board, as established by Title 5, section 12004-1, subsection 61-A and referred to in this 
section as "the board," consists of 15 members appointed by the Governor from a list of 
nominees proposed by the board pursuant to procedures established in the rules of the 
board. 
Page I - 123LR2585(OI)-1 
A. The board shall submit nominees to the Governor at least 90 days prior to the 
expected date of each vacancy. 
B. 
In making nominations, the board shall endeavor to ensure adeguate 
representation at all times from different service regions of the State and from 
interested stakeholder groups, including but not limited to: 
(1) The protection and advocacy agency designated pursuant to Title 5, section 
19502; 
(2) A statewide coalition that works to support and facilitate the ability of local 
and statewide self-advocacy organizations to network with each other and with 
national organizations; 
(3) A nonprofit organization that serves teens and young adults in the State with 
emotional and intellectual disabilities; 
( 4) A statewide coalition that works to support and facilitate the ability of local 
and statewide self-advocacy organizations to network with each other and with 
national organizations; and 
(5) The Maine Developmental Disabilities Council. 
C. In making the nominations and appointments, the board and the Governor shall 
endeavor to ensure that at least 8 of the members of the board are persons with 
mental retardation or autism or family members, guardians or allies of persons with 
mental retardation or autism who receive services funded by the Department of 
Health and Human Services. 
Members of the board must include stakeholders involved in services and supports for 
persons with mental retardation or autism in the State and other individuals interested in 
issues affecting persons with mental retardation or autism. Employees of the Department 
of Health and Human Services may not be appointed as members of the board. 
2. Terms. Members of the board serve 3-year terms. A member serves until a 
successor is appointed. A vacancy must be filled as soon as practicable by appointment 
for the unexpired term. 
3. Chair. The board shall elect a chair from among its members. 
4. 
Compensation. 
Members of the board are entitled to reimbursement of 
reasonable expenses incurred in order to serve on the board as provided in Title 5, section 
12004-1, subsection 61-A. Members not otherwise compensated by their employers or 
other entities whom they represent are entitled to receive a per diem egual to the 
legislative per diem for their attendance at authorized meetings of the commission. 
5. Staff. The board may hire an executive director and clerical support staff. 
6. Budget. The board shall provide to the commissioner a proposed budget in 
accordance with a schedule agreed to by the chair and the commissioner. 
The 
department shall include in its estimate of expenditure and appropriation reguirements 
filed pursuant to Title 5, section 1665 sufficient funds, listed in a separate account, to 
enable the board to perform its duties. 
7. Maine Tort Claims Act. The board members and staff act as employees of the 
State, as defmed in Title 14, section 8102, subsection 1, when engaged in official duties 
specified in this section or assigned by the board. 
8. Oversight and advisory functions. The board shall: 
A. Provide independent oversight over programs and services to persons with mental 
retardation or autism that are provided, authorized, funded or supported by the 
department or any other agency or department of State Government. The board shall 
focus on systemic concerns affecting the rights of persons with mental retardation or 
autism, including but not limited to issues surrounding health and safety, inclusion, 
identification of needs and desires of persons eligible for services by the department, 
the timely meeting of the identified needs and effective and efficient delivery of 
services and supports; and 
B. Provide advice and systemic recommendations to the commissioner, the Governor 
and the Legislature regarding policies, priorities, budgets and legislation affecting the 
rights and interests of persons with mental retardation or autism. 
9. Powers and duties of the board. In order to carry out its oversight and advisory 
functions, the board has the following powers and duties. 
A. The board shall hold at least one hearing or other alternative each year that is 
open to the public in order to gather information about the availability, accessibility 
and quality of services available to persons with mental retardation or autism and 
their families. 
B. The board may accept funds from the Federal Government, the State, a political 
subdivision of the State, individuals, foundations and corporations and may expend 
those funds for purposes consistent with the board's functions, powers and duties. 
C. The board shall establish priorities for its oversight and systems advocacy work. 
In establishing priorities, the board shall consider the results of its work in addressing 
the priorities established in previous years. 
D. The board shall report at least annually to the Governor and the Legislature on its 
activities and recommendations regarding policies, priorities, budgets and legislation 
affecting the rights and interests of persons with mental retardation or autism. The 
board's annual report must include the board's assessment of its operations and 
progress in addressing the priorities established pursuant to paragraph C. The board's 
annual report must be made public and widely disseminated in a manner designed to 
inform interested stakeholders. 
E. The board may provide reports and recommendations to the commissioner on 
matters of systemic concern arising from the board's oversight role. The board may 
recommend that the department undertake the study of specific systemic issues as 
part of the department's annual quality assurance activities and strategies, and the 
board may collaborate and cooperate with the department in the conduct of any such 
studies, if feasible. The commissioner shall provide a written response no later than 
days following receipt of the recommendations from the board. The board may 
refer individual cases that require investigation or action to the Office of Adults with 
Cognitive and Physical Disability Services or the Office of Advocacy within the 
department, the protection and advocacy agency designated pursuant to Title 5, 
section 19502 or other appropriate agency. 
10. Access to information; referral of individual cases. The board is entitled to 
access to information from the department necessary to carry out its functions. Except as 
provided in paragraphs B, C, D and E, information provided pursuant to this subsection 
may not contain personally identifying information about a person with mental 
retardation or autism. 
A. The department shall provide the board, on a schedule to be agreed upon between 
the board and the department, reports on case management, reportable events, adult 
protective and rights investigations, unmet needs, crisis services, quality assurance, 
quality improvement, budgets and other reports that contain data about or report on 
the delivery of services to or for the benefit of persons with mental retardation or 
autism, including reports developed by or on behalf of the department and reports 
prepared by others about the department. 
B. The chief advocate and the manager of adult protective services in the Office of 
Adults with Cognitive and Physical Disability Services within the department, when 
requested by the board or pursuant to a written agreement with the board, shall 
release to the board information pertaining to alleged abuse, exploitation or neglect or 
alleged dehumanizing practice or violation of rights of a person with mental 
retardation or autism. The board shall maintain the confidentiality of information 
disclosed to it or discovered by it as required by section 1207. 
C. The board may refer individual cases that require investigation or action to the 
manager of adult protective services in the Office of Adults with Cognitive and 
Physical Disability Services or the Office of Advocacy within the department, the 
protection and advocacy agency designated pursuant to Title 5, section 19502 or 
other appropriate public authorities. The board may request and review reports of 
actions taken by such entities in response to the board's referral. If these reports are 
likely to reveal personally identifying information, the board shall conduct reviews in 
executive session and shall take all actions necessary and appropriate to preserve the 
confidentiality of the information. 
D. 
The board may examine confidential information in individual records with 
written permission of the person or that person's guardian. If the person or that 
person's guardian provides the board with written permission to examine confidential 
information, the board must maintain the confidentiality of the information as 
required by section 1207. 
E. The board or the board's staff may receive and examine confidential information 
when otherwise authorized to do so by law, including but not limited to when serving 
on a committee established by the department for which access to such information is 
necessary to perform the function of the committee. 
11. Rulemaking. The board shall adopt rules governing its operations, including 
rules establishing its bylaws. Rules adopted pursuant to this subsection must address: 
A. Procedures for nominating persons to fill vacancies on the board; 
B. Procedures for holding annual hearings or other alternative means of receiving 
input from citizens throughout the State pursuant to subsection 9; 
C. Procedures for exercising its powers pursuant to subsection 10, paragraph D in a 
manner that is respectful of the rights, interests and opinions of persons whose 
records are at issue; 
D. Procedures concerning the hiring of an executive director, including the method 
for selection and the role of the executive director and procedures concerning the 
supervision, compensation and evaluation of the executive director; and 
E. The provision of stipends for certain members not otherwise compensated by their 
employers or other entities whom they represent for their attendance at authorized 
meetings of the board. 
Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, 
chapter 375, subchapter 2-A. 
Sec. 7. 34-B MRS A §5001, sub-§I-B is enacted to read: 
I-B. Correspondent. "Correspondent" means a person designated by the Consumer 
Advisory Board or its successor to act as a next friend of a person with mental retardation 
or autism. 
Sec. 8. 34-B MRSA §5001, sub-§2-B is enacted to read: 
2-B. Individual support coordinator. "Individual support coordinator" means a 
regional staff member of the department with the responsibility fOT coordinating the 
personal planning and professional services for a person with mental retardation or 
autism. 
Sec. 9. 34-B MRSA §5001, sub-§3-B is enacted to read: 
3-B. Personal planning. "Personal planning" means a process that assists and 
supports each person with mental retardation or autism in creating a vision for how to live 
in and be a part of the community. 
Sec. 10. 34-B MRSA §5001, sub-§3-C is enacted to read: 
3-C. Personal planning team. "Personal planning team" means the person with 
mental retardation or autism, the person's guardian, if any, the person's individual support 
coordinator or case manager and other individuals chosen or identified by the person to 
participate in personal planning. 
Sec. 11. 34-B MRSA §5001, sub-§3-D is enacted to read: 
3-D. Professional services. "Professional services" means services provided by 
individuals licensed to provide medical or behavioral health care and treatment, including 
but not limited to physicians, nurses, physical therapists, occupational therapists, 
psychologists, speech therapists and dentists. 
Sec. 12. 34-B MRSA §5003, as amended by PL 1995, c. 368, Pt. GG, §5 and c. 
560, Pt. K, §§41 to 45, is repealed. 
Sec. 13. 34-B MRSA §5003-A is enacted to read: 
§5003-A. System of care for clients with mental retardation or autism 
1. System of care. The Legislature declares that the system of care through which 
the State provides.services to and programs for persons with mental retardation or autism 
must be designed to protect the integrity of the legal and human rights of these persons 
and to meet their needs consistent with the principles guiding delivery of services as set 
forth in section 5610. 
2. Responsibilities of the department. To facilitate the development of a system 
that meets the needs of persons with mental retardation or autism, the commissioner shall: 
A. 
Provide a mechanism for the identification, evaluation, treatment and 
reassessment of and the provision of services to persons with mental retardation or 
autism that is consistent with. the principles guiding delivery of services, as set forth 
in section 5610, through appropriate personal planning offered to persons served by 
the department in accordance with section 5470-B; 
. 
B. 
Identify the needs and desires of persons with mental retardation or autism 
through appropriate personal planning and record any unmet needs of persons served 
or eligible for service by the department for development of budget requests to the 
Governor that are adequate to meet such needs; 
C. 
Provide programs, insofar as resources permit, for appropriate services and 
supports to persons with mental retardation or autism regardless of age, severity of 
need or ability to pay; 
D. Support the establishment of community services for persons eligible to receive 
services from the department by promoting access to professional services in the 
person's community. Such support may be provided directly or through contracts 
with qualified providers. For persons who have professional service needs identified 
through personal planning, the department shall monitor the provision of those 
services; 
E. 
Eliminate the department's own duplicative and unnecessary administrative 
procedures and practices in the system of care for persons with mental retardation or 
autism, encourage other departments to do the same and clearly define areas of 
responsibility in order to use present resources economically; 
F. 
Strive toward having a sufficient number of personnel who are qualified and 
experienced to provide treatment that is beneficial to persons with mental retardation 
or autism; and 
G. 
Encourage other departments to provide to persons with mental retardation or 
autism those services that are required by law, and in particular: 
(1) The commissioner shall work actively to ensure that persons with mental 
retardation or autism, as provided for in Title 20-A, chapter 303, receIve 
educational and training services beginning at 5 years of age regardless of the 
degree of retardation or accompanying disabilities or handicaps; 
(2) 
The commissioner shall advise other departments about standards and 
policies pertaining to administration, staff, quality of care, quality of treatment, 
health and safety of clients, rights of clients, community relations and licensing 
procedures and other areas that affect persons with mental retardation or autism 
residing in facilities licensed by the department; and 
(3) 
The commissioner shall inform the joint standing committee of the 
Legislature having jurisdiction over human resources matters about areas where 
increased cooperation by other departments is necessary in order to improve the 
delivery of services to persons with mental retardation or autism. 
3. Plan. The commissioner shall prepare a plan pursuant to this subsection. 
A. 
The plan must indicate the most effective and efficient manner in which to 
implement services and programs for persons with mental retardation or autism while 
safeguarding and respecting the legal and human rights ofthese persons. 
B. 
The plan must be prepared once every 2 years and must be subuitted to the joint 
standing committee of the Legislature having jurisdiction over health and human 
services matters by no later than January 15th of every odd-numbered year. 
C. 
The joint standing committee of the Legislature having jurisdiction over health 
and human services matters shall study the plan and make recommendations to the 
Legislature with respect to funding improvements in programs and services to 
persons with mental retardation or autism. 
D. 
The plan must describe the system of mental retardation services in each of the 
mental retardation service regions and statewide. 
E. 
The plan must include both existing service resources and deficiencies in the 
system of services. 
F. 
The plan must include an assessment of the roles and responsibilities of mental 
retardation agencies, human service agencies, health agencies and involved state 
departments and suggest ways in which these departments and agencies can better 
cooperate to improve the service systems. 
G. 
The plan must be made public within the State in such a manner as to facilitate 
public involvement. 
H. 
The commissioner must ensure that the development of the plan includes the 
participation of community mental retardation service providers, consumer and 
family groups and other interested persons or groups in annual statewide hearings, as 
well as informal meetings and work sessions. 
I. 
The commissioner must consider community service needs, relate these identified 
needs to biennial budget requests and incorporate necessary service initiatives into a 
comprehensive planning document. 
4. General Fund account; Medicaid match; mental retardation; autism. The 
commissioner shall establish a General Fund account to provide the General Fund match 
for mehtal retardation or autism Medicaid eligible services. Any unencumbered balances 
of General Fund appropriations remaining at the end of each fiscal year must be carried 
forward to be used for the same purposes. 
5. Medicaid savings. Intermediate care facilities for persons with mental retardation 
or autism and providers of freestanding day habilitation programs shall submit payment 
to the department equal to 50% of any Medicaid savings due the State pursuant to the 
principles of reimbursement, as established under Title 22, sections 3186 and 3187, that 
are reported in any unaudited cost report for fiscal years ending June 30, 1995 and 
thereafter. Payment is due with the cost report. After audit, any amount submitted in 
excess of savings allocated to the facility or provider pursuant to the principles of 
reimbursement must be returned to the facility or provider. 
Notwithstanding 
requirements or conditions contained in the principles of reimbursement, any amount due 
the State after final audit in excess of savings paid on submission of a cost report must be 
paid to the State within 90 days following receipt of the department's final audit report. 
6. Required reporting by the department. The department shall make available, 
on at least an annual basis, a report or reports regarding the services and support provided 
by the department to persons with mental retardation or autism. 
A. The goal of the reporting under this subsection is to provide the public with 
information on outcome measures established by the department. These measures 
may include, but are not limited to, whether: 
(1) Persons served by the department are healthy and safe; 
(2) Needs of persons are being met; 
(3) People are included in their communities; and 
(4) The system of care under this section is efficient and effective. 
B. At a minimum, the department's report or reports under this subsection must offer 
information on the following: 
(1) Unmet needs; 
(2) Reportable events; 
(3) Adult protective services; 
(4) Crisis services; 
(5) Persons' and families' satisfaction with services; 
(6) Case management ratios; 
(7) Evaluations of costs of services; 
(8) Grievances; 
(9) Quality assurance and quality improvement efforts; and 
(10) New initiatives. 
C. A report under this subsection must be provided to the joint standing committee 
of the Legislature having jurisdiction over health and human services matters. The 
COmmISSIOner or the commissioner's designee shall appear in person before the 
committee and shall present the report. The report must be posted on the 
department's publicly accessible website and must be made easily available to 
persons served by the department, families, guardians, advocates, Legislators and the 
provider community. 
Sec. 14. 34-B MRSA §5005 is enacted to read: 
§5005. Office of Advocacy 
1. Establishment. The Office of Advocacy, referred to in this section as "the 
office," is established within the department to provide the services described in 
subsection 3 to individuals with mental retardation or autism. 
2. Chief advocate. A chief advocate shall direct and coordinate the program of the 
office. 
A. The chief advocate shall report administratively to the commissioner and advise 
and consult with and inform the commissioner on the issues described in this section. 
The chief advocate shall provide the commissioner with regular reports on the 
office's [mdings, conclusions and recommendations regarding individual and 
systemic violations of the rights of individuals with mental retardation or autism. 
B. The chief advocate shall select other advocates needed to carry out the intent of 
this section who shall report only to the chief advocate. 
C. The chief advocate shall establish operating policies and procedures to guide the 
work of the office, including policies regarding priority setting. 
D. The chief advocate and all other advocates are classified state employees. 
3. Duties. The office, through the chief advocate and other advocates, shall: 
A. Receive complaints made by or on behalf of individuals with mental retardation 
or autism and represent their interests in any matter pertaining to their rights and 
dignity; 
B. Investigate the claims, grievances and allegations of violations of the rights of 
individuals with mental retardation or autism; 
C. Intercede on behalf of individuals with mental retardation or autism with officials 
of any provider of service administered, licensed or funded by the department, except 
that the office may refuse to take action on any complaint that it considers to be 
trivial or moot or for which there is clearly another remedy available; 
D. Assist individuals with mental retardation or autism in any hearing or grievance 
proceeding pertaining to their rights and dignity; 
E. Refer individuals with mental retardation or autism to other agencies or entities 
and collaborate with those agencies or entities for the purpose of advocating for the 
rights and dignity of those individuals; 
F. Act as an information source regarding the rights of all individuals with mental 
retardation or autism, keeping itself informed about all laws, administrative rules and 
institutional and other policies relating to the rights and dignity of those individuals 
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; and 
G. Make and publish reports necessary to the performance of the duties described in 
this section. The chief advocate 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 to 
so communicate. At least annually, the chief advocate shall report both in person and 
in writing to the joint standing committee of the Legislature having jurisdiction over 
health and human services matters regarding the performance of the duties described 
in this section. 
4. Participate in personal planning. The office, through the chief advocate and 
other advocates, may participate in personal planning when: 
A. The department is the public guardian; or 
B. An advocate has concerns regarding the rights or dignity of a person with mental 
7 
retardation or autism. 
A person who is not under guardianship has the right to refuse such participation by an 
advocate. 
5. Access to files and records. The office, through the chief advocate and the other 
advocates, has access, limited only by the civil service law, to the files, records and 
personnel of any provider of services administered, licensed or funded by the department. 
Within the department, the office has access to all reports and related documents 
submitted pursuant to section 5604-A. 
6. Confidentiality. Requests for confidentiality are treated as follows. 
A. Any request by or on behalf of an individual with mental retardation or autism for 
action by the office and all written records or accounts related to the request are 
confidential as to the identity of the individual. 
B. The records and accounts under paragraph A may be released only as provided by 
law. 
1 
7. Protection for advocates. Advocates may not be disciplined or sanctioned for 
any action taken pursuant to this section on behalf of individuals with mental retardation 
or autism. 
8. Budget. When submitting any budget request to the Legislature, the department 
and the Governor shall provide that any funds for the office be listed in a separate 
account. 
Sec. 15. 34-B MRSA §5201, as amended by PL 1995, c. 560, Pt. K, §47 and 
affected by §83 and PL 2003, c. 689, Pt. B, §6, is further amended to read: 
§5201. Duties 
The Department of Health and Human Services is responsible for: 
I. lostHutiooal pFogFams. The SUfler ... isioa of aEkilt mefttal retardatioa programs ia 
the state iastiMions; 
2. Statewide system. The planning, promotion, coordination and development of a 
complete and integrated statewide system of meatal retardatioa services for adults with 
mental retardation or autism; 
3. Liaison. 
Serving as liaison, coordinator and consultant to the several state 
departments in order to develop the statewide system of meatal retardatioa services for 
adults with mental retardation or autism; 
4. Community-based services. Ensuring that adults with mental retardation or 
autism residing in community residential facilities, including nursing homes, boarding 
homes, foster homes, group homes or halfway houses licensed by the Department of 
Health and Human 
Services~ are provided, insofar as possible, with residential 
accommodations and access to habilitation services appropriate to their needs; aRd 
5. 
Protective and supportive services. 
Providing protective and supportive 
services, in accordance with section 5203, to incapacitated and dependent persons who, 
with some assistance, are capable of living and functioning in society~~ 
6. Individual support coordinators. Providing persons with mental retardation or 
autism who are eligible for MaineCare services with case management services. 
A. Case management services as defined in rules may be provided by qualified staff 
employed by the department or a contracted' agency. 
B. Unless otherwise specified in personal planning: 
, 
(1) Case managers shall maintain at least monthly contact with each person in 
order to ensure that the quality and availability of services and consumer 
satisfaction are maintained at a high level; and 
(2) Visits to the person's home must occur at least twice a year. 
C. The department shall ensure that case managers maintain adequate written and 
electronic records to permit monitoring and accountability. 
D. 
The department shall provide sufficient numbers of case managers and 
supervisors to fulfill the duties specified in this subsection and shall maintain an 
overall ratio of one case manager to every 35 people in each region. The ratio must be 
calculated separately for staff employed by the department and by contracted 
agencies, and this ratio must be maintained for each group; 
7. Crisis and respite. Provision of crisis and respite services to persons with mental 
retardation or autism in accordance with section 5206; and 
8. Quality assurance. Developing through its comprehensive planning process 
goals and objectives for the department's quality assurance program. 
Page II - 123LR2585(Ol)-1 
A. The department shall detennine at least annually appropriate quality assurance 
activities and strategies to achieve the goals and objectives of the program. with the 
overall purpose of assessing the quality of services and supports. consumer and 
family satisfaction with such services and supports and the consistency of such 
services and supports with the principles guiding delivery of services and supports as 
set forth in section 5610. 
B. The department shall prepare an annual report of its quality assurance activities 
and such other periodic reports as it detennines appropriate. 
C. 
The department shall develop appropriate procedures for formulating and 
disseminating recommendations emanating from its quality assurance activities and 
for ensuring follow-up of the implementation of such recommendations. 
9. Rules. The department shall adopt rules to implement this section as necessary. 
Rules adopted pursuant to this subsection are routine technical rules as defined by Title 5. 
chapter 375. subchapter 2-A. 
Sec. 16. 34-B MRS A §5206 is enacted to read: 
§5206. Crisis and respite services 
The department shall provide crisis and respite services throughout the State in 
accordance with this section. 
1. 
Crisis services. The department shall maintain the capacity to intervene in 
personal crises that could lead to the loss of the home, program or employment of a 
person with mental retardation or autism. Such capacity must include: 
A. Assessment, consultation, planning, training and support for persons with mental 
retardation or autism and their families or allies both before and after a crisis occurs; 
B. Providing staff support to prevent or respond to a crisis at the site of the crisis 
when appropriate; 
C. Ensuring mental health supports when necessary, including access to a licensed 
mental health provider, inpatient treatment when indicated, psychiatric services and 
mental health aftercare services; and 
D. Identifying appropriate professional services for the person in crisis. 
2. Out-of-bome services. The department shall provide out-of-home services in 
accordance with this subsection. 
A. 
The department shall maintain an adequate capacity to provide out-of-home 
safety and support by trained staff with appropriate professional backup resources for 
a person with mental retardation or autism experiencing a crisis that cannot be safely 
managed at the person's residence. 
B. Unless otherwise specified in personal planning, crisis intervention services must 
be provided at a person's home, program or workplace when prevention efforts are 
not successful. The services must assist with admission to an appropriate out-of-
home service in the event that intervention in the home, program or workplace is 
inappropriate. 
3. Transportation. The department may not routinely use law enforcement entities 
to transport persons with mental retardation or autism in crisis. Transportation of persons 
in crisis by law enforcement personnel may occur only if such transportation has been 
specifically authorized by the person's guardian or personal planning team or when 
determined by law enforcement personnel to be necessary to provide for the safety of the 
person or others. 
4. Post-crisis review. A post-crisis review must occur no more than 10 working 
days after any out-of-home crisis placement. The review must include significant 
providers and supporters, including appropriate members of the person's planning team. 
The review must identify possible causes of the person's crisis and must recommend for 
the personal planning team changes in the person's environment, services and supports to 
prevent crises in the future. 
5. Respite services. The department shall maintain and fund a statewide respite 
system for planned or unplanned respite for persons with mental retardation or autism and 
their families. The department shall, when appropriate, use the natural supports of a 
person in the development of respite services. For purposes of this subsection, "natural 
supports" means those supports provided by persons who are not disability service 
.providers but who provide assistance, contact or companionship to enable a person with 
mental retardation or autism to participate independently in employment or other 
community settings. 
6. 
Information regarding use. 
The department shall maintain information 
regarding use of crisis and respite services sufficient to plan and budget for adequate 
crisis and respite services. The information must include an assessment of the needs, both 
met and unmet, for crisis and respite services. The department shall provide information 
regarding the availability of services under this section and the proper means to obtain 
them to persons with mental retardation or autism, their parents and allies, providers of 
services and other interested persons. 
7. 
Training. 
The department shall offer regular and ongoing information, 
consultation and training on crisis prevention and intervention and respite services to its 
own staff, providers, and persons with mental retardation or autism and their families, 
guardians, correspondents and allies. 
Sec. 17. 34-B MRS A §S470-A, as enacted by PL 2003, c. 389, §14, is repealed. 
Sec. 18. 34-B MRSA §5470-B is enacted to read: 
§5470-B. Personal planning 
1. Right to personal planning. Every person with mental retardation or autism who 
is eligible for services must be provided the opportunity to engage in personal planning 
when the needs and desires of the person are articulated and identified. 
2. Process. The personal planning opportunities afforded to a person with mental 
retardation or autism pursuant to subsection 1 must: 
A. Be understandable to that person and in plain language and, if that person is deaf 
or nonverbal, uses sign language or speaks another language, the process must 
include qualified interpreters; 
B. Focus on the choices made by that person; 
C. Reflect and support the goals and aspirations of that person; 
D. Be developed at the direction of that person and include people whom the person 
chooses to participate. The planning process must minimally include the person, the 
person's guardian, if any, the correspondent, if any, and the person's case manager; 
E. Be flexible enough to change as new opportunities arise; 
F. Be offered to that person at least annually or on a schedule established through the 
planning process and be reviewed according to a specified schedule and by a person 
designated for monitoring; 
G. Include all of the needs and desires of that person without respect to whether 
those desires are reasonably achievable or the needs are presently capable of being 
7 
addressed; and 
H. Include a provision for ensuring the satisfaction of that person with the quality of 
the plan and the supports that the person receives. 
3. Action plans and unmet needs. The ongoing personal planning for a person with 
mental retardation or autism must include an action plan that describes the services to be 
provided, the process of providing the services and who is responsible for overseeing the 
provision of the services. In cases where resources required to address identified needs or 
desires are not available, the action plan must identify interim measures based on 
available resources that address the needs or desires as nearly as possible and identify 
steps toward meeting the person's actual identified needs. 
Unmet needs must be documented continually, collated annually and used for appropriate 
development activities on a regional and statewide basis. 
4. Review of personal plans. The person with mental retardation or autism or 
another member of the planning team may initiate a review of the person's personal plan 
when needed or desired. 
A. A review under this subsection must be done by meeting or by other means 
sufficient to address the needed or desired changes. The review must include the 
person, the person's guardian, if any, and the person's case manager. 
Invitations to 
participate may also be sent to others who may be anticipated to assist the person in 
pursuing articulated needs and desires unless the person or a private guardian objects. 
B. Events that could lead to the loss of the person's home, job or program and events 
defined in a departmental rule or in the person's plan must lead to a plan review. 
5. Information from planning process. During personal planning, the department 
shall develop and record information about a person's needs, identify anticipated needs 
without regard to service availability, define necessary support services, recommend 
optimal courses of action and include plans for the active and continued exploration of 
suitable program or service alternatives based on the person's needs. 
6. Implementation of personal plan. As part of its implementation, the personal 
plan must be agreed to by the person or the person's legal guardian. The department shall 
assist persons with the needs identified by their planning process to obtain housing, 
employment or other meaningful occupation, medical and other professional therapeutic 
services, recreational and vocational opportunities and educational services at the earliest 
possible time, insofar as resources permit. 
7. Records. The department shall maintain records of personal plans developed 
under this section. 
A. The department shall maintain adequate written and electronic records of the 
development and implementation of personal plans to permit monitoring and 
accountability. 
B. The department shall provide the Office of Advocacy with sufficient advance 
notice of all scheduled personal planning meetings to permit the office to determine if 
the attendance or participation of an advocate in the planning process is appropriate 
pursuant to the duties and responsibilities of the office. 
8. Training. The department shall provide training in personal planning. 
A. The department shall prepare and maintain a comprehensive manual describing 
the procedures to be followed in implementing a personal planning process. 
B. The department shall ensure the provision of regular and ongoing training in 
personal planning to persons with mental retardation or autism and their families, 
guardians, correspondents and allies as well as its own staff and providers. The 
department shall regularly provide persons with mental retardation or autism and 
their families, guardians and allies with informational materials regarding personal 
planning. 
9. Rules. The department is authorized to 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. 19. 34-B MRSA §5601, sub-§1-A is enacted to read: 
I-A. Ally. "Ally" means an individual who a person trusts to provide assistance. 
Sec. 20. 34-B MRS A §5604, as amended by PL 1993, c. 326, §8, is further 
amended to read: 
§5604. Protection 
The Legislature finds and declares that the rights of persons with mental retardation 
or autism can be protected best under a system of services that operates according to the 
principles of normalization and full inclusion and that the State's system of services must 
operate according to these principles with the goals of: 
1. Community-based services. Continuing the development of community-based 
services that provide reasonable alternatives to institutionalization in settings that are 
least restrictive to the person receiving services; aed 
2. Independence and productivity. Providing habilitation, education and other 
training to persons with mental retardation or autism that will maximize their potential to 
lead independent and productive lives and that will afford opportunities for outward 
mobility from institutions~; and 
3. Grievance right. Providing a person with mental retardation or autism with the 
right to appeal a decision regarding actions or inactions by the department that affects the 
person's life. The department shall establish in rule a process for hearing such grievances 
pursuant to section 1203, subsection 4. The rules must contain strict time frames for the 
resolution of grievances. The rules may provide for resolution of grievances through 
mediation. 
A. The department shall provide easily accessible and regular notice of the grievance 
process to persons with mental retardation or autism served by the department. This 
notice must be included in informational materials provided to such persons, as well 
as to guardians, families. correspondents and allies. Notice of the right to appeal 
must be prominently displayed in regional offices and on the department's publicly 
accessible website and must be readily available from provider agencies. Notice of 
the right to appeal must be included in all substantive correspondence regarding 
personal planning. Written notice of the right to appeal must also be provided when 
there is a denial or reduction of services or supports to persons served by the 
department. All notices and information regarding the grievance process must be 
written in language that is plain and understandable and must include the address and 
telephone number of the Office of Advocacy and the protection and advocacy agency 
designated pursuant to Title 5, section 19502. 
B. The department must make available a one-page form that enables a person with 
mental retardation or autism to file a grievance. A grievance may also be filed 
through an oral request. If a grievance is filed through an oral request, the person 
receiving the grievance shall reduce the grievance to writing using a one-page form 
made available by the department. 
C. The department shall offer regular training in the grievance process for persons 
served by the department, their families, guardians and allies and department and 
service provider staff. 
D. If an appeal proceeds to a hearing, the hearing officer's decision constitutes final 
agency action for the purposes of Rule 80C of the Maine Rules of Civil Procedure 
unless final decision-making authority has been reserved by the commissioner. If the 
commissioner makes the final decision and modifies or rejects the hearing officer's 
recommended decision, the commissioner must state in writing the basis for the 
commissioner's decision. 
When the commissioner rejects or modifies a hearing 
officer's factual findings or makes additional factual findings, the commissioner shall 
articulate the evidentiary basis for such rejection or modification with appropriate 
references to the record. The commissioner shall give substantial deference to a 
hearing officer's determinations on matters of credibility relating to testimony that 
was heard by the hearing officer, and when rejecting or modifying such 
determinations of credibility, the commissioner shall state with particularity the 
reasons with appropriate references to evidence in the record. 
In the event the 
commissioner fails to issue a written final decision within 30 days of the date of the 
recommended decision, the recommended decision of the hearing officer is deemed 
the final decision of the commissioner. 
4. Rules. The department has authority to 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. 21. 34-B MRSA §S604-A is enacted to read: 
§5604-A. 
Duty to report incidents; Adult Protective Services Act and rights 
violations 
1. Report incident. A person with knowledge about an incident related to client 
care, including client-to-client assault, staff-to-client assault, use of seclusion or excessive 
use of 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 pursuant to policies and procedures established by the 
department in rules. 
2. Maintain reportine system. The department shall maintain a reportable event 
and adult protective services system that provides for receiving reports of alleged 
incidents, prioritizing such reports, assigning reports for investigation by qualified 
investigators, reviewing the adequacy of the investigations, making recommendations for 
preventive and corrective actions as appropriate and substantiating allegations against 
individuals who have been found under the Adult Protective Services Act to have abused, 
neglected or exploited persons with mental retardation or autism. The department shall 
fully establish the reportable event and adult protective services system through 
rulemaking. 
3. Violation. All persons with knowledge of an alleged violation of the rights of an 
individual with mental retardation or autism as set out in section 5605 shall promptly 
report the details of the alleged violation to the Office of Advocacy as set forth in 
department rules. 
4. Rules. Rules adopted pursuant to this section are routine technical rules as 
dermed in Title 5, chapter 375, subchapter 2-A. 
Sec. 22. 34-B MRSA §S60S, sub-§13,,n, as amended by PL 2003, c. 564, §1, 
is further amended to read: 
B. 
Treatment programs involving the use of noxious or painful stimuli or other 
aversive or severely intrusive techniques, as defined in department rules, may be used 
only to correct behavior more harmful than the treatment program to the person with 
mental retardation or autism and only: 
(1) On the recommendation of a physician, psychiatrist or psychologist; 
(2) For an adult 18 years of age or older, with the approval, following a case-by-
case review, of a review team composed of an advocate from the Office of 
Advocacy; a representative of the Division of Mental Retardation; and a 
representative of the COl1S\lffier Advisory Board Maine Developmental Services 
Oversight and Advisory Board; and 
(3) For a child under 18 years of age, with the approval, following a case-by-
case review, of a review team composed of an advocate from the Office of 
Advocacy, a team leader of the department's children's services division and the 
children's services medical director or the director's designee. Until rules are 
adopted by the department to govern behavioral treatment reviews for children, 
the team may not approve techniques any more aversive or intrusive than are 
permitted in rules adopted by the Secretary of the United States Department of 
Health and Human Services regarding treatment of children and youth in 
nonmedical community-based facilities funded under the Medicaid program. 
The department may adopt rules as necessary to implement this paragraph. Rules 
adopted pursuant to this paragraph are routine technical rules as defmed in Title 5, 
chapter 375, subchapter 2-A. 
Sec. 23. 34-B MRSA §S606, sub-§l, ~A, as amended by PL 2005, c. 519, Pt. 
RR, §3 and affected by §4, is further amended to read: 
A. 
The Office of Advocacy shall conduct an investigation of each alleged violation 
pursuant to section ~ 
5005. 
Sec. 24. 34-B MRSA §S610 is enacted to read: 
§5610. Delivery of services; principles 
1. Principles. In providing services to persons with mental retardation or autism 
under this chapter, every provider of services, including but not limited to the department, 
shall ensure that the provision of such services is guided by the following principles. 
A. Persons with mental retardation or autism have the same rights as all citizens, 
including the rights to live, work and participate in the life of the community. 
B. Community inclusion is achieved by connecting individuals and families with 
local and generic supports within the community whenever possible. 
C. One goal of services provided to persons with mental retardation or autism is to 
maximize growth, development and inclusion in the community. 
D. The primary and most natural caregiver is the family, when appropriate. For 
purposes of this paragraph, "family" may be defined individually by each person with 
mental retardation or autism and may include, when appropriate, unpaid individuals 
with whom the person resides. 
E. 
Ideally, services to a person with mental retardation or autism enhance that 
person's opportunity to assume maximum control over that person's life. 
F. The cornerstone of all vocational and employment services is the provision of real 
work for real pay in integrated settings in the community. 
G. 
The primary objective of the service delivery system is to provide services 
designed to support each individual in each individual's own home. 
H. 
Planning for community services that is based upon the ongoing process of 
individualized assessment of individual and family strengths, needs and preferences 
promotes a high quality of life. Proper planning for community services requires 
identification and consideration of the connections in other areas of a person's life, 
such as family, allies, friends, work, recreation and spirituality. 
Sec. 25. 34-B MRSA §6004, first~, as amended by PL 1995, c. 560, Pt. K, §64, 
is further amended to read: 
The commissioner shall submit a report on efforts to plan for and develop social and 
habilitative services for persons who have autism and other pervasive developmental 
disorders to the Governor and the joint standing committee of the Legislature having 
jurisdiction over health and institutional services matters. This report must be submitted 
no later than January 15th of every odd-numbered year and must be submitted in 
conjunction with the plan required by section ~ 
5003-A, subsection 3. 
Sec. 26. Staggered terms. Notwithstanding the Maine Revised Statutes, Title 34-
B, section 1223, subsection 2, of the initial appointments to the Maine Developmental 
Services Oversight and Advisory Board, the Governor shall designate 5 members to serve 
an initial term of one year, 5 members to serve an initial term of 2 years and 5 members 
to serve an initial term of 3 years. 
Sec. 27. Initial appointments. Notwithstanding the Maine Revised Statutes, 
Title 34-B, section 1223, subsection 1, the Governor shall appoint the initial 15 members 
of the Maine Developmental Services Oversight and Advisory Board as follows: 
A. Four members who serve on the Consumer Advisory Board established pursuant 
to Title 34-B, section 1216; 
B. Two members who served on the former Maine Advisory Committee on Mental 
Retardation established by former Title 5, section 12004-1, subsection 61; 
C. One member selected by the protection and advocacy agency designated pursuant 
to Title 5, section 19502; 
D. One member selected by a statewide coalition that works to support and facilitate 
the ability of local and statewide self-advocacy organizations to network with each other 
and with national organizations; and 
E. Seven members who are nominated as a slate by a committee composed of: 
(1) Two persons appointed by the Governor; 
(2) One member appointed by a statewide coalition that works to support and 
facilitate the ability of local and statewide self-advocacy organizations to network 
with each other and with national organizations; 
(3) One member appointed by the protection and advocacy agency designated 
pursuant to Title 5, section 19502; 
(4) One member appointed by a statewide association of community service 
providers; and 
(5) One member appointed by the Maine Developmental Disabilities Council 
established under Title 5, section 12004-1, subsection 66. 
Members initially appointed to the board must include stakeholders involved in 
services and supports for persons with mental retardation or autism in the State and other 
individuals interested in issues affecting persons with mental retardation or autism. 
Employees of the Department of Health and Human Services may not be appointed as 
members of the board. 
Sec. 28. Transition provisions. 
1. Correspondent program. The Maine Developmental Services Oversight and 
Advisory Board, established in the Maine Revised Statutes, Title 5, section 12004-1, 
subsection 61-A and referred to in this section as "the board," shall work with the 
Department of Health and Human Services to improve and promote the correspondent 
program operated by the Consumer Advisory Board established pursuant to Title 34-B, 
section 1216. No later than January 1,2009, the board shall present a report to the joint 
standing committee of the Legislature having jurisdiction over health and human services 
matters, together with a proposed plan that provides for the independent operation of the 
correspondent program with oversight by the board. After receipt and review of the 
report, the joint standing committee may submit a bill to the 124th Legislature. / 
2. Cooperation and collaboration. 
The board shall work with the Consumer 
Advisory Board to avoid duplication of effort, to ensure appropriate sharing of 
information and to facilitate a smooth transition of oversight responsibilities from the 
Consumer Advisory Board to the board upon the repeal of the Consumer Advisory Board 
in accordance with Title 34-B, section 1216, subsection 4. 
3. Successor class representative. Upon the repeal of the Consumer Advisory 
Board in accordance with the Title 34-B, section 1216, subsection 4, the board shall 
cooperate and collaborate with any successor class representative that may be appointed 
by the United States District Court. 
Sec. 29. Effective date. That section of this Act that amends the Maine Revised 
Statutes, Title 34-B, section 5605, subsection 13, paragraph B takes effect upon the repeal 
of the Consumer Advisory Board pursuant to Title 34-B, section 1216, subsection 4. 
SUMMARY 
This bill incorporates into the Maine Revised Statutes, Title 34-B some of the 
provisions required for compliance with the consent judgment in Consumer Advisory 
Board et al. v. Glover, No. 9l-321-P-C (D. Me., September 28, 1994) by specifying the 
Department of Health and Human Services' obligation to persons with mental retardation 
or autism to provide personal planning, case management services, crisis and respite 
services and quality assurance activities. This bill clarifies the role of the Office of 
Advocacy within the department and the processes applicable to client grievances and 
appeals. This bill also sets out the principles guiding delivery of services to persons with 
mental retardation or autism and establishes the requirement that the ratio of individual 
support coordinators to clients must be one individual support coordinator to 35 persons 
with mental retardation or autism. It repeals the Maine Advisory Committee on Mental 
Retardation and establishes the Maine Developmental Services Oversight and Advisory 
Board.