An Act To Amend Licensing and Certification Laws Administered by the Department of Health and Human Services
Maine Legislature, Session 125, LD 1537
Committee: Health and Human Services
Sponsors: STRANG BURGESS, CRAVEN, EVES, FOSSEL, MALABY, O'CONNOR, SANDERSON, SIROCKI, McCORMICK
Amends: 22 MRSA §1717, 22 MRSA §1812-G, 22 MRSA §1812-J, 22 MRSA §1815, 22 MRSA §2041, 22 MRSA §2042, 22 MRSA §2131, 22 MRSA §2138, 22 MRSA §2149-A, 22 MRSA §8606, 32 MRSA §2102, 32 MRSA §2104

Legislative Document 
No. 1537 
H.P. 1129 
House of Representatives, May 3, 2011 
An Act To Amend Licensing and Certification Laws Administered 
by the Department of Health and Human Services 
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. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative STRANG BURGESS of Cumberland. 
Cosponsored by Senator CRAVEN of Androscoggin and 
Representatives: EVES of North Berwick, FOSSEL of Alna, MALABY of Hancock, 
O'CONNOR of Berwick, SANDERSON of Chelsea, SIROCKI of Scarborough, Senator: 
McCORMICK of Kennebec. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  22 MRSA §1717, sub-§3, ¶A, as enacted by PL 2003, c. 634, §1, is 
amended to read: 
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; 
Sec. 2.  22 MRSA §1812-G, as amended by PL 2009, c. 590, §2, is further 
amended to read: 
§1812-G.  Maine Registry of Certified Nursing Assistants and Direct Care Workers 
1.  Established.  The Maine Registry of Certified Nursing Assistants and Direct Care 
Workers is established in compliance with federal and state requirements.  The 
Department of Health and Human Services shall maintain the registry. 
1-A.  Definitions. As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings. 
A.  "Certified nursing assistant" means an individual who has successfully completed 
an approved nursing assistant training program, holds a certificate of training and 
meets the eligibility requirements established by the State Board of Nursing for 
listing on the registry. 
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 to individuals 
in homes, assisted living programs, residential care facilities, hospitals and other 
health care and direct care settings. "Unlicensed assistive person" does and "direct 
care worker" do not include a certified nursing assistant employed in the capacity of a 
certified nursing assistant. 
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. 
3.  Eligibility requirements for listing.  The State Board of Nursing shall adopt 
rules pursuant to the Maine Administrative Procedure Act defining eligibility 
requirements for listing on the registry, including rules regarding temporary listing of 
nursing assistants who have received training in another jurisdiction.  The rules must 
permit nursing assistants to work under the supervision of a registered professional nurse 
in a facility providing assisted living services as defined in chapter 1664 and must 
recognize work in those facilities for the purpose of qualifying for and continuing listing 
on the registry.  Rules adopted regarding the work of nursing assistants in facilities 
providing assisted living services are routine technical rules as defined by Title 5, chapter 
375, subchapter 2-A. 
4.  Verification of credentials and training.  The department shall verify the 
credentials and training of all certified nursing assistant applicants to the registry. 
4-A.  Provider verification fee.  The department may establish a provider 
verification fee not to exceed $25 annually per provider for verification of a certified 
nursing assistant's credentials and training. Providers may not pass the cost on to the 
individual certified nursing assistant. Provider verification fees collected by the 
department must be placed in a special revenue account to be used by the department to 
operate the registry, including but not limited to the cost of criminal history record 
checks. The department may adopt rules necessary to implement this subsection.  Rules 
adopted pursuant to this subsection are routine technical rules as defined in Title 5, 
chapter 375, subchapter 2-A. 
5.  Verifying certified nursing assistant listing.  A health care institution, facility or 
organization that employs a certified nursing assistant shall, before hiring a certified 
nursing assistant, verify with the registry that the certified nursing assistant is listed on 
the registry. 
6.  Registry notations.  Except as otherwise provided in this section: 
A.    An individual may not be employed in a hospital, nursing facility, home health 
agency or assisted housing program as a certified nursing assistant if that individual 
has been convicted in a court of law of a crime involving abuse, neglect or 
misappropriation of property in a health care setting; and 
B.    An individual may not be employed in a hospital, nursing facility, home health 
agency or assisted housing program as a certified nursing assistant if that individual: 
 (1)  Has been the subject of a complaint involving abuse or neglect that was 
substantiated by the department pursuant to its responsibility to license hospitals, 
nursing facilities, home health agencies and assisted housing programs and that 
was entered on the registry; or 
 (2)  Has been the subject of a complaint involving the misappropriation of 
property in a health care setting that was substantiated by the department and 
entered on the registry. 
7.  Time limit on consideration of prior criminal conviction.  Except as otherwise 
provided in this section, an individual may not be employed in a hospital, nursing facility, 
home health agency or assisted housing program as a certified nursing assistant if that 
individual has a prior criminal conviction within the last 10 years of: 
A.    A crime for which incarceration of 3 years or more may be imposed under the 
laws of the state in which the conviction occurred; or 
B.    A crime for which incarceration of less than 3 years may be imposed under the 
laws of the state in which the conviction occurred involving sexual misconduct or 
involving abuse, neglect or exploitation in a setting other than a health care setting. 
8.  Exception.  The restrictions on employment under subsections 6 and 7 do not 
apply to an individual listed and active on the registry prior to the effective date of this 
subsection, as long as the individual meets other state and federal requirements for 
certified nursing assistants and continues to maintain an active status by timely 
reregistration as required by the rules. 
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. 
Sec. 3.  22 MRSA §1812-J, sub-§1, as enacted by PL 2009, c. 215, §2, is 
amended to read: 
1.  Definitions. As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings. 
A.  "Certified nursing assistant" means an individual who has successfully completed 
an approved nursing assistant training program, holds a certificate of training and 
meets the eligibility requirements established by the State Board of Nursing for 
listing on the registry. 
A-1.  "Abuse" means the willful infliction of injury, unreasonable confinement, 
intimidation or punishment with resulting physical harm, pain or mental anguish. 
A-2.  "Disqualifying criminal conviction" means a criminal conviction identified in 
rules adopted by the department that prohibit employment as an unlicensed assistive 
person. 
A-3.  "Health care and direct care settings" means settings in which a certified 
nursing assistant or unlicensed assistive person is providing direct care in that 
assistant's or person's capacity as a certified nursing assistant or an unlicensed 
assistive person. 
A-4.  "High severity" means the level, as established by the department by rule, of 
abuse, neglect or misappropriation of property of a client, patient or resident that 
forms the basis for a substantiated finding after investigation of a complaint against 
an unlicensed assistive person of abuse, neglect or misappropriation of property of a 
client, patient or resident. 
A-5.  "Indicated finding" means an administrative determination made by the 
department, after investigation of a complaint against an unlicensed assistive person 
of abuse, neglect or misappropriation of property of a client, patient or resident, that 
the abuse, neglect or misappropriation of property of a client, patient or resident was 
of low to moderate severity based on criteria established by the department by rule 
and that the person is not prohibited from employment as an unlicensed assistive 
person. 
A-6.  "Low to moderate severity" means the level, as established by the department 
by rule, of abuse, neglect or misappropriation of property of a client, patient or 
resident that forms the basis for an indicated finding after investigation of a complaint 
against an unlicensed assistive person of abuse, neglect or misappropriation of 
property of a client, patient or resident. 
A-7.  "Nondisqualifying criminal conviction" means a criminal conviction identified 
in rules adopted by the department that is included as a notation on the registry but 
does not prohibit employment as an unlicensed assistive person. 
B.  "Registry" means the Maine Registry of Certified Nursing Assistants and Direct 
Care Workers, which is a list of certified nursing assistants, with notations if 
applicable, and a list of unlicensed assistive persons with notations and is established 
under section 1812-G. 
C.  "State survey agency" has the same meaning as in section 1812-G, subsection 2, 
paragraph B means the agency specified in 42 United States Code, Sections 1395aa 
and 1396 responsible for determining whether institutions and agencies meet 
requirements for participation in the State's Medicare and Medicaid programs and 
authorized to investigate and substantiate complaints against certified nursing 
assistants. 
C-1.  "Substantiated finding" means an administrative determination made by the 
department, after investigation of a complaint against an unlicensed assistive person 
of abuse, neglect or misappropriation of property of a client, patient or resident, that 
the abuse, neglect or misappropriation of property of a client, patient or resident was 
of high severity based on criteria established by the department by rule. 
D.  "Unlicensed assistive person" or "direct care worker" means an individual 
employed to provide hands-on assistance with activities of daily living 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" includes but is 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" does and "direct care worker" do not include a certified 
nursing assistant employed in the capacity of a certified nursing assistant. 
E.  "Unsubstantiated finding" means an administrative determination made by the 
department, after investigation of a complaint against an unlicensed assistive person 
of abuse, neglect or misappropriation of property of a client, patient or resident, that 
no abuse, neglect or misappropriation of property of a client, patient or resident was 
found to support an indicated finding or a substantiated finding of abuse, neglect or 
misappropriation of property of a client, patient or resident. 
Sec. 4.  22 MRSA §1812-J, sub-§2-A is enacted to read: 
2-A.  Department decision after investigation of complaint.  Based on criteria 
established by rule, the department, after investigation of a complaint of abuse, neglect or 
misappropriation of property of a client, patient or resident, shall: 
A.  Make a substantiated finding; 
B.  Make an indicated finding; or 
C.  Make an unsubstantiated finding. 
Sec. 5.  22 MRSA §1812-J, sub-§3, as enacted by PL 2009, c. 215, §2, is 
amended to read: 
3.  Substantiated finding of complaint; registry listing.  When a complaint against 
an unlicensed assistive person is substantiated by the department and the unlicensed 
assistive person must be is listed on the registry pursuant to subsection 4, the department's 
decision becomes final agency action as defined in Title 5, section 8002, subsection 4.  
The department shall notify the employer of the unlicensed assistive person that a 
substantiated finding of a complaint has been listed as a notation on the registry. 
Sec. 6.  22 MRSA §1812-J, sub-§3-A is enacted to read: 
3-A.  Indicated finding of complaint; no registry listing.  An indicated finding by 
the department of a complaint against an unlicensed assistive person does not prohibit 
employment and is not listed as a notation on the registry.  The department's complaint 
investigation decision becomes final agency action as defined in Title 5, section 8002, 
subsection 4. 
Sec. 7.  22 MRSA §1812-J, sub-§6, as enacted by PL 2009, c. 215, §2, is 
amended to read: 
6.  Petition for removal of a substantiated finding of abuse, neglect or 
misappropriation of property.  No sooner than 12 months after the date a an abuse, 
neglect or misappropriation of property substantiated finding is placed on the registry, an 
unlicensed assistive person may petition the department to remove a notation from the 
registry if the substantiated complaint of abuse, neglect or misappropriation of property is 
a one-time occurrence and there is no pattern of abuse or, neglect or misappropriation of 
property. 
Sec. 8.  22 MRSA §1812-J, sub-§7, as enacted by PL 2009, c. 215, §2, is 
amended to read: 
7.  Prohibited employment based on substantiated complaint.  The following 
unlicensed assistive persons may not be employed or placed by a licensed, certified or 
registered agency or facility: 
A.  An unlicensed assistive person listed on the registry with a notation for a 
substantiated finding; or 
B.  An unlicensed assistive person who, while working as a certified nursing 
assistant, had a notation on the registry for a complaint that was substantiated finding 
of a complaint by the state survey agency for abuse or, neglect; or misappropriation 
of property of a client, patient or resident. 
C.  An unlicensed assistive person who, while working as a certified nursing 
assistant, had a notation on the registry for a complaint that was substantiated by the 
state survey agency for misappropriation of property in a health care setting. 
An employment ban based on a substantiated finding of a complaint is a lifetime 
employment ban. 
Sec. 9.  22 MRSA §1815, as amended by PL 2003, c. 507, Pt. C, §1 and affected 
by §4, is further amended to read: 
§1815.  Fees 
Each application for a license to operate a hospital, convalescent home or nursing 
home must be accompanied by a nonrefundable fee.  Hospitals shall pay $40 for each bed 
contained within the facility.  Nursing and convalescent homes shall pay $26 for each bed 
contained within the facility.  Each application for a license to operate an ambulatory 
surgical facility must be accompanied by the fee established by the department.  The 
department shall establish the fee for an ambulatory surgical facility, not to exceed $500, 
on the basis of a sliding scale representing size, number of employees and scope of 
operations. All licenses issued must be renewed annually, or for a term of years, as 
required by law upon payment of a like fee a renewal fee. Hospitals shall pay a $40 
renewal fee for each bed contained within the facility.  Nursing and convalescent homes 
shall pay a $26 renewal fee for each bed contained within the facility.  In the case of a 
license renewal that is valid for more than one year, the renewal fee must be multiplied 
by the number of years in the term of the license.  The State's share of all fees received by 
the department under this chapter must be deposited in the General Fund.  A license 
granted may not be assignable or transferable.  State hospitals are not required to pay 
licensing fees. 
Sec. 10.  22 MRSA §2041, sub-§5, as enacted by PL 1997, c. 658, §1, is amended 
to read: 
5.  ESRD facility.  "ESRD facility" includes a renal transplantation center, means a 
renal dialysis center or, a renal dialysis facility, a self-dialysis unit or a special-purpose 
renal dialysis facility. 
Sec. 11.  22 MRSA §2041, sub-§6, as enacted by PL 1997, c. 658, §1, is repealed. 
Sec. 12.  22 MRSA §2041, sub-§9, as enacted by PL 1997, c. 658, §1, is amended 
to read: 
9.  Self-dialysis unit.  "Self-dialysis unit" means a unit that is part of an approved 
renal transplantation center, renal dialysis center or renal dialysis facility and furnishes 
self-dialysis services. 
Sec. 13.  22 MRSA §2042, sub-§7, as enacted by PL 1997, c. 658, §1, is amended 
to read: 
7.  Minimum survey requirement.  An ESRD facility is not eligible for licensure or 
renewal of licensure unless the ESRD facility has had a Medicare survey or a state 
licensure survey within the previous year 24 months. 
Sec. 14.  22 MRSA §2131, sub-§1-A, as enacted by PL 2001, c. 494, §1, is 
amended to read: 
1-A.  Verifying certified nursing assistant eligibility.  A health care institution, 
facility or organization, including a temporary nurse agency employing a certified nursing 
assistant, shall, before hiring a certified nursing assistant, verify that the certified nursing 
assistant is listed on the Maine Registry of Certified Nursing Assistants and Direct Care 
Workers established under section 1812-G with no annotations to prohibit the hiring of 
that individual according to state and federal regulations. 
Sec. 15.  22 MRSA §2131, sub-§4, ¶A, as enacted by PL 2009, c. 621, §3, is 
amended to read: 
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 and Direct Care Workers established under section 
1812-G before hiring that certified nursing assistant pursuant to subsection 1-A 
commits a civil violation for which a fine of not less than $500 per day but not more 
than $10,000 per day may be adjudged.  Each day constitutes a separate violation. 
Sec. 16.  22 MRSA §2138, sub-§1, as enacted by PL 2009, c. 621, §5, is amended 
to read: 
1.  Subject of notation.  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 established 
under section 1812-G;  
Sec. 17.  22 MRSA §2149-A, sub-§2, ¶A, as enacted by PL 2003, c. 634, §4, is 
amended to read: 
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; 
Sec. 18.  22 MRSA §8606, sub-§1, ¶A, as enacted by PL 2003, c. 634, §10, is 
amended to read: 
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; 
Sec. 19.  32 MRSA §2102, sub-§8, ¶A, as amended by PL 1993, c. 600, Pt. A, 
§112, is further amended to read: 
A.    Has successfully completed a training program or course with a curriculum 
prescribed by the board, holds a certificate of training from that program or course 
and is listed on the Maine Registry of Certified Nursing Assistants and Direct Care 
Workers; or 
Sec. 20.  32 MRSA §2102, sub-§8, ¶B, as enacted by PL 1991, c. 421, §2, is 
amended to read: 
B.    Was certified before September 29, 1987 and is listed on the Maine Registry of 
Certified Nursing Assistants and Direct Care Workers. 
Sec. 21.  32 MRSA §2102, sub-§9, as corrected by RR 2001, c. 2, Pt. A, §42, is 
amended to read: 
9.  Maine Registry of Certified Nursing Assistants and Direct Care Workers.  
"Maine Registry of Certified Nursing Assistants and Direct Care Workers" has the same 
meaning as in Title 22, section 1812-G. 
Sec. 22.  32 MRSA §2104, sub-§4, as amended by PL 2009, c. 628, §3, is further 
amended to read: 
4.  Approval and monitoring of nursing assistant training curriculum and 
faculty. An educational institution or health care facility desiring to conduct an 
educational program for nursing assistants to prepare individuals for a certificate of 
training and subsequent listing on the Maine Registry of Certified Nursing Assistants and 
Direct Care Workers must apply to the Department of Health and Human Services and 
submit evidence: 
A.    That it is prepared to carry out the curriculum for nursing assistants as 
prescribed by the board; 
B.    That it is prepared to meet those standards established by the board; 
C.    That it is prepared to meet those standards for educational programming and 
faculty as established by the Department of Health and Human Services; and 
D.    With respect to an application by a health care facility, that an educational 
institution cannot provide a nursing assistant training program within 30 days of the 
application date. 
The Department of Health and Human Services shall issue a notice of approval to an 
educational institution or health care facility that meets the requirements of this 
subsection. 
SUMMARY 
This bill requires the Department of Health and Human Services to classify a finding, 
after an investigation of a complaint of abuse, neglect or misappropriation of property of 
a client, patient or resident against an unlicensed assistive person, as an unsubstantiated 
finding or as either an indicated or substantiated finding based on the level of abuse, 
neglect or misappropriation found by the department. 
An unsubstantiated or indicated finding is not listed as a notation on the Maine 
Registry of Certified Nursing Assistants and Direct Care Workers, whereas complaints 
that are substantiated are listed as notations on the registry. 
The department is required to establish criteria by rule to determine the level of 
abuse, neglect or misappropriation that warrants a finding that the complaint is indicated 
or substantiated. 
The bill clarifies that current hospital, convalescent home and nursing home licensing 
renewal fees are calculated by taking the amount of the renewal fee per bed multiplied by 
the number of beds in the facility, and multiplying that product by the number of years 
included in the term of the renewed license. 
This bill updates the laws concerning the licensing of end-stage renal disease 
facilities.  It changes the frequency of end-stage renal disease facility surveys from every 
year to every 24 months.