An ActTo Amend Licensing, Certification and Registration Requirements for Health Care Providers and Other Facilities
Maine Legislature, Session 124, LD 1464
Committee: Health and Human Services
Sponsors: JONES, LEWIN
Amends: 22 MRSA §2131, 22 MRSA §7704, 22 MRSA §7946, 34-B MRSA §1224

FIRST REGULAR SESSIOl".J-2009 
Legislative Document 
No. 
H.P. 1019 
House of Representatives, April 24, 2009 
An ActTo Amend Licensing, Certification and Registration 
Requirements for Health Care Providers and Other Facilities 
Submitted by the Department of Health and Human Services pursuant to Joint Rule 204. 
Reference to the Committee on Health and Human Services suggested and ordered printed. 
Presented by Representative JONES of Mount Vernon. 
Cosponsored by Representative: LEWIN of Eliot. 
. 
Printed on recycled pilpcr 
71/~ 
1I1.17!tI£~{ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 22 MRS A §1723 is enacted to read: 
§1723. Criminal bacl{ground checks 
Beginning October 1, 2009, 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. The 
facility or health care provider shall pay for the criminal background check required by 
this section. 
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. 2; 22 MRSA §2131, sul)-§l, as enacted by PL 1989, c. 579, §4, is amended 
to read: 
. 
. 
1. Registration; renewal. Effective January 1, 1990, every A temporary nurse 
agency shall register with the department and renew the registration as required by rule 
thereafter.. For purposes of this chapter, unless the context otherwise indicates;' 
"temporary nurse agency" means a business entity or subdivision thereof that provides 
nurses to another organization on a temporary basis within this State. 
Sec. 3. 22 MRSA §2131, mlb-§4, as amended by PL 2001; c. 494, §2, is repealed 
and the following enacted in its place: 
4. Penalty. The following penalties apply to violations of this chapter. 
A. A person who operates a temporary nurse agency without registering or who fails 
. to verify the inclusion of a certified nursing assistant on the Maine Registry of 
Certified Nursing Assistants established under section 1812-G before hiring that 
certified nursing assistant pursuant to subsection I-A commits a civil violation for 
which a fine of not less than $500 per day but not more than $10,000 per day may be 
. 
adjudged. Each day constitutes a separate violation. 
B. A person who operates a temporary nurse agency in violation of the employment 
I 
prohibitions in section 2138 commits a civil violation for which a fine of not less thari 
$500 per day but not more than $10,000 per day may be adjudged. Each day 
constitutes a separate violation. 
Sec. 4. 22 MRSA §2131, sulb-§5 is enacted to read: 
5. Rules. The department may adopt rules necessary to implement this section. 
Rules adopted pursuant to this subsection are routine technical rilles as defined in Title 5, 
chapted75, subchapter 2-A. 
. 
. 
Page I - 124LROSOO(OIH 
) 
) 
) 
n 
~ 
I 
Sec. 5. 22 MRSA c, 417-A is enacted to read: 
CHAPTER 417-A 
BACKGROUND CHECKS FOR TEMPORARY NURSE AGENCIES 
§2136. Definitions 
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings. 
1. Hire, employ or place. "Hire, employ or place" means to recruit, select, train, 
declare competent, schedule, direct, define the scope of the position of or supervise an 
. individual who provides temporalY care pursuant to chapter 417. 
2. Temporary nurse agency. "TemporalY nurse agency" means a business entity or 
subdivision thereof that provides nurses to another organization on a temporary basis 
within this State .. 
§2137. Criminal background checks 
Beginning October 1, 2009, 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, 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. 
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. 
. 
§2138. Prohibited employment 
A temporary nurse agency may not hire, employ or place an individual who: 
L Subject of notation. Has worked as a celiified 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 established under section 1812-G; 
2. Convicted of crime involving abuse, neglect or misappropriation. Has been 
convicted in a court of law of a crime involving abuse, neglect or misappropriation of 
property; or 
3. Other prior conviction. Has a prior criminal conviction within 10 years prior to 
application 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 
I 
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 miscondi.lct or 
involving abuse, neglect or exploitation in a ~etting other than a health care setting. 
§2139. Complaints 
1. Complaint investigation. The department is authorized to investigate complaints 
against a temporaIY nurse agency to ensure compliance with this chapter. 
2. 
Injunctive ~lief. Notwithstanding any other remedies provided by law. the 
Attomey General may seek an injunction to require compliance with the provisions of 
this chapter. 
3. Enforcement. The Attomey General may file a complaint with the District Court 
II 
seeking civil penalties or injunctive relief or both for violations of this chapter. 
4. Jurisdiction. The District Court has jurisdiction pursuant to Title 4, section 152 
for violations of this chapter. 
5. Burden of proof. The burd~n is on the depal1ment to prove, by a preponderance 
of the evidence, that the alleged vio Ition of this chapter occurred. 
6. Right of entry. This subsection governs the department's right of ently with 
respect to temporary nurse agencies. 
A. An application for registi"ation of a temporary nurse agency constitutes permission 
for entlY and inspection to verify compliance with applicable laws and rules. 
B. The department has the right to enter and inspect the premises of a temporary 
nurse agency registered by the department at a reasonable time and, upon demand, 
. has the right to inspect and copy any books, accounts, papers, records and other 
documents in order to determine the state of compliance with applicable laws and 
rules.· 
25. 
C. To inspect a temporary nurse agency that the department knows or believes is 
being operated without being registered, the department may enter only with the 
permission of the owner or person in charge or with an administrative inspection 
warrant issued pursuant to the Maine Rules of Civil Procedure, Rule 80E by the 
District Court authorizing entry and inspection. 
.. Administrative inspection warrant. The department and a duly designated 
officer or employee of the depaI1ment have the right to enter upon and into the premises 
of an unregistered temporary nurse agency with an administrative inspection warrant 
issued pursuant to the Maine Rules of Civil Procedure, Rule 80E by the District Court at 
a reasonable time. and, upon demand, have the right to inspect and copy any books, 
accounts, papers, records and other documents in order to determine the state of 
compliance with this chapter. The right of entry and inspection may extend to any 
premises and documents of a person, firm, partnership, association, corporation or other 
entity that the department has reason to believe is operating a temporary nurse agency 
.39 
without being registered. 
) 
) 
) 
n 
u' 
8. 
Noninterference. An owner or operator of an unregistered temporaIy nurse 
agency may not interfere with, impede or obstruct an investigation by the department, 
including, but not limited to, interviewing persons receiving services or persons with 
knowledge of the agency. 
9. Violation of injunction. A person, firm, partnership, association, corporation or 
other entity that violates the terms of an injunction issued under this chapter shall pay to 
the State a fine of not less than $500 nor more than $10,000 for each violation. Each day' 
of violation constitutes a sepal~ate offense. In any action brought by the Attorney General 
against a person, firm, partnership, association, corporation or other entity for violating 
the terms of an injunction under this chapter, the District Court may make the neceSSaIY 
orders or judgments regarding violation of the terms of the injunction. 
In an action under this chapter, when a permanent injunction has been issued, the District 
Court may order the person, firm, partnership, association, corporation or other entity 
against which the permanent injunction is issued to pay to the General Fund the costs of 
the investigation of that person, firm, partnership, association, corporation or other entitY 
by the Attorney General and the costs of suit, including attorney's fees. 
10. Suspension or revocation of registration. A temporary nurse agency found to 
be in violation of this chapter may have its registration to 'operate as a temporary nurse 
agency suspended or revoked. The department may file a complaint with the District 
Court requesting suspension or revocation of a registration to operate a temporary nurse 
agency. 
11. Rules. The department may adopt rules to implement this section. Rules adopted 
pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, 
subchapter 2-A. 
Sec. 6. 22 MRSA §7704 is enacted to read: 
§7704. Criminal background checlcs 
Beginning October 1, 2009, a facility or health care provider subject to the licensing 
or certification processes of chapter 1663, a nurselY 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, 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. 
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. 7. 22 MRSA §7946, sub-§4, as enacted by PL 1987, c. 774, §4, is amended 
to read: 
4. Income from penalties. Any income from penalties sfta.l-l must be placed in a 
special revenue account and be used if needed and available v/hen a receiver is appointed 
pursuant to section 7933, or for other costs associated with the protection of health or 
property of residents of long term care facilities ,tVhich are fined or sanctioned pursuant to 
this chapter by the department for purposes related to improving the quality of care for 
residents of long-term care facilities. 
Sec. 8. 34-B MRSA §1224 is enacted to read: 
§1224. Criminal background checks 
Beginning October 1, 2009, a facility or health care provider subject to the licensing 
provisions of section 1203-A shall obtain, prior to hiringan 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. The facility or health care provider' shall 
pay for the criminal background check required by this section. 
The department may adopt rules necessary to implement this section. Rules adopted 
i 6 
pursuant to this section are routine technical rules as defined in Title 5, chapter 375, 
subchapter 2-A. 
. 
SUMMARY 
This bill requires licensed, certified or registered providers to secure a criminal 
background check prior to hiring or placing a person who will have direct contact with a 
consumer. Providers will pay for the criminal background checks. Some providers are 
currently required by statute to obtain criminal background checks, and this bill adds 
several more providers, including hospitals, nursing facilities, ambulatory surgical 
facilities, intennediate care facilities for persons with mental retardation, assisted housing 
programs, children's homes, end-stage renal disease facilities, drug treatment centers, 
child placing agencies, hospice programs, agencies and facilities providing mental health 
services, temporary nurse agencies and nursery schools. 
. 
This bill authorizes the Department of Health and Human Services to investigate 
corn plaints against temporary nurse agencies and provides enforcement mechanisms for 
violations. 
This bill requires the depar1ment to use.income from penalties to improve the quality 
. of care for residents of long-term care facilities. 
) 
) 
)